Citation Nr: 18158052 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-39 184 DATE: December 14, 2018 ORDER Entitlement to an effective date earlier than August 4, 2011, for service connection for degenerative disc disease is denied. Entitlement to an effective date earlier than August 4, 2011, for service connection for right lower extremity (RLE) radiculopathy is denied. Entitlement to an effective date earlier than August 4, 2011, for service connection for headaches is denied. Entitlement to service connection for hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for acquired psychiatric disability, including depressive and anxiety disorders, is granted. Entitlement to service connection for residuals of cold injury of the hands and fingers is denied. Entitlement to an initial disability rating of 20 percent for RLE radiculopathy is granted. Entitlement to an initial disability rating of 30 percent prior to April 5, 2016 for headaches is granted. Entitlement to a disability rating of 50 percent from April 5, 2016, for headaches is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. Entitlement to service connection for fibromyalgia or chronic pain syndrome (CPS) is remanded. Entitlement to service connection for gastroesophageal reflux disorder (GERD) is remanded. Entitlement to service connection for erectile dysfunction (ED) is remanded. Entitlement to an initial disability rating higher than 20 percent for degenerative disc disease is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. VA received the Veteran’s informal claim for service connection for degenerative disc disease on August 4, 2011. 2. VA received the Veteran’s informal claim for service connection for RLE radiculopathy on August 4, 2011. 3. VA received the Veteran’s informal claim for service connection for headaches on August 4, 2011. 4. In each of the Veteran’s ears, the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz has not been 40 decibels or greater; the auditory thresholds for at least three of these frequencies have not been 26 decibels or greater; and speech recognition scores using the Maryland CNC Test have not been less than 94 percent. 5. The Veteran’s current periodic tinnitus is not attributable to his noise exposure during service. 6. The accidental brain injury, prolonged coma, and death of the Veteran’s young child during the Veteran’s service caused the Veteran’s acquired psychiatric disability, including depressive and anxiety disorders. 7. The Veteran does not have current residuals of any cold injuries of the hands or fingers during service. 8. From August 4, 2011, the Veteran’s RLE radiculopathy has been manifested by pain, tingling, and diminished sensation, without muscle weakness or diminished control. 9. From August 4, 2011, the Veteran’s headaches were constant and caused impairment of concentration, focus, and sometimes vision. 10. From April 5, 2016, the Veteran’s headaches have been constant, frequently prostrating, and productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 4, 2011, for service connection for degenerative disc disease have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than August 4, 2011, for service connection for RLE radiculopathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date earlier than August 4, 2011, for service connection for headaches have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 4. As no hearing loss considered a disability has been found, no disabling hearing loss was incurred or aggravated in service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. 5. Tinnitus was not incurred or aggravated in service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 6. Psychiatric disability, including depressive and anxiety disorders, was incurred in service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 7. No residuals of cold injury of the hands and fingers were incurred or aggravated in service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 8. From August 4, 2011, the criteria for a disability rating of 20 percent for RLE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.124a, Diagnostic Codes 8520, 8620, 8720. 9. From August 4, 2011, the criteria for a disability rating of 30 percent for headaches were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.124a, Diagnostic Code 8100. 10. From April 5, 2016, the criteria for a 50 percent disability rating for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to January 1989. Effective Dates In a January 2015 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for degenerative disc disease, RLE radiculopathy, and headaches. The RO assigned August 4, 2011, as the effective date for service connection for each of those disabilities. The Veteran appealed the effective date for each, essentially contending that earlier dates are warranted. The assignment of effective dates of awards of VA disability compensation is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Under regulations applicable prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board of Veterans’ Appeal (Board) must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Effective date for service connection for degenerative disc disease The Veteran’s claims file contains no indication that he filed a claim for VA disability compensation within a year after his January 1989 separation from service, or at any time before 2011. In August 2011 he wrote that he claimed service connection for multiple disorders, including degenerative disc disease of the lower spine. He dated that submission August 2, 2011. The document does not contain any stamp or mark indicating when the RO received it. In an August 2011 letter, the RO told the Veteran that they received his request for benefits on August 4, 2011. The Veteran submitted a formal claim, using the standard claim form, later in August 2011. The Veteran’s service medical records show evaluation for back pain in September 1983 and January 1988. After service, medical records show ongoing back pain and a diagnosis of degenerative disc disease. Entitlement to service connection for a chronic low back disorder arose at separation from service, earlier than his 2011 claim. The effective date is the later of the date of receipt of the claim or the date entitlement arose. The later of those two events is the date of receipt of the informal claim, August 4, 2011. The Board therefore denies an earlier effective date. 2. Effective date for service connection for RLE radiculopathy The Veteran first indicated that he was seeking service connection for RLE radiculopathy or sciatica in the informal claim that the RO received August 4, 2011. Medical records reflect that his RLE radiculopathy is related to his lower spine degenerative disc disease. Entitlement to service connection for the radiculopathy therefore arose at separation from service, or when the radiculopathy arose; in any case, earlier than his 2011 claim. The effective date is the later of the claim receipt or the benefit entitlement. The later event is the date of receipt of the informal claim, August 4, 2011. The Board therefore denies an earlier effective date. 3. Effective date for service connection for headaches The Veteran first indicated that he was seeking service connection for headaches in the informal claim that the RO received August 4, 2011. His service medical records show treatment for headaches between November 1982 and January 1983. After service, medical records reflect ongoing reports of headaches. Entitlement to service connection for the headaches therefore arose at separation from service, which is earlier than his 2011 claim. The effective date is the later of the claim receipt or the benefit entitlement. The later event is the date of receipt of the informal claim, August 4, 2011. The Board therefore denies an earlier effective date. Service Connection The Veteran is seeking service connection for several disorders. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). 4. Service connection for hearing loss The Veteran contends that noise exposure during his service caused hearing loss. For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran was examined in January 1982 for entrance into service. On hearing testing none of the auditory thresholds at the relevant frequencies was 26 decibels or greater. During service, an examination in August 1983 included hearing testing. None of the auditory thresholds at the relevant frequencies was 26 decibels or greater. The service examination reports did not include speech recognition scores. The assembled service medical records do not include a report of any examination at separation from service. The Veteran’s service separation document shows his primary specialty as light wheeled vehicle mechanic. In August 2011 the Veteran wrote that during service he worked on and around heavy equipment including tanks, track vehicles, and artillery guns. He stated that he was exposed to the firing of heavy artillery guns. He contended that noise exposure from those activities caused hearing loss. On VA audiology examination in December 2014, the Veteran stated that during service he was exposed to noise from weapons fire, engines, and explosions. He related that his service duties were as a track vehicle mechanic. He stated that after service he was exposed to noise from gunfire, but he wore ear protection. On hearing testing, none of the auditory thresholds at the relevant frequencies was 26 decibels or greater. Speech recognition scores were 100 percent in the right ear and 98 percent in the left ear. The examiner described his hearing as normal in each ear. The examiner reviewed the claims file. The examiner found that the Veteran’s hearing thresholds did not show permanent worsening during service. The examiner expressed the opinion that it is less likely than not that events in service caused hearing loss in either ear. On testing the Veteran has not been found to have in either ear impaired hearing that is considered a disability for VA disability benefits purposes. In the absence of a current hearing loss disability, the Board denies service connection for hearing loss. 5. Service connection for tinnitus The Veteran contends that noise exposure during service caused tinnitus. His service medical records do not reflect any reports of tinnitus. On examinations in 1982 and 1983, the examiner marked normal for the condition of the Veteran’s ears. After service, the Veteran wrote in August 2011 that during service the firing of heavy artillery guns, and other noise to which he was exposed, caused his tinnitus. On VA audiology examination December 2014, he reported having periodic bilateral tinnitus that was moderately bothersome. He stated that the tinnitus started in 1986, while he was in service. The examiner expressed the opinion that the Veteran’s tinnitus was not related to noise exposure or acoustic trauma during his service. The examiner explained that the Veteran’s normal hearing bilaterally as of 2014 is an indication that noise during his service did not produce lasting injury. The Veteran’s service discharge document corroborates his report that he served as a vehicle mechanic. Those duties are consistent with the engine noise exposure that he has reported. He has also reported exposure in service to artillery fire noise. However, his service medical records do not contain any indication that he had tinnitus then. The 2014 VA examiner considered the Veteran’s accounts of noise exposure during service, and reviewed the results of hearing testing during and after service. That examiner concluded that the absence of disabling hearing loss during or after evidence indicated that the noise he experienced during service did not give him acoustic trauma or noise injury. The VA examiner is trained in audiology and the opinion is based on record review. That opinion is more persuasive than the Veteran’s recollection, many years after service, that periodic tinnitus began during service. The greater persuasive weight of the evidence is against service connection for tinnitus. 6. Service connection for acquired psychiatric disability The Veteran reports that, while he was in service, an anesthesia accident left his infant son brain dead until his death four years later. He contends that those events caused him psychiatric problems, with elements of depression, anxiety, and posttraumatic stress disorder (PTSD), that began in service and continue through the present. Psychoses are among the chronic diseases, listed at 38 C.F.R. § 3.309, for which service connection may be presumed if the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. PTSD is a mental disorder that develops as a result of traumatic experiences. It is possible for service connection to be established for PTSD that becomes manifest after separation from service. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2017). The Veteran has reported that in 1984 his nine-month-old son D. L. J. underwent hernia repair surgery at an Army hospital in Germany, where the Veteran was stationed with his family. The Veteran indicated that the surgery was expected to be simple and routine. He stated that D. received an accidental overdose of anesthesia. He reported that D. was left with total brain damage. He indicated that doctors reported no hope of recovery. The Veteran related that he and his wife visited D., but D. was never able to leave a hospital setting. He reported that, about four years after the brain injury, D. died. The Veteran has stated that from D.’s accident forward, he experienced distress, grief, anger, helplessness, and guilt. He stated that he began to have nightmares, and he became detached and distant from family and others. He stated that while still in service he saw chaplains and mental health clinicians, without significant benefit. He also reported that Army supervisors and officials were not helpful or supportive. He stated that they labelled him a problem, and not a team player. The service medical records for the Veteran that are associated with his claims file do not reflect any mental health treatment or complaints of mental or emotional issues. His claims file contains the death certificate for D. The certificate shows that D. died in June 1988, at less than five years of age. The cause of death is listed as anoxic encephalopathy that occurred four years earlier. In August 2011 the Veteran submitted a claim for service connection for multiple conditions including PTSD and depression. From 2012, he has had VA mental health treatment. In February 2012, a PTSD screen was positive, and a physician referred him for a mental health consultation. In psychiatric evaluation in March 2012, the Veteran reported increasing preoccupation with the 1988 death of his son. He related that, now that he had grandchildren, he had increasingly frequent and distressing thoughts about the loss of his son. He reported worry, anxiety, anger, disturbing dreams, and poor sleep. The psychiatrist found that he had an anxiety disorder with panic and PTSD features. The psychiatrist expressed the opinion that the trauma of the son’s injury, coma, and death had resurfaced with his exposure to his grandchildren. The psychiatrist found that the exposure to grandchildren was sufficient to precipitate to increased memories and feelings. The psychiatrist prescribed antidepressant medication, and later added sleep medication. In August 2012, a psychologist’s assessment was depressive disorder, dysthymia, insomnia, and bereavement. In January 2016, private psychologist H. H.-G., Ph.D., reviewed the Veteran’s claims file and interviewed the Veteran. Dr. H.-G. found that the Veteran has an anxiety disorder. She expressed the opinion that his anxiety disorder more likely than not began during service, due to the events involving his child, and continued after service and through the present. In August 2016, the Veteran submitted statements from his mother and two of his siblings. Each recalled how the Veteran changed with and after the injury, coma, and death of his son. Each noted that he became withdrawn from others, less communicative, chronically angry, and temperamental. Mental health clinicians have diagnosed the Veteran with psychiatric disorders including depressive and anxiety disorders. The death certificate for D. corroborates the cause and timing of his death that the Veteran and his family members have reported. VA clinicians and Dr. H.-G. have considered the Veteran’s current psychiatric disorders to be related to his experiences of losing his son during service. His family members have corroborated changes in his mood and behavior from those events forward. The evidence is sufficiently persuasive to warrant service connection for the current psychiatric disability. 7. Service connection for residuals of cold injury of the hands and fingers The Veteran reports that during service his tasks as a mechanic often required working without gloves. He has stated that in Germany he worked in cold conditions and had to hold metal tools that became very cold. He contends that on multiple occasions he sustained frostbite, or cold injury, of his hands and fingers. The Veteran’s service medical records do not reflect any complaints or disorders affecting either hand or any fingers. He has not reported any treatment soon after service for hand or finger problems. In 2011, many years after service, the Veteran sought service connection for cold injuries of the hands and fingers. In a June 2016 VA neurology visit, he reported fairly constant pain in his left second through fifth fingers. He related only intermittent neck pain, without radicular symptoms. The neurologist stated that the neuropathy of the finger pain was unclear, and could be entrapment neuropathy or radiculopathy. The Veteran’s reports that he handled cold tools during service are consistent with his mechanic duties and service in Germany. His service medical records, however, do not show any complaints or findings of injury or discomfort of his hands or fingers. When he reported left hand pain many years after service, he did not mention injury or exposure during service. The treating clinician did not relate the problem to any injury from many years earlier or any injury from cold exposure. The only evidence of record relating the Veteran's claimed disabilities to service is his own general conclusory statement, which does not meet the low threshold of an indication that the claimed disabilities are due to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Consequently, VA is under no duty to afford the Veteran a VA examination. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); McLendon, 20 Vet. App. at 83. The Veteran has not met his burden of proof, and thus the evidence of record is insufficient to substantiate the claim for service connection. See Madden v. Gober, 125 F.3d 1477, 1480-81 (Fed. Cir. 1997) (explicitly rejecting the argument that "the Board must accept a veteran's evidence at face value, and reject or discount it only on the basis of rebuttal evidence proffered by the agency" and holding that the Board must determine "the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence"). In the absence of persuasive evidence of a relationship between injury or events in service and current hand and finger disorders, the Board denies the claim for service connection for residuals of cold injury of the hands and fingers. Increased Ratings VA assigns disability ratings by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 8. Initial disability rating higher than 10 percent for RLE radiculopathy In the January 2015 rating decision, the RO granted service connection for a back disorder described as degenerative disc disease. The RO granted service connection, effective August 4, 2011, for RLE radiculopathy, as due to the degenerative disc disease. The RO assigned for the RLE radiculopathy a disability rating of 10 percent. The Veteran appealed that rating. The RO evaluated the RLE radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code 8620, for neuritis of the sciatic nerve. Under the rating schedule, incomplete paralysis from peripheral nerve injury and disease indicates a degree of lost or impaired function substantially less than that described for complete paralysis. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate, degree. 38 C.F.R. § 4.124a. Impairment of the sciatic nerve is rated at 80 percent if there is complete paralysis, such that the foot dangles and drops, there is no active movement possible of muscles below the knee, or flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis is rated at 60 percent if it is severe, with marked muscular atrophy. Incomplete paralysis is rated at 40 percent if moderately severe, 20 percent if moderate, and 10 percent if mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Records of VA treatment of the Veteran from 2012 forward reflect low back pain radiating into the RLE. On VA examination in December 2014, the Veteran reported constant low back pain radiating down his right leg to the toes. He related having tingling and numbness in the right leg. He did not report significant weakness of the muscles of the RLE. He described the constant pain as 8 out of 10 (8/10). He reported flare-ups to 10/10 that occurred every time he moved, and lasted two to three minutes. He stated that during flare-ups he could not move. The examiner found normal muscle strength on the right and left with hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. There was no muscle atrophy. Deep tendon reflexes were normal in the right and left knees and ankles. There was decreased sensation to light touch in the right upper anterior thigh, thigh and knee, lower leg and ankle, and foot and toes. The RLE radiculopathy produced moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Radiculopathy affected the right sciatic nerve. The examiner characterized the RLE radiculopathy as moderate. It was noted that the back and RLE problems caused the Veteran trouble with sitting more than two or three minutes, or standing or walking over ten minutes. In VA neurology treatment in March 2016, the physician noted complete numbness of the Veteran’s right leg. The Veteran’s RLE radiculopathy is manifested by pain, tingling, and diminished sensation, without muscle weakness or diminished control of the extremity. Considering the 2014 VA examiner description of the radiculopathy as moderate, and the contribution of the radiculopathy to the Veteran’s diminished endurance for standing and walking, the effects of the radiculopathy more nearly approximate moderate incomplete paralysis than mild incomplete paralysis. The Board therefore grants a 20 percent rating. As there is no diminishment of muscle strength, the impairment does not resemble or approach that of moderately severe or worse incomplete paralysis. A rating higher than 20 percent is not warranted. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant’s disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2017); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The rating criteria appropriately address the effects of the Veteran’s RLE radiculopathy. That disability has not required frequent hospitalizations and has not markedly interfered with his capacity for employment. Therefore, it is not necessary to refer the issue of ratings for that disability for consideration of extraschedular ratings. The Court has indicated that VA must consider, in an increased rating claim, whether the record indirectly raises the issue of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). There is no indication that the RLE radiculopathy significantly affects his capacity for employment, so the record regarding the rating of that disorder does not indirectly raise the issue of unemployability. 9. Initial disability rating higher than 0 percent for headaches In the January 2015 rating decision, the RO granted service connection, effective August 4, 2011, for tension headaches, claimed as migraine headaches. The RO assigned a disability rating of 0 percent. The Veteran appealed that rating. The RO evaluated the Veteran’s headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under that code, migraine headaches are rated at 50 percent if there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. They are rated at 30 percent if there are characteristic prostrating attacks occurring on an average of once a month over the last several months. They are rated at 10 percent if there are characteristic prostrating attacks occurring on an average of one in two months over the last several months. They are rated at 0 percent if there are less frequent attacks. In records of VA treatment of the Veteran from 2012 forward, lists of problems include migraines. Lists of medications include medications to treat headaches. On VA examination in December 2014, the Veteran reported having constant headaches since 2003. He stated that he experienced sharp and achy pain all over his skull. He reported that the headaches averaged 7/10 in severity, and sometimes were accompanied by blurred vision. He stated that the headaches caused trouble concentrating or focusing. He reported that the headaches were worsened by stress and decreased by lying down and relaxing. The examiner reviewed the Veteran’s claims file. The examiner noted that the headaches treated in service in 1982 and 1983 were described as tension headaches, and that headaches in 2003 were diagnosed as tension headaches. The examiner expressed the opinion that it is at least as likely as not that his post-service headaches were incurred in service. The examiner stated that currently the headaches did not occur in characteristic prostrating attacks. The examiner stated that the headaches affected the Veteran’s ability to work by causing trouble with concentration or focusing and sometimes causing blurred vision. In VA treatment in February 2016, the Veteran reported having migraines since the 1980s. He stated that presently he had daily headaches, and recently had a migraine that lasted four days, with nausea and photophobia. In a March 2016 VA neurology visit, he reported constant headaches that sometimes interrupted his sleep. He stated that when the headache pain worsened he had blurry vision, photophobia, phonophobia, dizziness, lightheadedness, and sometimes nausea. The neurologist found that the Veteran had chronic daily headaches with migrainous features. In April 2016, private physician H. S., M.D., interviewed the Veteran and completed a VA headaches questionnaire. The Veteran reported that headaches began in 1984, while he was in service, and increased in frequency and severity over the years. He stated that current medications for his headaches were acetaminophen and topiramate. He reported head pain that was constant, pulsating or throbbing, and present on both sides of his head. He stated that the headaches were accompanied by nausea, vomiting, sensitivity to light and sound, and changes in vision. He indicated that headaches impaired his concentration. He reported that his headaches made him need frequent breaks, and caused him to miss several days of work. He reported that the head pain had an average severity of 5/10, with flare-ups to 10/10 about three times per week. He stated that he frequently had prostrating headaches that required lying down in a dark and quiet room. Dr. S. concluded that the Veteran’s headaches would make him miss three or more days of work per month, leave work early three or more days a month, and be unable to focus for most of the work day three or more days a month. Dr. S. concluded that the headaches would make the Veteran unable to maintain substantially gainful employment. In a June 2016 VA neurology visit, the Veteran reported headaches since the 1980s, with worsening over time. He related that presently his headaches were constant, with exacerbations with migrainous features, including photophobia, phonophobia, lightheadedness, and nausea, and rare vomiting. He indicated that headaches interrupted sleep. The December 2014 VA examination report helps provide a picture of the effects of the Veteran’s headaches from the establishment of service connection in August 2011. The examiner concluded that the headaches were not in prostrating attacks characteristic of migraines. The headaches had impairing effects, however, including interference with concentration and focus, and sometimes blurred vision. Those effects interfered with work. In addition, the headache attacks were frequent, with headaches present at all times. The attacks that constantly produced some impairment were comparable in effect to having some prostrating attacks. The effects most closely approximated monthly prostrating attacks. The Board therefore grants a 30 percent rating from August 4, 2011. The questionnaire Dr. S. completed in April 2016 indicated that the Veteran’s headaches frequently required lying down in a dark and quiet room. The headache attacks frequently impeded, interrupted, or precluded work. Dr. S.’s conclusion about the effects of the headaches on work is consistent with a finding that the headaches produced severe economic inadaptability. The Board grants a 50 percent rating from April 5, 2016, the date of Dr. S.’s evaluation. As Dr. S. opined that the Veteran’s headaches make him unable to maintain substantially gainful employment, the record indirectly raises the issue of unemployability. The Board is adding that issue to those on appeal. Generally, the Board may consider that issue directly. Here, additional action regarding the unemployability claim is needed. The Board is remanding the unemployability issue for action as explained in the remand section, below. REASONS FOR REMAND 1. Service connection for sleep apnea The Board is remanding this issue for a VA medical examination. The Veteran contends that his sleep apnea is secondary to (caused or aggravated by) his psychiatric problems. He has been diagnosed with obstructive sleep apnea (OSA). In the present decision, above, the Board grants service connection for the Veteran’s psychiatric disability, including depressive and anxiety disorders. The Board is remanding the issue for a VA medical examination with file review and opinion as to the likely etiology of his sleep apnea, including the likelihood of any relationship to his service-connected psychiatric disability. 2. Service connection for CFS The Board is remanding this issue for a VA medical examination. The Veteran contends that he has CFS that began in service or is caused or aggravated by low back problems, fibromyalgia, and psychiatric problems. The Veteran had treatment in service for headaches, low back pain, and upper respiratory infection accompanied by dizziness. His service medical records do not show diagnosis of CFS. Since separation from service, he has been treated for insomnia, headaches, low back pain, depressive and anxiety disorders, and OSA. Treatment records reflect the Veteran’s belief that he has CFS, but treating physicians have not clearly indicated whether he has CFS. The Board is remanding the issue for a VA examination, with file review and opinion, to clarify whether he has CFS, and if so, the likely etiology of that disorder. 3. Service connection for fibromyalgia or CPS The Board is remanding this issue for a VA medical examination. The Veteran is seeking service connection for a disorder that he has described as chronic pain syndrome (CPS) or as fibromyalgia. He contends that such a disorder is manifested by or was caused or aggravated by pain in multiple areas, including his back and his RLE. The Veteran’s service treatment records reflect reports of pain in his head, low back, and right and left feet. In his August 2011 claim, he sought service connection for numerous disorders, including disorders of the low back and right lower extremity (RLE) and CPS. He explained that he sustained a low back injury during service, and that pain and weakness in his right lower extremity was secondary to his low back disorder. He stated that CPS was secondary to back injury and residual damage to his right leg and foot. In an August 2013 rating decision, the RO denied service connection for low back disability, and for CPS including right leg, ankle, and foot problems, claimed as secondary to low back disability. The Veteran appealed that decision. In a January 2015 rating decision, the RO granted service connection for degenerative disc disease of the low back and granted service connection for RLE radiculopathy as related to the degenerative disc disease. VA also granted service connection for headaches. In a February 2015 notice of disagreement (NOD), the Veteran stated that the claimed service-connected condition he had described as CPS should be considered service-connected as fibromyalgia. In VA treatment records, the Veteran has reported pain in his back, RLE, and the fingers of his left land. He has indicated that he believes he has fibromyalgia or CPS. VA clinicians have not indicated whether he has fibromyalgia or CPS. The Board is remanding the issue for a VA examination with file review and opinion clarifying whether the Veteran has fibromyalgia and/or CPS, and if so, the likely etiology of such disorder(s). 4. Service connection for GERD The Board is remanding this issue for additional information and examination. The Veteran contends that intermittent stomach and esophagus discomfort began during service and continued after service, and that the ongoing problems are affected by other disorders including psychiatric disorders, CFS, and CPS. The Veteran’s service medical records show digestive system symptoms, including stomach cramps and upset in February and August 1983. After service he has had VA treatment, including in 2013 and 2014, for abdominal and chest pain and reflux. On VA examination in December 2014, the examiner noted GERD during and after service. The examiner questioned continuity of the disorder, due to the absence of records of treatment soon after service. On remand the Veteran should receive an opportunity to support continuity between symptoms during and after service, by submitting or identifying records of treatment after service, particularly relatively soon after service, and/or by submitting further statements, from him or people who knew him then, about GERD manifestations soon after service. Any additional evidence should be considered by a VA examiner in providing a new opinion as to the likelihood that current GERD is related to GERD during service. The Veteran asserts that ongoing GERD is affected by other disorders including psychiatric disorders. As service connection is now established for his psychiatric disorders, the new VA medical opinion should address whether current GERD is proximately caused or aggravated by psychiatric disorders. 5. Service connection for ED The Board is remanding this issue for a VA medical examination. The Veteran contends that sexual dysfunction and ED began during service and continued after service, and are related to other conditions, including depression, headaches, and back problems. During service the Veteran was treated for prostatitis in January 1984. After service, records of VA treatment from 2012 forward reflect a history of prostate issues and findings of benign bladder tumors. The assembled medical records do not include any finding or opinion as to the likely etiology of current ED. The conditions to which the Veteran attributes his ED include service-connected disorders such as depression, headaches, and degenerative disc disease of the low back. The Board is remanding the issue for a VA examination with file review and opinion as to the likely etiology of his ED. 6. Initial disability rating higher than 20 percent for degenerative disc disease The Board is remanding this issue for another VA examination. In the January 2015 rating decision, the RO granted service connection, effective August 4, 2011, for degenerative disc disease. The RO assigned a disability rating of 20 percent. The Veteran appealed that rating, contending that a higher rating is warranted. The rating schedule provides for evaluating degenerative disc disease under a General Rating Formula for Diseases and Injuries of the Spine, or a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher rating. 38 C.F.R. § 4.71a (2017). Limitation of motion of the spine is a major criterion under the General Rating Formula for Diseases and Injuries of the Spine. When evaluation of a musculoskeletal disability is based on limitation of motion, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened motion, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). In Correia v McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 indicates that evaluation of joints that have painful motion also should include consideration of whether there is pain on both active and passive motion, consideration of whether there is pain with and without weightbearing, and comparison of the range of motion to that of any opposite undamaged joint. The Veteran had a VA medical examination of his back in December 2014. The report of that examination provided some, but not all, of the information relevant to rating his back disability. The report did not report on the existence and duration of any incapacitating episodes of disc disease, on whether there was pain on both active and passive motion, or on whether there was pain on motion without weightbearing. The Board is remanding the issue for a new examination providing findings on all the relevant criteria, including (but not limited to) incapacitating episodes and the factors discussed by the Court in Correia and DeLuca, supra. 7. TDIU The Board is remanding this issue for pending ratings to be assigned and considered, followed by consideration of a TDIU. In support of the Veteran’s claim for a higher disability rating for his headaches, he submitted a headache questionnaire completed by private physician Dr. S. Dr. S. expressed the opinion that the Veteran’s headaches make him unable to maintain substantially gainful employment. That statement in the record raises the issue of unemployability. VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of disability ratings for service-connected disabilities. If there are two or more service-connected disabilities, they must merit a combined rating of at least 70 percent, with one condition rated at least 40 percent. 38 C.F.R. § 4.16(a). The Board’s grants of service connection for psychiatric disability and of higher ratings for headaches affect the individual and combined ratings for his service-connected disabilities. The Board is remanding the issue for the RO to effectuate those grants and then consider the TDIU claim. The matters are REMANDED for the following action: 1. Effectuate the Board’s grant of service connection for psychiatric disability and assign a disability rating. Effectuate the Board’s grant of higher ratings for headaches. 2. Invite the Veteran to provide records of treatment after service, especially fairly soon after service, particularly for gastroesophageal reflux disorder (GERD) or similar symptoms, or to identify such treatment and ask VA to seek the records. Obtain records of any such treatment he identifies. Invite him also to submit further accounts (his own, or those of persons who know him) regarding his GERD or similar symptoms after service, especially soon after. 3. Provide the Veteran with proper VCAA notice under 38 U.S.C. § 5103 (a) and 38 C.F.R. § 3.159 (b) that informs him of the evidence and information necessary to establish entitlement to a TDIU. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 4. Schedule the Veteran for a VA examination to address the history and likely etiology of his obstructive sleep apnea (OSA). Provide the expanded claims file to the examiner. Ask the examiner to review the claims file, obtain from the Veteran history of his OSA symptoms, and examine the Veteran. Ask the examiner to provide opinions as to whether it is at least as likely as not that his OSA (a) is proximately caused by his psychiatric (depressive and anxiety) disorders, or (b) is aggravated by his psychiatric disorders. Ask the examiner to explain the conclusions and opinions. 5. Schedule the Veteran for a VA examination to address the question of diagnosis and likely etiology of claimed chronic fatigue syndrome (CFS), fibromyalgia, and chronic pain syndrome (CPS). Provide the expanded claims file to the examiner. Ask the examiner to review the claims file and examine the Veteran. Ask the examiner to determine whether the Veteran has signs and symptoms that warrant diagnosis of CFS, fibromyalgia, and/or CPS. Ask the examiner, for each of those disorders that they diagnose, to provide opinions as to whether it is at least as likely as not that the disorder (a) had onset during his 1982 to 1989 service, or (b) was proximately caused by or aggravated by any other physical or mental disorder(s), and if so, which disorder(s)? Ask the examiner to explain the conclusions and opinions. 6. Provide the Veteran’s expanded claims file to an appropriate clinician to review and provide opinion as to the likely history and etiology of his current gastroesophageal reflux disorder (GERD). Ask the reviewer to provide opinion as to whether it is at least as likely as not that (a) the current GERD is a continuation or recurrence of GERD during service, or (b) depressive and anxiety disorders proximately cause or aggravate the current GERD. Ask the reviewer to explain the conclusions and opinions. 7. Schedule the Veteran for a VA examination to address the likely etiology of current erectile dysfunction (ED). Provide the expanded claims file to the examiner. Ask the examiner to review the claims file and examine the Veteran. Ask the examiner to provide opinion as to whether it is at least as likely as not that the Veteran’s current ED is (a) related to prostatitis or other disease or injury in service, (b) is proximately caused by his anxiety/depressive disorder, low back disability, or headaches, or (c) is aggravated by his anxiety/depressive disorder, low back disability, or headaches. Ask the examiner to explain the conclusions and opinions. 8. Schedule the Veteran for a VA examination to address the current manifestations of his thoracolumbar degenerative disc disease. Provide his expanded claims file to the examiner for review. Ask the examiner to review the claims file and examine the Veteran. Ask the examiner to conduct all necessary tests of the function and functional impairment of the Veteran’s thoracolumbar back, specifically including findings as to whether there is pain on active and passive ranges of motion, and whether there is pain on ranges of motion with and without weightbearing. Ask the examiner to report whether his thoracolumbar back has functional impairment due to pain, weakness, fatigability, or incoordination, or with repeated use or flare-ups. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] Ask the examiner to describe any functional impairment from such factors as equivalent to degrees of additional loss of motion, if feasible. Ask the examiner to report whether he has incapacitating episodes of degenerative disc disease, and if so, the total duration, in days or weeks, of those episodes. 9. Then review the expanded claims file and consider the claims for service connection for sleep apnea, CFS, GERD, and ED, and for a higher rating for degenerative disc disease. 10. Then review the expanded claims file and consider the claim for a TDIU. 11. Then, if any of the remanded claims is not granted to the Veteran’s satisfaction, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, return the case to the Board for appellate review, if otherwise in order. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. J. Kunz, Counsel