Citation Nr: 21030480 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-28 238 DATE: May 19, 2021 ORDER Entitlement to a compensable evaluation for tension headaches prior to December 3, 2019 is denied. Entitlement to an evaluation in excess of 30 percent for tension headaches from December 3, 2019 is denied. REMANDED Entitlement to an evaluation in excess of 20 percent for lumbar spine degeneration prior to December 3, 2019 is remanded. Entitlement to an evaluation in excess of 40 percent for lumbar spine degeneration from December 3, 2019 is remanded. Entitlement to an evaluation in excess of 50 percent for PTSD prior to December 3, 2019 is remanded. Entitlement to an evaluation in excess of 70 percent for PTSD from December 3, 2019 is remanded. Entitlement to an evaluation excess of 30 percent for obstructive sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 1, 2018 is remanded. FINDINGS OF FACT 1. Prior to December 3, 2019, the most probative evidence of record reflects, the Veteran's tension headaches were not manifested by symptoms productive of characteristic prostrating attacks. 2. From December 3, 2019, the most probative evidence of record reflects, the Veteran's tension headaches were not manifested by symptoms productive of very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for tension headaches prior to December 3, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for a rating in excess of 30 percent for tension headaches from December 3, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from May 1992 to May 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2015 and March 2016 rating decisions issued by a Regional Office (RO) of the Department of Veterans' Affairs (VA). The March 2015 rating decision, in part, granted an increased rating for PTSD, from 30 percent disabling, to 50 percent effective January 30, 2014, the date of the claim for increase. The March 2015 rating decision, in part, also continued a 20 percent rating for the Veteran's lumbar spine degeneration and a noncompensable rating for his tension headaches. As to the Veteran's obstructive sleep apnea, an April 2015 rating decision, proposed to sever service connection for obstructive sleep apnea. This was effectuated in a March 2016 rating decision, effective June 1, 2016, and the Veteran timely appealed this decision. The Board recognizes that a claim stemming from a severance action is a claim for restoration of service connection and, typically, does not contemplate a claim for an increased rating. See Peyton v. Derwinski, 1 Vet. App. 292 (1991). However, in this regard, August 2019 rating decision restored service connection and granted an increased rating of 30 percent for obstructive sleep apnea effective January 30, 2014. Thereafter, an August 2019 statement of the case framed the issue as an increased rating claim and addressed the claim on that basis, and the Veteran submitted a substantive appeal within 60 days thereafter, in part, perfecting appellate review as to increased rating for obstructive sleep apnea. Accordingly, an increased rating claim for obstructive sleep apnea was properly before the Board in September 2019. In September 2019, the Board, in pertinent part, denied entitlement to a rating in excess of 30 percent of obstructive sleep apnea, and remanded the increased rating claims for tension headaches (as corrected in a November 2019 Board decision), PTSD and a lumbar spine disability. In September 2019, the Board also found the issue of entitlement to a TDIU had been raised by the record as part and parcel of the Veteran's increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran appealed the Board's September 2019 denial as to entitlement to a rating in excess of 30 percent of obstructive sleep apnea to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in June 2020, the Court granted a Joint Motion for Partial Remand (JMPR) of the parties (the Secretary of VA and the Veteran), and vacated the Board's decision with respect to this issue, and remanded the case to the Board for re-adjudication consistent with the JMPR. This issue, as well as the increased rating claims for tension headaches, PTSD, and a lumbar spine disability, now return for appellate review. VA correspondence dated in July 2020 has been issued to the Veteran and his representative, informing the Veteran that he may submit any additional argument or evidence within 90 days of the date of the letter or waive the 90 day period if he would like the Board to proceed to immediate adjudication of the appeal for the issue vacated by the Court. No response received by VA from either the Veteran or his representative; however, the 90 day period has elapsed. However, in October 2020, the Veteran's representative requested a 90 day extension of time to submit additional evidence or file a brief in support of the appeal. As the requested 90 day extension has now elapsed and the Veteran's representative has submitted argument in support the appeal, the Board may proceed with appellate review. Additionally, entitlement to a TDIU was awarded in a September 2020 rating decision effective from May 1, 2018. However, there remains an issue of entitlement to TDIU prior to May 1, 2018 in relation to the increased rating claims, in part, for tension headaches, PTSD, and a lumbar spine disability, each received by VA on January 30, 2014. Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, the issue of entitlement to a TDIU prior to May 1, 2018 is for appellate review. During the pendency of the appeal for a higher rating for PTSD, an August 2020 rating decision granted a 70 percent rating effective December 3, 2019. Similarly during the pendency of the claim for a higher rating for lumbar spine degeneration, the August 2020 rating decision granted a 40 percent rating effective December 3, 2019, and during the pendency of the claim for a higher rating for tension headaches, the August 2020 rating decision granted a 30 percent rating effective December 3, 2019. Because these higher ratings do not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran's appeal as to these issues remains for Board consideration. AB v. Brown, 6 Vet. App. 35, 38 (1993). As a final initial matter, additional evidence was received subsequent to the August 2020 supplemental statement of the case issued, in part, for the Veteran's claim for increased staged ratings for tension headaches, which is decided herein. Specifically, in September 2020 and October 2020, additional private medical records were obtained by VA in conjunction with a September 2020 VA Form 21-4142 completed by the Veteran. In January 2021, VA sent correspondence to the Veteran and his representative inquiring whether he waived Agency of Original Jurisdiction AOJ review of this evidence. In a February 2021 response, the Veteran's representative waived review by the AOJ of this additional evidence. Therefore, it is not necessary to remand the Veteran's claim for increased staged ratings for tension headaches to the AOJ for consideration of this evidence. Further, as the Veteran's remaining claims are remanded for additional development, there is no prejudice to the Veteran in this regard. Increased Rating Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Entitlement to a compensable evaluation for tension headaches prior to December 3, 2019 2. Entitlement to an evaluation in excess of 30 percent for tension headaches from December 3, 2019 The Veteran contends that he is entitled to a higher staged ratings for tension headaches. The current claim for increase stems from a January 30, 2014 informal claim for benefits, which included a claim for an increased rating for the Veteran's tension headaches. In this regard, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. Thus, the rating period for consideration on appeal is from one year prior to the date of receipt of the January 30, 2014 claim for increase, if it is factually ascertainable that an increase occurred during that period. Prior to December 3, 2019, the Veteran's tension headaches have been rated under Diagnostic Codes 8199-8100, and from December 3, 2019, his tension headaches have been rated under Diagnostic Code 8100, for migraines. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under Diagnostic Code 8100. 38 C.F.R. § 4.124a. The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Prior to December 3, 2019 For the period prior to December 3, 2019, the Board concludes that the Veteran's migraines have occurred with less frequent attacks, warranting no more than a noncompensable rating under Diagnostic Code 8100. A headaches disability benefits questionnaire was obtained by VA in February 2015. During the February 2015 VA examination, the Veteran reported he had headaches once every other week, and that he took a few aspirin, laid down, and put a cold washcloth on his forehead for relief. The February 2015 VA examiner found the Veteran had symptoms of headache pain described as pounding, throbbing, like something pushing out the frontal forehead, which started on the right or center of the head, with a duration of typical head pain of less than one day. The February 2015 VA examiner also found he had non-headache symptoms associated with headaches of changes in vision (such as scotoma, flashes of light, tunnel vision) and that he saw colored "dots" or "gnats." The February 2015 VA examiner found the Veteran's duration of typical head pain was less than one day and the location of his typical head pain was on the right side or the frontal part of the head. Notably, the February 2015 VA examiner found the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. Also of record is an October 2018 private headaches disability benefits questionnaire. The October 2018 private examiner documented the Veteran reported headache since service, which increased in frequency and severity since that time. The October 2018 private examiner found the Veteran had symptoms of headache pain consisting pulsating or throbbing head pain, pain worsened with physical activity, and pain over his eyes, described as a squeezing feeling. The October 2018 private examiner found the Veteran had non-headache symptoms associated with headaches of sensitivity to