Citation Nr: 1337947 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09 03-485A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right shoulder disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for a left shoulder disability. 6. Entitlement to an initial rating in excess of 10 percent prior to April 6, 2012, and in excess of 30 percent from April 6, 2012, for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to August 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated April 2008 and November 2009 of the Department of Veterans Affairs (VA) Regional Offices (RO) in Columbia, South Carolina and Montgomery, Alabama, which denied the benefits sought on appeal. The jurisdiction of the case lies with the RO in Montgomery, Alabama. The Veteran and his wife testified at a March 2013 videoconference hearing before the undersigned Veterans' Law Judge. A transcript of that hearing is associated with the claims file. In March 2013, the Veteran submitted additional evidence in support of the Veteran's claims with a waiver of RO review in accordance with 38 C.F.R. § 20.1304 (2012). The reopened issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A March 1998 Board decision denied service connection for right shoulder and low back disabilities and the Veteran did not appeal that decision. 2. Evidence received since the time of the final March 1998 Board decision raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for right shoulder and low back disabilities. 3. Prior to April 6, 2012, the Veteran's migraine headaches were manifested by prostrating attacks accompanied by nausea, photophobia, and phonophobia occurring at least once per month. Severe economic inadaptability has not been shown. 4. From April 6, 2012, the Veteran's migraine headaches are manifested by prostrating headaches occurring at least twice a month and lasting 3 to 5 days at a time, accompanied by nausea, vomiting, blurred vision, photophobia, and phonophobia, which have been shown to be productive of severe economic inadaptibility. 5. There is competent evidence establishing that the right and left shoulder disabilities are related to active duty service. CONCLUSIONS OF LAW 1. The March 1998 Board decision is final. 38 U.S.C.A. § 7104(b) (West 1991), 38 C.F.R. § 20.1100 (1998); currently, 38 U.S.C.A. § 7014(b) (West 2002), 38 C.F.R. § 20.1100 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for a right shoulder disability is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. Evidence submitted to reopen the claim of entitlement to service connection for a low back disability is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 4. The criteria for service connection for a right shoulder disability have been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 5. The criteria for service connection for a left shoulder disability have been met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 5. Prior to April 6, 2012, the criteria for an initial rating of 30 percent, but no greater, for migraine headaches, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8100 (2013). 6. From April 6, 2012, the criteria for a rating of 50 percent, but no greater, for migraine headaches, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify the Veteran of information and evidence necessary to substantiate the claim and redefined its duty to assist him in obtaining such evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2013). Given the favorable disposition of the action here with regard to reopening the claims of entitlement to service connection for right shoulder and low back disabilities, and granting the claims of entitlement to service connection for right and left shoulder disabilities, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA in the context of those issue. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). The Veteran's claim concerning the proper disability rating to be assigned to his service-connected migraine headaches arises from his disagreement with the initial disability rating assigned to this condition following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice as to this claim is needed under VCAA. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his post service medical records, and the Veteran's lay statements. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also provided VA examinations in October 2009 and April 2012 to ascertain the current nature and severity of his migraine headaches. The Board finds that these VA examinations were adequate to decide the claim on appeal because the reports provided sufficient detail to determine the current severity of the Veteran's service-connected migraine headaches. Each VA examiner discussed the history of the Veteran's condition, conducted an examination of the Veteran, and elicited information from the Veteran concerning the functional aspects of his disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, the VLJ explained the issues on appeal and the evidence necessary to substantiate the Veteran's claim for an increased rating. The Veteran was assisted at the hearing by an accredited representative from Disabled American Veterans. The representative and the VLJ asked questions to ascertain the current state of the Veteran's service-connected disability, and the hearing focused on the evidence necessary to substantiate the Veteran's claim of increased rating for his headache disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). New and Material Evidence Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A ] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108 ]." 38 U.S.C.A. § 5103A (f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2013). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board denied the Veteran's claims of service connection for right shoulder and back disorders in the March 1998 decision on the basis that there was no competent medical evidence showing that the Veteran had either disorders of the back or right shoulder, clinically shown more than eight years after service, which was related to period of active duty. The Veteran did not file an appeal to the March 1998 Board decision. Therefore, it is final. 38 U.S.C.A. § 7104(b) (West 1991), 38 C.F.R. § 20.1100 (1998); currently, 38 U.S.C.A. § 7014(b) (West 2002), 38 C.F.R. § 20.1100 (2012). The basis of the prior final denial was the Board's finding that there was no competent evidence that the Veteran had right shoulder or low back disability related to his period of active service. Thus, in order for the Veteran's claims to be reopened, evidence must have been added to the record since the March 1998 Board decision that addresses this basis. Evidence submitted and obtained since the March 1998 Board decision includes VA outpatient treatment records, dated from May 1997 to February 2013, reflecting complaints of and treatments for right shoulder and low back pain with current diagnoses of right shoulder superior labral tear with partial supraspinatus tear and acromioclavicular joint arthritis, and lumbar spinal stenosis; private treatment records dated from April 1999 to June 2005, reflecting treatment for acute lumbar strain; a June 2007 letter from Dr. Kenneth Taylor; and various lay statements from the Veteran, as well as from his wife and his mother, indicating that the Veteran continued to complain of right shoulder and low back pain since injuries in service while playing football. In particular, a June 2007 letter from Dr. Kenneth Taylor stated that the Veteran's right shoulder superior labral tear was directly related to the Veteran's reported injury while playing football during service in 1982. During his March 2013 Board hearing, the Veteran testified not only that he sustained multiple injuries to his right shoulder and low back while playing football but also that his in-service duty as a Signal Operator involved a lot of heavy lifting and pulling heavy radio equipment, which caused wear and tear on his shoulders and back. The Board finds that this evidence addresses the issues of whether the Veteran has current right shoulder or low back disability that is related to service, and it is presumed credible for the limited purpose of reopening claims. Justus, 3 Vet. App. at 512-13. Thus, this evidence is both "new,' as it has not previously been considered by VA, and "material," as it raises the reasonable possibility of substantiating the Veteran's claims. The Board thus finds that new and material evidence has been submitted to reopen the issues of entitlement to service connection for right shoulder and low back disabilities since the March 1998 Board decision. On this basis, the issues of entitlement to service connection are reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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); also see Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (holding that the provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a)). Service connection for certain chronic diseases, such as arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a Veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."); see 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the criteria for service connection for right and left shoulder disabilities have been met and the appeal will be allowed. The Veteran asserts that he currently has bilateral shoulder disabilities related to his service. He has reported that he sustained multiple injuries while playing football during service. During his March 2013 Board hearing, he also claimed that his in-service duty as a Signal Operator involved a lot of heavy lifting and pulling heavy radio equipment, which caused wear and tear on his shoulders. With respect to current disabilities, the record reflects that the Veteran has been diagnosed with, and treated for, early right shoulder glenohumeral arthritis, status post two arthroscopic surgeries, and degenerative joint disease of the left shoulder. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As the Veteran has current disabilities, the remaining question is whether there is evidence of an in-service occurrence of an injury or disease and evidence of a nexus or relationship between the current disabilities and the in-service disease or injury. Indeed, the Veteran's service treatment records show that he complained of pain over the anterior right shoulder in November 1982 and that he was treated for swelling in the right shoulder joint from military football game in August 1983. After separation from service, at an August 1994 VA joints examination, the Veteran reported right shoulder problem since 1986. He complained of pain and stiffness in the right shoulder. An April 1995 VA medical certificate shows a diagnostic impression of right shoulder arthralgia. An April 2006 magnetic resonance imaging (MRI) of the left shoulder revealed degenerative joint disease. A September 2006 VA treatment report reflects that the Veteran related a history of shoulder pain for over 20 years, worse in the right side than the left. It was noted that X-ray of the right shoulder showed a minimal superior labrum anterior and posterior (SLAP) lesion. An April 2008 letter from the Veteran's mother indicates that the Veteran would tell her about his pain in the shoulders while he was in service. VA orthopedic clinic notes of record reflect that the Veteran underwent a right shoulder surgery in July 2008 with diagnoses of right shoulder labral tear and acromioclavicular joint arthropathy and right distal clavicle resection in May 2010. Right shoulder MRI findings in December 2011 showed early right shoulder, glenohumeral arthritis status post two arthroscopic surgeries; and possible right subacromial bursitis. With respect to the etiology of the Veteran's current left and right shoulder disabilities, the record includes conflicting opinions from medical professionals. A June 2007 letter from Dr. Kenneth Taylor stated that he thoroughly reviewed the Veteran's service treatment records and that the Veteran reported that he injured both his shoulders while playing football while on active duty in 1982. Physical examination revealed significant loss in range of motion of both shoulders and MRI of the right shoulder was consistent with a superior labral tear. Dr. Taylor opined that the superior labral tear and loss of range of motion of his left shoulder were directly directed to the injury that the Veteran sustained while playing football while on active duty at Spendahelm Air Force Base in 1982. In contrast, in January 2008, a VA physician opined that there is inadequate documentation to create a nexus between the Veteran's service-connected injury in November 1982 and his present condition. The VA physician stated that there is a hiatus of almost 23 years where there is no documentation of any ongoing problem with his shoulder. However, the Board observes that VA treatment records reflect that the Veteran sought treatment for his shoulder condition as early as in 1994, approximately ten years from service. The weight of a medical opinion is diminished where that opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458 (1993). The Board therefore finds that the January 2008 VA medical opinion is of discounted probative value due to the fact that it was based on an inaccurate review of the evidence. The Board attaches significant probative value to Dr. Taylor's opinion linking the Veteran's current right and left shoulder disabilities to the injuries sustained while playing football in service. The private physician's opinion was based on the accurate history of the Veteran's bilateral shoulder disabilities as reflected on the claims file and consideration of the Veteran's lay statements. In this regard, the Veteran is competent to attest to the factual matters of which he had first-hand knowledge, such as the circumstances involving the multiple in-service injuries to the shoulders. See Layno v. Brown, 6 Vet. App. 465 (1994); also see Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection.") The lay statements of record attesting to the onset of the Veteran's shoulder pain during or shortly after service, as well as the football injuries involving the shoulders, is further supported by service treatment records reflecting complaints of, and treatment for, the right shoulder, and the Veteran's statements regarding the injuries while playing football during service are consistent throughout the record. For these reasons, the Board finds the Veteran's statements to be competent and credible evidence. Accordingly, the Board finds that the evidence of record is, at the least, in relative equipoise so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, entitlement to service connection for right and left shoulder disabilities is warranted. Disability Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Id. Service connection for migraines was granted in a November 2009 rating decision, and a 10 percent initial disability rating was assigned effective February 20, 2009. Subsequently, in an April 2012 rating decision, the RO increased the rating to 30 percent effective April 6, 2012. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Veteran's service-connected migraine headaches are currently evaluated under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; and the maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating" nor has the Court of Appeals for Veterans Claims. Cf. Fenderson, 12 Vet. App. at 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), "prostration" is defined as "extreme exhaustion or powerlessness." Prior to April 6, 2012 In VA neurology clinic notes dated in April 2009, October 2009 and March 2010, the Veteran reported throbbing headaches "that lasts all day long." They were associated with nausea, photophobia, and phonophobia. The Veteran stated that the headache started at the base of his neck, moved around the sides of his head and ended up at the top of his head. He further stated that he experienced this twice per month. It was noted that he had brought in a headaches journal showing nearly daily headaches. He denied early morning awakenings, projectile vomiting, or focal signs or symptoms. There were no seizures, loss of consciousness or double/blurry vision. In April 2009, it was noted that the Veteran's headache syndrome had begun to become chronic and therefore, a prophylactic agent was warranted as his symptoms were debilitating. The Veteran was provided a VA examination in October 2009. The VA examiner indicated that the claims file was reviewed. The Veteran stated that his headaches occurred weekly and lasted for about three days. They were associated with nausea, photophobia, and phonophobia. He reported that the frequency of his migraine headaches during the past 12 month period was weekly, but that less than half of the attacks were prostrating. The headaches lasted about 1 to 2 days. The diagnosis was migraines. The examiner found that there were significant effects on usual occupation due to pain. In March 2010, the Veteran stated that in a 30 day period, he was only experiencing 4 headaches, and that both abortive and prophylactic agents were effective. In a December 2010 VA neurology consultation report, the Veteran was seen for a chief complaint of migraine headaches. He related that he was only taking Sumatriptan as an abortive therapy, and his headache frequency was approximately 1 to 2 per month. He denied any positional component or headache awakening him from sleep, associated with focal neurologic deficits. He reported phono/photo-phobia and nausea associated with the headaches. The Veteran submitted copies of his leave record showing that he took 12 hours of sick leave in December 2009 and March 2010 due to migraine headaches. A June 2011 VA neurology clinic note reflects that the Veteran's headache frequency had decreased to one bad migraine every two weeks. In an October 2011 VA neurology report, the Veteran stated that headaches were occurring at least 3 times per month and lasted 2.5 to 3 days at a time. Based on the foregoing evidence, the Board concludes that a 30 percent rating is warranted for the Veteran's service-connected migraine headaches prior to April 6, 2012. In making this determination, the Board finds that the Veteran's statements are competent evidence regarding the frequency and severity of his headache symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, the Board has no reason to doubt the credibility of the Veteran's statements in this case. The Veteran has reported symptoms, which included migraine headaches with prostrating attacks occurring approximately 1 to 2 times a month, at which time he experienced nausea, photophobia, and phonophobia. He reported that his headaches were relieved by medications only sometimes and lasted for 2 to 3 days. However, these symptoms do not meet the criteria required for an evaluation in excess of 30 percent under Diagnostic Code 8100. There has been no evidence of very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. Although on the October 2009 VA examination, the VA examiner stated that the Veteran's migraine headaches had significant effects on usual occupation due to pain and that the Veteran reported that his migraine headaches occurred weekly, he reported that less than half of the attacks were prostrating. Further, although the Veteran's leave record reflects that he missed a lot of work days from September 2008 to April 2011, only two 12-hour days of sick leave are noted to be due to migraine headaches. Therefore, the Board concludes that medical findings on examination, as well as the Veteran's own self-reported symptomatology, do not demonstrate that his migraine headaches are productive of severe economic inadaptability. From April 6, 2012 The Veteran was provided another VA examination in April 2012. The VA examiner indicated that the claims file was reviewed. The Veteran stated that he was now having two severe headaches a month, each lasting a week; headaches started in the occiput, slowly radiated in a punding fashion around the cranium to the frontal area above his eyes. Imitrex helped relieve some of the severity if taken soon enough. Nortriptyline was of no help if headache was present; he was unable to sleep. He reported light sensitivity and regular vomiting with headaches. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine headache pain, more frequently than once per month. As to functional impact, the Veteran stated that he had been absent from work due to severe headaches 7 days in the previous 3 months. An April 2012 VA neurology clinic note reflects that the Veteran was seen for routine follow up on his headaches. He felt that his headaches were less frequent, but more intense. They lasted up to 3 to 4 days. In a June 2012 VA neurology consultation report, the Veteran reported that his headaches had gotten worse since April. He stated that he experienced headaches 15 to 18 days out of a month and he felt that he became incapacitated 7 to 8 days that he experienced these headaches. Imitrex and Excerdrin did not help to relieve his headaches and he took medications greater than 20 days per months. He endorsed blurry vision, nausea and vomiting, photophobia, and phonophobia with the headaches. Suboccipital nerve block was received. An October 2012 VA neurology clinic note reflects that the Veteran was headache-free for 6 weeks after his occipital nerve block in June, but the migraines returned. He had 5 to 6 headaches over the past few months and they lasted about 3 to 5 days. He was taking Advil migraine for abortive and had managed to keep it to less than 9 times per month. He otherwise had no other complaints. In a November 2012 VA neurology clinic note, the Veteran reported that he had a total of 8 headaches since June. He currently had headaches. Suboccipital nerve block was received. A February 2013 VA neurology clinic note reflects that the Veteran did not have headaches until the medications wore off. The nerve block usually lasted for about 5 to 6 weeks. He started having headaches again on January 3, 2013. He continued to get relief with Excerdrin migraine and Imitrex. At his March 2013 hearing before the Board, the Veteran testified that although he was on medications for his headaches he could not take medications while at work because he was a police officer and carried arms. As to associated symptoms, the Veteran reported sensitivity to smell, light, and noise; he would vomit and become completely nonfunctional. He stated that he had to sit in a dark corner with no noise or any type of triggers of sensation. The headaches lasted for 3 to 5 days and he occasionally missed work due to the headache condition. He stated that he missed 10 to 15 days per month due to his headaches. He further stated that he could no longer perform his part-time job of driving charter buses due to his headaches. He received nerve-blocking shots every 4 to 6 weeks. After reviewing the evidence, the Board finds that the Veteran's testimony as to the severity and frequency of his headaches is credible, and demonstrates that they are very frequent and completely prostrating from April 6, 2012. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). During the April 2012 VA examination, the Veteran reported having two severe headaches a month, each lasting a week. Two months later, he reported that he experienced headaches 15 to 18 days out of a month and he became incapacitated 7 to 8 days with his headaches. At the March 2013 Board hearing, he testified that his migraine lasted from 3 to 5 days a time and he had roughly 20 days of migraine pain and three of the headaches were so severe to the point that he would have to miss days work. The Veteran has reported that the headaches were accompanied by severe pain, nausea, vomiting, blurred vision, photophobia and phonophobia. He also reported that these headaches incapacitated him to the point that he cannot work or function, and he would need to sit in a dark corner without light, sound, smell or any type of triggers of sensation. The evidence shows that the Veteran experiences severe pain and significant difficulties due to the headache episodes and the headaches occur far more frequently than once a month. Furthermore, the medical evidence indicates that the Veteran's current headaches are representative of severe headaches which would reasonably be expected to be described as prostrating. In addition, although the April 2012 VA examiner noted that the Veteran had been absent from work due to severe headaches 7 days in the previous 3 months, the Veteran reported in the June 2012 VA neurology consultation that he became incapacitated 7 to 8 days per month. Further, at the March 2013 Board hearing that he testified that he had to miss 10 to 15 days of work per month due to his headaches and that he could no longer perform his part-time job of driving charter buses due to his headaches. Thus, the Board finds that based on the foregoing evidence, and with consideration of the frequency, intensity, and duration of the headaches, as well as the functional impact, the Veteran's migraine headaches result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, more closely approximating the criteria for a 50 percent disability rating. See 38 C.F.R. § 4.7 (2013) (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). A 50 percent disability rating is the maximum evaluation available for migraine headaches under Diagnostic Code 8100. The issue has been reviewed with consideration of whether further staged ratings would be warranted. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected disability, there is no evidence of record that would warrant a rating in excess of those assigned for the Veteran's service-connected migraine headaches during any of the periods on appeal. See Fenderson, 12 Vet. App. at 126. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1) (2013). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The Veteran's migraine headaches are evaluated by rating criteria contemplating the frequency and intensity of the headache attacks and any severe economic inadaptability caused by this disability. His migraine headaches are manifested by nausea, vomiting, blurred vision, photophobia and phonophobia, which are characteristic symptoms of migraine attacks and he does not show other unusual symptoms associated with this disability are that have been unaccounted for by the schedular ratings assigned herein. See 38 C.F.R. § 4.124a, Diagnostic Code 8110. Accordingly, a comparison of the Veteran's symptoms resulting from his headaches with the pertinent schedular criteria does not show that his service-connected disability presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular ratings are adequate to rate the Veteran's migraine headaches. Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). As such, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. The record reflects that despite the increased absenteeism due to his migraine headaches, the Veteran has been able to continue to work in his job as a security officer. Accordingly, the Board concludes that a claim for TDIU has not been raised. As the preponderance of the evidence is against the claim, there is no doubt to be resolved, and an initial rating greater than 30 percent prior to April 6, 2012, or a rating greater than 50 percent from April 6, 2012, for the Veteran's migraine headaches is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a right shoulder disability is reopened and, to that extent, the appeal is granted. New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a low back disability is reopened and, to that extent, the appeal is granted. Entitlement to service connection for a right shoulder disability is granted. Entitlement to service connection for a left shoulder disability is granted. Entitlement to an initial rating of 30 percent, but no greater, for migraine headaches is granted prior to April 6, 2012, subject to the applicable regulations concerning the payment of monetary benefits. Entitlement to a rating of 50 percent, but no greater, for migraine headaches is granted from April 6, 2012, subject to the applicable regulations concerning the payment of monetary benefits. REMAND The Veteran contends that he currently has low back disability related to his service. He has consistently reported that he sustained multiple injuries while playing football during service. During his March 2013 Board hearing, he also claimed that his in-service duty as a Signal Operator involved a lot of heavy lifting and pulling heavy radio equipment, which caused wear and tear on his back. The Veteran is certainly competent to provide lay evidence regarding the alleged low back injuries in service and observable symptoms ever since that time. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board notes that the Veteran has not been provided VA examination as to this issue. The Court of Appeals for Veterans Claims held in McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) that under the VCAA, VA is obligated to provide an examination where the record contains competent evidence that the claimant has a current disability, the record indicates that a disability or signs or symptoms of disability might be associated with active service, and the record does not contain sufficient information to make a decision on a claim. 38 U.S.C.A. § 5103A (West 2002). The requirement that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. With these factors in mind and upon a review of the record, the Board finds that a VA examination is required pursuant to VA's duty to assist, and for a fully informed appellate decision. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain treatment records for the Veteran from the VA Medical Centers (VAMCs) in Birmingham and Tuskegee, Alabama, and all associated outpatient clinics, dated from February 2013 to the present. All attempts to obtain those records should be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the etiology of his current low back disability. The claims folder and a copy of this Remand must be made available to the examiner and reviewed in conjunction with the examination. All indicated tests, if any, should be conducted. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether the Veteran's low back disability is at least as likely as not (50 percent probability or more) related to his military service, to include the claimed injuries while playing football in service. A complete rationale must be provided for any opinion stated. 3. Notify the Veteran that he must report for the scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. After the above development is completed, readjudicate the claim. If the decision remains adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. An appropriate period of time should be allowed for response. 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 Supp. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs