Citation Nr: 1760253
Decision Date: 12/27/17 Archive Date: 01/02/18
DOCKET NO. 13-19 772 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana
1. Entitlement to an increased disability rating for a disfiguring scar above the left eyebrow, currently evaluated at 10 percent.
2. Entitlement to an increased disability rating for migraine headaches, currently evaluated at 30 percent.
3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities.
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
B. P. Keeley, Associate Counsel
The Veteran served on active duty in the United States Air Force from July 2001 to July 2005.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.
The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an August 2017 Travel Board hearing. A transcript of that hearing has been associated with the claims file.
When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). At the August 2017 Board hearing, the Veteran asserted that she can no longer work due to her service-connected disabilities. Accordingly, TDIU is before the Board and is on appeal at this time.
A request for a TDIU due to the service-connected right knee disability has been reasonably raised by the record and is part of the claim on appeal for increased compensation for the right knee disability.
At the August 2017 Board hearing, the Veteran indicated that she believed PTSD was part of this appeal. The Veteran filed a Notice of Disagreement initiating an appeal of the January 2013 PTSD rating issue, and a subsequent Statement of the Case (SOC) was filed in October 2016. As of December 2017, the Veteran has not filed a VA 9 in response to this SOC and, as such, the issue of an increased rating for PTSD is not before the Board.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
Left Eyebrow Scar
The Veteran maintains that she is entitled to an increased disability rating for her disfiguring scar above the left eyebrow.
The Veteran’s left eyebrow scar was last examined for rating purposes at a VA general medical examination in January 2011. With regard to her left eyebrow scar, it was described as question mark shaped, slightly raised, shiny, across her left eyebrow, and measured at .1 centimeter by 3 centimeters. Tenderness and skin breakdown were not noted.
The Board notes that the January 2011 examiner did not thoroughly comment on the symptoms as assessed under the rating criteria for scars under 38 C F R § 4.118, DCs 7800 to 7805. Here, the examiner did not comment on the depth or any resultant limitations of function. As such, the need for a thorough and contemporaneous evaluation, as well as the age of the last examination, weigh in favor of remand for a new examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also, Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (observing that where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted); see also 38 C.F.R. § 3.326 (a).
The Veteran maintains that she is entitled to an increased disability rating for her migraine headaches.
The Board notes the Veteran’s migraine disability was last examined by VA for rating purposes in January 2011, at which time the Veteran reported experiencing three to four headaches per week, each lasting a few hours to a whole day, with light and sound sensitivity, as well as occasional nausea. The Veteran further reported having lost one to two weeks of work over the prior year.
The Veteran testified at the August 2017 hearing that at times she couldn’t report to work due to her migraines which at one point required receiving shots. The Veteran reported light sensitivity and stated that “[t]he anxiety itself and the pain is hard to actually physically function when you’re in that much pain when it hurts to move, to breathe, every noise hurts.”
Here, the Board finds that though the Veteran has provided some testimony regarding her migraine symptoms, that testimony was intermingled with her anxiety disability symptoms, which is not on appeal. As such, the need for a thorough and contemporaneous evaluation, as well as the age of the last examination, weigh in favor of remand for a new examination. Weggenmann.
The Veteran asserts that due to the effects of her service-connected disabilities, she has been rendered unemployable.
The Board notes that the record consists of periods of employment and attendance of classes at a university. However, the record also indicates the Veteran has experienced increasing agoraphobia and has more recently acquired a service dog due to her disabilities. It is not clear from the record whether the Veteran is currently attending university, whether in person or online.
A March 2014 VA treatment record notes the Veteran reported intermittent anxiety and panic attacks. Additionally, the Veteran had been attending college full time, but was taking the current semester off due to low grades, and intended to resume in the summer. The Veteran further stated she might switch from UTA to an online school.
A February 2015 VA treatment record notes the Veteran mood was improving but was experiencing worsening anxiety and nightmares. The Veteran stated an intention to start school again and reported that she enjoys spending time at Starbucks.
An August 2015 VA treatment record notes the Veteran reported she had “been much better” since receiving a service dog, as it gives her a sense of security and safety. Upon examination, it was noted that the Veteran’s mood was stable and that symptoms of her PTSD and depression were at baseline.
An October 2015 VA treatment record notes the Veteran reported significant difficulty managing social situations and had a “severe panic attack just going to Target to get pet food.”
It is not clear from the record whether the Veteran is currently attending university, whether in person or online, or the current level of agoraphobia experienced by the Veteran. The Board finds that, on remand, a TDIU examination should be obtained to properly ascertain the functional and occupational impact of her service-connected disabilities. Friscia v. Brown, 7 Vet. App. 294 (1995) (VA has a duty to supplement the record by obtaining an examination that includes an opinion as to the effect of the veteran’s service-connected disabilities on his ability to secure or follow a substantially gainful occupation).
Accordingly, the case is REMANDED for the following action:
1. Obtain all outstanding VA treatment records. All records obtained must be associated with the record.
2. After, and only after, completion of step one above, arrange for the Veteran to undergo VA examinations with appropriate physicians to assess the current manifestations and severity of the Veteran’s migraine headaches and left eyebrow scar disabilities.
The examiner(s) must review the Veteran’s claims file and elicit a full history from the Veteran regarding her claimed disabilities. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.
a. For the Veteran’s left eyebrow scar disability:
The examiner must comment on the following:
In square inches and square centimeters, what is the size of the scar?
Is the scar superficial or deep?
Is the scar tender or painful on examination?:
Is the scar unstable?
Does the scar cause limitation of function?
3. After, and only after, completion of steps one and two above, arrange for the Veteran to undergo a VA examination to determine the impact of her service-connected disabilities on her employability. The examiner must review the Veteran’s claims file and elicit a full history from the Veteran regarding her service-connected disabilities. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Further, the examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history. Based on the review of the claims file, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain employment due only to her service-connected disabilities, consistent with her education and occupational experience, irrespective of age and any nonservice-connected disorders.
The examiner’s attention is invited to the numerous statements made by the Veteran regarding agoraphobia, as well as her statements indicating her attendance and intentions for future attendance at a college or university.
All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate).
4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans’ Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).