Citation Nr: 1803151 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 11-12 073A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date prior to July 18, 2008, for service connection for depression. 2. Entitlement to an effective date prior to August 8, 2008, for service connection for headaches. 3. Entitlement to an effective date prior to July 18, 2008, for a total disability rating based on individual unemployability (TDIU). 4. Entitlement to an effective date prior to July 18, 2008, for Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35. 5. Entitlement to service connection for otitis media. 6. Entitlement to service connection for chronic fatigue syndrome, claimed as secondary to service-connected depression. 7. Entitlement to an initial disability rating in excess of 70 percent for depression associated with tinnitus. 8. Entitlement to an initial disability rating in excess of 30 percent for Meniere's disease and vertigo, associated with depression. 9. Entitlement to an initial disability rating in excess of 30 percent for headaches, associated with tinnitus. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service from April 1979 to April 1982, and from June 1982 to June 1984. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a January 2009 rating decision, the RO granted service connection for depression, with a 70 percent disability rating (effective July 18, 2008), service connection for migraine headaches, with a noncompensable rating (effective August 8, 2008); and TDIU and Dependents' Educational Assistance (effective July 18, 2008). The RO also denied, in pertinent part, service connection for otitis media and chronic fatigue syndrome. In March 2014, the Board issued a decision granting service connection for Meniere's disease and vertigo (following a December 2012 denial by the Board of service connection and a June 2013 Joint Motion for Partial Remand). In a May 2014 rating decision, the RO implemented the grant of service connection for Meniere's disease and vertigo, with a 30 percent disability rating (effective November 19, 2004). In September 2015, the Board remanded claims for an earlier effective date for Meniere's disease, prior to November 19, 2004, and a rating in excess of 30 percent; as well as, on the timeliness of a May 2011 substantive appeal for the issuance of a statement of the case. As to the question of timeliness of the substantive appeal, in February 2017, the AOJ fully granted that issue and it is not before the Board. In a March 2017 rating decision, the RO granted an earlier effective date for service connection for Meniere's disease, effective June 28, 2001. The Veteran has not appealed that decision and it is not before the Board. The AOJ also issued a March 2017 statement of the case for an increased rating, which is currently before the Board. In April 2017, the Veteran had a hearing before a decision review officer. A transcript of the hearing is of record. In an August 2017 rating decision, the RO granted earlier effective dates for service connection for bilateral hearing loss and tinnitus of June 28, 2001. Those decisions were not appealed and are not before the Board. Also, the RO granted a higher rating of 30 percent for headaches, effective August 8, 2008. In September 2017, the Veteran had hearings for the above-listed issues before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. At that time, he also appeared to raise an issue regarding attorney fees. Effective March 24, 2015, when a claimant submits a communication indicating a desire to apply for VA benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). 79 Fed. Reg. 57,660, 57,695 (Sept. 25, 2014) (to be codified at 38 C.F.R. § 3.155(a)). When such a communication is received, VA shall notify the claimant and the claimant's representative of the information necessary to complete the application form or form prescribed by the Secretary. Id. In light of the foregoing, the Veteran's claim regarding attorney fees is referred to the Agency of Original Jurisdiction (AOJ) for any appropriate action. 38 C.F.R. § 19.9(b) (2017). To the extent that the Veteran has pled clear and unmistakable error (CUE) for issues decided in the rating decisions appealed herein, such attacks were not on final RO decisions. A claim of CUE does not exist, as a matter of law, as to those RO decisions. See 38 C.F.R. § 3.105(a). As such, the Board dismisses such CUE claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). The issue of entitlement to service connection for otitis media and an increased rating for Meniere's disease are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran in this case served on active duty from April 1979 to April 1982 and from June 1982 to June 1984. 2. During the September 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeals for earlier effective dates for the grants of service connection for depression and headaches, as well as, for earlier effective dates for the grants of a TDIU and DEA under 38 U.S.C. Chapter 35 is requested. 3. There is no current diagnosis of chronic fatigue syndrome. 4. For the entire appeal period, the Veteran's depression is not manifested by total occupational and social impairment. 5. For the entire appeal period, giving the Veteran the benefit of the doubt, his headaches were characteristic of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of appeals for earlier effective dates for the grants of service connection for depression and headaches, as well as, for earlier effective dates for the grants of a TDIU and DEA under 38 U.S.C. Chapter 35 by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Chronic fatigue syndrome was not incurred in or aggravated by the Veteran's active duty military service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 3.309, 3.310 (2017). 3. For the entire appeal period, the criteria for an initial rating in excess of 70 for depression have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9435 (2017). 4. For the entire appeal period, a disability rating of 50 percent, and no higher, for headaches has been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissed Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn his appeals for earlier effective dates for the grants of service connection for depression and headaches, as well as, for earlier effective dates for the grants of a TDIU and DEA under 38 U.S.C. Chapter 35 and, hence, there remain no allegations of errors of fact or law for appellate consideration for those issues. Accordingly, the Board does not have jurisdiction to review those appeals and they are dismissed. II. Service Connection Claim for Chronic Fatigue Syndrome The Veteran contends that he has chronic fatigue syndrome due to his service-connected depression. Service connection cannot be granted "[i]n the absence of proof of a present disability." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when the claimant has a disability at the time the claim is filed or during the pendency of the appeal even though the disability may resolve prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran does not have a current medical diagnosis of chronic fatigue syndrome, or any other separate fatigue disorder, and has not had any such diagnosis at any time during the pendency of the appeal. The May 2017 VA examiner specifically found that the Veteran did not have chronic fatigue syndrome. The examiner noted the Veteran's reports of "fatigue" and history, but found no chronic fatigue syndrome. The May 2017 VA psychiatric examiner similarly found that the Veteran's "symptoms of fatigue are subsumed under his diagnosis of major depressive disorder." The VA examiner further explained that fatigue was not a separate diagnosis, and was not separate from his depression. In his October 2017 motion to advance, the Veteran claimed that the May 2017 VA examination for mental disorders was inaccurate as it stated that the Veteran had only one complaint of fatigue from September 2015. However, the Board has reviewed the May 2017 VA examination, and although the VA examiner noted the September 2015 complaint, the examiner did not say that it was the only report of fatigue. Rather, he just noted that there was one report from September 2015, as well as, that fatigue was noted in the "history of depressive disorders." The Board finds that the VA examinations addressing fatigue were adequate, as the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, the Veteran has not indicated that he has been diagnosed with chronic fatigue syndrome by a medical professional, as a separate disability from his depression. The Board reiterated that the May 2017 VA examination specifically for chronic fatigue syndrome specifically found no diagnosis of chronic fatigue syndrome. The other medical evidence of record similarly does not provide a diagnosis of chronic fatigue syndrome. Indeed, during the September 2017 Board hearing, the Veteran reported that his psychiatrist and other doctors had told him his fatigue was coming from his depression. The Veteran's fatigue has already been considered and rated as part of his depression. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. The Veteran has also provided his personal opinion that he has chronic fatigue syndrome from depression. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, i.e., whether the Veteran has a medically diagnosed disability with specific requirements for diagnosis that exist separate from symptoms related to his depression, such question falls outside the realm of common knowledge of a lay person as it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Board concludes that service connection for chronic fatigue syndrome, as a separate disability, is not warranted. III. Increased Rating Law Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. However, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. IV. Claim for an Increased Rating for Depression The Veteran contends that his service-connected depression is more severe than indicated by his current 70 percent disability rating. A. Rating Criteria For depression, under Diagnostic Code (DC) 9435, a 70 percent disability evaluation is contemplated for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. The next higher disability rating possible is a 100 percent rating. A 100 percent evaluation is warranted when there is evidence of total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as" followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). B. Factual Background and Analysis The Veteran contends that an initial disability rating in excess of 70 percent is warranted for his depression. The Board notes that the Veteran is already in receipt of a TDIU for the entire appeal period of the depression claim. During his September 2017 Board hearing, the Veteran essentially argued that a GAF score of 40 from a 2008 VA examination was at least partially indicative of a 100 percent rating. He further argued that his anxiety and depression have been escalating since his 70 percent disability rating, to include increased anger, and thus warranted a 100 percent rating. He also indicated that he was isolated and did not socialize due to anger; he was more comfortable alone. He had a good relationship with his wife and kids, to a certain extent. He also reported "I've been receiving Social Security disability for the same thing that I'm receiving from VA. Anxiety, depression, hearing loss, all those things that's my VA disabilities was my Social Security disabilities back in 1995." There were SSA records regarding psychological evaluation, including a July 1995 letter wherein his personal doctor opined that the Veteran "suffers from post-traumatic stress disorder and major depression secondary to the accident of September 8, 1991, and the subsequent and extremely uncomfortable tinnitus which resulted from the accident." However, the August 1995 SSA disability determination and transmittal record actually only shows that SSA deemed him disabled solely due to left ear hearing loss that began in September 1991. There was no secondary diagnosis found. As noted above, a 100 percent evaluation, the next higher rating available after the 70 percent disability rating, is warranted when there is evidence of total occupational and social impairment. The evidence of record does not show that the Veteran has such total occupational and social impairment. As an initial matter, the Board notes that the VA examiners in December 2008 and May 2017 specifically found that the Veteran did not have total occupational and social impairment due to his depression symptoms. As will be demonstrated below, the other evidence of record also supports that finding. The Board finds that the medical evidence of record, to include VA medical records and VA examinations, generally do not demonstrate symptoms associated with that 100 percentage, such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Such evidence also does not show other symptoms of similar severity, frequency, and duration consistent with a 100 percent rating. Both VA examiners found no hallucinations or delusions, as well as, good personal hygiene. VA medical providers similarly found no hallucinations or delusions. The Veteran has also not shown gross impairment in thought process or communication; or disorientation to time or place or memory loss for names of close relatives, own occupation or name. Such problems were not found by the VA examiners or VA medical providers. An August 2008 VA medical provider found the Veteran alert and fully oriented. There was no evidence of delusional thinking, he was well groomed, and cognitive functions appeared intact with good fund of knowledge and ability to abstract and make insightful remarks. The VA medical provider found a GAF of 45. Similarly, a February 2011 VA medical provider found the Veteran oriented, with good attention and concentration, though the Veteran reported it was poor in his daily functioning. The provider further noted intact memory, thought logical and goal oriented thought, and intact judgment. Other VA medical providers, such as the May 2010 one and the January 2011 one similarly made findings consistent with no gross impairment in thought process or communication and no disorientation. During his December 2008 VA examination, the Veteran reported that his concentration was poor due to noise, which affected his short term memory. The VA examiner however found that the Veteran was oriented to person, time and place. Thought process and content were unremarkable, though the examiner did note that the Veteran would lose temper, was unable to concentrate, and had poor decision-making. His judgment included understanding the outcome of behavior. Remote memory was normal, recent memory was mildly impaired, and immediate memory was moderately impaired. Impulse control was poor. However, he was mentally competent to manage his financial affairs. The May 2017 VA examiner found him able to maintain minimal personal hygiene. He was oriented to person, place, and time. Cognitive functioning appeared to be in the normal range. His rate and flow of speech was within normal limits and logical. There were no loose associations or flight of ideas noted. His capacity for insight was within the normal range of function Indeed, the Board notes that the Veteran's lay statements, such as during his September 2017 Board hearing and written communications, generally include clear communications and arguments in support of his claim. He is also not in persistent danger of hurting himself or others. The VA examiners and medical providers, such as the February 2011 one, noted no presence of homicidal or suicidal thoughts. He now reports suicidal thoughts, without intent. The Veteran has not demonstrated grossly inappropriate behavior. The Veteran has indicated that he isolates himself due to his anger and does not interact much with people. He denied physical abuse to his wife or children. During his May 2017 VA examination he reported a 2014 aggravated assault charge in 2014, when someone was verbally harassing his daughter, and for which he served some time. He also had an argument with his neighbor in 2016, leading to charges of disorderly intoxication and resisting arrest, which were dismissed. He also reported a recent incident of aggravated assault which was dropped down to resisting arrest without violence. He stated he is trying to get 10 acres of land so he can remove himself from everyone. Such behavior is more consistent with a 70 percent rating for impaired impulse control (such as unprovoked irritability with periods of violence). The May 2017 VA examiner found his behavior to be appropriate throughout the session. The December 2008 VA examiner found no inappropriate behavior, though she did note poor impulse control and episodes of violence. As such, though the Veteran does have behavioral issues, the evidence of record does not support finding grossly inappropriate behavior. At most, the Veteran reported some possible intermittent inability to perform activities of daily living, such as an inability to drive (due to vertigo and hearing problems) and severe problems with exercise (in part, due to dizziness as reported by the Veteran in his May 2017 VA examination) or performing recreational activities due to mood problems and isolation. As previously noted, the Veteran's isolating, and inability to establish and maintain effective relationships, is also consistent with his current 70 percent disability rating. He has not demonstrated an inability to form relationships, as indicated by his familial relationship. Overall, the Veteran has been able to care for himself and take charge of his personal finances. The Board understands the Veteran's belief that a higher rating is warranted since he feels that his condition has worsened since he was assigned a 70 percent rating, given the evidence of record the Board still finds that his symptoms are within the range of the 70 percent rating and not higher. Although there are occasional indications of symptomatology that may arguably be indicative of a 100 percent disability rating, the overall disability picture is more consistent with a less than the complete social and occupational impairment necessary for a 100 percent disability rating. The Veteran has noted that he has had a Global Assessment of Functioning (GAF) score as low as 40 as supportive of his claim. GAF scores were part of the DSM-IV diagnostic criteria, but were removed in DSM-5. VA issued a rule update which updated 38 C.F.R. § 4.125 to use of DSM-5, but only for claims pending before the AOJ on or after August 4, 2014. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). As this claim was pending before the AOJ on or after August 4, 2014, DSM-5 applies. However, the Board does note that a score of 31-40 indicates some impairment in reality testing or communication (e.g. speech is at times illogical, obscure, or irrelevant) (or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). The record has been clear that the Veteran does not have some impairment of communication; there is no gross impairment in thought processes, judgment, or communication. To the extent that the Veteran has major impairment in several areas, such a level of impairment is consistent with a 70 percent disability rating, for occupational and social impairment with deficiencies in most areas. With respect to the Veteran's occupational functioning and impairment, the Board observes that the VA examinations and VA medical records do not indicate total occupational and social impairment. The Board finds that these statements from the medical professional are more probative as to the issue of occupational and social impairment due to depression symptoms than any lay testimony provided by the Veteran. Thus, although the Veteran may have some level of occupational impairment due to his depression symptoms, the Board finds that based on the Veteran's social history and lack of deficiencies in functioning, such symptoms would not encompass total occupational and social impairment as contemplated for a 100 percent rating. In this regard, the Board notes that the 70 percent rating assigned is recognition of occupational and social impairment with deficiencies in most areas, but not total impairment. As demonstrated above, the Veteran's symptoms were not consistent with a 100 percent disability rating. Although the Veteran has multiple symptoms that may be considered severe, the vast majority of the evidence regarding his symptoms is not indicative of total impairment. Ultimately, the Board finds that the lay and medical evidence of record show that the Veteran's depression symptoms are of the similar frequency, duration, type, and severity as those symptoms associated with a 70 percent rating. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). Overall, the record does not support finding any symptoms that would support granting a disability rating in excess of 70 percent. The record does not demonstrate that he has had total occupational and social impairment during the appeal period. Though the Veteran undoubtedly has had some severe depression symptoms, he has been generally able to function independently, and has not demonstrated complete impairment. As previously noted, he is already in receipt of a TDIU. A disability rating in excess of 70 percent is denied. V. Migraine Headaches Increased Rating Claim The Veteran contends that a disability rating in excess of 30 percent for his service-connected headaches is warranted. Under Diagnostic Code 8100, migraine headache disorders with characteristic prostrating attacks occurring on an average once a month warrant a 30 percent disability evaluation. The next higher, and maximum rating, is for 50 percent, which requires migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A December 2008 VA examination documented a report of weekly headaches treated with medication. The Veteran reported less than half of the attacks were prostrating, but they would last hours. The examiner found that the headaches would have significant effects on his usual occupation; he had decreased concentration. An April 2011 VA medical record documented that the Veteran complained of his headaches persisting, despite taking multiple headache medications. During the May 2017 VA examination, the Veteran reported that when he had migraine headaches he required a dark and quiet room to rest and that he was "out of commission" 10 times a month. He has had headaches his whole life. Sometimes they may last several days or have nausea. The May 2017 VA examiner noted that the Veteran had characteristic prostrating attack of migraine/non-migraine headache pain once every month. The VA examiner specifically found that the headaches did not impact his ability to work. During his September 2017 Board hearing, the Veteran reiterated that he was actually out of commission 10 times a month for varying lengths of time-sometimes an hour, sometimes three hours. Giving the Veteran the benefit of the doubt, the Board finds that he has very frequent completely prostrating and prolonged attacks. Also, as the December 2008 VA examiner found that the headaches would have significant effects on his usual occupation, and the Veteran is already in receipt of a TDIU - indicating unemployability due to service-connected disabilities, the Board will also give the Veteran the benefit of the doubt as to his economic inadaptability due to his headaches. The maximum 50 percent disability rating, and no higher, is granted. No other issues have been reasonably raised by the record. See Doucette, supra. ORDER The appeal for entitlement to an effective date prior to July 18, 2008, for service connection for depression is dismissed. The appeal for entitlement to an effective date prior to August 8, 2008, for service connection for headaches is dismissed. The appeal for entitlement to an effective date prior to July 18, 2008, for a TDIU is dismissed. The appeal for entitlement to an effective date prior to July 18, 2008, for Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is dismissed. Service connection for chronic fatigue syndrome is denied. An initial disability rating in excess of 70 percent for depression is denied. Subject the laws and regulations governing the award of monetary benefits, entitlement to an initial disability rating of 50 percent, and no higher, for headaches is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As to the otitis media service connection claim, during the September 2017 Board hearing, the Veteran raised a new theory that it might be caused or aggravated by his use of hearing aids due to his service-connected bilateral hearing loss. Also at that time, he noted his documented treatment for otitis media in service in 1979 and claimed that he has had a lot of ear infections since 1984 (when he separated from service). He indicated that he had them "probably once a year and a half." The Board finds that the May 2017 VA examination is inadequate as the VA examiner appears to have based his medical opinion solely on his inability to find any documentation of otitis media in the years after service. However, an examiner may not ignore that lay evidence and base his opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). An adequate medical opinion is necessary. The Veteran contends that his Meniere's disease is more severe than his current 30 percent disability rating, under Diagnostic Code 6204. Using that code for his vestibular disorder, in combination with his 30 percent for bilateral hearing loss and 10 percent for tinnitus, he has a combined rating of 60 percent - when calculated using the combined ratings table of 38 C.F.R. § 4.25. The only possible higher rating would be if the Veteran were rated under Diagnostic Code 6205 for Meniere's syndrome and he had a cerebellar gait. The two most recent VA examinations (May 2017 and April 2014) did not address whether he had a cerebellar gait. Although VA examinations and VA medical records do document the use of a cane, none of them specifically address the question of cerebellar gait. The Board finds a new VA examination is necessary to make such a determination. As these matters are being remanded, any unassociated VA medical records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should obtain ALL outstanding VA treatment records from all applicable VA medical centers in Florida, including those reported by the Veteran as the James H. Haley Clinic and one in Brooksville, Florida. 2. After all records and/or responses received from have been associated with the claims file, return the claims file to the May 2017 VA examiner for the otitis media disability claim. The claims file and a full copy of this REMAND must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If that VA examiner is not available, the claims file should be provided to an appropriate medical clinician experienced with ear disorders to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the claims files, which includes VA treatment records, the VA medical opinion provider should offer an opinion on the following: (a) Does the Veteran currently have otitis media? If so, please note the diagnosed disorder(s). (b) Is it at least as likely as not that any otitis media disorder is related to the Veteran's active service? The examiner should specifically consider the Veteran's reports of (i) a 1979 service treatment record documenting treatment for otitis media and (ii) the lay evidence, including his report during the September 2017 Board hearing, that he has had a lot of ear infections since 1984 (when he separated from service) and that he has had them "probably once a year and a half." (c) Is it at least as likely as not that the Veteran's service-connected bilateral hearing loss caused or aggravated any otitis media? The examiner should provide an opinion as to the questions of BOTH causation AND aggravation. If the examiner finds that any otitis media disorder was aggravated by a service-connected disability, he/she should determine, if possible, to what extent it was aggravated beyond the natural progression of the disorder. For purposes of this analysis, "aggravation" is defined as a worsening of the nonservice-connected disability beyond that due to the natural disease process The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner is asked to clearly explain how he/she reached his/her answers to EACH question posed above. The examiner is directed to reconcile his or her opinions with any on file that may conflict, specifically including the prior VA examinations of record. 3. After all records and/or responses received from the above record development have been associated with the claims file, obtain an appropriate VA examination for Meniere's disease by a VA physician familiar and experienced with the disorder. The entire claims file, to include a complete copy of the REMAND must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Following examination and a review of the claims file, which includes VA treatment records, the VA medical opinion provider should provide information on the symptoms and deficiencies that result from the Veteran's service-connected Meniere's disease for rating purposes under both Diagnostic Code 6204 and Diagnostic Code 6205 - to specifically include the question of whether he has a cerebellar gait and frequency of attacks. 4. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of the additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs