Citation Nr: 21031201 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-11 197 DATE: May 20, 2021 ORDER From December 19, 2018, entitlement to a 50 percent rating for migraine headaches is granted. Special monthly compensation (SMC) at the housebound rate is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected lumbosacral strain, is denied. Entitlement to service connection for left hip disability is granted. REMANDED Entitlement to service connection for right foot disability is remanded. Service connection for sleep disturbances is remanded. FINDINGS OF FACT 1. From December 19, 2018, the Veteran's migraine headaches result in very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran has additional service-connected disabilities rated at 60 percent, separate and distinct from the Veteran's TDIU based solely on his service-connected posttraumatic stress disorder (PTSD). 3. Sleep apnea had its onset during active service. 4. Left lower extremity radiculopathy is not currently diagnosed. 5. A left hip disability is related to active service. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating for migraine headaches from December 19, 2018, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8100. 2. The criteria for SMC at the housebound rate have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. 3. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for left lower extremity radiculopathy, to include as secondary to service-connected lumbosacral strain, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for left hip disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 2001 to May 2007 and from August 2008 to September 2009. The Veteran also served with the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2019 decision, the Board denied a rating in excess of 30 percent for migraine headaches from December 19, 2018. The Board also denied a rating in excess of 30 percent for migraine headaches prior to July 31, 2018, and granted a rating of 50 percent, but no higher, from July 31, 2018, to December 19, 2018. The Board denied a rating in excess of 50 percent for PTSD prior to April 28, 2014, and in excess of 70 percent from April 28, 2014, denied entitlement to an earlier effective date for the grant of a 70 percent rating for PTSD, denied service connection for traumatic brain injury, denied service connection for chronic fatigue syndrome, and denied service connection for a disorder manifested by radiation exposure. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In March 2020, the parties filed a joint motion for partial remand (JMPR). The Court granted the JMPR and vacated the Board's decision with respect to the denial of a rating in excess of 30 percent from December 19, 2018. That matter has been returned to the Board for review. In the April 2019 decision, the Board remanded the matters of service connection for right foot disability; sleep apnea, to include as secondary to PTSD; radiculopathy of the left lower extremity, to include as secondary to lumbosacral strain; and service connection for left hip disability for additional development. The matters have now been returned to the Board for review. The Board recognizes that an attorney, who has not been recognized as the Veteran's attorney, has requested the Veteran's records pursuant to the Privacy Act. However, the Veteran's attorney of record, John S. Berry, has not withdrawn his services and the record does not contain any motion to change representation. 38 C.F.R. § 20.1304. Accordingly, the Board continues to recognize John S. Berry as the Veteran's representative. Increased rating for headaches Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under Diagnostic Code 8100, a 50 percent rating is available with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is available with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is available with characteristic prostrating attacks averaging one in 2 months over last several months. With less frequent attacks, a 0 percent rating is for application. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating" as used in Diagnostic Code 8100. In Pierce v. Principi, 18 Vet. App. 440 (2004), the Veterans Court interpreted the phrase as follows: "nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating" because "[i]f 'economic inadaptability' were read to import unemployability," a claimant who "met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)]. . . rather than just a 50% rating." Id. The Court rejected the notion that "severe economic inadaptability" was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16(a). In addition, Pierce acknowledged the VA Secretary's concession that the phrase "productive of severe economic inadaptability" in Diagnostic Code 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Id. at 445. In July 2018, the Veteran underwent a VA examination for migraines. He described his headaches as a sharp throbbing pain with muscle aches, light and sound sensitivity, lightheadedness, and nausea, which lasted one to two days. The Veteran took over the counter pain medications. The examiner determined that the Veteran had characteristic prostrating attacks of migraine and/or non-migraine pain more frequently than once a month. Additionally, the examiner found very prostrating and prolonged attacks of migraine and/or non-migraine pain productive of severe economic inadaptability. The examiner explained that the Veteran's headaches caused photosensitivity, which required him to lie down in a quiet, dark room until the pain subsided and decreased energy with less efficiency, decreased his overall productivity levels. The Veteran attended a VA examination in December 2018. The Veteran described his headaches as a band-like pressure with constant pain on both sides of his head that increases with physical activity. The Veteran reported sensitivity to light and sound and headaches lasting less than one day. The examiner found that the Veteran had characteristic prostrating attacks of migraine and/or non-migraine headache pain that occurred more frequently than once a month. The examiner found that the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. In March 2019, a medical opinion was requested to determine the Veteran's functional limitations in an occupational setting due to his migraines. Based on review of the claims folder, the examiner noted that the Veteran reported band-like headaches lasting minutes to hours with sensitivity to light and sound that occurred more frequently than once per month. The examiner stated that the Veteran may be limited in an occupational environment during severe headaches, but that there were no regular functional limitations or impairments that were limiting on a daily basis. Review of the Veteran's medical records reflect complaints of headaches with varying frequency and severity. In April 2018, the Veteran reported increased intensity of his headaches and underwent an MRI of the brain which yielded normal results. In January 2019, the Veteran described his headache pain as sometimes like a band squeezing his head and sometimes like a throbbing pain with light and noise sensitivity and occasional nausea. He reported that his headaches occurred nearly every day, last for 30 minutes to an hour, can go away and then return within a couple of hours. He reported headaches lasting three to four hours that happen twice a week. In the March 2020 JMPR, the parties determined that, in the April 2019 decision, the Board erred in denying a rating in excess of 30 percent from December 19, 2018. The JMPR stated that the Board had relied on a July 2018 VA examination report to grant an increased rating of 50 percent for migraine headaches for the period of July 31, 2018, through December 19, 2018, and that the examination reflected similar symptoms to those reported during the March 2019 VA examination. The parties also found that the Board erred in relying on the Veteran's ability to work as evidence that the Veteran was not entitled to a rating in excess of 30 percent because under Pierce, the evidence does not need reflect that the migraine headaches actually cause or produce unemployability, but only that they are capable of producing severe economic inadaptability. 18 Vet. App. at 445. The Board finds that a 50 percent rating is warranted from December 19, 2018, for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board recognizes that the December 2018 VA examination report determined that the Veteran did not have very prostrating and prolonged attacks productive of severe economic inadaptability. However, the July 2018 VA examination report, completed mere months before the December 2018 VA examination evaluated similar symptoms described to the December 2018 VA examiner and the July 2018 VA examiner determined that the Veteran did in fact have very prostrating and prolonged attacks that were productive of severe economic inadaptability. Though there is a discrepancy between the VA examiners' opinions, the examinations were provided mere months apart, and the Veteran described similar symptoms at both VA examinations, including pain on both sides of the head, headaches that occurred more than once per month, and sensitivity to light and sound. In January 2019, the Veteran continued to report very frequent headaches that also included sensitivity to light and sound and occasional nausea and the March 2019 VA examiner agreed that the Veteran's headaches may impact his occupational functioning. The Board will resolve doubt in the Veteran's favor and finds that a 50 percent rating is warranted for migraine headaches from December 19, 2018. 38 C.F.R. § 4.3. Because this is the maximum rating available under Diagnostic Code 8100, a higher rating is not warranted that code. SMC VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Though the issue of entitlement to SMC at the housebound rate was not raised by the Veteran himself, that issue is raised by the record and is part and parcel of the increased rating issue on appeal. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Under 38 U.S.C. § 1114(s), SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. See 38 C.F.R. § 3.350(i). An April 2019 rating decision granted TDIU based solely on his PTSD, meeting the requirement for a single service-connected disability rated as 100 percent disabling under 38 U.S.C. § 1114(s). In this decision, the Board has assigned a 50 percent rating for migraine headaches from December 19, 2018. The Veteran is also rated at 20 percent for lumbosacral strain and 10 percent for pseudofolliculitis barbae. The combined rating of these disabilities is more than 60 percent and the disabilities are separate and distinct from the Veteran's PTSD. 38 C.F.R. § 4.25. As a result, SMC at the housebound rate under 38 U.S.C. § 1114(s) is warranted. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Sleep Apnea The Veteran has a current diagnosis of sleep apnea as reflected by an October 2012 sleep study. Service treatment records show that the Veteran reported problems sleeping in May 2007. In an August 2009 post-deployment questionnaire, the Veteran reported that he was bothered by problems sleeping or still feeling tired after sleeping. Following separation from his second period of active service, in October 2012, the Veteran reported problems sleeping. The Veteran's wife reported that he snored loudly and at times appeared that he stopped breathing. He stated that he did not sleep much at night, wakes up after about 30 minutes, and is sleepy during the daytime. The Veteran indicated that he had trouble sleeping at night, was sleepy all day, unwanted behaviors when he slept, stopped breathing at night, and snored. He stated that he had these symptoms for approximately 3 years, indicating that his symptoms onset in 2009 when the Veteran was on active duty. In May 2014, the Veteran was provided a VA examination. The report indicated that the diagnosis of sleep apnea was provided in November 2000. The Veteran's wife told the Veteran that he was snoring loudly and had short periods of breathing cessation. He went to the doctor and was sent home with a monitor. Thereafter, he was diagnosed with sleep apnea. The Board finds the Veteran's statements and those of his wife competent and credible concerning the existence of sleeping problems since active service. The symptoms of sleep apnea, including snoring and cessation of breathing at night, are observable symptoms which are capable of being identified by the Veteran and his wife as lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). These statements are afforded significant probative value as to the in-service onset. Though the Board recognizes that the April 2014 VA examination report suggested an onset of sleep apnea in 2000, the Board has been unable to locate any sleep apnea diagnosis until after separation from service. The service treatment records do not reflect any diagnosis of sleep apnea. The Board finds that the evidence weighs in favor of finding that the Veteran's sleep apnea had its onset during service. Accordingly, service connection is warranted for sleep apnea. Left lower extremity radiculopathy The medical evidence of record does not reflect any diagnosis pertaining to the left lower extremity. Though the Veteran has reported numbness or tingling at times during the appeal period, the evidence does not reflect a corresponding diagnosis. In September 2018, the Veteran reported occasional tingling down his left leg. The examining physician indicated "possibly radicular l spine," but did not provide a diagnosis of any neurological disability of the left lower extremity. In fact, the overwhelming evidence does not reflect continued complaints of symptoms impacting the left lower extremity. In June 2019, the Veteran was provided a VA examination for his back that also included examination of the lower extremities. Muscle strength testing was normal and the Veteran did not have muscle atrophy. Deep tendon reflexes were normal and sensory examination as normal in all areas tested. Straight leg raising tests results were negative and the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no diagnosis provided. While medical diagnoses are not always necessary to establish a current disability for VA compensation purposes, there must be competent evidence indicating the Veteran's impairment affects his earning capacity. See Wait v. Wilkie, 33 Vet. App. 8 (2020) (holding there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity). A veteran must "show that his manifestations are of sufficient severity, duration, and frequency that they effect his ability to function under the ordinary conditions of daily life." Id. at 17. The June 2019 VA examination report did not show any decrease in muscle strength or muscle atrophy. The report showed normal reflexes, normal sensation, negative straight leg raising test, and no radicular pain or other signs or symptoms. The Veteran was not diagnosed with any neurological disability. The Board finds no competent evidence to show that the Veteran's claimed impairment would rise to a level to affect his earning capacity. Accordingly, service connection for left lower extremity radiculopathy is not warranted. A current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). A preponderance of the evidence is against the claim and the claim is denied on both a direct and secondary basis. Left hip disability The evidence reflects a current diagnosis. A February 2019 VA treatment record shows an assessment of left hip greater trochanteric bursitis and/or piriformis syndrome. Service treatment records do not reveal a complaint of pain specific to the left hip. However, during his September 2019 VA examination, the Veteran reported that he was injured by two separate IEDs during service. The Veteran's DD Form 214 for his first period of active service from May 2001 to May 2007 shows that he served as a combat engineer and had service in Iraq. The Board finds that this evidence is consistent with the types, places, and circumstances of the injury he described and the left hip injury during service is established. 38 U.S.C. § 1154(b). Post-service, a February 2017 VA treatment record shows a complaint of left hip pain. An October 2018 MRI shows calcifications adjacent to the greater trochanter which have increased since the prior study and likely represented calcific peritendinitis. In a December 2018 VA treatment record, the Veteran reported that his left hip pain was worse with walking and standing. He stated that the pain had been present for 10 years and was worse for the last two years. In September 2019, the Veteran was provided a VA examination for his left hip. The report reflects a diagnosis of calcific peritendinitis indicating date of diagnosis in 2004, during the Veteran's first period of active service. The Veteran reported that the onset of his condition began in 2002 during active service. He reported that he had been injured twice by IEDs in 2002 and 2004. He stated that his left hip occasionally goes in and out of socket and he had steroid injections. The Veteran reported that his hips hurt if he walked too much. The Board finds that the evidence supports service connection for left hip disability. While the service treatment records do not contain any reference to the left hip, the Board has found that the Veteran's left hip in-service injury has been established as a result of his combat-related injury. Though there is no opinion as to direct service connection, the Board finds the Veteran's statements concerning the onset of his symptoms during service to be competent and credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition, the September 2019 VA examiner indicated that the Veteran's left hip diagnosis onset during active service. Accordingly, service connection for left hip disability is warranted. REASONS FOR REMAND Right foot disability An April 2008 VA examination report, completed after the Veteran's first period of active service and before his second period of active service, shows that the Veteran did not report any specific right foot injury, but complained of pain with prolonged walking more than one hour or after running. The examiner noted a congenital deformity of pes planus of the right foot. In April 2019, the Board remanded the Veteran's claim for a VA examination and medical opinion. The October 2019 VA examination report shows no right foot diagnosis, but that the Veteran reported right foot discomfort from routine wear and tear. The examiner indicated that there was no diagnosis of pes planus rendered, but there was no mention of the diagnosis of pes planus made in 2008. Given the diagnosis of pes planus during the period on appeal, see McClain v. Nicholson, 21 Vet. App. 319 (2007), the insufficient explanation as to whether it is congenital versus acquired, the Board finds that remand is required for a new VA examination and opinion. See 38 C.F.R. § 4.57 ("It is essential to make an initial distinction between bilateral flatfoot as a congenital or as an acquired condition"). Sleep disturbances is remanded. In June 2014, during the pendency of his claim, the Veteran asserted that his sleep disturbances should be considered as related to his service in the Gulf War and as a MUCMI. In this respect, MUCMI is defined as a "diagnosed illness without conclusive pathophysiology or etiology." 38 C.F.R. § 3.317(a)(2)(ii). In Stewart v. Wilkie, the Court explained that "VA has decided that 'pathophysiology' and 'etiology' are decisive factors in determining whether an illness is 'medically unexplained.'" 30 Vet. App. 383, 388 (2018). Though the 2019 VA examiner found that the Veteran did not have a diagnosable disability regarding his sleep disturbances, the report did not adequately consider whether the Veteran's sleep disturbances may be considered an undiagnosed illness or MUCMI as it relates to his Gulf War service. Accordingly, the Board finds that a new VA examination and opinion is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination for his right foot disability. The claims folder must be made available for review. The examiner must address the following: (a.) Is the Veteran's right foot pes planus considered congenital or acquired? Please explain why. (b.) If congenital, is it considered a "defect" or "disease"? (c.) If the right foot pes planus is considered a congenital defect, is there additional disability due to a disease or injury superimposed upon such defect during the Veteran's active service? (d.) If right foot pes planus is a congenital disease, was the disease aggravated (ie., a permanent worsening of the underling condition as compared to an increase in symptoms) by his military service beyond its natural progression? (e.) If the Veteran is found to have acquired pes planus, is it at least as likely as not that this disability had its onset during or is otherwise related to the Veteran's first period of active service. (f.) If the Veteran is found to have acquired pes planus, is it clear and unmistakable that the disability was not aggravated by his second period of active service? (g.) For any disability other than pes planus, is it at least as likely as not that the disability was caused by active service. A full and complete rationale must be provided for any opinion reached. 2. Schedule the Veteran for a VA examination for his claimed sleep disturbances. The claims folder must be reviewed in connection with the examination. The examiner must address the following: (a.) Whether the manifestations of the Veteran's sleep disturbances may be considered an undiagnosed illness or MUCMI. The examiner is advised that an illness is considered a MUCMI where either its etiology or its pathophysiology is inconclusive, but not where both the etiology and the pathophysiology are partially understood. The determination of whether a condition is a MUCMI is based on an individual veteran's circumstances, rather than the illness as it is understood in the general public. (b.) If the Veteran's sleep disturbances are not an undiagnosed illness, or MUCMI, opine whether it is at least as likely as not that any diagnosed disability is related to his active service. A full and complete rationale must be provided for any opinion reached. To the extent possible, the examiner is asked to separate any sleep symptoms from the Veteran's already service-connected PTSD and sleep apnea. 3. Then, readjudicate the remanded issues, and if still denied, return the matters to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.