Citation Nr: 1759925 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 06-25 128A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to service connection for a breathing disorder. 2. Entitlement to service connection for weakness, fatigue, headaches, and chronic muscle and joint pain. 3. Entitlement to service connection for memory loss. 4. Entitlement to service connection for a left arm disorder. 5. Entitlement to service connection for a left leg disorder. 6. Entitlement to service connection for rhinosinusitis (claimed as sinuses). 7. Entitlement to service connection for narrowing of the left hip. 8. Entitlement to service connection for seizures. 9. Entitlement to service connection for a traumatic brain injury (TBI). 10. Entitlement to an initial increased rating for posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling prior to March 24, 2015, and as 70 percent disabling thereafter. 11. Entitlement to a higher rating for left upper extremity radiculopathy, evaluated as 10 percent disabling prior to March 17, 2016, and as 20 percent disabling thereafter. 12. Entitlement to a higher rating for migraine headaches, evaluated as 10 percent disabling. 13. Entitlement to a temporary total rating based on convalescence from left shoulder surgery. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Drucker, Counsel INTRODUCTION The Veteran had periods of active and inactive duty for training in the Army National Guard from 1998 to 2007, and had active duty from January to September 2003. His awards and decorations include a Combat Infantryman Badge. This case initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for cervical spine disability that was assigned an initial 20 percent rating and denied service connection for lumbar spine disability. In September 2010, the Board remanded the Veteran's case, which then consisted of a claim of service connection for a low back disability and an increased rating for the cervical spine, to the RO to comply with his request to testify during a hearing before a Veterans Law Judge. In a November 2010 statement, the Veteran's representative asked that the hearing request be cancelled due to health conditions that prevented the Veteran from traveling and did not request that the hearing be rescheduled. See 11/9/10 VA 21-4138 Statement in Support of Claim. The Board considers the Veteran's hearing request withdrawn and that all due process requirements were met regarding his hearing request. 38 C.F.R. § 20.704(e) (2017). In April 2011, the Veteran's case was remanded to the Agency of Original Jurisdiction (AOJ) for further development. A July 2012 rating decision granted service connection for lumbar strain that was assigned an initial 10 percent rating from September 29, 2003. This action represents a full grant of the benefits sought as to his service connection claim. The Veteran submitted a timely notice of disagreement (NOD) with the assigned disability rating. Additionally, a May 2005 rating decision denied service connection for a breathing disorder, weakness, fatigue, headaches, and chronic muscle and joint pain, memory loss, left arm and leg disorders, and rhinosinusitis. An October 2012 rating decision declined to reopen the Veteran's previously denied claims of service connection for right ear hearing loss; a breathing condition; weakness, fatigue, headaches, chronic muscle and joint pain; memory loss, a left arm disability; a left leg disability; and rhinosinusitis (claimed as sinuses); and denied service connection for narrowing of the left hip and seizures, and ratings higher than 50 percent for PTSD, and higher than 10 percent for migraine headaches. A timely NOD was received as to these actions. In a December 2012 decision, the Board denied an initial rating higher than 20 percent for the Veteran's cervical spine disability and granted an initial 10 percent rating for his left upper extremity radiculopathy (due to the cervical spine disability). The Veteran appealed that part of the Board's December 2012 decision that assigned a 10 percent rating for left upper extremity radiculopathy to the United States Court of Appeals for Veterans Claims (Court). The matter of an increased rating for cervical spine strain was expressly withdrawn from review and that portion of the Board's decision was not disturbed. In an August 2013 Order, the Court granted the parties' Joint Motion for Remand (Joint Motion) and remanded the matter to the Board for action consistent with the Joint Motion, See 8/16/13 CAVC Decision. In September 2014, the Board remanded the Veteran's increased rating claim for left upper extremity radiculopathy, his increased initial rating claim for lumbar spine disability, and the issues addressed in the October 2012 rating decision, to the AOJ for further development including issuance of a statement of the case (SOC). A May 2016 rating decision granted an initial 40 percent rating for lumbar spine disability from September 29, 2003. A June 2016 rating decision granted a 70 percent rating for PTSD from March 24, 2015 and a 20 percent rating for left upper extremity radiculopathy from March 17, 2016. SOCs were issued in June 2016. In his July 2016 substantive appeal, the Veteran perfected an appeal as the claims regarding whether new and material evidence was received to reopen his claims for service connection for a breathing condition; weakness, fatigue, headaches, chronic muscle and joint pain; memory loss; left arm/shoulder disability; left leg/knee disability; and rhinosinusitis; service connection for narrowing of the left hip and seizures; and increased ratings for PTSD, migraine headaches, and left upper extremity radiculopathy (currently on appeal). He did not perfect an appeal regarding the initial rating for his lumbar spine disability and expressly indicated that he did not seek service connection for right ear hearing loss, but was seeking service connection for left ear hearing loss. New and material evidence was received within one year of issuance of the May 2005 rating decision to preclude finality pursuant to 38 C.F.R. § 3.156 (b) (2017); see Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Notwithstanding the October 2012 rating decision, the Board will consider the Veteran's breathing disorder, weakness, fatigue, headaches and chronic muscle and joint pain, memory loss, left arm and leg disorders, and rhinosinusitis disability claims on a de novo basis. Furthermore, the PTSD claim is found to be an initial rating, because a December 2005 notice of disagreement included this issue, but it was omitted from the August 2006 statement of the case and the Board finds no indication that such appeal had been withdrawn. The issue has accordingly been recharacterized. A March 2017 rating decision denied service connection for a TBI and entitlement to a temporary total rating based upon left shoulder surgery. A timely NOD was received in November 2017. The Veteran requested an audit of his service-connected disability benefits including entitlement to retroactive benefits. See 11/12/14 Correspondence. The matter is referred to the AOJ to respond in writing to his request. In May 2017, the Veteran filed a NOD as to the 20 percent rating assigned for his left upper extremity radiculopathy. This matter is currently on appeal and is addressed in the Board's decision herein. Also in May 2017, the Veteran submitted a NOD as to the 40 percent rating assigned for his lumbar spine disability and stated that he sought a 100 percent rating. Claims of service connection for left ear hearing loss and an increased rating for lumbar spine disability have not been adjudicated, and these matters are referred to the AOJ for appropriate action, including provision of the form needed to claim service connection for left ear hearing loss and an increased rating above 40 percent for lumbar spine disability. 38 C.F.R. §§ 3.155, 19.9(b) (2017). The Veteran's breathing disorder, weakness, fatigue, headaches and chronic muscle and joint pain, memory loss, left arm and leg disorders, seizure, left hip, and rhinosinusitis disability claims, his claims for service connection for a TBI and a temporary total rating based upon left shoulder surgery, and increased rating for PTSD, are addressed in the REMAND portion of the decision below and REMANDED to the AOJ. FINDINGS OF FACT 1. Since July18, 2005, the Veteran's left upper extremity radiculopathy has been manifested by diminished reflexes and sensory symptoms essentially commensurate with moderately severe incomplete paralysis of all radicular groups; severe incomplete paralysis has not been demonstrated at any time. 2. Resolving doubt in the Veteran's favor, his migraine headache disability has been characterized by prostrating attacks occurring on an average once a month over the last several months, but not by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but not higher, for left upper extremity radiculopathy have been met from July 18, 2005. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8515-8513 (2017). 2. Throughout the rating period on appeal, the criteria for a 30 percent rating, but not higher, for migraine headaches have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist In March and May 2004, March 2005, November 2010, April, May, and September 2011, and April, May and August 2012, letters, the AOJ notified the Veteran of information and evidence necessary to substantiate his claims. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) cert denied (U.S. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). VA has obtained all available records, including service treatment records and VA and non-VA medical records. The Veteran underwent VA examinations in July 2005 and August 2011 (regarding his left upper extremity), and February 2012 (regarding his migraine headaches), and the examination reports are of record. There has been substantial compliance with the Board's September 2014 remand, as the Veteran was scheduled for a VA examination of his left upper extremity in March 2016. VA medical records, dated to February 2017, were also obtained. The June 2016 SOC only reflects review of VA medical records to April 2016, however, the records dated between June 2016 and February 2017 are not referable to the Veteran's headache and left upper extremity disabilities. Thus, the Board may proceed to consider the Veteran's case. See 38 C.F.R. § 1304(c) (2017). The July 2005, August 2011, February 2012, and March 2016 VA examination reports are adequate for rating purposes as the claims file was reviewed, the examiners reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered etiological opinions with rationales from which the Board can reach a fair determination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no indication that the Veteran's claimed left upper extremity and migraine headache disabilities have worsened since the last related VA examination. As such, the Board finds that there is no basis to obtain a more current examination in this case. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007) (stating that the mere passage of time not a basis for requiring of new examination). The purpose of the Court's August 2013 Joint Motion was to afford the Board the opportunity to provide a clearer statement of its reasons and bases for granting the initial 10 percent rating for left upper extremity radiculopathy. This decision responds to the Court's 2013 Joint Motion. II. Increased Rating Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). An unlisted disability will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Nevertheless, in the case of an increased rating, a claimant may also experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). If credible, lay testimony may consist of a veteran's own statements to the extent that the statements describe symptoms capable of lay observation. Petitti v. MacDonald, 27 Vet. App. 415, 427 (2015) (stating that observations from a lay person who witnesses a veteran's painful motion satisfies the requirement of objective and independent verification of a veteran's painful motion (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The Veteran's statements describing the symptoms of his service-connected left upper extremity and headache disabilities are deemed competent. However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. A. Left Upper Extremity Radiculopathy Rating Criteria The Veteran's left upper extremity radiculopathy was originally assigned a 10 percent rating from July 18, 2005 under Diagnostic Code 8515, which evaluates median nerve disability. The June 2016 rating decision assigned a 20 percent rating from March 17, 2016 under Diagnostic Code 8515-8513. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2017). Here, Diagnostic Code 8515 is the underlying disability and Diagnostic Code 8513 (rating for all radicular groups) is the currently evaluated disability. Although similar criteria are noted under the diagnostic codes, Diagnostic Code 8513 provides for higher ratings for such impairment. Therefore, the Board will use the criteria under this code to evaluate the Veteran's left upper extremity disability. A note to 38 C.F.R. § 4.124a states that the term "incomplete paralysis", where involving peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Records show the Veteran's left upper extremity is his minor extremity. Under Diagnostic Code 8513, that rates all radicular groups, mild incomplete paralysis of all radicular groups is rated as 20 percent for both the major and minor upper extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8513. A 30 percent evaluation is warranted for moderate incomplete paralysis of all radicular groups of the minor extremity. A 60 percent evaluation is warranted for severe incomplete paralysis of all radicular groups of the minor extremity. An 80 percent evaluation is assigned for complete paralysis of all radicular groups of the minor extremity. A following Diagnostic Code 8719 (that evaluates neuralgia) directs that, when combined nerve injuries are rated, consideration must also be given to radicular group ratings. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" are not defined in the above rating criteria. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Facts The July 2005 examiner noted the Veteran's report of pain at C-2 and C-3 of his neck, anterolaterally and bilaterally, into the area of C-7 and C-8 on the left radiating into his left medial forearm, hand, and middle ring and small fingers of the left hand. The Veteran had a dull, aching pain that was chronic and that he rated 7 out of 10 on a pain scale of 1 to 10. The Veteran had flare-ups of pain that he rated 9 out of 10 and described as stabbing in nature. These occurred approximately once per day and lasted 6 to 7 hours. He also had occasional numbness in his hands. The examiner commented that the Veteran had problems at the C2-3 and C7-8 level on the left, and at C-7, that was the middle finger of his left hand, he had burning pain as well as in the middle ring and small fingers on the left and that was the area of C-8. The Veteran reported that his left hand was clumsy, that he had apraxia, and that his left hand was weaker than the right hand with paresthesias and burning. On neurological examination, the Veteran's strength was 5+/5+ (essentially normal) for his right biceps and triceps. His left biceps and triceps muscle strength was 4+/5+; right wrist was 4 to 5+/5+ and left wrist was 3 to 4+/5+; right hand power grip was 5+/5+ and left hand power grip was 4+/5+; right hand fine grip was 4 to 5+/5+, and left hand fine grip was 3 to 4+/5+. The examiner stated that there was weakness throughout the Veteran's left side compared with almost perfect right-sided strength. The Veteran had good muscle tone, and deep tendon reflexes measured 2+/4+ in the right and left upper extremities biceps, triceps, and brachioradials. The examiner noted that the Veteran exhibited strength that was greater in the right hand and arm than the left hand and arm and had a clumsy left hand during alternating hand movements. Cervical spine X- rays were essentially negative. The examiner's diagnosis was cervical spine with strain injury and residual significant muscular spasms and left-sided C6-8 left forearm, hand, and finger radiculopathy that was an additional result of the left-sided arthropathy and likely impingement of the three nerve roots at the foraminal of Luschka on the left. The August 2011 VA examination report shows that the Veteran was diagnosed with cervical spine with strain injury residual significant muscular spasms with peripheral radiculopathy. He did not report flare-ups of his disability. Cervical spine range of motion testing revealed 45 degrees or greater of flexion, extension, and right and left lateral flexion with no objective evidence of painful motion; 80 degrees or greater of right lateral rotation with no objective evidence of painful motion, and, 70 degrees or greater of left lateral rotation with pain throughout. There was no additional limitation in range of motion of the cervical spine following repetitive testing and no functional loss or impairment. Further, the VA examiner found no localized tenderness or pain to palpation for the joints or soft tissues of the Veteran's neck and there was no guarding or muscle spasm of the cervical spine. Muscle strength reflexes, and light touch testing were all normal on examination throughout and there was no muscle atrophy. The examiner reported that the Veteran had no radicular pain or other signs or symptoms due to radiculopathy but the examiner noted that the Veteran claimed subjective symptoms of intermittent tingling in all fingers of his left hand (innervated by almost all the roots, re: C-6, 7. 8. 9. T1; not of any particular nerve root pattern), but had no specific radiating pain of a dermatomal distribution typical of radicular symptoms. There were no objective signs of motor sensory or reflex changes on examination to indicate bilateral upper extremity radiculopathy. The examiner found that the Veteran had no other neurological abnormalities, no intervertebral disc syndrome, and no ankylosis of the cervical spine. X-rays indicated unremarkable cervical spine. The March 2016 VA examiner noted the Veteran's report that, since his left shoulder surgery (in March 2015, see 2/7/17 Medical Treatment Record Non Government Facility, page 10), his symptoms seemed worse. Before the surgery, he could not even lift his shoulder, now he could lift it but it was weak and he did not have strength in his shoulder. Before it was just painful but, currently, with the change in the atmospheric weather, it hurt. When the weather changed, his shoulder hurt, to which he learned to adjust. His pain started in the left shoulder muscles, and felt like weight and dull aching pain. He had an aching pain inside and down his arm to his elbow and all his fingers tingled nearly constantly. The Veteran was unable to participate in activities or do yard or house work, as he lacked the range of motion in his arm. Driving a car was painful for him. He tried not to use his arm because of the pain. Prior to the surgery, he had constant pain, now, when he moved it too much, it burned and was painful down my arm. The Veteran said he dropped things he held with his left hand. The examiner reported that the Veteran had moderate but constant left upper extremity pain, with severe paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing was 4/5 (active movement against some resistance) for left elbow flexion and extension, wrist extension, and grip. Pinch (thumb to index finger) was 5/5 (normal). There was no atrophy. Reflex testing was 2+ (normal) in the biceps, triceps, and brachioradials. There was decreased sensation in the shoulder area (C-5), the inner/outer forearm (C-6/T-1), and hand/fingers (C6-8). Median nerve tests (Phalen's and Tinel's signs) were negative. There was mild incomplete paralysis in the upper radicular group (5 and 6th cervicals), and the middle and lower radicular groups. The examiner noted left upper extremity radiculopathy, C5-6 through C7-8 with mild functional limitations. The Veteran's VA and non-VA medical records reflect findings consistent with those outlined above in his VA examination reports. Analysis Since July 18, 2005, the Veteran's left upper extremity radiculopathy appears to have fluctuated during this period from diminished reflexes with radiating pain to essentially minimal neurologic disability. The record indicates that the Veteran had diminished reflexes on evaluations during most of the appeal period. See August 2005 and March 2016 VA examination reports. Hence, it is appropriate to provide a rating that contemplates those manifestations. These manifestations are organic. 38 C.F.R. § 4.123. The Veteran has reported tingling, numbness, and radiating pain as constant, severe, sharp, stabbing, aching, and spreading out over the left arm and limiting his ability to grip things. He also reported difficulty driving and dropping things. See VA examination reports discussed supra. The above evidence indicates that the Veteran's left upper extremity radiculopathy has been manifested by sharp, chronic, radiating pain to the left upper extremity, with intermittent numbness and tingling, and somewhat diminished deep tendon reflexes. Although the 2016 VA examiner reported left upper extremity radiculopathy with only mild incomplete paralysis of the upper, middle and lower radicular groups, the examiner also reported that the Veteran had severe paresthesias and/or dysesthesias, and moderate numbness. Given the diminished reflexes, it cannot be said that the Veteran's left upper extremity neurologic manifestations are wholly sensory or just mild or moderate. Cf 38 C.F.R. §§ 4.123, 4.124. As such, the disability would warrant a rating in excess of mild incomplete paralysis, neuralgia or neuritis. Given the diminished reflexes and the Veteran's credible reports, a rating based on moderate incomplete paralysis of all radicular groups of the left upper extremity is warranted. Accordingly, an initial 30 percent rating for the left upper extremity radiculopathy is granted from July 18, 2005, but no earlier. Severe incomplete paralysis, has not been shown at any time during the appeal period. In pertinent part, the Board notes that the 2016 VA examiner found the left upper extremity to have only mild incomplete paralysis. Nothing in any of the examination findings themselves indicates extremely intense/severe impairment. For example, strength testing in the upper extremities was either 5/5 normal or only diminished to 4/5. The other evidence of record does not demonstrate such severe impairment either. Thus, no more than a 30 percent rating is warranted for left upper extremity radiculopathy at any time during the appeal period. 38 C.F.R. § 4.124a, Diagnostic Code 8513. The benefit of the doubt has been resolved in the Veteran's favor to this limited extent. 38 U.S.C.A. § 5107(b). B. Migraine Headaches Rating Criteria The Veteran's migraine headache disability is currently assigned a 10 percent rating under Diagnostic Code 8100. 38 C.F.R. § 4.124a. Under Diagnostic Code 8100, a 10 percent (compensable) rating is warranted for characteristic prostrating attacks averaging one in 2 months over last several months. Id. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. Id. A 50 percent rating is warranted for very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability. Id. Neither the rating criteria nor the Court has defined that which constitutes a "prostrating" attack. See Fenderson v. West, 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 1531 (32nd Ed. 2012), "prostration" is defined as "extreme exhaustion or powerlessness." The rating criteria also do not define "severe economic inadaptability." However, nothing in Diagnostic Code 8100 requires that the Veteran be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440 (2004). Analysis During the February 2012 VA examination, the Veteran reported experiencing a headache if he bent down to pick up something up, or in a stressful situation as when people argued or talked loudly. He had one the previous night until 3 a.m. The Veteran had a 6 year old daughter and getting her up and going in the morning can cause the right side of his head in the back to radiate. The Veteran said that "sometimes it feels like I've been hit in the back of my head [and] [i]t feels like my head is swollen or something." He felt fine without the headache. When he had it, he was unable to think or concentrate. The Veteran had headaches "about everyday" when he got "stressed out". When he "start[ed] having them... [he] either cope[ed] with it or [lay] down if [he] can". The Veteran treated his headaches with over-the-counter Ibuprofen. The examiner noted that the Veteran experienced pulsating or throbbing head pain that was localized to one side of his head and worsened with physical activity. The Veteran described his headache pain as "a sharp pain and a dull pain" that radiated down the side of his head and was "like a stinging pain sometimes" that hurt when he turned his shoulders or neck a certain way. His headaches caused sensitivity to light and lasted less than one day. The examiner noted that the Veteran had characteristic prostrating attacks of migraine headache pain in the occipital region that occurred less than once every two months, and did not have very frequent, prostrating and prolonged attacks of migraine headache pain. The examiner indicated that the Veteran's headache disability did not impact his ability to work and noted that the Veteran was not employed and last worked in 2006 as a correctional officer. The Veteran reported that his psychiatrist advised that he did not need to work around inmates in a stressful situation and VA granted him a total rating based upon individual unemployability due to service-connected disabilities (TDIU), so he stayed home. The Veteran's VA and non-VA medical records reflect findings consistent with those outlined above in the VA examination report. Notably, a January 2013 VA outpatient psychiatry record indicates that the Veteran had taken Depakote, which caused headaches. See 3/13/13 LCDM CAPRI (1st set), page 11. However, a June 2016 VA outpatient record indicates that the Veteran had no complaint of headache. See 1/19/17 Legacy Content Document Manager (LCDM) CAPRI (1st set), page 12. Here, the Board finds that a rating of 30 percent, but no higher, may be granted for the Veteran's migraine headaches. He reported experiencing migraines that occurred approximately every day and rendered him unable to think or concentrate. During the February 2012 VA examination, he essentially described his migraine attacks as prostrating. The Board notes that the Veteran is competent to express the number of times he experienced symptoms of a migraine headache, as it is a condition that is observable by a lay person. There is no evidence in the file to contradict the Veteran's account of his symptoms. As such, resolving all doubt in the Veteran's favor, the Board concludes that the criteria for a 30 percent rating are met for his migraine headache disability. 38 C.F.R. § 124a, Diagnostic Code 8100. However, the Board further finds that the criteria for a higher 50 percent rating are not because severe economic inadaptability has not been shown. The Board notes that, during the February 2012 VA examination, the Veteran reported that, once he had a headache he essentially became functionally disabled. However, upon review evidence, the Board notes that the record is silent for specific instances of the Veteran missing work due to a migraine headache. To the extent that the Veteran's headache disability contributes to his inability to work, that occupational impairment has been considered in the RO's grant of a TDIU from March 2006. Where a rating contains a conjunctive set of criteria, such as with the criteria for 50 percent, both must be present to warrant compensation at the authorized level. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); but see Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). In sum, a 30 percent rating, but no higher, is warranted for the Veteran's headache disability. The benefit of the doubt has been resolved in his favor to this limited extent. 38 U.S.C.A. § 5107(b). Both Disabilities Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a 30 percent rating, but not higher, for left upper extremity radiculopathy, from July 18, 2005, is granted. Entitlement to a 30 percent rating, but not higher, for migraine headaches, is granted. REMAND Service Connection For a Breathing Disorder, Weakness, Fatigue, Headaches and Chronic Muscle and Joint Pain, Memory Loss, Left Arm and Leg Disorders, Seizure, Left Hip, and Rhinosinusitis The Veteran served in the Army National Guard from 1998 to 2007. See 10/01/14 Military Personnel Records (last set), pages 15, 18. His periods of active duty for training and inactive duty training have not been verified. The Veteran had active service during the Persian Gulf War. He attributes his breathing, left hip narrowing, and seizure, weakness, fatigue, headaches and chronic muscle and joint pain, problems to an undiagnosed illness. See 38 C.F.R. § 3.317 (2017); 4/25/11 VA 21-0820 Report of General Information; See 8/20/07 VA 21-4138 Statement in Support of Claim, page 2. The Veteran attributes his memory loss to chemical exposure or a concussion in service. See 8/20/07 VA 21-4138 Statement in Support of Claim. He had bleeding sinuses and was exposed to uranium while in the Persian Gulf. Id. The Veteran also variously attributed his claimed disorders to exposure to depleted uranium and asbestos while in Iraq. See 5/2/05 Correspondence; 6/22/04 VA 21-4138 Statement in Support of Claim. Pre-service private medical evidence shows that, in May 1999, the Veteran complained of dizziness and weak spells that he had for over three years and worsened. See 3/37/06 Medical Treatment Record Non-Government Facility, page 1. The assessment was labyrinthitis. Service treatment records include a May 2000 record noting complaints of headache, dizziness, and fatigue. See 1/29/08 STR Medical (1st set), page 21. The pre-service private treatment records show, that during 2001, the Veteran was repeatedly treated for acute rhinosinusitis. See 3/37/06 Medical Treatment Record Non-Government Facility, pages 2-3. Service treatment records include a June 2003 Post Deployment Health Assessment on which the Veteran reported having fatigue, malaise, multi-symptom complaints, weakness, muscle aches, headaches, swollen and stiff joints, dizziness, difficulty remembering, and feeling tired after sleeping. See 10/1/14 DD 214 Certified Original, pages 41-45. He was treated for acute sinusitis in August 2003. Id. at 38. Allergic sinusitis was noted in July and September 2003 and acute sinusitis was reported in August and 2005 private medical records. See 3/37/06 Medical Treatment Record Non-Government Facility, pages 5-7. The post service evidence includes a February 2005 VA examiner's impression that the Veteran had non-allergic rhinosinusitis or an irritant-type rhinosinusitis. The examiner did not address the etiology of the sinus disability including whether it worsened in active service. Private medical records show treatment for costochondritis in February 2011 but do not address a breathing problem. See 12/16/11 Medical Treatment Record Non Government Facility, page 9. A January 2013 VA outpatient psychiatry record indicates that the Veteran had taken Depakote that caused headaches. See 3/13/13 LCDM CAPRI (1st set), page 11. Another January 2013 record reflects his complaints of sinus pain and an assessment of sinusitis. Id. at 34, 38. In May 2015, a VA speech pathologist commented that the Veteran's perceived memory issues were related to significant mental health issues and, perhaps, even some current medications. See 1/19/17 LCDM CAPRI (4th set), page 75. It was thought unlikely that his memory problems were related to 12 years ago (active duty). Chronic sinusitis was assessed in June 2016. See 1/19/17 LCDM CAPRI (1st set), page 12. The Veteran was scheduled for a VA neurological examination in March 2011 that was cancelled after he refused the exam, and the record indicates that he was too ill to make the examination. See 3/10/11 VA Examination, In July 2012, he was scheduled for eleven VA examinations in conjunction with his service connection claims that were cancelled because he refused them and the record indicates that he was "very depressed." See 7/23/12 VA examination. The Board is mindful and sympathetic of the impact of the Veteran's psychiatric disability on his ability to function. With that in mind, he should be afforded another opportunity to undergo VA examinations in conjunction with his claims. The Veteran is advised that failure to report for any scheduled examination may result in the denial of his claims. 38 C.F.R. § 3.655 (2017); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Increased Rating For PTSD The Veteran last underwent VA examination for his psychiatric disability in February 2012. In 2015, VA repeatedly hospitalized him for suicidal ideation, depression (treatment of PTSD). See 4/7/15, 4/29/15, 5/20/15 VAMC Reports of Hospitalization; 3/13/13 LCDM CAPRI (2nd set), pages 1-2, 4-5. In June 2016, the Veteran reported that he was depressed, anxious, and not getting out of bed. See 7/29/16 CAPRI, page 4. This suggests his disability may have worsened since his last VA examination. Given the evidence of a change in the condition, he is entitled to a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Recent VA medical records regarding the Veteran's treatment since February 2017 should be obtained. Other Matters The March 2017 rating decision denied service connection for a TBI and entitlement to a temporary total rating based on left shoulder surgery. In November 2017, the Veteran submitted a NOD as to the RO's decision, in which he specifically expressed disagreement with the March 2017 rating decision, although he noted that the issues to which he objected were entitlement to service connection for a left shoulder disability and a TBI. The Board construes the Veteran's statement as a NOD with the issues of entitlement to service connection for a TBI and a temporary total rating for left shoulder surgery. The issues must be REMANDED, so that the RO can issue a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a SOC regarding the matters of entitlement to service connection a TBI and a temporary total rating based upon left shoulder surgery. If, and only if, the Veteran timely perfects an appeal as to the matters, should these claims be returned to the Board. 2. Verify all specific periods of the Veteran's active and inactive duty for training (not retirement points) and obtain any additional service treatment records for his Army National Guard service. 3. Efforts to obtain verification and service treatment records must continue until it is received, unless it is reasonably certain that records verifying such service do not exist, or that further efforts to obtain such records would be futile. 4. Obtain all medical records regarding the Veteran's VA medical treatment since February 2017. If any requested records cannot be obtained, the appellant must be notified of the attempts made and of what additional actions will be taken with regard to his claims. 5. After completing the development requested above, schedule the Veteran for VA examination(s) by an appropriately qualified clinician (or clinicians) to determine whether any current narrowing of the left hip, seizures, breathing, memory loss, left arm or leg, rhinosinusitis, and weakness, fatigue, headache, and chromic muscle and joint pain disabilities, are related to service. All indicated tests and studies should be conducted. The claims file should be provided to the examiner(s) and reviewed to become familiar with the pertinent medical history of each disorder. The AOJ must provide to the examiner(s) a copy of VA Training Letter 10-01 (February 4, 2010) (Gulf War VA Medical Examinations), and the examiner(s) must examine the Veteran in accordance with instructions given in that training letter. a. The examiner(s) should provide an opinion as to whether the Veteran's current narrowing of the left hip, seizures, breathing, memory loss, left arm or leg, rhinosinusitis, and weakness, fatigue, headache, and chromic muscle and joint pain disabilities had its onset in military service; or is caused or aggravated by a disease or injury in active service. The examiner should assume that current narrowing of the left hip, seizures, breathing, memory loss, left arm or leg, rhinosinusitis, and weakness, fatigue, headache, and chromic muscle and joint pain are current disabilities. b. The examiner(s) should provide an opinion as to whether the Veteran's current narrowing of the left hip, seizures, breathing, memory loss, left arm or leg, rhinosinusitis, and weakness, fatigue, headache, and chromic muscle and joint pain disabilities is/are a diagnosed chronic multi-symptom illness without a conclusive pathophysiology and etiology. In other words is there a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs; and has features such as fatigue, pain, disability, out of proportion to physical findings and inconsistent demonstration of laboratory abnormalities? c. The examiner(s) should provide an opinion as to whether the Veteran's current narrowing of the left hip, seizures, breathing, memory loss, left arm or leg, rhinosinusitis, and weakness, fatigue, headache, and chromic muscle and joint pain disabilities, is/are as likely as not due to exposure to depleted uranium or asbestos during active service. d. Memory Loss If a memory loss disorder is found, the examiner(s) should address if it is at least as likely as not that the Veteran has a memory loss disability that is due to chemical exposure in service, or proximately due to prescribed medications. e. Rhinosinusitis and Labyrinthitis i. If a rhinosinusitis or labyrinthitis disorder is found, the examiner should provide an opinion as to whether it is at least as likely as not that such disorder was incurred in or aggravated by active service or is otherwise related to active service. ii. If the rhinosinusitis or labyrinthitis disorder did not have its onset in service, the examiner should state whether it is undebatable (clearly and unmistakably) that the condition existed prior to a period of the Veteran's active service, to include being a congenital defect. The examiner should state whether the disorder is a disease or a congenital defect. iii. If it is determined that the identified disability is not a congenital defect, the examiner should provide an opinion addressing whether clear and unmistakable (i.e., obvious or manifest) evidence supports finding both that the disorder existed prior to service and that it did not increase in severity during service other than due to the natural progression of the disorder. The examiner should be advised that temporary or intermittent flare-ups of a pre-service condition, without evidence of worsening of the underlying condition, are not sufficient to be considered aggravation. f. The examiner should state whether the Veteran's reports of his history and symptoms, if accepted, would be sufficient to establish a link between narrowing of the left hip, seizures, breathing, memory loss, left arm or leg, rhinosinusitis, and weakness, fatigue, headache, and chromic muscle and joint pain disabilities and service. If sufficient, the examiner should state whether there is any medical reason to reject the Veteran's reports. The absence of treatment records is not a sufficient reason to reject the Veteran's reports, unless the existence of treatment or records would be medically expected given the nature of the disability. g. The examiner must provide reasons for all opinions. h. If the examiner is unable to provide an opinion without resort to speculation, the examiner should state whether the inability to provide the opinion is due to the limits of medical knowledge in general; the limits of the examiner's medical knowledge, or there is additional evidence, which if obtained, would permit the opinion to be provided 6. Schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected PTSD. The claims folder should be reviewed by the examiner in conjunction with the examination. The examiner should provide a comprehensive rationale for any opinion. 7. If any benefit on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if in order. 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 2014). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs