Citation Nr: 18157167 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 12-10 499 DATE: December 12, 2018 ORDER Entitlement to service connection for a respiratory disorder is withdrawn. Entitlement to service connection for posttraumatic stress disorder (PTSD) is withdrawn. Entitlement to service connection for a joint disorder is withdrawn. Entitlement to service connection for astigmatism is withdrawn The petition to reopen the claim of entitlement to service connection for obstructive sleep apnea is allowed, the appeal is granted to that extent only. The petition to reopen the claim of entitlement to service connection for low back condition is allowed, the appeal is granted to that extent only. The petition to reopen the claim of entitlement to service connection for a gastrointestinal claim is allowed, the appeal is granted to that extent only. Entitlement to service connection for a bilateral shoulder condition is denied. Entitlement to service connection for a low back condition is denied. Entitlement to service connection for a neck condition is denied. Entitlement to an initial compensable rating for hemorrhoids is withdrawn. Entitlement to a rating in excess of 20 percent for bilateral hearing loss is withdrawn. Entitlement to an initial rating in excess of 10 percent for corns and callosities of the left foot is denied. Entitlement to an initial rating in excess of 10 percent for corns and callosities of the right foot is denied. Entitlement to an increase of 50 percent for migraine headaches from January 17, 2009 to January 4, 2013, is granted subject to the laws and regulations governing monetary awards. Entitlement to a rating in excess of 30 percent for migraine headaches from January 4, 2013, is denied. Entitlement to effective date earlier than January 19, 2017, for the grant of a 100 percent rating for schizoaffective disorder, depressive type (schizoaffective disorder), is denied. Entitlement to an effective date earlier than January 19, 2017, for the grant of special monthly compensation (SMC) based on housebound status is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for a gastrointestinal disorder is remanded. Entitlement to an initial compensable rating for dermatitis is remanded. Entitlement to a higher rate of compensation based on the existence of dependents is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 19, 2017, is remanded. FINDINGS OF FACT 1. At his April 2018 Board hearing, prior to the promulgation of a Board decision on the appeal, the Veteran withdrew his appeals seeking entitlement to service connection for a respiratory disorder, PTSD, a joint disorder and astigmatism and increased ratings for hemorrhoids and hearing loss. 2. A September 20, 2006, rating decision denied the petition to reopen the claims of entitlement to service connection for obstructive sleep apnea, low back condition, and a gastrointestinal disorder. 3. The Veteran did not perfect his appeal of the September 20, 2006 decision, and it became final. 4. Evidence received since the September 20, 2006, rating decision relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for service connection for obstructive sleep apnea, low back condition, and a gastrointestinal disorder. 5. The preponderance of the evidence is against finding that the Veteran’s bilateral shoulder condition is due to a disease or injury in service. 6. The preponderance of the evidence is against finding that the Veteran’s low back condition is due to a disease or injury in service. 7. The preponderance of the evidence is against finding that the Veteran’s neck condition is due to a disease or injury in service. 8. The Veteran’s corns and calluses of the left foot result in fissured skin and make walking difficult. 9. The Veteran’s corns and calluses of the right foot result in fissured skin and make walking difficult. 10. From July 17, 2009 to January 4, 2013, the Veteran’s headaches were very frequent, happening more than once daily and accompanied by visual problems; and also completely prostrating with prolonged attacks, and productive of severe economic inadaptability 11. After January 4, 2013, the Veteran’s headaches occurred less frequent, were not accompanied by visual problems, and were not completely prostrating. 12. The RO’s grant of an increase to the schizoaffective disorder did not result from a claim for increase. 13. Prior to January 19, 2017, the Veteran did not have a 100 percent service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals by the Veteran have been met with respect to the issues of entitlement to service connection for a respiratory disorder, PTSD, a joint disorder, and astigmatism; and increased ratings for hemorrhoids and hearing loss. 38 U.S.C. §7105 (2012); 38 C.F.R.§§ 20.202, 20.204 (2017). 2. The September 20, 2006, rating decision which denied the claims of entitlement to service connection for obstructive sleep apnea, low back condition, and a gastrointestinal disorder became final. 38 U.S.C. §7105 (2012); 38 C.F.R. § 20.302 (2017). 3. The additional evidence received since the September 20, 2006, rating decision is new and material, and the claims of entitlement to service connection for obstructive sleep apnea, low back condition, and a gastrointestinal disorder are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for a bilateral shoulder condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a low back condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a neck condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for an initial rating in excess of 10 percent, for corns and callosities of the left foot calluses have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.72 Diagnostic Codes 5299-5284, 7824 (2017). 8. The criteria for an initial rating in excess of 10 percent, for corns and callosities of the right foot calluses have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.72 Diagnostic Codes 5299-5284, 7824 (2017). 9. The criteria for a 50 percent initial rating for migraine headaches from January 17, 2009 to January 4, 2013, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). 10. The criteria for a rating in excess of 30 percent after January 4, 2013, for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a Diagnostic Code 8100 (2017). 11. The criteria for an earlier effective date of January 19, 2017, for the grant of a 100 percent rating for schizoaffective disorder have not been met . 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 12. The criteria for an effective date earlier than January 19, 2017, for the grant of special monthly compensation at the housebound rate are not met. 38 U.S.C. §§ 1114(s), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.350, 3.400, 3.401(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from January 1990 to May 1990; and September 1990 to March 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of November 2010, January 2015, and February 2017, rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Referral The issue of entitlement to service connection for fatigue was remanded by the Board in a December 2015 decision, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Withdrawal of 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 (2017). 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 Veteran testified, on the record, at his April 2018 Board hearing before the undersigned Veterans Law Judge that he wished to withdraw from appellate review his claims for entitlement to service connection for a respiratory disorder, PTSD a joint disorder, and astigmatism; and his increased rating claims for hemorrhoids and hearing loss. The Veteran was represented by Christopher Loiacono from the The Rep for Vets at the time of the hearing, and it is assumed that he informed the Veteran of the consequences of the withdrawals and also agreed to the withdrawals. As a result, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. New and Material To reopen a previously and finally-disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. 38 U.S.C. § 7104(b). In considering whether to reopen a claim, VA must assume the credibility of the aforementioned evidence which supports the Veteran’s claim as required by Justus v. Principi, 3 Vet. App. 510, 513 (1992) ([i]n determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness.). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court of Appeals for Veterans Claims (Court) held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist. 1. The petitions to reopen the claims of entitlement to service connection for a obstructive sleep apnea, low back condition, and a gastrointestinal disorder are allowed, the appeals are granted to that extent only. The Veteran’s claim of entitlement to service connection for obstructive sleep apnea, low back condition, and gastrointestinal disorder were denied in a September 20, 2006 rating decision. The RO received a notice of disagreement (NOD) on October 24, 2006 for these claims, and a statement of the case (SOC) was issued on January 10, 2008. On October 7, 2008, the VA received a communication from the Veteran, but this communication was not timely for a substantive appeal. Thus, the September 2006 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302. The claims for service connection for obstructive sleep apnea, low back condition, and gastrointestinal disorder were previously denied because the evidence showed the Veteran’s disabilities were not incurred in or aggravated by service. Since this decision, a VA examiner in July 2017 opined that the Veteran’s hypersomnolence after the Gulf War indicates that his obstructive sleep apnea is related to service. Additionally, an examiner remarked that, if the Veteran served in combat, then it is at least as likely as not that his low back condition is related to combat operations. There is also an annotation from a VA examiner in July 2017 indicating that the Veteran’s gastroesophageal reflux disease (GERD) related to a complaint of stomach pain while he was in service. The Board finds that all of these statements are new as they were not of record during the time of the September 2006 decision, and they are material because they substantiate the finding that his current disabilities are related to service. Accordingly, the petitions to reopen his claims of service connection for obstructive sleep apnea, a gastrointestinal disorder, and a low back condition are granted, to that extent only. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’ - the so-called “nexus” requirement.” Holton v. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Entitlement to service connection for a bilateral shoulder condition is denied. At his VA examination in June 2017, the examiner diagnosed the Veteran with a shoulder strain and arthritis in his right shoulder, and a rotator cuff tear in his left shoulder. Therefore, the medical evidence establishes a current diagnosis. The Veteran asserts that, while at a check point in Saudi Arabia, an individual proceeded to open fire. In response, he dove into a foxhole and fighting position, and endured injuries to his neck, back and shoulder. Also, at his June 2017 VA examination, he reported that his right shoulder condition is due to overuse precipitated by his left shoulder injury. Additionally, the Veteran reported that exposures during his active duty service in Southwest Asia caused his bilateral shoulder condition. The Veteran’s service treatment records (STR’s) do not indicate that he had any injury to his shoulder consistent with this described incident, or at all. The Veteran is competent to testify that he experienced a fall during service. However, the probative objective medical record does not demonstrate that the Veteran’s current shoulder disabilities are related to active duty. In June 2010, a VA examiner reported that an opinion as to whether the Veteran’s conditions, including his shoulder pain, were related to specific exposures during his military service could not be given without resorting to mere speculation. At the time of a January 2017 Gulf War VA examination, a VA examiner opined that there were no currently available records for review to support a claim for a chronic condition of neck, low back, or bilateral shoulder that was caused by, incurred during, or permanently aggravated by the Veteran’s active duty military service (including South-West Asia). Regarding the Veteran’s reports that he had these claimed conditions due to exposure in the Gulf War, the examiner reported that the Veteran’s claimed conditions were attributable to known clinical diagnoses based on the information issued by the Veteran. His currently reported medical conditions per his available medical records, had a clear and specific etiology and diagnosis; and that they were less likely than not related to a specific exposure event experienced by the Veteran while serving in Southwest Asia. Additionally, based on his currently available service treatment records (STRs) and civilian medical records, the examiner opined it was less likely than not that the Veteran’s diagnosed disorders had their onset during the Veteran’s service; nor were they otherwise causally related to any event or circumstance on his service including environmental exposures during service in Southwest Asia during the Persian Gulf War. The examiner determined that the conditions were not present during service or at the time of separation; and they became manifest years after service. Accordingly, it was the examiner’s opinion that the weight of the currently reviewable medical literature did not suggest any cause and effect link between the Veteran’s service in SW Asia and the subsequent developments of his claimed conditions. Moreover, there was no evidence to suggest that there was a link of his medical conditions to, as the result of, or caused by, any service connected disabilities. There was also no evidence that any of his conditions had been aggravated by his service connected disabilities. The Board acknowledges the positive nexus opinion from the Veteran’s July 2017 Gulf War VA examination where the Veteran reported that his right shoulder condition was due to overuse precipitated by his contralateral left shoulder injury. The examiner found that it was as likely as not that the Veteran’s right shoulder injury was the result of overuse precipitated by his contralateral left shoulder injury. He further substantiated this opinion by citing to a medical treatise which said osteoarthritis can develop when “excessive loading of the joint tissues [causes] tissues to fail.” While the Board does not question the competence of the causation theory used by the VA examiner, the Board finds this opinion is not probative because it is predicated on an inaccurate factual determination. The Veteran’s statements regarding his injury to his right shoulder have been inconsistent, and there is substantial evidence in the medical record that indicates his right shoulder injury predated his left shoulder. A March 2003 x-ray indicated the Veteran had mild djd (degenerative joint disease) in his right shoulder. At an April 2003 orthopedic consultation, it was noted that the Veteran had a four year history of right shoulder pain. The Veteran reported that he thought the injury occurred after a fall many years ago. In September 2003, a medical note indicated that his right shoulder has hurt since 1991, but that “no specific injury occurred.” Later, in an October 2003 general VA examination, the Veteran explained his right shoulder had been hurting for the last four years. In a June 2010 VA examination, the Veteran explained that he injured his left shoulder and “worsened” his right shoulder after a motor vehicle accident which occurred in 2005. Also, a 2009 x-ray noted the Veteran had chronic pain in his left and right shoulder since his accident years ago. The objective medical history establishes that the Veteran’s right shoulder injury occurred prior to his left shoulder. This undermines the Veteran’s contentions that his left shoulder was injured during service and led to his right shoulder injury. It also undermines the positive medical opinion which indicates that the right shoulder disorder was secondary to the left shoulder disorder. As the Veteran’s lay statement contradicts the medical record, the Board finds the objective evidence indicates consistent problems with his right shoulder before his left shoulder more probative than the Veteran’s statements. Since this opinion is predicated on this statement, the Board finds the July 2017 opinion is not probative to etiology. An addendum opinion was requested by the RO due to the fact that the Veteran was not a combat veteran. The RO concluded that the Veteran did not come under enemy fire at any time during his employment. The Board finds the January 2017 VA examination the most persuasive to the Veteran’s etiology. The examiner’s opinion relied on the objective medical evidence in the Veteran’s STR’s and his medical records that showed the Veteran’s shoulder issues did not begin until after service. Also, the examiner noted the degenerative nature of the Veteran’s shoulder condition and associated it with wear and tear over the years. While the negative September 2017 nexus opinion was based on issues of fact that were dictated to the examiner by the RO, the January 2017 VA examination relied on the objective medical evidence. Accordingly, the Board finds this opinion most probative to the Veteran’s etiology for his shoulder condition. As stated above, the medical record shows the Veteran’s right shoulder injury predated his left shoulder injury. Moreover, there are intercurrent causes including a fall as mentioned at his orthopedic consultation and a motor vehicle accident that occurred in 2005. As the currently available medical records are in opposition of the Veteran’s statements the Board finds the preponderance of the evidence indicates the Veteran’s statements regarding his bilateral shoulder injuries are not credible. Accordingly, the preponderance of the evidence, including the probative January 2017 VA opinion and the noncredible testimony from the Veteran, is against the claim. Thus, service connection is not warranted. The Board has considered the Veteran’s report in a September 2003 medical note that his right shoulder has hurt since 1991 and whether service connection is warranted under a theory of continuity of symptomatology. However, as discussed, the Veteran’s statements that followed his report – as soon as the following month – do not report continuous shoulder pain since service. Additionally, this report was accompanied with a statement that “no specific injury [had] occurred.” This, along with the record, suggests this right shoulder injury is not related to service. As such, the preponderance of the evidence is against finding service connection is warranted on a continuity of symptomatology theory. 3. Entitlement to service connection for a low back disability is denied The Veteran underwent a VA examination in July 2017 for his lower back. The examination resulted in a diagnosis of degenerative arthritis of the spine. Accordingly, this claim has a current disability. The Veteran testified at his hearing that his lower back injury was due to the same injury that caused his left shoulder injury during service. He stated that he had problems with his back since falling in a foxhole during service. Additionally, similar to his shoulder claim, on his July 2009 VA21-526, he stated that exposures during the Gulf War led to his multiple disabilities. While the Veteran is competent to report that he fell during service, the objective medical evidence of record does not support that his current low back disability is related to service. His medical records indicate his back problems began after service. A February 1995 radiology request indicates the Veteran injured his lower back in 1993, and complained of lower back pain. A February 1995 VA medical record reports that the Veteran had chronic recurrent lower back pain since an on the job (OTJ) injury two years ago (1993) while working for temporary employment. At his general VA examination in June 2010, the Veteran reported that he fell into a fox hole while deployed which hurt his back. He then injured his back, again, when he was hit by a truck in 2005. These medical records suggest that his back injury is related to events that took place after the Veteran left service. In June 2010, a VA examiner reported that, an opinion as to whether the Veteran’s conditions, including his back pain, were related to specific exposures during his military service could not be given without resorting to mere speculation. As discussed above, in January 2017, a VA examiner gave a negative nexus opinion for the Veteran’s back as it related to service, any exposures in Southwest Asia, and his service-connected disabilities. An additional opinion was given in July 2017. The examiner opined that if the Veteran served in combat, then it is at least as likely as not that his lower back occurred secondary to the wear and tear of combat operations. The RO requested an addendum opinion, after concluding that the Veteran’s record did not support a finding that he participated in combat. In September 2017, a VA examiner, gave the same opinion, discussed above in the bilateral shoulder section, for the Veteran’s low back condition. The Board finds the January 2017 VA opinion most probative to the etiology of the Veteran’s back. While the July 2017 and September 2017 opinions were predominantly predicated on the lack of combat participation which is a factual finding, the January 2017 negative etiology opinion relied on the medical evidence in the Veteran’s STR’s and that his back injury was more likely due to wear and tear. This opinion is supported by the medical record. As such, it is probative to etiology. As the medical record indicates the Veteran’s lower back injury are not related to service but to intercurrent causes, and the January 2017 is probative to etiology, the Board finds that the preponderance of the evidence is against finding that the Veteran’s low back injury is related to service. Accordingly, the claim is denied. 4. Entitlement to service connection for a neck condition is denied. The Veteran underwent a July 2017 VA examination, and the examiner diagnosed the Veteran with a current disability of degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). The Veteran states that his neck injury is due to the same incident that injured his lower back and left shoulder while in service. He also stated that he endured multiple injuries due to exposures in the Gulf War. Similar to the associated claims for the lower back and his bilateral shoulders, while the Veteran is competent to report that he fell during service the medical evidence does not warrant a finding that his current neck disability is due to service. The etiology opinions of record (January 2017, July 2017, and September 2017) discussed above for the Veteran’s back also applied to the Veteran’s neck disability. As the Veteran’s current disability of arthritis and IVDS are degenerative in nature and the Veteran’s STR’s do not show the Veteran incurred an injury to his neck, the Board finds that January 2017 VA opinion most probative to etiology. The probative negative nexus opinion and the lay reports stating that the Veteran's neck injury is from his motor vehicle accident in 2005 weigh against the Veteran’s statement that his neck injury is related to an incident in service. As the preponderance of the evidence is against the claim, the Board finds service connection is not warranted. The Board has considered whether the Veteran is entitled to service connection based on continuity of symptomology, but the medical evidence does not support a finding that the Veteran’s neck problems began in service and have continued. There are no reports of problems with his neck in service, and reports of neck pain appear in the medical record more than a year after service. Accordingly, the preponderance of the evidence is against this claim, and service connection is not warranted. Evaluations 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. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” ratings are required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 5. A rating in excess of 10 percent for corns and callosities of the left foot and the right foot is denied. The claim was service connected in a December 2015 Board decision. In a February 2017 rating decision, the RO granted the Veteran a 10 percent rating for corns and callosities of his left and right foot, effective his date of claim, July 17, 2009. The medical record indicates that the Veteran has been seen regularly by podiatry for problems with hyperkeratosis (cracked skin on his feet). At his June 2010 VA examination, the Veteran reported problems with corns and calluses on his feet due to wearing boots while he was in the military. He stated that the condition had left open wounds on his feet. A January 2013 note indicated that he had fissures on his bilateral feet; and that he was using moisturizing cream for his fissures. A July 2014 medical note indicated that the Veteran had thickened skin on his heels that had recently been shaved down; but a “good amount” of callus remained with cracking of the skin over the edges of the heel to the plantar surface. An August 2014 dermatology consult indicated that the Veteran had a “many year history” (sic) of dry cracking feet. He had been followed by podiatry and treated for tinea and dry skin. He had been advised to wear supportive shoes, but continued to wear flip flops. The associated anatomy and physiology assessment reported the Veteran had tinea pedis and hyperkeratotic, fissured skin on bilateral heels. A January 2016 Podiatry note revealed that the Veteran complained of painful heel fissures and stated he was unable to apply the appropriate medication to his feet because he could not reach them. He had one fissure that was beginning to bleed; but it did not have infection or drainage. An April 