sound, changes in vision (such as scotoma, flashes of light, tunnel vision), sensory changes, dizziness, and disturbed concentration. The October 2018 private examiner found the Veteran's duration of typical head pain was less than one day and the location of his typical head pain was over the eyes. The October 2018 private examiner found the Veteran had prostrating attacks of non-migraine headache pain, more frequently that once per month, and very frequent and prostrating and prolonged attacks of non-migraine headache pain. The October 2018 private examiner also found the Veteran's headache condition impacted his ability to work, specifically he worked in a sheltered marginal position for many years in which he was able to make his own schedule and alter it as needed due to a headache and that he was unable to work during a headache due to pain, dizziness, blurred concentration and disturbed concentration. However, the October 2018 private examiner found the Veteran did not have characteristic prostrating attacks of migraine headache pain or very frequent prostrating and prolonged attacks of migraine headache pain. As noted above, the rating criteria of Diagnostic Code 8100 are considered successive, thus as "characteristic prostrating attacks" that typically produce extreme exhaustion or powerlessness, were not explicitly endorsed by the October 2018 private examiner as required for a 30 percent rating, her findings related to an even higher 50 percent rating are not for application. Johnson, 30 Vet. App. at 252 Additionally, in an attached addendum statement of the same date, the October 2018 private examiner also stated the Veteran reported experiencing headaches three times per week resulting in pain, concentration difficulties and inability do anything and cited to prior findings in January 2012 and February 2015 VA examination reports. However, the January 2012 examination report is not proximate to the appeal period. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Further, as discussed above, the February 2015 VA examiner found the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. In another attached statement of the same date, the October 2018 private examiner also stated the Veteran experienced headaches which disturbed concentration, blurred vision, dizziness and sensitivity to sound, which occurred at least twice times a week and that he had to lay down for one to two hours with an ice pack. In an another attached statement of the same date, the October 2018 private examiner also indicted the Veteran would miss three or more days of work per month due to headaches, that he would need to leave early the workplace early three or more days per month because of headaches, and that he would not be able to stay focused to complete simple repetitive tasks more than three days per month, as he would not stay focused for at least seven hours of an eight hour workday, and he would not be able to maintain substantially gainful employment. However, the Veteran's medical records dated prior to December 3, 2019 are generally consistent February 2015 VA examiner's findings, rather than the October 2018 private examiner's findings, and do not reflect the existence of characteristic prostrating attacks of migraine or non-migraine headache pain. Specifically, October 2013 and November 2014 VA treatments documented, in part, as to the Veteran's central nervous system, he was negative for headache. A January 2019 private medical record documented, as to review of the Veteran's head, eye, nose, and throat, he denied headaches. Similarly, an August 2019 private medical record documented, as to the Veteran's neurological system, in part, that he denied headaches and migraines. Also, a September 2019 private medical record documented as to the Veteran's head, he denied headaches. Indeed, review of the Veteran's clinical records, dated throughout the appeal period prior to December 3, 2019, do not reflect the existence of a chronic headaches or related complaints but do reflect other complaints. Moreover, as discussed, rather than reflecting chronic complaints related to headaches, these clinical records, in fact, reflect the opposite, specifically that the Veteran denied the existence of headaches, which undermines the October 2018 private examiner's findings. Based on the foregoing, the Board finds that prior to December 3, 2019, the evidence is against granting a compensable evaluation for the Veteran's service-connected tension headache disability because his headaches were not of a nature as required for a compensable evaluation under Diagnostic Code 8100. As discussed above, the February 2015 VA examiner found the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain nor is such reflected in the other clinical evidence of record. Although the October 2018 private examiner found the Veteran had very frequent and prostrating and prolonged attacks of non-migraine headache pain, at least in part, based on the Veteran's report of experiencing headaches three times per week resulting in pain, concentration difficulties and inability do anything, the October 2018 private examiner's findings relied upon the Veteran's assertion of severity which is less than credible as it is inconsistent with other evidence of record. The Veteran is certainly competent to describe the extent of his current symptomatology, as related to his tension headaches. See Layno v. Brown, 6 Vet. App. 465 (1994). However, his assertions of experiencing headaches three times per week resulting in pain, concentration difficulties and inability do anything are inconsistent with the numerous denials of headaches noted in the medical records before and after the 2018 private assessment report. Specifically, as discussed above, October 2013 and November 2014 VA treatments documented, in part, the Veteran was negative for headache and January 2019, August 2019 and September 2019 private medical records documented that he denied headaches. In this regard, Board finds that if the Veteran had experienced headaches three times per week resulting in pain, concentration difficulties and inability do anything, during the appeal period prior to December 3, 2019, it would have been reasonable for him to have reported it and sought treatment for it during this period, especially as he sought treatment for other medical conditions. However, as discussed above the Veteran's clinical records dates prior to December 3, 2019 do not reflect the existence of a chronic tension headache disability. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist); AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Further, the Board finds the Veteran's clinical records dated prior to December 3, 2019, which are contemporaneous to this appeal period, are more probative than the argument from the Veteran, in the context of an appeal, that he experienced headaches three times per week resulting in pain, concentration difficulties and inability do anything, made for compensation purposes. See Curry v. Brown, 7 Vet 59 (1994); Cartwright v. Derwinski, 2 Vet. App. 24, 25-26 (1991) (a pecuniary interest may affect the credibility of a claimant's lay testimony). Consequently, in weighing the evidence, the Board gives more probative weight to the February 2015 VA examiner's findings. The February 2015 VA examiner provided findings based on an accurate medical history and provided an explanation that contained clear conclusions and supporting data, with consideration of the Veteran's subjective complaints. Thus, February 2015 VA examiner's findings are entitled to substantial probative weight. See Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Conversely, the October 2018 private examiner found, in part, the Veteran had very frequent and prostrating and prolonged attacks of non-migraine headache pain. Further, the October 2018 private examiner found the Veteran's headache condition impacted his ability to work, and found he worked in a sheltered marginal position for many years. However, the Board assigns these determinations no probative weight as these conclusions were based, at least in part, on the Veteran's alleged experience of headaches three times per week resulting in pain, concentration difficulties and inability do anything, which, as previously discussed, was found to be not credible. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see also Coburn v. Nicholson, 19 Vet. App. (2006). Moreover, the October 2018 private examiner found, in part, the Veteran's tension headaches resulted in dizziness and disturbed concentration. However, she did not articulate a basis for such findings. In this regard, the Veteran is already service-connected for PTSD and his symptom of disturbed concentration is encompassed within his assigned PTSD evaluation as it is similar to symptom of impairment abstract thinking, and is not for application here to avoid violating the rule against the pyramiding of disability ratings. 38 C.F.R. § 4.14. Further, an October 2018 private medical record, by omission, did not endorse the Veteran had dizziness. A January 2019 private medical record documented, as to review of the Veteran's head, eye, nose, and throat, he denied dizziness. Similarly, August 2019 private medical records documented, as to the Veteran's neurological system, in part, that he had no dizziness, nor are chronic complaints of dizziness otherwise reflected in the record. Thus, the October 2018 private examiner's findings regarding the Veteran's symptom of dizziness is inconsistent with the other clinical evidence record. Accordingly, the Board concludes that the Veteran's migraine headaches occurred with less frequent attacks throughout the appeal period, corresponding to the criteria for a noncompensable rating under Diagnostic Code 8100. A compensable rating under Diagnostic Code 8100 is not warranted unless there are migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. However, as discussed, the most probative evidence, including the February 2015 VA examiner's findings, documented the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The February 2015 VA examiner also found the Veteran's typical duration of head pain was less than one day or one to two days, which is also not reflective of characteristic prostrating attacks. Further, the February 2015 VA examiner also found the Veteran's tensions headaches did not impact his ability to work, which also weighs against a finding of characteristic prostrating attacks. In addition, the medical records reflect that the Veteran denied headaches in medical records during this period. Thus, the Board concludes that the Veteran's migraines did not occur with characteristic prostrating attacks averaging one in 2 months over the last several months at any time during the appeal period. As such, a compensable evaluation prior to December 3, 2019 under Diagnostic Code 8100 is not warranted. From December 3, 2019 For the period from December 3, 2019, the Board concludes that the Veteran had had migraines with characteristic prostrating attacks occurring on average once a month over the last several months throughout the appeal period, corresponding to the criteria for no more than a 30 percent rating under Diagnostic Code 8100. Pursuant to the November 2019 Board remand, a headaches disability benefits questionnaire was obtained by VA in December 2019. During the December 3, 2019 examination, the Veteran reported he had headaches once per month requiring treatment. The December 2019 examiner found the Veteran had symptoms of headache pain consisting pulsating or throbbing head pain, and pain worsened with physical activity, with a duration of typical head pain one to two days, and non-headache symptoms associated with headaches of sensitivity to light and sensitivity to sound. The Veteran also reported he had right ear pain, as he had a tube placed in his right ear, and pain and pressure behind eyes. The December 2019 VA examiner found the Veteran had characteristic prostrating attacks of migraine or non-migraine headache pain once a month, but did not have very prostrating and prolonged attacks of migraine or non-migraine headache pain productive of severe economic inadaptability. In addition, the Veteran's medical records dated from December 3, 2019 are generally consistent December 2019 VA examiner's findings. In this regard, an April 2020 private medical record documented as to the Veteran's head, he had headache. Notably, there is no probative evidence dated during this appeal period that the Veteran's tension headaches resulted in very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. Based on the foregoing, from December 3, 2019, the evidence is against granting a rating in excess of 30 percent for the Veteran's service-connected headache disability. The evidence does not show that his symptoms have been of the type and degree contemplated by the criteria for a 50 percent disability rating criteria under Diagnostic Code 8100 for the appeal period from December 3, 2019. Other Considerations The Board recognizes the Veteran's assertion that his tension headaches are more severe than currently rated both prior to December 3, 2019 and thereafter. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability of his tension headaches according to the rating criteria, and, as discussed above, his credibility is diminished. Such competent evidence concerning the nature and extent of the disability has been provided by the clinical evidence of record, to include the February 2015 and December 2019 VA examiner's findings, which directly addressed the criteria under which his disability is evaluated. The Board finds these clinical records to be competent, objective, and probative evidence of record, and they are therefore accorded greater weight than the Veteran's subjective complaints of symptomatology for his tension headaches. The Board also finds the Veteran's tension headaches are properly evaluated under Diagnostic Code 8100, which is specific to the disorder, and was utilized in the assignment of the initial rating. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). Also, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For these reasons, the Board finds that the Veteran is not entitled to a compensable evaluation for tension headaches prior to December 3, 2019, nor in excess of 30 percent thereafter. In making these determinations the Board considered the application of "staged" ratings, but found no additional distinctive periods where the Veteran's service-connected tension headaches met or nearly approximated the criteria for higher ratings other than that already granted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against ratings higher than or separate from that already assigned for the tension headaches, the doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 20 percent for lumbar spine degeneration prior to December 3, 2019 is remanded. 2. Entitlement to an evaluation in excess of 40 percent for lumbar spine degeneration from December 3, 2019 is remanded. The September 2019 Board remand, in part, directed the Veteran be afforded a VA examination to ascertain the current severity and manifestations of his service-connected lumbar spine disability. The September 2019 Board remand, in part, further directed, in part, that the potential VA examiner should indicate whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing could be estimated for the February 2015 VA examination, conducted during the appeal period, and if the examiner was unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. The resulting December 2019 VA examination report, noted in part, that the Veteran's current pain and decreased mobility was primarily during flares, but had not changed since the 2011 examination. However, a 2011 VA examination report, as cited to by the December 2019 VA examiner, is not relevant as it is not dated proximate to the appeal period, as the claim stems from claim for increase received by VA on January 30, 2014. Moreover, the December 2019 VA examiner did not indicate whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing could be estimated for the February 2015 VA examination, as directed by the September 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). Further, the February 2015 VA examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups as the examiner did not witness a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, due to these deficiencies, a retrospective medical opinion as to the severity of the disability, at the time of the February 2015 examination, in terms of any additional functional loss during passive motion, with weight-bearing, and during flare-ups, is warranted. Additionally, remand is warranted to obtain any additional private treatment records. Specifically, in a February 2020 private medical record, the Veteran requested a referral for back pain. Thus, a remand is required to allow VA to obtain authorization and request any relevant private treatments records related to the Veteran's lumbar spine disability. 3. Entitlement to an evaluation in excess of 50 percent for PTSD prior to December 3, 2019 is remanded. 4. Entitlement to an evaluation in excess of 70 percent for PTSD from December 3, 2019 is remanded. The most recent December 2019 VA examination report, which addressed the Veteran's PTSD, documented, in part, the Veteran broke down talking about his wife's death and that he reported he was seeing a woman who helped him with daily living and appointments. The December 2019 VA examiner also found it was as likely as not that the Veteran's symptoms had been exacerbated by the stress of his wife's suicide. However, also of record is a marriage certificate, dated prior to the December 2019 VA PTSD examination, which reflected the Veteran had remarried. Thus, as the Veteran's PTSD symptomology is related to his personal relationships, including marriage, which was not accurately documented by the December 2019 VA examiner, another VA examination is warranted to determine the current severity of the Veteran's PTSD. Additionally, remand is warranted to obtain any additional private treatment records. Specifically, in a February 2020 private medical record, the Veteran requested a referral to a psychologist. Thus, a remand is required to allow VA to obtain authorization and request any relevant private treatments records related to the Veteran's PTSD. 5. Entitlement an evaluation excess of 30 percent for obstructive sleep apnea is remanded. The June 2020 JMPR found the Board failed to provide sufficient analysis as to whether Veteran's sleep apnea required the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) machine. Specifically, the June 2020 JMPR noted the Board decision included review of the evidence from the May 2019 VA examination, which found that Veteran did not require the use of a breathing assistance device such as a CPAP machine and that treatment records showed that a CPAP was previously recommended but that the Veteran did not use the CPAP. However, the June 2020 JMPR noted the Board's review of the evidence failed to consider evidence from January 2012, which showed that he treated his obstructive sleep apnea with a CPAP machine. In this regard, the appeal period for this claim stems from a claim for increase received by VA on January 30, 2014, and thus, evidence from January 2012 is not proximate to the appeal period. See Romanowsky, 26 Vet. App. at 294. Nonetheless, the June 2020 JMPR also noted the Board also failed to assess the evidence submitted from Miranda Blevins, M. D., from October 2018 which noted that Veteran did require the use of a breathing assistive device such as a CPAP machine. However, the evidence is conflicting as to whether the Veteran's obstructive sleep apnea currently requires or has required use of a CPAP machine at any point during the appeal period, and thus, an addendum opinion is warranted. In this regard, the February 2015 VA examiner found, in part, that the Veteran did not have sleep apnea and did not require the use of CPAP machine. Similarly, a March 2015 VA examiner generally found, in part, that the Veteran clearly did not have sleep apnea as he had had studies verifying no sleep apnea, and in light of all accumulated evidence, the diagnosis of sleep apnea from January 2012, on which service connection was predicated was clearly erroneous. Thereafter, as discussed the May 2019 VA examiner found the Veteran's sleep apnea did not require the use of a breathing assistance device such as CPAP machine. Accordingly, an addendum opinion is warranted to address the conflicting evidence as to the whether the Veteran's sleep apnea currently requires or has required the use of a CPAP machine during the pendency of the claim. 6. Entitlement to a TDIU prior to May 1, 2018 is remanded. In his January 2020 application for TDIU, the Veteran reported that he worked part-time from May 2012 to May 2018 with a highest gross earnings of $1,000 per month. However, a record from the Social Security Administration showed the Veteran had taxable Social Security earnings of $17,034 in 2014 and $12,256 in 2015. Thus, as there is conflicting information in the record as to the Veteran's employment history and corresponding earnings prior to May 1, 2018, remand is necessary for the Veteran to submit an updated VA Form 21-8940 or other evidence of his work history in order provide a complete and accurate history of his employment and resulting income for the appeal period prior to May 1, 2018. Further, although the Board recognizes the Veteran has submitted an undated letter from his former employer, on remand, all employers identified by the Veteran should be sent a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, in order for the employer to provide VA with other information, such as the amount earned during the 12 months preceding the last day of the employment. Additionally, the issue of entitlement to a TDIU prior to May 1, 2018 is, in part, based on the above remanded increased rating claims for the Veteran's lumbar spine disability, PTSD, and obstructive sleep apnea. Thus, as the issue of entitlement to a TDIU prior to May 1, 2018 is intertwined with these increased rating claims, a remand is warranted for the claim for TDIU claim prior to May 1, 2018. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Please associate updated VA treatment records with the virtual benefits file. 2. Request the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability for the appeal period prior to May 1, 2018. Upon receipt of the form, complete any additional development necessary, to include sending a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, to all employers identified by the Veteran. 3. Ask the Veteran to complete a VA Form 21-4142 for any relevant medical providers, to include records related to his requested referrals for his lumbar spine disability and his PTSD. Make two requests for the authorized records from any identified medical provider, unless it is clear after the first request that a second request would be futile. 4. Obtain addendum opinions from an appropriate clinician as to the retrospective severity of the Veteran's service-connected lumbar spine degeneration in terms of any additional functional loss during passive motion, with weight-bearing, and during flare-ups. (a.) The clinician, to the extent possible, should provide retrospective findings in regard to an estimation of functional loss in degrees as to passive motion and as to weight-bearing at the time of the VA examination conducted in February 2015. (b.) The clinician, to the extent possible, should also provide retrospective findings in regard to an estimation of functional loss in degrees due to flare-ups experienced by the Veteran at the time of VA examination conducted in February 2015. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment for the period prior to the current examination, without speculation, the clinician 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 clinician (does not have the knowledge or training). 5. Obtain an addendum opinion from an appropriate clinician as to the severity of the Veteran's service-connected obstructive sleep apnea. The clinician should review the conflicting evidence, to include the February 2015, March 2015, May 2019 VA examiners' findings that the Veteran did not have sleep apnea and/or require the use of a CPAP machine, compared to the evidence submitted from Miranda Blevins, M. D., from October 2018, which noted that Veteran did require the use of a breathing assistive device such as a CPAP machine and evidence from January 2012, which showed that he treated his obstructive sleep apnea with a CPAP machine. After review of the conflicting evidence, the clinician should explain whether the Veteran's obstructive sleep apnea currently requires or required the use of a CPAP machine at any point during the pendency of the claim (which stems from a January 30, 2014 claim for increase). 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The clinician must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the clinician should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. The examiner is advised that the Veteran remarried in late 2019. 7. Thereafter, readjudicate the issues on appeal with review of all evidence received since the last prior adjudication of the Veteran's claims, and also readjudicate entitlement to a TDIU prior to May 1, 2018. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, Counsel 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.