Citation Nr: 22040159 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 14-38 481 DATE: July 13, 2022 REMANDED Entitlement to an initial compensable evaluation for tension headaches prior to April 17, 2018, is remanded. Entitlement to an initial evaluation in excess of 30 percent for tension headaches on or after April 17, 2018, is remanded. REASONS FOR REMAND The Veteran served in the Puerto Rico Army National Guard and had periods of active duty from October 1980 to October 1984, from December 1990 to September 1991, from February 2003 to August 2003, and from April 2010 to April 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for tension headaches and assigned a noncompensable evaluation effective from May 16, 2011. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2018. A transcript is of record. The Board remanded the case for further development in February 2019. The case has since been returned to the Board for appellate review. During the pendency of the appeal, in a March 2021 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation for tension headaches to 30 percent effective from April 17, 2018. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher initial evaluation for tension headaches remains on appeal. The Board also notes that the appeal had originally included the issue of entitlement to service connection for an acquired psychiatric disorder. However, in the March 2021 rating decision, the AOJ granted service connection for posttraumatic stress disorder (PTSD). The grant of service connection constitutes a full award of benefits sought on appeal with respect to this issue. See Grantham v. Brown, 114 f.3d 1156, 1158 (Fed. Cir. 1997). Therefore, the issue is no longer on appeal. In a May 2022 letter, the Board sent a letter to the Veteran a letter requesting clarification regarding representation. He was notified that there was a discrepancy and that, if he or a new representative did not respond within 30 days, the Board would assume that he wished to represent himself. To date, there has been no response. Upon review, the Board finds that additional development is needed prior to adjudication of the issues remaining on appeal. A March 2018 VA examiner noted the Veteran's report that he has needed to leave his job and that his headaches affect his concentration. However, the examiner indicated that his headaches have a duration of less than one day and that he does not have characteristic prostrating attacks. During the April 2018 hearing, the Veteran testified that it sometimes takes two days to recover and that he has headaches two to three times per week. He also stated that he has to leave work once per month and has difficulty driving. In February 2019, the Board remanded the case, in pertinent part, for a VA examiner to address the frequency and duration of any characteristic prostrating attacks caused by the Veteran's service-connected tension headaches and to discuss whether he has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Thereafter, during a November 2020 VA examination, the Veteran reported experiencing three to four migraine attacks weekly with a duration of one and a half days, which caused light and sound sensitivity, vertigo, and nausea. He also indicated that, if he is unable to be absent from work, he rests in a dark room that is available to him. The examiner found that there had been a worsening of the symptoms and found that the Veteran has characteristic prostrating attacks, but he did not specify the frequency. He also indicated that the Veteran does not have very prostrating and prolonged attacks productive of severe economic inadaptability. However, he did not provide any rationale for his conclusion. In a separate medical opinion, the November 2020 VA examiner noted that the Veteran reported having two to three migraine attacks weekly with a duration of one and a half days, requiring a dark room and medication to improve symptoms. He reiterated that the Veteran does not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. However, he still did not provide any rationale for that finding. Therefore, the Board finds that an additional VA examination is needed to ascertain the severity and manifestations of the Veteran's service-connected tension headaches. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for headaches that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected tension headaches. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the April 2018 hearing transcript. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the disability under the rating criteria. In particular, the examiner should state the frequency and duration of any characteristic prostrating attacks. He or she should also address whether the Veteran has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. It should be noted that, under the law, the term "productive of economic inadaptability" could have either the meaning of "producing" or "capable of producing" economic inadaptability. Further, "economic inadaptability" does not mean unemployability. In rendering this opinion, the examiner should consider the lay statements regarding the frequency, severity, and duration of the Veteran's headaches and provide rationale for his or her findings. In particular, if the examiner finds that the Veteran does not have very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, he or she should provide an explanation. 3. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Kuczynski, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.