Citation Nr: 18159937 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 16-51 359 DATE: December 21, 2018 ORDER Entitlement to an initial 50 percent rating for migraines is granted. REMANDED Entitlement to an effective date prior to October 7, 2012, for the grant of service connection for migraines is remanded. Entitlement to an effective date prior to October 7, 2012, for the grant of service connection for primary open angle glaucoma of the right eye with stats post right orbital fracture with mild ptosis of the right upper eyelid (right eye disability) is remanded. Entitlement to an effective date prior to October 7, 2012, for the grant of service connection for a scar associated with the right eye disability is remanded. Entitlement to an effective date prior to October 7, 2012, for the grant of service connection for left knee strain is remanded. Entitlement to an effective date prior to September 30, 2014, for the grant of service connection for tinnitus is remanded. Entitlement to an initial rating in excess of 10 percent for a right eye disability is remanded. Entitlement to an initial compensable rating for a scar associated with the right eye disability is remanded. Entitlement to an initial rating in excess of 10 percent for left knee strain is remanded. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. Entitlement to service connection for hyperlipidemia is remanded. Entitlement to service connection for high blood pressure is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for night sweats is remanded. Entitlement to service connection for a psychiatric disorder is remanded. Entitlement to service connection for memory loss is remanded. Entitlement to service connection for dizziness is remanded. Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to individual unemployability is remanded. FINDING OF FACT The Veteran’s service-connected migraines been productive of very frequent prostrating and prolonged attacks of migraine headache pain. CONCLUSION OF LAW The criteria for an initial 50 percent rating for migraines have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from March 1996 to April 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2014, October 2014, July 2015, September 2016, and December 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The issue of entitlement to service connection for anxiety has been recharacterized as service connection of a psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to an initial 50 percent rating for migraines is granted. Under Diagnostic Code 8100, a 50 percent rating is appropriate with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 30 percent rating is appropriate with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent rating is appropriate with characteristic prostrating attacks average one in two months over the last several months. A 0 percent rating is appropriate with less frequent attacks. On VA examination in August 2014 and July 2015, the Veteran reported that since 2009, more than once monthly, he has experienced migraines so severe as to require him to retire to a quiet, dark room. He also reported that his migraines cause nausea, sensitivity to light and sound, and changes in vision. Both examiners characterized the Veteran’s headaches as very frequent prostrating and prolonged attacks of migraine headache pain. The examiners’ characterization is consistent with descriptions of the migraines from the Veteran and his mother. See Statements (September 5, 2014; April 7, 2015). As the competent, credible, and consistent lay and medical evidence of record shows that the Veteran’s service-connected migraines been productive of very frequent prostrating and prolonged attacks of migraine headache pain, an initial 50 percent rating for migraines is warranted. REASONS FOR REMAND 1. Entitlement to an effective date prior to October 7, 2012, for the grant of service connection for migraines is remanded. 2. Entitlement to an effective date prior to October 7, 2012, for the grant of service connection for primary open angle glaucoma of the right eye with stats post right orbital fracture with mild ptosis of the right upper eyelid (right eye disability) is remanded. 3. Entitlement to an effective date prior to October 7, 2012, for the grant of service connection for a scar associated with the right eye disability is remanded. 4. Entitlement to an effective date prior to October 7, 2012, for the grant of service connection for left knee strain is remanded. 5. Entitlement to an effective date prior to September 30, 2014, for the grant of service connection for tinnitus is remanded. 6. Entitlement to an initial rating in excess of 10 percent for a right eye disability is remanded. 7. Entitlement to an initial compensable rating for a scar associated with the right eye disability is remanded. 8. Entitlement to an initial rating in excess of 10 percent for left knee strain is remanded. A new VA examination is needed to comply with the last sentence of 38 C.F.R. § 4.59 as it pertains to testing the joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint (or for an explanation as to why such testing cannot be conducted). See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The most recent VA examination, which was conducted in August 2014, does not provide this information. Likewise, VA examination is needed to address functional limitations during flare-ups. Accordingly, upon remand, if the examination is not conducted during a flare-up, the VA examiner will be asked to estimate functional loss during flare-ups based on the Veteran’s descriptions of his additional loss of function during flare-ups, information gleaned from his medical records, or discerned other sources available to the examiner. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced during flares. Id. 9. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. 10. Entitlement to service connection for hyperlipidemia is remanded. 11. Entitlement to service connection for high blood pressure is remanded. 12. Entitlement to service connection for sleep apnea is remanded. 13. Entitlement to service connection for night sweats is remanded. 14. Entitlement to service connection for a psychiatric disorder is remanded. 15. Entitlement to service connection for memory loss is remanded. 16. Entitlement to service connection for dizziness is remanded. 17. Entitlement to service connection for a TBI is remanded. 18. Entitlement to service connection for right knee condition is remanded. VA examination is needed to ascertain the etiology of the Veteran’s claimed hypertension, sleep apnea, night sweats, psychiatric disorder, memory loss, dizziness, right knee disability, and TBI. Indeed, the Veteran incurred a serious head injury (resulting in the service-connected eye injury and headache) in service and has reported symptoms of the claimed disabilities since that time. To date, however, the Veteran has not undergone VA examination to determine the etiology of the claimed disabilities. 19. Entitlement to individual unemployability is remanded. Critically, a VA treatment record dated October 31, 2013, shows that the Veteran applied for Social Security disability benefits. Records pertaining to such Social Security Administration (SSA) benefits are outstanding and will likely yield information relevant the nature of the Veteran’s current disabilities as well as his employment history. Accordingly, remand is necessary to obtain these outstanding, pertinent records. 38 C.F.R. § 3.159 (c)(2) (2017); see Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). The matters are REMANDED for the following action: 1. Notify the Veteran that he can submit lay statements from himself and from other individuals who have first-hand knowledge of the severity of his service-connected disabilities (to include their impact on his ability to work) as well as the history of his nonservice-connected disabilities (to include when he began to notice symptoms). Provide him a reasonable period of time to submit this evidence. 2. Obtain complete SSA disability records for the Veteran, to include underlying medical records upon which any SSA disability decision was based. If such records are unavailable, the Veteran’s claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 3. Schedule the Veteran for an examination of the current severity of his service-connected left knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for all necessary examinations to determine the nature and etiology of any current hypertension, sleep apnea, night sweats, a psychiatric disorder, memory loss, dizziness, right knee disability, and TBI. As to each diagnosed disability, the examiner is to address each of the follow questions: Is it at least as likely as not that the disability is related to an in-service injury, event, or disease? Is it at least as likely as not that the disability (1) began during active service, (2) manifested within 1 year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Is it at least as likely as not that the disability was caused by a service-connected disability? Is it at least as likely as not that the disability was aggravated by a service-connected disability? Is it at least as likely as not that the disability was caused and/or aggravated by a nonservice-connected disability (or other claimed disability)? STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel