Citation Nr: 21039975 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-07 005 DATE: July 2, 2021 ORDER Service connection for a right shoulder disability is dismissed. Entitlement to an initial rating of 50 percent for migraine headaches is granted. Service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) is granted. Reopening, based on receipt of new and material evidence, the claim of service connection for nerve dame to the right pelvis, is granted. REMANDED Service connection for sleep apnea is remanded. Service connection for a left hip disability is remanded. Service connection for a left knee disability, to include as secondary to a right knee disability, is remanded. Service connection for right thigh nerve damage is remanded. Service connection for a traumatic brain injury (TBI) is remanded. Entitlement to a rating in excess of 20 percent for a thoracic/lumbosacral strain disability is remanded. Entitlement to a rating in excess of 10 percent for a stress fracture right sacroiliac joint with degenerative joint disease (previously rated as right pelvis stress fracture) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In February 2017 written correspondence, the Veteran withdrew the claim of service connection for a right shoulder disability. 2. The Veteran's migraines result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran's psychiatric disability is related to service. 4. New and material evidence has been received regarding the Veteran's claim of service connection for right pelvis nerve damage. CONCLUSIONS OF LAW 1. The criteria for withdrawal of service connection for a right shoulder disability by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a disability rating of 50 percent for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 3. The criteria of service connection for an acquired psychiatric disability, including PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. New and material evidence, having been received, the previously denied claim of entitlement to service connection for right pelvis nerve damage is reopened. 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 2005 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2015, November 2015, December 2016, January 2018, July 2018 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2021. The Veteran previously submitted a claim of entitlement to service connection for right pelvis nerve damage. This claim was denied in a November 2006 rating decision. Since the November 2006 rating decision, additional medical records and lay statements have been associated with the file purporting to show the Veteran has right pelvis nerve damage that is related to service. This evidence is new, not duplicative of evidence previously of record, and material in that it addresses the missing diagnosis element. Thus, the Board finds new and material evidence has been received sufficient to reopen her previously denied claim. 38 C.F.R. § 3.156. The Board also notes that the Veteran contends that there is an unadjudicated claim of service connection for a right knee disability. She also asserts that the left knee claim is an unadjudicated claim and that the RO should have liberally construed the Veteran's claim of service connection for bilateral knee condition. Regarding the right thigh disability, the Veteran also contends that the previous denial of the claim of service connection constituted clear and unmistakable error (CUE). See March 2021 Hr'g Tr. The Board refers these claims to the RO for adjudication. Withdrawal An appeal may be withdrawn by an appellant or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In February 2017 written correspondence, the Veteran withdrew her appeal in connection with entitlement to service connection for a right shoulder disability. Accordingly, the Board does not have jurisdiction to review this appellate claim, and it is dismissed. Increased Rating The Veteran seeks an increased rating for her migraine headache disability. The RO granted service connection for migraine headaches, effective November 12, 2014, in a July 2015 rating decision. The Veteran challenged the initial rating. See February 2016 rating decision. As a result, the period on appeal begins November 12, 2014. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 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 DC 8100. The rating criteria of DC 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 DC 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 contains 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 DC 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). The Board concludes that the Veteran has had migraines with frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the appeal period, corresponding to the criteria for a 50 percent rating under DC 8100. At her March 2021 Board hearing, the Veteran outlined that she experiences severe migraines daily. She gets approximately 32 Botox injections every three months to treat her headaches. Prior to her Botox injections she tried several different mediations with little improvement. During her daily headache attacks she experiences nausea, vomiting, and occasionally blackouts. Her headaches last from four to six hours and she lies down daily to treat her headaches. The June 2015 VA examination noted the Veteran experiences pulsating and painful throbbing head pain and pain on both sides of her head. This VA examiner also concluded that the Veteran's headaches affected her ability to work due to increased absenteeism she requires to deal with her condition. The Veteran is competent to report her readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements regarding the severity of her migraine symptoms are also credible as they are consistent with the VA examiner's findings and other medical evidence of record. Because the evidence shows that the Veteran has frequent prostrating migraine attacks affecting her economic inadaptability, the Board finds a 50 percent rating is warranted. Service Connection The Veteran seeks service connection for her PTSD. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 U.S.C. § 3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). PTSD The Veteran has a PTSD diagnosis. See May 2015 VA examination. She reports that she began having substance abuse issues, nightmares, and difficulty sleeping shortly after a military sexual assault. She reports that she did not have any difficulty with substance abuse but began abusing alcohol a few weeks after her sexual assault. Records show that the Veteran eventually sought substance abuse counseling. The May 2015 VA examiner opined that it is at least as likely as not that the Veteran's PTSD is related to her in-service military sexual trauma. As a result, service connection is warranted. REASONS FOR REMAND Once a Veteran has raised the issue of an examiner's competency to offer a medical opinion, he or she has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of the examiner. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). Here, at the March 2021 Board hearing, the Veteran's representative raised contentions that meet the Francway criteria and pursuant to the duty to assist the Board must remand this case to provide the Veteran with the examiner's curriculum vitae. Sleep Apnea The Veteran seeks service connection for her sleep apnea. She contends that she developed sleep apnea as a result of the medications, namely gabapentin, used to treat her service-connected disabilities. Alternatively, she also asserts that she gained weight due to her in-service trauma and that this resulted in her sleep apnea. In support of this contention, the Veteran reports that service treatment records show she was within the normal weight range, but VA treatment records shortly after separation contain notations telling her to watch her weight due to her trauma. The March 2019 VA examiner provided a negative nexus opinion indicating that the Veteran's sleep apnea was not caused or aggravated beyond its natural progression by her medication. As a result, remand is warranted for a new VA examination and a medical opinion adequately addressing the Veteran's contentions. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Service Connection: Left Hip, Left Knee, Right Thigh The Veteran contends that service connection is warranted for a left hip, left knee, and right thigh disability. More specifically, she asserts that the pain she experiences is related to her radiculopathy and nerve issues. She also asserts that the left hip is secondary to her right hip issues. Remand is warranted for a medical opinion addressing her contentions. The Veteran asserts that her left knee condition is secondary to her right knee condition and as a result remand is warranted for a new medical opinion. Service Connection: TBI The Veteran asserts that she has a TBI as a result of an in-service fall. She also notes that she was recently diagnosed with a Chiari malformation. As a result, remand is warranted for a new VA examination and medical opinion. Increased Rating: Spine and Pelvic Stress Fracture The Veteran seeks an increased rating for her spine and pelvic stress fracture disabilities. The Veteran reports gradually worsening spine and pelvic symptoms. Additionally, it is well established that the United States Court of Appeals for Veterans Claims (Court) has issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask [her] to describe the additional functional loss, if any, [she] suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so. As a result, remand is warranted for new VA examinations for the Veteran's disabilities. TDIU The Veteran asserts that her service-connected disabilities result in her inability to obtain and maintain employment. Rice v. Shinseki, 22 Vet. App. 447 (2009). Additional information regarding the Veteran's work history and education are required to adjudicate her claim. As a result, remand is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Provide the Veteran information necessary to assess the competency of the VA examiners who conducted the examinations for sleep apnea, left hip, left knee, right thigh, TBI, thoracic spine, and right pelvic stress fracture disabilities, to include the examiner's curriculum vitae. This information is to be associated with the Veteran's claims file. If the previous examiners are different from the VA examiners who conduct the VA examinations requested below, the curriculum vitae of those VA examiners should also be made available to the Veteran. 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) for her TBI, sleep apnea, left hip, left knee, right thigh, including nerve examinations. For any identified disorder the VA examiner should address whether the disability had its onset in service, shortly after service, or is caused or aggravated by any service-connected disability. In reaching this determination, the VA examiner should address the Veteran's contentions regarding the onset of her disabilities, to include, but not limited to, her contentions regarding her weight gain due to military sexual trauma and her in-service fall. 4. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) for her spine and pelvic stress fracture disabilities. The examiner should identify all disabilities found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Furnish the Veteran a VA Form 21-8940 and request that she complete and submit it in conjunction with the TDIU claim. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ijitimehin, Kemi D. 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.