Citation Nr: 0815152 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 04-41 667A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness. 2. Entitlement to service connection for a respiratory disability with blackouts, to include as due to an undiagnosed illness. 3. Entitlement to an initial compensable disability rating for skin rashes. 4. Entitlement to a higher initial disability rating for migraine headaches, rated as 30 percent disabling from October 19, 2007 to present and rated as 10 percent disabling from March 23, 2004 to October 18, 2007. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD M. N. Hyland, Counsel INTRODUCTION The veteran had active duty from May 1988 to December 1991. The veteran had active duty service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board and was remanded in March 2007. FINDINGS OF FACT 1. The veteran had active military service in the Southwest Asia theater of operations during the Persian Gulf War. 2. The veteran does not have a current diagnosis of a memory loss disability. 3. There is no competent medical evidence of memory loss as a condition or symptom of an undiagnosed illness. 4. The veteran does not have a current diagnosis of a respiratory disability with blackouts. 5. There is no competent medical evidence of objective signs or symptoms of respiratory abnormalities with blackouts as a condition or symptom of an undiagnosed illness. 6. The veteran's service-connected skin rashes are manifested by a mild erythematous rash that covers less than one percent of the veteran's body and which does not require systemic corticosteroid or immunosuppressive treatment. 7. For the period from March 17, 2006 to present, the veteran's service-connected migraines are manifested by daily headaches and weekly prostrating attacks with no objective evidence of severe economic adaptability. 8. For the period from March 23, 2004 to March 16, 2006, the veteran's service-connected migraines were manifested by a history of occasional headaches with no evidence of characteristic prostrating attacks. CONCLUSIONS OF LAW 1. Service connection for a memory loss disability, to include as due to an undiagnosed illness, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2007). 2. Service connection for a respiratory disability with blackouts, to include as due to an undiagnosed illness, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2007). 3. The criteria for entitlement to a compensable disability rating for skin rashes have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.71(a), 4.118, Diagnostic Code 7806 (2007). 4. For the period from October 19, 2007 to present, the criteria for a disability rating in excess of 30 percent for service-connected migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.124(a), Diagnostic Code 8100 (2007). 5. For the period from March 17, 2006 to October 18, 2007, the criteria for a disability rating of 30 percent, but no higher, were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.124(a), Diagnostic Code 8100 (2007). 6. For the period from March 23, 2004 to March 16, 2006, the criteria for a disability rating in excess of 10 percent for service-connected migraine headaches were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.124(a), Diagnostic Code 8100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in her possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to a petition to reopen a finally decided claim, the VCAA requires VA to provide the veteran with notice of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VA may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, No. 03-320 (U.S. Vet. App. Mar. 22, 2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazques-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet. App. 37 at 5-6 (2008). In October 2003 and March 2007 letters, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate service connection, increased rating, and earlier effective date claims, as well as specifying what information and evidence must be submitted by him, what information and evidence will be obtained by VA, and the need for him to advise VA of or submit any further evidence that pertains to his claims. All the notices were not provided until after the rating decision on appeal was issued. However, the veteran was not prejudiced from this timing error because the veteran's claims were readjudicated in the November 2007 supplemental statement of the case after he received appropriate VCAA notice in the October 2003 and March 2007 VCAA letters. As such, the Board finds that the veteran had ample time to submit additional evidence after receiving proper VCAA notice and prior to readjudication of the claims. Thus, the Board finds that the essential fairness of the adjudication process was not affected by the VCAA timing error. The notices did not comply with all the requirements articulated in the holding of Vazquez-Flores v. Peake. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet. App. 37 ( 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, 22 Vet. App 37 at 9 (2008). In this case, the Board finds that a reasonable person could be expected to understand from the notice what was needed in spite of the notice error as the veteran was clearly notified of the rating criteria for rating skin and migraine disabilities in the September 2006 statement of the case and the March 2007 Board remand. Additionally, the Board finds that the essential fairness of the adjudication process was not affected by this error as the November 2007 supplemental statement of the case readjudicated the increased rating claims after the September 2006 statement of the case and the March 2007 Board remand and the veteran submitted a statement in January 2008 stating that he had no other evidence or information to submit with respect to his case. The RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claims. The record includes service records, private medical records, VA treatment records, and appropriate VA medical examinations. As such, the Board finds that the record as it stands includes sufficient competent evidence to decide these claims. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds no further action is necessary to assist the veteran with the claims. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the veteran regarding what further evidence [she] should submit to substantiate [her] claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims. Analysis Service Connection Claims Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2011, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. §1117; 38 C.F.R. §3.317(a)(l). Manifestations of an undiagnosed illness include cardiovascular and joint pain signs or symptoms. See 38 C.F.R. §3.317(b). In Gutierrez v. Principi, 19 Vet. App. 1 (2005), the Court observed that when promulgating the applicable regulation, "VA noted that the 'regulation does not require that physicians make such a diagnosis [of an undefined disease]. Physicians should simply record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis where possible. If the signs and symptoms are not characteristic of a known clinical diagnosis, the physician should so indicate. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. §3.317(a)(2-5). Manifestations of an undiagnosed illness include, but are not limited to, fatigue, skin lesions, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, menstrual disorders, and "medically unexplained chronic multisymptom illness," such as fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome. See 38 C.F.R. § 3.317(b). Memory Loss The record reflects repeated complaints of memory loss since the veteran's separation from active duty service. The veteran attributes these complaints to his service in the Southwest Asia theater of operations during the Persian Gulf War, and requests service connection for the claimed disorder. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. An April 2006 VA examination report shows that the veteran complained of trouble with his memory. While the report reflects that testing revealed a general memory index of 67 which was in the extremely impaired range but that during the interview, the veteran's memory appeared to be reasonably good. The examiner noted that taken as a whole, the test data appeared to not accurately reflect the veteran's actual cognitive capacity as there was some evidence of exaggerated symptomatology from psychological, medical and neurological standpoints. A March 2006 VA examination report states that the veteran's subjective complaints of memory problems were as likely as not a part of his mental symptoms. An October 2007 VA examination report shows that the veteran reported complaints associated with memory loss. The veteran claimed to not remember people he met and to not even remember his sister's wedding. However, and similar to the earlier clinical findings, the examiner's assessment showed that during the interview, the veteran was able to easily provide a consistent history when asked to do so. The examiner noted that while the veteran made a point of saying he has past memory of but not current memory of events; however, he was easily able to recall his stepdaughter's and daughter's ages. The examiner stated that the veteran's memory function appeared to be intact with respect to immediate and remote recall of events and factual information. In her summary, the examiner stated that there was no evidence of a memory disorder on examination. The examiner noted that in spite of the veteran's claimed inability to recall people's names, the veteran spoke to an employee by name as he was leaving the office. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the claimant will be given the benefit of the doubt. 38 U.S.C.A. § 5107(b). The preponderance of the competent medical evidence of record does not show that the veteran has a memory disability, but that he instead has exaggerated his symptoms in an effort to obtain service-connected compensation. Service connection cannot be established on without a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, the competent medical evidence of record does not show that the veteran has objective signs and symptoms of memory loss not attributable to a known diagnosis. As such, entitlement to service connection is not warranted under the presumptive provisions relating to veterans who had active service in the Southwest Asia theater of operations during the Persian Gulf War. See Generally 38 U.S.C.A. §1117; 38 C.F.R. §3.317(a)(l). In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Respiratory Disability with Blackouts The veteran's service medical records show that he was seen in April 1991 for difficulty breathing and a history of blackouts on two prior occasions. He reported similar complaints in May 1991, but no diagnosis was made. A December 1993 VA outpatient treatment record notes the veteran's complaints of shortness of breath. An entry dated in April 1994 also notes his complaints involving shortness of breath and dizzy spells, neither of which was attributed to a known clinical diagnosis. Private treatment records also note the veteran's complaints of chest pain without a diagnosis. A November 2003 record includes a diagnostic assessment of atypical chest pain believed to be musculoskeletal in nature. A May 2005 report from C.H., M.D., notes that the veteran's non-cardiac chest pain may be secondary to esophageal motility disorder versus gastrointestinal reflux with associated spasm. An October 2007 VA examination report shows that the veteran complained of breathing problems, chest pain, shortness of breath, dizziness and blackouts. The examiner noted the veteran had "subjective complaints" of respiratory problems, chest pains and blackouts. The veteran himself reported that the blackouts had improved and that he had not had any since the previous year. The examiner stated that the veteran's complaints were subjective and less likely as not attributable to a known diagnosis and less likely as not the signs and symptoms of undiagnosed illness. The examiner noted that he could not state, without resorting to mere speculation, whether the veteran has any unexplained chronic multi-system illness as a consequence of service in the Persian Gulf War. The examiner noted that there is no objective evidence that the veteran has a chronic disability involving the cardiac or respiratory systems or "blackout" symptoms. Finally, the examination report shows that cardiovascular stress testing and echocardiogram revealed no cardiovascular abnormalities. There are no contrary medical opinions of record. The competent medical evidence of record does not show that the veteran has a respiratory disability with blackouts, and to establish such a disorder would as the examiner reported require resort to speculation. The law provides that service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993). It has been observed that statements from doctors which are inconclusive as to the origin of a disease can not be employed as suggestive of a linkage between the current disorder and the claimed incident of military service. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). Additionally, there is no competent medical evidence of record which attributes the veteran's subjective complaints of respiratory disability with blackouts to either an undiagnosed illness or to the veteran's active duty service period. The October 2007 VA examination report shows that the examiner noted only subjective complaints with no objective evidence that the veteran has a chronic disability involving the cardiac system, the respiratory system, or blackouts. The examiner also stated that the veteran's complaints are less likely as not the signs and symptoms of undiagnosed illness. The examiner noted that he could not state, without resorting to mere speculation, whether the veteran has any unexplained chronic multi-system illness as a consequence of service in the Persian Gulf War. As such, entitlement to service connection is not warranted under the presumptive provisions relating to veterans who had active service in the Southwest Asia theater of operations during the Persian Gulf War. See Generally 38 U.S.C.A. §1117; 38 C.F.R. §3.317(a)(l). In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Increased Rating Claims Disability ratings are determined by the application of the Schedule For Rating Disabilities, which is based on the average impairment of earning capacity resulting from a service-connected disability. 8 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet .App. 589 (1995). Since the veteran is appealing the original assignment of a disability rating following an award of service connection, the severity of his service-connected disorder is to be considered during the entire period from the initial assignment of the rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Skin Rashes The veteran's disability has been rated by the RO as analogous to dermatitis or eczema and has been rated under the provisions of Diagnostic Code 7806. See 38 C.F.R. § 4.20 (When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous.). Under the rating criteria for Diagnostic Code 7806, a 10 percent disability rating is warranted when there is at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12- month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. VA treatment records show multiple instances of a rash on various parts of the veteran's body. A March 2006 VA examination report shows that the veteran complained of a rash. On examination, there was a mild erythematous rash over the veteran's right eye, but no blisters were noted. There was a mild tinea infection noted on his feet. Overall, the veteran's skin condition affected less than one percent of his body. An October 2007 VA examination report shows that the veteran reported a recurring rash on his legs, neck and wrists that sometimes includes blisters. The veteran treated his rash with creams but denied being prescribed any systemic corticosteroid or immunosuppressive treatment. On physical examination, the veteran had mild erythematous patches of rash in the right thigh medially, and also over the right side of the neck. There was one small blister evident and the examiner stated that the rash involved less than one percent of the veteran's exposed area. After reviewing all of the relevant competent medical evidence of record, the Board finds that there is no evidence that the veteran's service-connected skin rash affects at least 5 percent, but less than 20 percent, of the veteran's entire body, or at least 5 percent, but less than 20 percent, of the veteran's exposed areas or that the rash requires treatment with intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs in order to warrant a compensable disability rating of 10 percent or higher for the veteran's skin rash. In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Migraines Diagnostic Code 8100 dictates that a 10 percent disability rating is warranted for headaches with characteristic prostrating attacks averaging once in two months over the last several months. A 30 percent rating may be assigned upon a showing of migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months, and a 50 percent rating may be assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124(a), Diagnostic Code 8100. A March 17, 2006 VA examination report reflects that the veteran reported a history of occasional headaches in November 2003 but at the same time denied any recent headaches. At the March 2006 VA examination, the veteran reported consistent, daily headaches with photophobia and weekly incapacitating episodes. An October 2007 VA examination report shows that the veteran reported daily headaches and incapacitating episodes daily that last three to four hours. The examiner noted that the veteran's recent VA treatment records show very little treatment for headaches. The examiner stated that since the veteran's complaints of headaches were subjective, he could not state, without resorting to mere speculation, whether or not the headaches resulted in severe economic adaptability. The evidence shows that in 2003, the veteran reported only a history of occasional headaches. However, at the March 17, 2006 VA examination, the veteran reported daily headaches with weekly incapacitating episodes and he reported similar symptoms at the October 2007 VA examination. As such, the Board finds that, after resolving the benefit of the doubt in favor of the veteran under the provisions of 38 U.S.C.A. § 5107(b), for the time period from March 23, 2004 March 16, 2007, a disability rating in excess of 10 percent is not warranted, but for the time period from March 17, 2006 to present, a disability rating of 30 percent is warranted for the veteran's service-connected migraines disability. However, at no point is a 50 percent disability rating warranted because there is no objective evidence of severe economic adaptability. Although the veteran complained of daily headaches that limited his ability to work at the October 2007 VA examination, the examiner was unable to determine if the veteran's headaches resulted in severe economic adaptability without resorting to mere speculation. As such, a disability rating in excess of 30 percent is not warranted for the veteran's migraine headaches disability at any point during the appeal period. ORDER Service connection for memory loss, to include as due to an undiagnosed illness, is denied. Service connection for a respiratory disability with blackouts, to include as due to an undiagnosed illness, is denied. An initial compensable disability rating for skin rashes is denied. An initial disability rating in excess of 30 percent for migraine headaches from October 17, 2007 to present is denied. An initial disability rating of 30 percent for migraine headaches from March 17, 2006 to October 16, 2007 is granted. Entitlement to an initial disability rating for migraine headaches in excess of 10 percent from March 23, 2004 to March 16, 2006 is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs