Citation Nr: 21074379 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 20-24 542 DATE: December 15, 2021 ORDER Entitlement to an earlier effective date of July 29, 2018 for the 70 percent rating currently assigned for post-traumatic stress disorder (PTSD) with traumatic brain injury (TBI) is granted. Entitlement to an earlier effective date of July 29, 2018 for the 50 percent rating assigned for migraine headaches is granted. Entitlement to service connection for a right shoulder disability (claimed as acquired deformity of clavicle) is granted. REMANDED Entitlement to an initial rating in excess of 70 percent for PTSD with TBI is remanded. Entitlement to an initial compensable rating for vasovagal syncope is remanded. Entitlement to an initial compensable rating for hypertension is remanded. Entitlement to service connection for blurred vision/light sensitivity is remanded. Entitlement to service connection for dizziness/vertigo is remanded. Entitlement to service connection for a left ear disability (claimed as otitis externa) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The functional impairment resulting from the Veteran's service-connected PTSD with TBI has at least approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, since the effective date of service connection for the disability. 2. The functional impairment resulting from the Veteran's service-connected migraine headaches has more nearly approximated very frequent completely prostrating attacks capable of producing severe economic inadaptability since the effective date of service connection for the disability. 3. The Veteran's current right shoulder disability is at least as likely as not etiologically related to his active-duty service. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of July 29, 2018 for the 70 percent rating currently assigned for the Veteran's service-connected PTSD with TBI have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.126, 4.130. 2. The criteria for an earlier effective date of July 29, 2018 for the 50 percent rating currently assigned for the Veteran's service-connected migraine headaches have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.124a. 3. The criteria for service connection for a right shoulder disability (claimed as acquired deformity of clavicle) have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from September 1999 to July 2018. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision from a Department of Veteran's Affairs (VA) Regional Office (RO). In June 2019, RO issued a rating decision granting a 70 percent rating for PTSD with TBI, effective March 19, 2019, resulting in a staged initial rating for the disability. As this does not constitute a full grant of the benefit sought on appeal, the Board will determine whether the Veteran is entitled to a higher rating throughout the appeal period. Additionally, in an October 2021 rating decision, the RO granted a 50 percent rating for migraine headaches, effective July 29, 2021. As this is the highest schedular rating permitted for migraine headaches, the Board will determine whether the Veteran is entitled to a higher rating for migraine headaches prior to July 29, 2021. TDIU is an element of an increased rating claim when unemployability is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds the issue of TDIU has been raised by the record and is, thus, properly before the Board by virtue of the Veteran's appeal of the initial ratings assigned for his service-connected disabilities, pursuant to Rice. When this case was last before the Board in March 2021, it was remanded for additional development. Specifically, the Board directed the RO to obtain the Veteran's outstanding vocational rehabilitation records. The appropriate records were obtained. As such, the Board finds there has been substantial compliance with its March 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an earlier effective date of July 29, 2018 for the 70 percent rating currently assigned for PTSD with TBI is granted. As previously noted, the RO issued a rating decision in June 2019 that increased the rating assigned for the Veteran's service-connected PTSD with TBI from 50 percent to 70 percent, effective March 19, 2019. The Board notes a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. Upon further review of the record, the Board finds there is evidence of suicidal ideation throughout the appeal period. The United States Court of Appeals for Veterans Claims (Court) has held suicidal ideation does not require suicidal intent, a plan, or prepatory behavior. Bankhead, v. Shulkin, 29 Vet. App. 10, 19 (2017). In Bankhead, the Court further explained that the presence of suicidal ideation alone might cause occupational and social impairment with deficiencies in most areas due to the severity of the symptomatology. Id. In light of the evidence of suicidal ideation throughout the appeal period, the Board finds an earlier effective date of July 29, 2018 for the 70 percent rating currently assigned for PTSD with TBI is warranted because the evidence establishes the functional impairment resulting from the disability has at least approximated the 70 percent rating criteria throughout the appeal period when considering the holding in Bankhead. The Board acknowledges the award of a 70 percent rating for PTSD with TBI throughout the appeal period does not constitute a full grant of the benefit on appeal; therefore, entitlement to an initial rating in excess of 70 percent rating for PTSD with TBI will be discussed in the REMAND section below. 2. Entitlement to an earlier effective date of July 29, 2018 for the 50 percent rating assigned for migraine headaches is granted. As previously noted, the RO issued a rating decision in October 2021 that increased the rating assigned for the Veteran's service-connected migraine headaches from 30 percent to 50 percent, effective July 29, 2021, based on a post-remand examiner's assessment of the severity of the Veteran's disability. Upon review of the record, the Board finds the functional impairment resulting from the Veteran's service-connected migraine headaches has more nearly approximated very frequent completely prostrating attacks capable of producing severe economic inadaptability since the effective date of service connection for the disability. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Although the Veteran's initial February 2018 examiner reported the Veteran's migraine headaches resulted in prostrating attacks on average once per month over the last year at the time of the examination, the February 2018 examiner further reported the Veteran had experienced three to four of these in the two weeks prior to the examination. Overall, the Board finds the totality of the February 2018 examiner's report is more consistent with the functional impairment noted by the post-remand, July 2021 examiner. As a result, the Board finds the functional impairment resulting from the Veteran's service-connected migraine headaches has more nearly approximated very frequent completely prostrating attacks capable of producing severe economic inadaptability since the effective date of service connection for the disability, warranting a 50 percent rating for the disability throughout the appeal period. This represents a full grant of the benefit sought on appeal, as a 50 percent rating is the highest rating available for migraine headaches under the VA Rating Schedule. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. 3. Entitlement to service connection for a right shoulder disability (claimed as acquired deformity of clavicle) is granted. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran seeks service connection for his right shoulder disability, which he contends originated in service. The medical evidence confirms that the Veteran has a current diagnosis of right AC joint pain/arthralgia. See February 2018 VA shoulder conditions examination. The central issue that must be resolved is whether the Veteran's current disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran's service treatment records (STRs) do contain complaints of, and treatment for, a right shoulder condition. Specifically, the Board notes that the Veteran's STRs indicate he was in a motor vehicle accident in 2003, which caused his shoulder area to become stiff. Further, the Veteran was treated for right clavicle pain and a sternoclavicular strain in May 2012 due to an injury playing football. The May 2012 treatment note also noted a prior injury to the Veteran's right shoulder with continuous pain thereafter. As noted above, the Veteran was afforded a February 2018 VA shoulder conditions examination. During the examination, the Veteran reported that he injured his right shoulder playing flag football in service, and that his shoulder has experienced pain since then. The examiner noted that the Veteran has a reduced range of motion in his right shoulder. The examiner diagnosed the Veteran with right shoulder pain/arthralgia and noted the date of the diagnosis to be 2011, while the Veteran was in active service. In his July 2019 NOD, the Veteran reported that he has experienced right shoulder pain since his injury in service and that his right shoulder is noticeably different looking than his left. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The VA examiner acknowledged that the Veteran is currently experiencing pain and that the pain is related to his currently diagnosed conditions. Further, the examiner noted that the Veteran's condition began while he was in active-duty service and stemmed from an injury sustained playing sports in service. Further, the Board notes that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board has considered the Veteran's lay statements in support of his claim. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that he experienced right shoulder pain after an injury in service which has persisted ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ongoing pain to be at least as probative as the above-noted VA examiners' findings, as the Veteran is truly the only person capable of such observation. Given the VA examiner's opinion, the Veteran's competent lay statements, and the Veteran's VAMC records, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran's right shoulder disability is at least as likely as not etiologically related to his active-duty service. The evidence is thus in equipoise as to whether the Veteran's claimed condition is etiologically related to his active-duty service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that entitlement to service connection for the Veteran's right shoulder disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In sum, the Board is satisfied that the evidence supporting the right shoulder claim is at least in equipoise with that against the claim; therefore, service connection for right shoulder disability is warranted. REASONS FOR REMAND Although the Board sincerely regrets further delay, after a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating these claims. Initially, the Board notes it appears the AOJ recently requested the Veteran's Social Security Administration (SSA) records in November 2021; however, it does not appear the SSA has provided a response to date. When there has been a determination regarding SSA benefits, the records concerning that decision must be obtained, if relevant. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The Veteran's SSA records are potentially relevant to all the issues on appeal; therefore, they must be obtained before any final decision that may be averse to the Veteran. The Board will discuss development of individual issues, as necessary, below. 1. Entitlement to an initial rating in excess of 70 percent for PTSD with TBI is remanded. 2. Entitlement to an initial compensable rating for vasovagal syncope is remanded. The Veteran's appeals of the initial ratings assigned for PTSD with TBI and vasovagal syncope are being remanded primarily for the purpose of obtaining any SSA records that may be available for the Veteran. 3. Entitlement to an initial compensable rating for hypertension is remanded. The Veteran contends that he is entitled to an increased disability rating for his service-connected hypertension. In support of this contention, the Veteran indicated that he has had to use medication to control his hypertension since at least 2011, and that there are multiple documented cases where even while on this medication the Veteran's diastolic blood pressure has reached 100+. The Board notes that the Veteran's STRs do document several instances where he has had increased diastolic blood pressure in the 100+ range. Specifically, the Board notes an August 2016 reading of 172/100, a November 2016 reading of 172/106, a May 2017 reading of 169/110, a July 2017 reading of 157/112, and a September 2016 reading of 152/100. Further, Board notes a February 2007 reading of 159/101 and a February 2006 reading of 149/116. The Board finds that a medical opinion is required to address the Veteran's in-service readings to indicate whether he has a history of diastolic pressure predominantly 100 or more which requires continuous medication for control. 4. Entitlement to service connection for light sensitivity is remanded. While the Veteran was provided a February 2018 VA eye conditions examination, the Board finds it to be inadequate. The examiner diagnosed the Veteran with light sensitivity; however, the examiner did not opine whether the Veteran's disability was etiologically related to, or aggravated by, his service connected TBI and/or migraines. The Veteran provided lay statements wherein he indicated that his light sensitivity began after his TBI took place in service. When VA undertakes to provide an examination or opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Based on the above, the VA examiner did not adequately assess the etiology of the Veteran's light sensitivity, and as such, the Board finds a new medical opinion is necessary to determine whether it is etiologically related to his service-connected disabilities. 5. Entitlement to service connection for vertigo is remanded. 6. Entitlement to service connection for a left ear disability (claimed as otitis externa) is remanded. As with the Veteran's appeals of initial ratings assigned for PTSD with TBI and vasovagal syncope, the Veteran's service connection claims for vertigo and a left ear disability (claimed as otitis externa) are being remanded for the primary purpose of obtaining any SSA records that may be available for the Veteran because there is currently insufficient evidence of record to establish the current disability requirement of the Veteran's claims. 7. Entitlement to service connection for bilateral hearing loss is remanded. While the Veteran was provided a February 2018 VA hearing loss examination, the Board finds it to be inadequate. The examiner noted that they could not test the Veteran's left ear hearing thresholds. The Board finds this to be a glaring flaw in the examination given that the Veteran's STRs indicate a significant shift in his left ear hearing during service that was not address by the February 2018 examiner. As previously noted, when VA undertakes to provide an examination or opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Based on the above, the VA examiner did not adequately assess the etiology of the Veteran's bilateral hearing loss, and as such, the Board finds a new examination and opinion is necessary. 8. Entitlement to TDIU is remanded. The record establishes the AOJ is in the process of developing evidence and adjudicating the issue of TDIU in the first instance; therefore, the issue must be remanded to ensure the Veteran is afforded due process. The matters are REMANDED for the following action: 1. Continue efforts to obtain any SSA records that may be available for the Veteran. All efforts to obtain such records must be documented in the claims file. If no SSA records are obtained, a formal finding to this effect must be associated with the claims file. 2. Afford the Veteran VA examinations by an examiner(s), who has not previously examined him, with sufficient expertise to address the etiology of the Veteran's claimed bilateral hearing loss and light sensitivity. All pertinent evidence of record must be made available to and reviewed by the examiner. Following a review of the relevant records and lay statements, the examiner(s) should state an opinion regarding: a) Whether the Veteran's hearing loss at least as likely as not (a 50 percent probability or greater) is etiologically related to his time in service, specifically to include his conceded military noise exposure. In providing this opinion the examiner is asked to address the article provided/cited by the Veteran titled "Acceleration of age-related hearing loss by early noise exposure: evidence of a misspent youth." b) Whether the Veteran's light sensitivity in his eyes is at least as likely as not (a 50 percent probability or greater) etiologically related to his active-duty service. c) Whether the Veteran's light sensitivity in his eyes is at least as likely as not (a 50 percent probability or greater) proximately due to, or aggravated by, his service connected TBI and/or his service-connected migraine headaches. The examiner(s) must provide a complete rationale for all proffered opinions. In this regard, the examiner(s) must discuss and consider the Veteran's competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed 3. Finally, schedule the Veteran for an examination with an examiner with sufficient expertise to determine the current severity of his service-connected hypertension. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. In their report on the severity of the Veteran's disabilities, the examiner(s) must provide an opinion as to the likely severity of the Veteran's hypertension. Specifically, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension indicates a history of diastolic pressure predominately 100 or more which requires continuous medication to control. The examiner must comment on the Veteran's blood pressure readings listed above in the remand section. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. L. S. Kyle Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.