Citation Nr: 1303200 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-00 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 30 percent for migraine headaches. 3. Entitlement to a rating in excess of 10 percent for chronic lumbosacral strain. 4. Entitlement to a rating in excess of 10 percent for chronic cervical strain. 5. Entitlement to service connection for pain on the left side, claimed as due to a lightning strike. 6. Entitlement to service connection for sleep apnea. 7. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from May 1979 to January 1981, from May 1-3, 1998, and from January to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2006, October 2008, July 2009 and January 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In June 2012, the Veteran presented testimony relevant to his appeal before the undersigned Veterans Law Judge at a Board hearing held at the above RO. A transcript of the hearing is of record. The Board received additional medical evidence from the Veteran after issuance of the March 2012 supplemental statement of the case (SSOC) and on the day of the Board hearing. At the Board hearing, he waived his right to the RO's initial consideration of the evidence submitted since issuance of the statement of the case (SOC). 38 C.F.R. §§ 19.9, 20.1304(c) (2012). Accordingly, the Board will consider the new evidence in the first instance in conjunction with the issues on appeal. Notably, additional medical evidence has been received since the Board hearing, which was not accompanied by waiver. However, the evidence pertains to the Veteran's lumbar spine disability, which is being remanded for reasons explained below. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. The issues of increased ratings for lumbosacral strain, cervical strain, and TDIU, as well as service connection for pain on the left side and sleep apnea are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. PTSD is manifested by no more than mild symptoms. 2. Migraine headaches are manifested by headaches varying between daily and 2-3 times per week; completely prostrating and prolonged attacks productive of severe economic inadaptability have not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD have not been met or approximated for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2012). 2. The criteria for a rating in excess of 30 percent for migraine headaches have not been met or approximated for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, DC 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked items of evidence not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Where an increase in an existing rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD The Veteran's PTSD is evaluated as 50 percent disabling under the criteria found at 38 C.F.R § 4.130, DC 9411. Psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders. Upon review, the Board finds no other appropriate diagnostic code and/or rating schedule under which it would be appropriate to evaluate his psychiatric disability. Under the General Rating Formula for Mental Disorders, a 50 percent rating is prescribed when there is evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2012). A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the Diagnostic and Statistical Manual of Mental Disorders at 32 (4th ed. 1994) (DSM-IV)). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the rating schedule. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. The Court has held that when a claimant has both service-connected and non-service-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, the Board has considered all of the Veteran's psychiatric symptoms and diagnoses in reaching its decision regarding entitlement to an increased rating when not easily distinguishable. After review of the evidentiary record, the Board finds that the preponderance of the evidence weighs against finding that the Veteran's current psychiatric disability picture more closely approximates occupational and social impairment with deficiencies in most areas due to psychiatric symptomatology so as to entitle him to a 70 percent rating. Regarding occupational impairment, the Board notes that the Veteran was determined to be disabled since January 2006 by the Social Security Administration (SSA) and is in receipt of social security disability benefits. The SSA attributed his disability to a psychiatric disorder, as well as other medical disabilities. However, when reviewing his psychiatric symptomatology apart from other disabilities, the evidence does not show that PTSD results in any significant occupational impairment. Specifically, when the Veteran underwent a VA PTSD examination in November 2009, the examiner noted that the Veteran's symptoms were "quite mild" and that his greatest distress seemed to be focused on his medical disabilities. The examiner further wrote that the pain caused by migraines and experienced in the knee and back were much more prominent than his complaints of PTSD symptoms. The examiner concluded that there was no evidence that PTSD was impacting the Veteran's ability to be employed and, consequently, it did not appear to have any impact on his physical or sedentary employment. The examiner's medical opinion clearly weighs against finding that PTSD results in any occupational impairment beyond what is currently-contemplated by