Citation Nr: 18160416
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 09-18 560
DATE:	December 27, 2018
REMANDED
Entitlement to service connection for hypertension is remanded.
Entitlement to a rating in excess of 50 percent for migraine headaches on an extraschedular basis is remanded.
Entitlement to an effective date prior to September 20, 2010, for the award of a total disability rating based on individual unemployability (TDIU) is remanded.
Entitlement to an earlier effective date prior to September 20, 2010, for the award of Chapter 35 Dependents' Educational Assistance (DEA) benefits is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1969 to August 1969.
1. Entitlement to service connection for hypertension is remanded.
2. Entitlement to a rating in excess of 50 percent for migraine headaches on an extraschedular basis is remanded.
3. Entitlement to an effective date prior to September 20, 2010, for the award of a TDIU is remanded.
4. Entitlement to an earlier effective date prior to September 20, 2010, for the award of DEA benefits is remanded.
Initially, remand is appropriate to obtain outstanding treatment records.  The Board notes that the Veteran’s claims file contains VA treatment records from September 2001 to December 2008, April 2009 to November 2010, February 2011 to April 2011, and May 2012 to March 2018.  The treatment records note an appointment scheduled with neurology for December 2008 to address the Veteran’s complaints of dizziness, unsteadiness, and occasional falls that he reported as side effects of his migraine medication.  See, e.g., December 2008 VA Treatment Note.  However, the December 2008 VA neurology treatment record is not in the Veteran’s claims file.  On remand, any additional VA treatment records should be obtained, including the December 2008 VA neurology treatment record, and records from December 2008 to April 2009, November 2010 to February 2011, April 2011 to May 2012, and March 2018 to the present.  
As to service connection for hypertension, in a July 2018 statement, the Veteran asserted that his hypertension is secondary to his service-connected migraine headache disability.  He submitted materials regarding a link between migraines and hypertension.  Accordingly, remand is appropriate to obtain further VA medical opinion.  
As to an extraschedular rating for migraines, additional development is warranted regarding the Veteran’s complaints of loss of balance.  See October 2008 Veteran’s Statement.  On remand, VA medical opinion should be obtained regarding whether there are objective findings supporting a diagnosis of vestibular disequilibrium at any time during the appeal period.
As to earlier entitlement to TDIU, the record contains incomplete information regarding the Veteran’s employment during the relevant period.  The Veteran filed a claim for an increased rating for migraines in January 2008.  The Veteran reported that he has not worked “full-time” or “actively” since September 2008, but that he continued to have his real estate license and had fellow agents handle work for him.  See July 2018 and May 2018 Veteran’s Statements.  He has also reported that he was only able to produce occasional nominal income from employment.  See March 2015 Veteran’s Statement.  The Veteran’s TDIU application and supporting statement indicate that he could no longer hold regular hours or substantially gainful employment because of his migraine headache disability, but that he was still employed as a realtor.  See October 2008 Request for Employment Information; October 2008 TDIU Application.  The Veteran’s vocational rehabilitation documents note that the Veteran last worked full-time as a realtor in 2011.  Accordingly, remand is appropriate.  The Veteran should be offered the opportunity to submit information regarding the nature, hours, and income relating to any employment from 2008 to 2010, when he began receiving TDIU benefits.  
The Veteran’s claim for an earlier effective date for the award of DEA benefits is inextricably intertwined with claim for an earlier effective date for TDIU, and is therefore remanded.  Harris v. Derwinski, 2 Vet. App 180, 183 (1991).
The matters are REMANDED for the following action:
1. Obtain any additional VA treatment records, including the December 2008 VA neurology treatment record, and records from December 2008 to April 2009, November 2010 to February 2011, April 2011 to May 2012, and March 2018 to the present.  
2. Provide a VA Form 21-8940 to the Veteran and ask him to provide information for 2008 to 2010.  Ask the Veteran to provide IRS tax returns for such period along with a statement that the copy is an exact duplicate of the return filed with the IRS.  Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA.  Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above.  He should submit tax records for the years he claims he is unable to obtain and maintain substantially gainful employment.  
3. After obtaining any outstanding records, ask the July 2017 VA examiner or another appropriate examiner to review the Veteran’s file.  The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner.  
The examiner should opine whether it is at least as likely as not that the Veteran’s hypertension is aggravated by his service-connected migraine disability.
The examiner should consider all medical and lay evidence of record.
The Veteran asserted that his hypertension is secondary to his service-connected migraine headache disability.  He submitted materials regarding a link between migraines and hypertension.
A complete rationale should be given for all opinions and conclusions expressed.
4. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file regarding the Veteran’s complaints of dizziness, unsteadiness, and occasional falls.  The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner.  
The examiner should opine as to whether there are objective findings supporting a diagnosis of vestibular disequilibrium at any time during the appeal period (from January 2008 to the present).  
If so, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is related to the Veteran’s service-connected migraine disability, to include medications taken for such disability.  
If the Veteran has a diagnosis of vestibular disequilibrium related to his migraines, the examiner should evaluate the severity of the Veteran’s vestibular disequilibrium, including under the applicable rating code.
The examiner should consider all medical and lay evidence of record.
A complete rationale should be given for all opinions and conclusions expressed.
5. After completing the above, refer the claim for extraschedular evaluation for migraines to the Under Secretary of Benefits or Director of Compensation and Pension, pursuant to 38 C.F.R. § 3.321(b)(1). 
6. After completing the above, and any other development deemed appropriate, the Veteran’s claims should be readjudicated.  If any relief sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.
 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Purcell, Associate Counsel

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