2016 podiatry note shows that the Veteran’s fissures were debrided. There was one fissure on his right heel and two on his left heel. None of the fissures were bleeding, ulcerated, or draining. Shoes had previously been ordered for the Veteran, but he was not wearing them. At his January 2017 VA examination, the examiner reported that the Veteran used urea cream for the calluses on his feet for six months or more but not constantly. At his July 2017 VA examination for skin diseases, a diagnoses of keratinization skin disorders (corn/ calluses bilateral feet) was made. The examiner reported that the Veteran had been treated with topical medications in the past 12 months with a constant to near constant total duration. It was reported that he was using clotrimazole constantly or near constantly for the past 12 months. The examiner also reported that the Veteran had prescriptions for terbinafine 1% cream, petrolatum 49% zinc oxide, urea 20% cream, vitamin A and D ointment, hydrophilic petrolatum, colloidal oatmeal bath, clotrimazole, and HC 1%/ praxomine 1% topical cream. The examiner remarked that the skin condition impacted his ability to work. His feet made it very difficult for him to walk; and he previously worked as a truck driver until 2003, but could no longer perform that type of work. He could not feel the bottoms of his feet, so he couldn’t feel the pedals of an over the road truck. The Veteran is currently rated under 5299-5284, with the 5299 denoting an analogous rating. Diagnostic Code 5284 is the code for other foot disability, which was used because there are no diagnostic codes for corns or calluses for the foot. Diagnostic Code 5284 provides ratings for foot injuries. 38 C.F.R. § 4.71a, Diagnostic Code 5284. A 10 percent rating is warranted for moderate foot injuries; a 20 percent rating is warranted for moderately severe foot injuries and a 30 percent rating is warranted for severe foot injuries. The Board finds that the Veteran’s reports of problems of pain with his feet along with the VA examiner’s finding that the Veteran’s corns and calluses make it hard for him to work, is consistent with a mild to moderate foot injury. A moderately severe foot injury (next higher rating) would require evidence of increased symptomatology such as the use of assistive devices or impairment to range of motion, which was not indicated by the record. Accordingly, the Board finds that the Veteran’s current 10 percent rating contemplates the Veteran’s functional impairment and a higher rating is not warranted under Diagnostic Code 5284. As the Veteran’s corns and calluses do affect the Veteran’s skin on his feet and he was diagnosed with keratinization of the feet in his July 2017 VA examination, the Board has considered whether the Veteran is entitled to a higher rating under the general rating formula for diseases of keratinization. 38 C.F.R. § 4.118. Under Diagnostic Code 7824, a 30 percent rating is warranted for either generalized cutaneous involvement or systemic manifestations, and intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of six weeks or more, but not constantly, during the past 12-month period. In addition, a 60 percent rating is warranted for either generalized cutaneous involvement or systemic manifestations, and; constant or near-constant systemic medication, such as immunosuppressive retinoids, required during the past 12-month period. 38 C.F.R. § 4.118, Part 4, Diagnostic Code 7824 (2017). However, a higher rating is not warranted under Diagnostic Code 7824. The medical record reflects that the Veteran’s hyperkeratosis and fissures are confined to the feet and are not systemic. In addition, there is no evidence that the Veteran treated his hyperkeratosis with a systemic medication at any point during the period of appeal. The January 2017 and July 2017 VA examinations reported that the Veteran used topical corticosteroids for the skin condition, and terbinafine 1% cream, petrolatum 49% zinc oxide, urea 20% cream, vitamin A and D ointment, hydrophilic petrolatum, colloidal oatmeal bath, clotrimazole, and HC 1%/ praxomine 1% topical cream. Based on the foregoing, the Board finds that the evidence of record supports the assignment of a 10 percent rating, and no higher, for disability due to corns and calluses for both the left and right feet for the entire period under appeal. 6. A rating of 50 percent is granted for migraine headaches from July 17, 2009 to January 4, 2013; but a rating in excess of 30 percent thereafter is denied. The Veteran filed a claim for service connection for headaches on July 17, 2009. A December 2015 Board decision granted the claim, and a February 2017 RO decision granted a 30 percent rating with an effective date the date of his date of claim. A neurology consultation in October 2009 reported that the Veteran had suffered with headaches since returning from the Gulf War. The Veteran reported that his headaches began in a unilateral temporal location, but would spread bilaterally. There was no trigger to his headaches, and they occurred three to seven times daily with a duration of 30 minutes at the longest. The Veteran also underwent an MRI of his brain in October 2009. The MRI revealed that his brain was normal; with no diagnostic abnormalities. The Veteran complained of having chronic headaches since having trauma and being “run over by a truck years ago.” The Veteran was seen by neurology in February 2010. He reported that his headaches were throbbing, bilateral, and lasted for 30 minutes to 3 hours. They were associated with photophobia and phonophobia. They caused nausea and occurred almost daily, sometimes. His headaches were preceded by black spots or flashing lights for a few minutes before the headaches. The impression was migraine with aura; and he was given xomig and tompamax for prophylaxis. At his July 2010 VA examination, the Veteran said his headaches began and occur daily in the morning or in the evening. Again, he reported his headaches were on the sides, and that he had blurry vision and spots along with his headaches. He also stated that he “passed out at least 25 times.” He reported that he had seen neurology for this problem in the past. The examination noted that, depending on his symptoms, his activities could be limited during his headaches. The Veteran was seen by primary care in January 2013, when he denied any problems with headaches or vision problems. A primary care note from April 2015 indicated that the Veteran denied any headaches or vision problems at that time. At his January 2017 DBQ VA examination, it was reported that the Veteran did not experience non-headache symptoms associated with headaches. The typical duration of his headaches was less than one day and it happened on both sides of his head. It was reported that he had characteristic prostrating attacks of migraine and non-migraine headache pain on average once every month. However, he did not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The Veteran’s headaches were not reported to impact his ability to work. A February 2018 medical record reveals that the Veteran reported he had migraines that were noted in the past. They were unilateral but included both sides with no aura. He currently was taking only ibuprofen, but never sumatriptan. The RO has evaluated the Veteran’s headaches as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraines. Under Diagnostic Code 8100, a rating of 30 percent is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating, the maximum scheduler rating available, is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). Although the rating criteria do not define “prostrating,” according to Dorland’s Illustrated Medical Dictionary, 31st Edition (2007), p.1554, “prostration” is defined as “extreme exhaustion or powerlessness.” A similar definition is found in Merriam-Webster’s Collegiate Dictionary, Eleventh Edition (2003), p.999, “prostration” is defined as “complete mental or physical exhaustion or collapse.” The rating criteria also do not define “severe economic inadaptability”; however, nothing in DC 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). The Board finds that a 50 percent rating is warranted from the Veteran’s effective date of July 17, 2009 to the date of January 4, 2013, which was the date the Veteran denied any problems with headaches or vision problems. During this period on appeal, the Veteran’s headaches were frequent. He had migraine headaches multiple times a day. Additionally, the Board finds that they were completely prostrating and prolonged. They would last 30 minutes to 3 hours and were accompanied by blurred vision and dark spots in his vision. Moreover, the June 2010 examiner remarked that the Veteran’s headaches could limit his activities. The Board finds the examiner’s remarks are indicative of a showing that his migraine headaches were “productive of severe economic adaptability” during the period on appeal. While the record shows the Veteran’s headaches continued to persist after January 4, 2013, they were not accompanied by the intensity, duration, and vision problems as compared to the prior period on appeal. The record shows he denied vision problems after this date. Moreover, at his January 2017 VA examination, the examiner reported that his headaches occurred once a month, and that his headaches were not accompanied by non-headache symptoms. Accordingly, the Board finds a 50 percent rating is not warranted for this period on appeal, and the claim for increase is denied after January 4, 2013. Earlier Effective Dates The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The statute and regulation provide, in pertinent part, that the effective date of an evaluation and award of compensation based on a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) provide an exception to the general rule for increased rating claims by stating that the effective date of an increased rating shall be the earliest date it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise, the effective date is the date of claim. See Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). Basically, 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating. Harper v. Brown, 10 Vet. App. 125 (1997). 7. Entitlement to an effective date earlier than January 19, 2017 for the 100 percent evaluation of schizoaffective disorder, depressive type is denied. The Veteran was granted service connection for his schizoaffective disorder in an August 2013 rating decision. His representative filed a notice of disagreement (NOD) in October 2013, and a statement of the case (SOC) was provided in April 2015. Neither the Veteran or his representative submitted a Form 9 within the required 60 days, so the April 2015 decision became final. In a December 2015 decision, the Board remanded the Veteran’s separate claim of service connection for PTSD. This prompted a VA examination request to assess the current severity of his mental diagnosis. This examination was completed on January 19, 2017. As a result of this examination, the RO granted the Veteran a 100 percent evaluation for his schizoaffective disorder in a February 2017 rating decision. The Veteran filed an NOD to this February 2017 decision, and requested an earlier effective date for his grant of 100 percent for his schizoaffective disorder. The Board finds that an earlier effective date is not warranted for this grant of a 100 percent rating because the grant was not prompted by a claim for increase. To be entitled to an earlier effective date, the medical record would need to show his schizoaffective disorder warranted a 100 percent rating within one year before his date of claim for increase. However, there was no claim for increase for the schizoaffective disorder, so an earlier effective date cannot be granted. While the Board acknowledges that the Veteran sent in a September 2015 psychiatric/psychological impairment questionnaire in October 2015, the Board cannot construe this medical evidence as a claim for increase. As noted, the rating decision became final 60 days after the April 2015 SOC, in June 2015. Additionally, after March 24, 2015, a substantive appeal was required to be on the standard form 9 prescribed by the Secretary in order to be valid. See 79 Fed. Reg. 57660 (Sept. 25, 2014). For this same reason, the Board cannot construe the date the VA examination was requested by the RO, per the December 2015 Board decision, as a claim for increase. As such, the Veteran’s schizoaffective disorder was increased pursuant to an ordered examination for his pending PTSD claim. As mentioned above, the PTSD claim has since been withdrawn and is no longer on appeal. As the increase for his schizoaffective disorder was not pursuant to a claim for increase, the Board finds that an earlier effective date is not warranted. 8. Entitlement to an effective date earlier than January 19, 2017 for entitlement to special monthly compensation based on housebound criteria being met is denied. SMC is payable at the housebound rate where the veteran has a single service-connected disability is rated 100 percent disabling and (1) an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability. 38 U.S.C. § 1114 (s); 38 C.F.R. §3.350(i). The Veteran is not entitled to an earlier effective date for his special monthly compensation based on housebound criteria. The Veteran was granted special monthly compensation in a February 2017 RO decision because he was shown to have a single-service connected disability evaluated at 100 percent with additional service connected disabilities independently rated at 60 percent or more. The effective date of this award corresponded with the effective date of his grant of a single service connected disability rated at 100 percent, January 19, 2017. This was the effective date of his 100 percent rating for his schizoaffective disorder. As discussed above, the Veteran’s schizoaffective disorder is not entitled to an earlier effective date. Accordingly, the Veteran is also not entitled to an earlier effective date for his special monthly compensation based on housebound, and this claim is denied. REASONS FOR REMAND 9. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. A remand is needed for an adequate opinion on etiology. At a General VA examination in 2003, the Veteran stated that since coming back from the Gulf, he had been having poor sleep at night with hypersomnia during the daytime. He reported that he fell asleep while operating a forklift in 1991 which led to causing an accident; and he had to pull over several times while driving his truck due to daytime hypersomnolence. In the process, he suffered a car wreck in 2001. In June 2010, a VA examiner declined to opine on etiology because it would resort in mere speculation. Accordingly, this is not sufficient to establish a nexus between the Veteran’s current diagnosis of obstructive sleep apnea and his service. At his July 2017 Obstructive Sleep Apnea DBQ, the examiner remarked that the Veteran began to experience poor sleep patterns with hypersomnia during the daytime after he returned from the Gulf War. The Veteran reported that he fell asleep operating a fork lift causing an accident in 1991. The VA examiner noted that this was a classic symptom of daytime hypersomnolence which would indicate that his sleep apnea was more than likely present during or shortly after his discharge from service. The examiner remarked that it certainly was within one year of discharge; in spite of the condition not being diagnosed until 2003. A July 2017 addendum opinion further remarked that the symptoms of obstructive and central sleep apneas overlap which make it difficult to determine the type of sleep apnea; he also listed the common signs and symptoms of obstructive and central sleep apneas. Hypersomnia was listed as one of the symptoms. As such, the examiner opined that the Veteran’s diagnosis of sleep apnea had its onset during active duty or within one year of discharge as evidenced by his hypersomnolence in 1991. However, the RO requested an addendum opinion. The RO noted that there were no treatment records to support the Veteran’s statement that he fell asleep while operating a fork lift in 1991, or that he was diagnosed with sleep apnea in 1995. In September 2017, a VA examiner noted that without documentation of sleep apnea manifesting within one year of the Veteran’s release from active duty there was no evidence providing a direct link to sleep apnea. Consequently, the most likely cause of the Veteran’s sleep apnea is the veteran’s morbid obesity with large neck circumference resulting in sleep apnea symptoms. Therefore, the Veteran’s sleep apnea was not likely related any environmental exposure encountered by the Veteran in southwest asia. While the July 2017 VA opinions take into account the Veteran’s reports of hypersomnolence they do not opine on how the Veteran’s obesity has affected his sleep apnea. The Veteran has been obese throughout the appeal period, as noted by the September 2017 VA examiner. Accordingly, these opinions are inadequate. An opinion that takes into account the Veteran’s reports of hypersomnolence is, also, needed. As such, the September 2017 VA opinion is also inadequate. While the September 2017 VA examiner noted the Veteran’s obesity and large neck circumference, he did not acknowledge the Veteran’s lay reports, in spite of the RO’s directives. For this reason, the Board finds the September 2017 VA opinion is also inadequate. Additionally, the Veteran’s STR’s indicate the Veteran had respiratory problems while in service. This was not considered by any of the opinions on record. Accordingly, on remand, the examiner should determine whether the Veteran’s reports of difficulty with breathing while in service are related to his current disability of obstructive sleep apnea. 10. Entitlement to a gastrointestinal condition, to include irritable bowel syndrome (IBS) is remanded. A remand is need for an adequate opinion. In June 2010, the VA examiner declined to give an etiology opinion for the Veteran’s IBS because it would result in mere speculation. At his July 2017 Esophageal Conditions DBQ, the examiner remarked that there was a note in the Veteran’s service treatment records indicating that the Veteran was complaining of stomach pain for several weeks while on active duty. While it was not GERD, the examiner remarked that it quite possibly related to his abdominal complaints and issues. While this statement in the remarks suggests a relationship to service, it is speculative and not sufficiently definitive. The use of quite possibly is inadequate to warrant a determination of etiology. See, e.g., Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (finding a doctor’s statement that a brain tumor “may well be” connected to service was speculative); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (noting that a speculative medical opinion as to causation cannot establish medical nexus to service). Accordingly, the Board finds this opinion is not adequate to warrant service connection for this claim. An addendum opinion was requested by the RO because they noted that there “was no record of treatment for a 5-week period in service for “stomach cramps.” In the September 2017 addendum opinion, the examiner stated that the Veteran’s self-reported history of stomach cramps for a five-week period in 1990 did not lead to erosive esophagitis of the antral mucosa. Thus, in light of the absence of clear documentation treatment for stomach cramps, the self-history could not support a nexus relationship between stomach cramps and the Veteran’s current disability. Moreover, he opined that the digestive condition was not associated with Southwest Asia as it had its onset before deployment to the Persian Gulf. This addendum opinion is inadequate. Contrary to the RO’s contention, a screening note of acute medical care from April 24, 1990, in the Veteran’s STR’s indicates that the Veteran was having problems with stomach cramps for five weeks. The note explained that the pain was not severe, and he had nausea and vomiting. He did not have, however, black or bloody stool or abdominal trauma. Nor did he have constipation. Also in his STR’s, a note reported that during PT he had abdominal pain and cramping with vomiting in the morning. The note also reported he did not have pain upon palpation, but that pain was worse during sit-ups. Later, on November 22, 1990, the Veteran had diarrhea and vomiting after eating breakfast. The addendum opinion in September 2017 relied on the fact that the Veteran’s in-service gastrointestinal problems were self-reported. However, the three instances of stomach problems in his STR’s indicate there is evidence on inservice problems that may be related to his current disability. As the September 2017 addendum opinion relied on an inaccurate factual determination, the Board finds the opinion is inadequate. A remand is needed to obtain an adequate opinion that is not speculative in nature and takes into account both the positive medical evidence in the Veteran’s STR’s and his lay statements. 11. An initial compensable rating for dermatitis is remanded. An August 2014 consult reported that the Veteran had a lesion on his left side of his chest (nevus lipomatosis). The lesion was biopsied at the visit. It was also reported that the Veteran had pseudofolliculitis barbae (PFB) and acne keloidalis nuchae. The PFB was reported to have manifested in an occipital scalp and beard area with numerous firm hyperpigmented papules. Another August 2014 consultation report noted that the Veteran had numerous firm bumps in his beard and scalp that had been present for many years. The Veteran was concerned that he would have a full face of growths. He was also reported to have a history of an irritated mole on his left side. The Veteran underwent a VA examination in January 2017 for skin diseases. It was reported that he had dermatitis or eczema. The Veteran had small areas of dermatitis that were slightly hyperpigmented on the upper arms, chest, and buttock area. However, these areas combined were equal to less than 30 square centimeters, and it was not on exposed body surface areas. It was reported that his dermatitis represented less than two percent of exposed and total body surface area. This claim is remanded so that on remand the examiner can account for the reported skin conditions in the medical record. At this point, it is not clear from the record whether the Veteran’s PFB, acne, and the nevus lipomatosis that was found on his chest, was considered in the January 2017 examiner’s finding that his dermatitis covers less than two percent of exposed skin. This is important because it directly affects whether the Veteran can be awarded a compensable rating. 12. Entitlement to a higher rate of compensation based on the existence of dependents is remanded. In the Board’s December 2015 remand, this claim was remanded because a statement of the case had not been issued, in spite of the Veteran’s timely July 2014 notice of disagreement (NOD). To this date, a statement of the case has not been issued by the AOJ, so the claim must be remanded. See Manlicon v. West, 12 Vet. App. 238 (1999); see also, Stegall v. West, 11 Vet. App. 268 (1998). After the AOJ has issued the statement of the case, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). 13. Entitlement to individual unemployability (TDIU) prior to January 19, 2017 is remanded. Also, in the Board’s previous December 2015 remand, entitlement to TDIU was remanded because the Board had not adjudicated the issue of entitlement to service connection for fatigue syndrome. As noted above, to this date, this claim has not been adjudicated, in spite of the January 2017 VA examination. Accordingly, the Board finds that further evidentiary development is necessary and remands this claim to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Veteran’s claim for TDIU is inextricably intertwined with the remanded claims. Accordingly, the Board will defer decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain updated medical records, including VA and private, and associated them with the record. 2. Schedule the Veteran for an examination to determine the nature and etiology of his obstructive sleep apnea (OSA). The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, if warranted, the VA examiner is asked to respond to the following inquiry: a. Is it at least as likely as not that the Veteran’s OSA, was either incurred in, or is otherwise attributable to, the Veteran’s military service? While making this determination the VA examiner should address the medical records in the Veteran’s STR’s regarding his respiratory problems. Also, the Veteran’s reports of hypersomnolence and his obesity should be considered and discussed. 3. Schedule the Veteran for an examination to determine the nature and etiology of his gastrointestinal problems. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, if warranted, the VA examiner should identify all gastrointestinal diagnoses. For each identified disability, the examiner is asked to respond to the following inquiry: a. Is it at least as likely as not that the Veteran’s gastrointestinal diagnosis, was either incurred in, or is otherwise attributable to, the Veteran’s military service? While making this determination the VA examiner should address the medical records in the Veteran’s STR’s that indicate he had gastrointestinal problems. 4. The Veteran should be afforded a VA examination to evaluate the current severity of his service-connected dermatitis using the most recent DBQ form. The claims folder, including a copy of this remand, should be made available to the examiner for review prior to the examination. The examiner should acknowledge such review in the examination report. Any medically indicated tests should be conducted. 5. Issue a statement of the case (SOC) regarding the Veteran's claim of entitlement to a higher rating of compensation based on the existence of dependents. The Veteran should be informed that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Wade, Associate Counsel