DocketNumber: 210702-169963
Filed Date: 9/30/2021
Status: Non-Precedential
Modified Date: 11/2/2021
Citation Nr: AXXXXXXXX Decision Date: 09/30/21 Archive Date: 09/30/21 DOCKET NO. 210702-169963 DATE: September 30, 2021 REMANDED Entitlement to an initial compensable rating for service-connected migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1964 to July 1968. The rating decision on appeal was issued in May 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the July 2021VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal.38 C.F.R. § 20.301
(2020). As will be explained, the appeal must be remanded so that the AOJ can correct a duty to assist error that occurred prior to the May 2021 rating decision on appeal. See38 C.F.R. § 20.802
(a) (2020). The most recent examination to assess the current nature and severity of the Veteran's service-connected migraine headaches occurred in April 2014. During the examination, the Veteran reported pain, sensitivity to sound, changes in vision, and sensory changes during a migraine attack, and he indicated that his symptoms lasted for twenty-four hours. However, a July 2018 private treatment record noted that the Veteran's migraine headaches caused him to be unable to read, that they caused tunnel vision, that they were accompanied with pressure and aching, and that they lasted for thirty-six hours at a time. Before assigning a noncompensable initial rating for the Veteran's headaches in the May 2021 rating decision, the AOJ should have secured an updated examination given the suggestion in the record that his disability had worsened in severity since his last examination. Thus, on remand, the Veteran should be afforded a new VA examination that addresses the nature and severity of his service-connected migraine headaches. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected migraine headaches. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The examiner should take a history from the Veteran as to the nature and severity of his service-connected migraine headaches. Any indicated evaluations, studies, and tests, should be conducted. The examiner is to describe all symptoms associated with the Veteran's service-connected migraine headaches, to include the frequency and whether they are associated with prostrating attacks. If prostrating attacks are present, then the examiner is to note the frequency of these attacks and indicate whether they result in severe economic inadaptability. In addressing the nature and severity of all current manifestations of his migraine headaches, the examiner should take into consideration all of the evidence of record, to include any medical records, lay statements, accepted medical principles, and objective medical findings. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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
.