the 50 percent rating. Similarly, when the Veteran underwent further psychiatric examination in February 2012, the examiner considered the Veteran's work history and psychiatric complaints and found that there was no obvious impairment of ability to work from a psychiatric vantage point. The examiner also noted that there were no psychiatric conditions that would result in an inability to work or otherwise impair his vocational capacity. Again, this examiner's medical opinion, which suggests that the Veteran's psychiatric disability results in little if any occupational impairment, weighs heavily against finding that PTSD results in any occupational impairment beyond what is currently-contemplated by the 50 percent rating. Thus, while the Veteran is shown to be in receipt of social security disability benefits due, in part, to psychiatric disability, VA PTSD examiners who have evaluated him in connection with his appeal have found no significant impairment due to psychiatric disability. The medical opinion evidence shows no deficiency in the area of work beyond what is already contemplated in the currently assigned 50 percent rating. Additionally, regarding social impairment, the Veteran told the November 2009 VA PTSD examiner that he had been married for sixteen years and had two sons from the marriage, ages 10 and 14, and a 25-year old stepson. He also stated that he went to the movies, liked to see friends, and attended church two to three times per week. He further stated that several activities that he would like to do required more physical capability than he was able to do. The Veteran's lengthy marriage to his wife (later described as supportive at the February 2012 examination), his routine engagement in social activity (i.e., attending church several times per week), and admitted enjoyment spending time with friends does not indicate any significant social impairment due to psychiatric symptomatology to warrant an increased evaluation. The February 2012 VA PTSD examiner noted that there had been no change in the Veteran's social situation since the last examination. The examiner related that the Veteran depended on his wife for support and described her as understanding of his condition. The examiner also wrote that the Veteran maintained contact with his children, siblings, and father, and only tended to avoid social contact due to his chronic pain. The examiner then noted that there was minimal social impairment from a psychiatric vantage point and significant impairment due to allegations of chronic pain and orthopedic limitations. This evidence further weighs against the assignment of a higher rating for PTSD. Thus, as it relates to social impairment, VA PTSD examiners have again found no significant impairment due to psychiatric disability. To the extent that social avoidance is present, it has been attributed to medical problems and not psychiatric disability. The Veteran's own admission at the November 2009 VA PTSD examination that he would participate in various activities if he did not have physical limitations further supports the conclusion. Furthermore, during the period, he has enjoyed a supportive relationship with his wife, maintained contact with his children and living parent, regularly attended church, and enjoyed spending time with friends. Such evidence does not indicate that an increased rating is warranted. The degree of social impairment demonstrated is already contemplated in the 50 percent rating. Moreover, regarding psychiatric symptomatology, the Board notes that the February 2012 VA PTSD examiner noted that the Veteran's psychiatric disability was manifested by depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood at the February 2012 PTSD examination. Notably, all of the symptoms identified are contemplated in the schedular criteria for the lesser 30 percent or the current 50 percent rating. Additionally, at the prior November 2009 VA PTSD examination, the Veteran reportedly had poor sleep, anxiety, decreased energy, poor attention and concentration, occasional intrusive thoughts or memories, avoidance of storms and barbecues, and occasional irritability. He is not shown to have any of the symptomatology contemplated in higher schedular ratings under the General Rating Formula for Mental Disorders at any time relevant to the period at issue. Moreover, GAF scores assigned by mental health professionals during the period have ranged from 57 to 60, which reflects moderate symptoms and/or a moderate level of impairment due to psychiatric symptomatology. Although not currently employed and on social security disability benefits, VA PTSD examiners have found that the Veteran's psychiatric disability has little to no impact on his ability to work. He has also been able to engage in social activities and sustain friendships, a marriage, and relationships with family members. The overall evidence shows that his psychiatric disability picture is more consistent with the schedular criteria for the currently-assigned 50 percent rating, no higher. In consideration of the foregoing, the Board finds that the preponderance of the evidence weighs against the assignment of an increased rating for any period. Thus, no staged rating is warranted. Migraines The Veteran seeks entitlement to an initial rating in excess of 30 percent for his service-connected migraine headaches. The disability is currently rated under DC 8100 for migraine headaches. The Board finds no other appropriate diagnostic code and/or rating schedule under which it would be appropriate to evaluate headaches. Under this diagnostic code, a 0 percent rating is assigned for headaches with less frequent attacks. A 10 percent evaluation is assigned for headaches with characteristic prostrating attacks averaging one in two months over the previous several months. A 30 percent evaluation is assigned for headaches with characteristic prostrating attacks occurring on an average once a month over the previous several months. A 50 percent evaluation is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. In order for the Veteran to receive the maximum rating of 50 percent for his headaches under DC 8100, the disability picture must more closely approximate headaches with very frequent completely prostrating and prolonged productive of severe economic inadaptability. However, the evidentiary record weighs against such a finding. The Board notes that there is evidence to suggest that the Veteran has frequent headaches during the period at issue. For example, at the January 2010 VA general medical examination, the examiner noted that the Veteran described having headaches on a daily basis. He similarly reported having daily headaches lasting for several hours to all day at the December 2009 neurological examination and told the February 2012 headaches examiner that his headaches occurred almost daily. He had also told the October 2007 cranial nerves examiner that his headaches, which were moderately severe in nature, occurred two to three times per week. The Veteran is competent to report the frequency of his headaches, and there is no clear indication that such account is not credible. However, his headaches are neither completely prostrating and prolonged nor productive of severe economic inadaptability. The February 2012 VA headaches examiner wrote that the Veteran's headaches were moderate in severity when noting his medical history, which does not indicate that headaches were manifested by completely prostrating and prolonged attacks. In fact, the examiner specifically checked "No" when asked if the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. The examiner also checked "No" when asked if the Veteran's headache condition impacted his or her ability to work. In support of the conclusion, the examiner explained that the Veteran's other medical issues were troubling him and his migraine headaches were not the cause of his unemployability. Thus, the medical opinion provided by the February 2012 examiner weighs heavily against finding that there is either very frequent prostrating and prolonged attacks or severe economic inadaptability due to migraine headaches. Also, when the Veteran underwent a neurological examination in December 2009, the examiner stated that migraine headaches were recurrent from time to time and alleviated by over-the-counter pain medication. The examiner also wrote that the Veteran took bed rest intermittently and was able to continue with his daily activities and routines after the headaches subsided. The examiner further wrote that the Veteran's migraine headaches did not interfere with his daily activities, were moderate to severe, usually responded to over-the-counter medication, were not prostrating or severe at that point in time, and were moderate to severe but not severe. The examiner added that there was no incapacitating effect from the headaches. This medical opinion evidence similarly weighs against finding very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability due to migraine headaches. The Board recognizes that the December 2009 VA neurological examiner also wrote that the Veteran's headaches did not interfere with employment "depending on what kind of employment the Veteran would be looking for or doing," which suggests that there may be economic inadaptability to some degree due to migraine headaches. However, as stated above, the February 2012 VA headaches examiner found that the Veteran's headache condition did not impact his or her ability to work, which weighs against finding severe economic inadaptability due to migraine headaches. Unlike the VA neurological examiner, the VA headaches examiner provided rationale for the conclusion, and the rationale provided was adequate. Also, unlike the neurological examiner, the headaches examiner considered the documentation contained in the claims file, to include the December 2009 VA neurological examiner's opinion and additional evidence not of record at the time of the neurological examination such as records from the SSA. For these reasons, the medical opinion of the February 2012 VA headaches examiner is afforded more probative value than the medical opinion of the December 2009 VA neurological examiner as it relates to the impact of the Veteran's migraine headaches on his ability to work. Additionally, the February 2012 general medical examiner considered the Veteran's complaint of headache, in addition to his service-connected disabilities of PTSD and involving the spine, and ultimately concluded that there was no significant functional deficit which would preclude employment for the Veteran. Thus, even considering the Veteran's service-connected disability picture on the whole, the general medical examiner did not find severe economic inadaptability. This medical opinion provides additional evidence against finding that migraine headache symptomatology, alone, results in severe economic inadaptability. Furthermore, the October 2007 VA cranial nerves examination report notes that the Veteran reportedly suffered from prostrating attacks of headache "sometimes" but was able to continue with work (as a part-time cleaning person at a church) and his daily activities and routine after resting in a quiet room and taking Advil. The Veteran also told the cranial nerves examiner that his headaches "at times" were prostrating but not the extent that he needed to be hospitalized. The Veteran's own statements at the October 2007 VA cranial nerves examination show that prostrating attacks intermittently occur and are neither prolonged nor cause severe economic inadaptability. This evidence further weighs against the claim for a higher rating. Moreover, the Board observes that the Veteran was able to participate fully in the November 2009 VA PTSD examination despite complaining that he was then-having a migraine headache. The fact that he was able to attend and fully participate in the PTSD evaluation weighs against finding that his migraine headaches are manifested by completely prostrating and prolonged attacks. Thus, while the evidence does indicate that the Veteran's migraine headaches frequently occur, the evidence weighs against finding that they are so severe as to be manifested by completely prostrating and prolonged attacks productive of severe economic inadaptability. Therefore, a rating in excess of 30 percent is not warranted for any period. In making this determination, the Board recognizes that the Veteran wrote in a January 2012 statement on VA Form 21-4138 that his daily migraine headaches were "intense" and made it impossible for him to work. However, he has provided inconsistent statements regarding the effect of his migraine headaches on his employability. For example, despite his January 2012 statement indicating severe economic inadaptability due to migraine symptomatology above, he had previously told the December 2009 neurological examination that he was not able to continue his job in security or other jobs that he had tried because of physical problems involving his leg and back. Also, on his VA Form 21-8940 dated in January 2012 and submitted at the same time as the aforementioned VA Form 21-4138 alleging intense daily migraine headaches that made it impossible for him to work, he identified several other service-connected disabilities (i.e., PTSD and cervical and lumbar problems) as the reasons why he was unable to secure or follow any substantially gainful occupation but made no mention of migraine headaches. If the Veteran's migraines had been so severe that they prevent him from working as he contends, it seems reasonable that he would have mentioned migraines on the VA Form 21-8940. Due to the inconsistency with his other statements and the inconsistency with the medical opinion evidence discussed above, the Board assigns less probative value to his assertion of severe economic inadaptability due to migraine headache symptomatology. In sum, the evidence weighs against a higher rating for migraine headaches and the appeal is denied. With respect to both claims, the Board has considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The record does not establish that the rating criteria are inadequate for either PTSD or migraine headaches. To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals are the symptoms included in the criteria found in the rating schedule for his disabilities. Specifically, with respect to PTSD, DC 9411 specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has been manifested by very few psychiatric complaints and little impact on his social or occupational endeavors. These symptoms have been considered as part of the schedular rating criteria. In addition, the level of occupational and social impairment is explicitly part of the schedular rating criteria. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. Moreover, all the Veteran's psychiatric symptomatology is contemplated by the schedular rating criteria, which rates by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. Similarly, with respect to migraine headaches, DC 8100 takes into account the frequency and level of the Veteran's headaches. Moreover, the impact on his overall economic adaptability has also been accounted for under the diagnostic code. The currently-assigned 30 percent rating contemplates characteristic prostrating attacks occurring on average once a month over the last several months. Although he has asserted that his headaches occur from several times per week to daily, which would indicate that they occur more frequently than what is contemplated by a 30 percent rating, the next higher rating under DC 8100 requires that the headaches be manifested by completely prostrating and prolonged attacks productive of severe economic inadaptability. However, the October 2007 cranial nerves examiner and December 2009 VA neurological examiner (i.e., the same examiner) and the February 2012 VA headaches examiner found the Veteran's migraine headaches to be less than severe. The December 2009 VA neurological examiner specifically noted that the Veteran's headaches were not severe and the February 2012 VA headaches examiner described the Veteran's migraines as mild to moderate. Also, as stated above, the evidence weighs against finding severe economic inadaptability due to migraine headache symptomatology. The February 2012 VA headaches examiner specifically found that the Veteran's disability did not affect his ability to work after considering the Veteran's reported symptomatology and the documentation in the record. Thus, the 30 percent schedular rating adequately considers the Veteran's headache symptomatology and any functional impairment shown to be related thereto. In sum, the schedular criteria are not inadequate, and referral for consideration of extraschedular rating is not necessary. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a SOC or SSOC. Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a January 2012 notice letter, the RO advised the Veteran that he may submit evidence showing that his claimed service-connected PTSD had increased in severity, and described the types of information and evidence that he should submit in support of his claim. The RO also explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of his increased rating claim. The RO further explained how VA determines the rating and the effective date. This notice letter fully satisfied VCAA notice requirements with respect to the Veteran's increased rating claim for PTSD. Although the notice letter was not sent prior to the initial denial of the claim, the timing defect was remedied by issuance of proper notice followed by readjudication of the claim in March 2012. Regarding the Veteran's initial rating claim for migraines, the Veteran challenges the initial 30 percent rating assigned following the grant of service connection in the July 2006 rating decision. Where service connection has been granted and an initial rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has in fact been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007). Therefore, no further notice, beyond that afforded in the context of the Veteran's initial claim for service connection, is needed under the VCAA with regard to the increased rating claim. Moreover, under 38 C.F.R. § 3.159(b)(3)(i), there was no duty to provide the Veteran with VCAA notice upon receipt of a notice of disagreement, such as in this case. The Veteran and his representative have been provided with copies of the above rating decisions, the SOCs, and the SSOCs, which collectively include discussion of the facts of the claims, pertinent laws and regulations, notification of the bases for the decisions, and a summary of the evidence considered. In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the RO afforded the Veteran with several VA medical examinations in connection with his increased rating claims. The medical examination reports include all relevant findings and medical opinions needed to evaluate fairly the Veteran's claims. The VA examiners had adequate facts and data regarding the history and condition of the Veteran's PTSD and migraine disabilities. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). The VA medical examiners also considered the Veteran's subjective complaints as it related to his current symptomatology and its effects on his daily life. There has been no allegation or indication that there has been a material change in condition of the Veteran's disabilities since the most recent examinations. For these reasons, the Board finds that the medical examination reports are adequate for rating purposes, and there is no need for further medical examination. Also, post-service treatment records adequately identified as relevant to the Veteran's claims have been obtained to the extent possible, or otherwise submitted, and are associated with the record. There are no additional treatment records pertinent to the Veteran's claims found in the Virtual VA folder. Records from the SSA on compact disc are of record. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the claims decided herein. ORDER A rating in excess of 50 percent for PTSD is denied. A rating in excess of 30 percent for migraine headaches is denied. REMAND Review of the record reveals that remand of the issues below is warranted for further evidentiary development and to ensure due process. Sleep Apnea. The Veteran has asserted that his currently-diagnosed obstructive sleep apnea is secondary to his service-connected PTSD or, alternatively, was caused by injury due to the lightning strike suffered in 1998. He underwent a VA neurological examination in March 2009 in connection with the claim and, after considering the results of a June 2009 sleep study, the neurological examiner provided a medical opinion on the likelihood that his claimed sleep apnea was caused by PTSD or a lightning strike in service. However, the neurological examiner did not address whether the Veteran's sleep apnea was aggravated by PTSD. Therefore, the medical opinion is not adequate with respect to the secondary theory of aggravation and a supplemental medical opinion is necessary. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination). Lumbosacral and Cervical Strain. The Veteran has a history of repeated complaints of pain radiating from the neck and back into his left upper and lower extremities, to include during the course of this appeal. See, e.g., VA medical examinations conducted in December 2009 and February 2012. He also recently submitted a report of a September 2012 magnetic resonance imaging (MRI) of the lumbosacral spine, which notes a clinical history of lower back pain and lumbar radiculopathy. Under the schedule for rating spine disabilities, any neurologic abnormalities associated with a spine disability are to be evaluated separately under an appropriate diagnostic code when reviewing an increased rating claim. However, the current evidentiary record is not adequate in resolving the medical question of whether the Veteran suffers from radiculopathy of the left lower and/or upper extremities as a result of his service-connected spine disabilities. When the Veteran underwent medical examination in December 2009, the VA medical examiner wrote that he did not believe that the Veteran had radiculopathy but provided no rationale for the conclusion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). When he underwent further medical examination in February 2012, that VA medical examiner did not comment on whether the spine disabilities caused radiculopathy. The question of whether the Veteran has left upper and/or lower extremity radiculopathy due to his spine disabilities must be resolved before proceeding with appellate review of the increased rating claims involving the spine. In consideration of the foregoing, the Board finds that a remand for further medical examination and medical opinion is warranted. Left-Sided Pain and TDIU. The Veteran's claimed pain on the left side and TDIU are inextricably intertwined with the above claims being remanded. Therefore, these issues will be held in abeyance pending the remand. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Obtain a supplemental medical opinion from an appropriate medical professional addressing the Veteran's claimed sleep apnea (a medical examination is not required). If another medical examination is needed in order to provide the requested opinion, please so schedule. All relevant documents (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be made available to and reviewed by the reviewer/examiner in rendering the opinion. If the reviewer/examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the reviewer/examiner for review. The reviewer/examiner must confirm that the record was reviewed in the examination report. a. Based on review of the appropriate records, the reviewer/examiner should state whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any identified sleep apnea was aggravated by service-connected PTSD. b. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If the conclusion is that the Veteran's sleep apnea has been aggravated by PTSD, the reviewer/examiner should attempt to identify the baseline level of severity of the condition before the onset of such aggravation, and the degree to which the aggravation has worsened the pre-existing condition. c. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the reviewer/examiner cannot answer any question posed without resorting to speculation, the reviewer/examiner should so state, and explain why that is so. 2. Schedule the Veteran for a VA medical examination to assess the current nature and severity of his service-connected lumbosacral and cervical spine disabilities, to include any associated neurological impairment such as radiculopathy. All relevant documents (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be made available to and reviewed by the examiner in rendering the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must confirm that the record was reviewed in the examination report. a. Based on review of the appropriate records, the examiner should identify what symptoms the Veteran has manifested since February 2012 that are attributable to his service-connected spine disabilities, to include range-of-motion findings and any associated neurological abnormalities. b. The extent of any incoordination, weakened movement, and fatigability on use due to pain must also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination as well as on repeated use or during flare-ups in terms of the degree of additional range of motion loss. c. The examiner should consider the Veteran's history of complaints pertaining to the left lower and upper extremities and provide an opinion on whether the Veteran currently suffers from radiculopathy due to his service-connected lumbosacral and/or cervical spine disabilities. The examiner should fully explain his or her answer. If radiculopathy is found, the examiner should specify its date of onset and thoroughly describe any manifestations. d. The examiner should distinguish to the extent possible between symptomatology resulting from the Veteran's service-connected spine disabilities (and associated radiculopathy) and any non-service-connected disorders which may be found. If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should so state in the examination report. 3. After any additional notification and/or development deemed necessary is undertaken, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, he and his representative should be provided with an SSOC that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. This case is being REMANDED for further evidentiary development. The Veteran has the right to submit additional evidence and argument on the 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 Supp. 2012). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs