Citation Nr: 1801855 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 08-20 232 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for sinusitis. 2. Entitlement to service connection for a respiratory disorder, to include sinusitis and rhinitis. 3. Entitlement to an initial disability rating in excess of 10 percent for a left foot disability, to include hallux valgus with capsulitis of the left great toe and residuals of a tibial sesamoid fracture. 4. Entitlement to an initial disability rating in excess of 10 percent prior to September 17, 2009, and in excess of 30 percent thereafter, for migraine headaches. 5. Entitlement to an initial disability rating in excess of 20 percent for a lumbar spine disability. 6. Entitlement to a disability rating in excess of 20 percent for a cervical spine disability. 7. Entitlement to total disability based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1997 to February 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2007, April 2008, March 2010, and May 2010 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Veteran, in Huntington, West Virginia, testified at a videoconference hearing before a Veterans Law Judge (VLJ) who has since retired. A transcript of that hearing has been associated with the virtual file and reviewed. In a May 2017 letter, the Veteran was offered the opportunity to present testimony at a new Board hearing before a different VLJ. As the Veteran did not respond within 30 days, this opportunity was deemed waived. The Board recognizes that the May 2017 notice was returned as undeliverable, however, it was sent to the most recent address of record and it is the Veteran's responsibility to promptly notify VA of all changes of address. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993); 38 C.F.R. § 3.1(q) (2017). In an October 2014 Statement of the Case (SOC) and a November 2017 letter, VA notified the Veteran that her attorney's authority to represent VA claimants had been canceled effective August 2014. The Veteran did not subsequently appoint a new representative. Accordingly, the Veteran is not currently represented in this matter. This case was previously before the Board in April 2013, at which time it was remanded for further development. In September 2014, VA sent the Veteran a letter asking her to identify any relevant private treatment records and authorize VA to obtain them; however, the Veteran did not respond to this request. The Board notes that the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). By attempting to assist the Veteran, the Agency of Original Jurisdiction (AOJ) substantially complied with the remand directives, and a further remand is not required in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). As the remaining requested development has been completed, no further action to ensure compliance with the remand directives is required. See id. The Veteran was initially assigned a 10 percent rating for migraine headaches. A December 2009 rating decision assigned a 30 percent rating effective September 17, 2009, and a March 2017 rating decision assigned a 50 percent rating (the maximum schedular rating available for migraine headaches) effective February 16, 2017. Although an increased rating was granted for migraine headaches, the issue remained in appellate status, as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran filed a claim of entitlement to service connection for sinusitis. The record contains diagnoses of chronic sinusitis and rhinitis. Accordingly, the Board has recharacterized and broadened the reopened claim of service connection for sinusitis to a claim for a respiratory disorder, to include sinusitis and rhinitis. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (finding that what constitutes a claim is not limited by a lay veteran's assertion of her condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). The Veteran was initially assigned separate noncompensable ratings for hallux valgus with capsulitis of the left great toe and residuals of a left foot tibial sesamoid fracture. An April 2008 rating decision combined the two disabilities and assigned a 10 percent rating. The Board has broadened and recharacterized the claim of entitlement to an increased initial rating for hallux valgus with capsulitis of the left great toe as one for a left foot disability, to include hallux valgus with capsulitis of the left great toe and residuals of a left foot tibial sesamoid fracture. See Clemons, 23 Vet. App. at 4-5; see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (explaining that VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). In the April 2013 Board Remand, the increased rating claim for the neck was characterized as a claim of entitlement to an initial rating in excess of 20 percent for a cervical spine disability. However, a November 2007 rating decision granted service connection for a cervical spine disability and assigned a 10 percent rating effective February 3, 2007. The Veteran did not file a notice of disagreement with the November 2007 decision, nor was new and material evidence received within the appeal period. Accordingly, the November 2007 rating decision became final. 38 U.S.C. § 7105 (2006); 38 C.F.R. §§ 3.104, 20.1103 (2007). VA received a claim for an increased rating for the neck disability in September 2009. Accordingly, the issue has been correctly recharacterized to reflect that it is not a claim of entitlement to an increased initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Francisco v. Brown, 7 Vet. App. 55 (1994). In April 2013, the issue of entitlement to an increased initial rating for residuals of a rectocele repair was remanded by the Board for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The AOJ issued an SOC in October 2014. The Veteran was notified of her appellate rights but did not perfect her appeal by submitting a substantive appeal. Accordingly, the issue is not currently before the Board. See 38 U.S.C. § 7105 (2012). The issues of service connection for a respiratory disorder and increased ratings for left foot, back, and neck disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a November 2007 rating decision, the AOJ denied service connection for sinusitis; a timely notice of disagreement was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the November 2007 decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for sinusitis, and raises a reasonable possibility of substantiating the claim. 3. The competent and probative evidence is at least in equipoise as to whether the Veteran had characteristic prostrating attacks occurring on average once a month prior to September 17, 2009. 4. The weight of the competent and probative evidence is against finding very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability as of September 17, 2009. 5. The weight of the competent and probative evidence is against finding that the impairment caused by the Veteran's service-connected disabilities preclude substantially gainful employment during the period on appeal. CONCLUSIONS OF LAW 1. The November 2007 decision denying the request to reopen the claim of entitlement to service connection for sinusitis is final. 38 U.S.C. § 7105 (2006); 38 C.F.R. §§ 3.104, 20.1103 (2007). 2. New and material evidence has been received since the November 2007 decision to reopen the claim of entitlement to service connection for sinusitis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for an initial rating of 30 percent, but no higher, for migraine headaches prior to September 17, 2009, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8100 (2017). 4. The criteria for an initial rating in excess of 30 percent for migraine headaches as of September 17, 2009, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8100. 5. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA sent letters to the Veteran in October 2006, January 2010, and September 2014, prior to adjudication of her claims. No further notice is required regarding the downstream issue of a higher initial rating for migraine headaches as it stems from the grant of service connection, and no prejudice has been alleged. Regarding the issue of whether to reopen the claim for sinusitis, as that issue is being granted in full herein, any deficiency as to VA's duties to notify and assist would be harmless error and will not be discussed. Next, VA has a duty to assist the Veteran in the development of her claims. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran's military personnel and treatment records, as well as all available, identified medical records, have been associated with the virtual file and considered. The Veteran was afforded VA examinations in November 2007, September 2009, and February 2017. In light of the foregoing, the Board will proceed to the merits of the appeal. II. New and Material Evidence Generally, a claim which has been denied in a final decision by an AOJ may not thereafter be reopened and allowed. 38 U.S.C. § 7105(b). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary must reopen the claim and review its former disposition. 38 U.S.C. § 5108. To be considered new, evidence cannot have been previously submitted to agency decision makers, or be cumulative or redundant of evidence of record at the time of the last prior final denial. To be material, evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In deciding whether new and material evidence has been submitted, the Board considers evidence submitted since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for sinusitis. In November 2007, the AOJ denied service connection for sinusitis. The RO stated that the service treatment records did not show treatment for sinusitis and the Veteran replied in the negative about a sinus condition at the time of a post-deployment assessment and at separation examination. While a current diagnosis of chronic sinusitis was noted on VA examination in October 2007, the RO found no evidence of a sinus condition during service. The Veteran did not file a timely notice of disagreement and no new and material evidence was received within the appeal period; therefore, the November 2007 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the November 2007 decision. In April 2013, the Veteran testified that she started having sinus problems while stationed in Iraq, that a civilian doctor treated her for sinusitis prior to discharge in January 2007, and that she was unaware that her respiratory symptoms were related to sinusitis when she denied a history of sinusitis in a November 2006 separation examination. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial, by addressing whether sinusitis had its onset in or is otherwise related to her period of active service. Therefore, the claim of service connection for sinusitis is reopened. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a). III. Initial Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). As previously noted, the Veteran was initially assigned a 10 percent rating for migraine headaches under Diagnostic Code 8100, and a December 2009 rating decision assigned a 30 percent rating effective September 17, 2009. A March 2017 rating decision assigned the maximum schedular rating for migraine headaches under Diagnostic Code 8100 as of February 16, 2017; thus, the last period is not before the Board as she is receiving the maximum schedular rating. See AB, 6 Vet. App. at 38-39. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. Finally, a maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The term "productive of severe economic inadaptability" is also not defined in veterans' law. However, the United States Court of Appeals for Veterans Claims (Court) has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase "productive of?" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004) (stating that "nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating"). A. Prior to September 17, 2009 After reviewing the relevant medical and lay evidence and applying the above legal criteria, the Board finds that an initial rating of 30 percent, but no higher, is warranted for migraine headaches prior to September 17, 2009. In a November 2006 examination, the Veteran reported experiencing prostrating migraines on a weekly basis with associated symptoms of pain, vomiting, and sensitivity to light, and with an average duration of hours. 10/20/2006, Medical-Government. In a November 2007 VA examination, the Veteran reported previously experiencing three to four migraines per week, but not nearly as often since she began taking migraine medication. The Veteran's migraines were prostrating and she reported sensitivity to light, noise, and smell, but denied nausea or vomiting. The current duration was not noted. The Veteran reported being employed at that time. 11/08/2007, VA Exam. An August 2008 note by her treating physician reflects the Veteran's report that her migraine headaches had improved, that she had been doing well for years off of medication, and she denied any change in pattern or progression. No focal neurological deficits were noted. 09/18/2014, Medical-Non-Government, p. 66. In August 2009, the Veteran testified before a Decision Review Officer (DRO) that she was averaging about one migraine per week, causing her to miss work once or twice per month. 08/20/2009, Hearing Testimony. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran experienced characteristic prostrating attacks occurring on an average once a month over last several months prior to September 17, 2009, warranting a 30 percent rating for that period. The Board finds that the Veteran's disability picture does not more nearly approximate the criteria for a 50 percent rating, as the evidence weighs against finding very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability prior to September 17, 2009. The record contains conflicting statements by the Veteran as to the frequency and severity of her migraine headaches prior to September 17, 2009. For example, the Veteran reported migraines on a weekly basis in November 2006 and three to four times per week in November 2007, but told her treating physician in August 2008 that her migraines had improved and that she had been doing well off of medication for years. The Board assigns more probative weight to the Veteran's November 2008 statements to her treating physician than to her statements regarding frequency and severity made to VA examiners and the DRO in support of her appeal, as statements made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE 245-46 (2nd ed. 1987) (noting that many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care. Accordingly, the Board finds that the evidence does not support a finding of migraine headaches at a frequency and duration so as to be productive of severe economic inadaptability prior to September 17, 2009. See Pierce, 18 Vet. App. at 446-47. B. As of September 17, 2009 After reviewing the relevant medical and lay evidence and applying the above legal criteria, the Board finds that an initial rating in excess of 30 percent for migraine headaches as of September 17, 2009, is not warranted. In a September 17, 2009, VA examination, the Veteran reported experiencing two to three migraines per month, but noted that if she takes her medication at the onset of a migraine, the attack is less severe and ordinary activity is usually possible. When she is unable to take medication early enough, she reported migraines lasting one to two days, during which normal activity is not possible. The Veteran reported experiencing such attacks once to twice per month. It was noted that less than half of the Veteran's headaches are prostrating. Significant occupational effects were noted, including decreased concentration, poor social interactions, and difficulty following instructions. The Veteran reported missing eight to nine days of work in the prior 12 months due to migraine headaches. 09/17/2009, VA Exam. In April 2013, the Veteran testified that at least once per week she experiences a migraine so severe that she is unable to get out of bed. 04/03/2013, Hearing Testimony. However, in statements made to her treating physician, the Veteran reported experiencing migraines on a less severe and frequent basis. In November 2009, the Veteran reported that her migraine headaches had improved. In August 2011, she stated that her migraines had been better for years and that they did not require medication. In November 2011 she stated that she was doing great in regards to her migraines and that her last headache had been months ago. In May 2012, the Veteran reported increasing migraines, occurring about once per week. A March 2013 treatment note reflects the Veteran's report of experiencing headaches every few weeks, but that over-the-counter medications have been helpful in treating her headaches. 09/18/2014, Medical-Non-Government. The Board finds that the Veteran's disability picture does not more nearly approximate the criteria for a 50 percent rating, as the evidence weighs against finding very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability as of September 17, 2009. The Board assigns more probative weight to the Veteran's statements to her treating physician than those made to a VA examiner or at a Board hearing. See Rucker, 10 Vet. App. at 73. As such, the most probative evidence demonstrates that the Veteran's migraine headache disorder generally improved during the relevant time period, with migraine headaches occurring months apart at times. Accordingly, the Board finds that the evidence does not support a finding of migraine headaches at a frequency and duration resulting in severe economic inadaptability so as to warrant a 50 percent rating as of September 17, 2009. See Pierce, 18 Vet. App. at 446-47. The Board notes that the Veteran's headaches are directly contemplated by VA's Schedule for Rating Disabilities. As such, the Board finds exploration for a higher rating under alternative codes is not necessary. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy."). The benefit of the doubt has been applied as applicable to the entire period on appeal. IV. TDIU After review of the record, the Board finds that the criteria for TDIU have not been met. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is service-connected for posttraumatic stress disorder (PTSD) (70 percent); mixed urinary incontinence (60 percent); migraine headaches (50 percent); lumbar strain (20 percent); cervical strain (20 percent); a left foot disability (10 percent); tinnitus (10 percent); and residuals of rectocele repair (10 percent). The Veteran's service-connected disabilities combine for a 100 percent disability rating, thus satisfying the threshold requirements for TDIU. See 38 C.F.R. § 4.16(a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (stating that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (finding that VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 57-58. Based on a review of the record, the Board finds that the Veteran's service-connected disabilities do not render her unable to secure or follow substantially gainful employment. Beginning in April 2010, the Veteran enrolled in VA vocational rehabilitation training with the employment goal of becoming a registered nurse. Due to the physical demands of the nursing profession, in April 2012, the Veteran changed her employment goal to accounting. The Veteran's vocational rehabilitation program was suspended in September 2015, as the Veteran had difficulty completing her degree. The Veteran did very well in the program until Summer 2013, when she withdrew from most courses. She reenrolled but received incomplete and failing grades, which she attributed, at least in part, to her sole caretaker role for her children when her husband was traveling. 09/16/2015, Education. The Board finds that the Veteran's enrollment in vocational rehabilitation training demonstrates her belief that her service-connected disabilities do not preclude gainful employment. The Board acknowledges that the Veteran was unable to complete her training, but notes that the Veteran did not attribute the failure to the impairment caused by her service-connected disabilities. In April 2013, the Veteran testified that she left her previous employment because she was missing too much work due to medical reasons. She further testified that she was unemployed since June 2010, when she began school. 08/20/2009, Hearing Testimony. In a February 2017 VA examination, the Veteran reported that she last worked approximately two months prior, doing applied behavioral therapy with autistic children. She was unable to work on days she had migraines, resulting in increased absenteeism. 02/16/2017, C&P Exam. The Board notes that the Veteran's 50 percent rating, which contemplates productive of severe economic inadaptability, from this examination is reflective of and compensates her for such impairment. In September 2014, VA sent the Veteran a letter advising her of the evidence necessary to substantiate a claim for TDIU, and requested that she complete and return an enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran did not respond to this request. The Board notes that the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood, 1 Vet. App. at 193. Accordingly, VA has been unable to verify that the Veteran does not hold substantially gainful employment. Because the evidence does not demonstrate that the Veteran currently lacks substantially gainful employment, entitlement to TDIU must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for sinusitis is granted. An initial disability rating of 30 percent, but no higher, for migraine headaches prior to September 17, 2009, is granted. An initial disability rating in excess of 30 percent for migraine headaches as of September 17, 2009, is denied. TDIU is denied. REMAND The record reflects diagnoses of chronic sinusitis and allergic rhinitis, and the Veteran testified that her respiratory symptoms began in service, thus indicating a possible nexus between a current respiratory disorder and service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (stating that "[t]his is a low threshold" for meeting the requirement to trigger VA's duty to assist to provide an examination). The Veteran has also claimed that her respiratory symptoms are due to exposure to environmental hazards while stationed in Iraq. Accordingly, the Veteran should be afforded a VA examination to determine the etiology of any current respiratory disorder. In February 2017, a VA examiner stated that she was unable to say without resorting to mere speculation whether the Veteran's neck or back disabilities are significantly limited during flare-ups or after repeated use over time due to pain, fatigue, instability, or weakness because she was not being examined during flare-ups or after repeated use over time. In a recent opinion, the Court held that if an examiner determines that he or she cannot offer an opinion without resorting to speculation, it must be apparent that the inability to do so is due to a limitation of knowledge in the medical community at large, not a deficiency in the record or a limitation of the individual examiner. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board must remand where, such as here, (i) the record is ambiguous as to whether sufficient information was obtained, and (ii) when the Board is unable to determine whether the examiner's inability to offer an opinion is due to a deficiency in the examiner, as opposed to in the medical knowledge more generally. See id. at 36. Thus, the examiner should elicit relevant information from the Veteran, including asking her to describe the additional functional loss, if any, she experiences during flare ups and after repetitive use over time, and then estimate the additional functional loss based on all the evidence of record, including the Veteran's lay information. Id. at 35. As previously noted, the Veteran was initially assigned separate noncompensable ratings for hallux valgus with capsulitis of the left great toe and residuals of a left foot tibial sesamoid fracture. An April 2008 rating decision combined the two disabilities and assigned a 10 percent rating. Based on the evidence of record, the Veteran may be entitled to a higher rating or separate compensable ratings; however, it is unclear whether her left foot symptoms are attributable to one disorder or two separate disorders affecting different parts of the foot. The Board notes that the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Accordingly, the AOJ should request an examination and opinion to clarify which symptoms and resulting functional impairments are attributable to hallux valgus with capsulitis of the left great toe and which are attributable to residuals of a left foot tibial sesamoid fracture, if any. See Mittleider, 11 Vet. App. at 182. Accordingly, the case is REMANDED for the following actions: 1. Request than an appropriate VA examiner provide an opinion as to the etiology of any diagnosed respiratory disorder. The examiner should review the virtual file, including a copy of this Remand. The examiner should address the following: a. Identify all respiratory disorders that are currently present (or present during the period of September 4, 2009, to present). Specifically, the examiner should state whether sinusitis and/or rhinitis are present. b. For all diagnosed respiratory disorders, is it at least as likely as not (50 percent or greater probability) that such respiratory disorder manifested during or is otherwise related to the Veteran's period of active service, to include due to claimed environmental hazard exposure? If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. The Board notes that the record contains diagnoses of chronic sinusitis and allergic rhinitis. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 2. Schedule the Veteran for an examination with an appropriate VA examiner to assess the nature and severity of her neck and back disabilities. The examiner should review the virtual file, including a copy of this Remand. The examiner should address the following: a. The examiner should determine whether the neck disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. If feasible, the examiner must assess the additional functional impairment on repeated use over time or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). b. The examiner should determine whether the back disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. If feasible, the examiner must assess the additional functional impairment on repeated use over time or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 3. Schedule the Veteran for an examination with an appropriate VA examiner to assess the nature and severity of her left foot disability. The examiner should review the virtual file, including a copy of this Remand. The examiner should address the following: Identify, to the extent possible, which left foot symptoms (and resulting functional limitations) are attributable to the Veteran's hallux valgus with capsulitis of the left great toe and which are attributable to residuals of a left foot tibial sesamoid fracture. If the examiner determines that it is not possible to separate the effects of the Veteran's left foot symptoms, then he or she should explain why that is so. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. Thereafter, if any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs