Citation Nr: A25035386 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240228-420985 DATE: April 16, 2025 ORDER Service connection for a left knee disability, including as secondary to a lower back condition, is denied. Service connection for a right knee disability, including as secondary to a lower back condition, is denied. Service connection for a left hip disability, including as secondary to a lower back condition, is denied. Service connection for a right hip disability, including as secondary to a lower back condition, is denied. Entitlement to an evaluation of 70 percent, but no higher, from April 28, 2014 to September 14, 2015 for posttraumatic stress disorder (PTSD) with alcohol use disorder and cannabis use disorder is granted. Entitlement to an evaluation in excess of 70 percent from September 15, 2015 for PTSD with alcohol use disorder and cannabis use disorder is denied. Entitlement to an effective date of April 28, 2014, but no earlier, for the grant of a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to an effective date of April 28, 2014, but no earlier, for the grant of entitlement to basic eligibility for Dependents' Education Assistance (DEA) benefits is granted. REMANDED Entitlement to an initial rating higher than 30 percent for service-connected migraine headaches is remanded. FINDINGS OF FACT 1. There was no incurrence or event in-service related to the Veteran's left knee, arthritis was not shown until many years thereafter, and the diagnosed left knee disability is not secondary to a service-connected disability. 2. There was no incurrence or event in-service related to the Veteran's right knee, arthritis was not shown until many years thereafter, and the diagnosed right knee disability is not secondary to a service-connected disability. 3. There was no incurrence or event in-service related to the Veteran's left hip, and the left hip disability is not secondary to a service-connected disability. 4. There was no incurrence or event in-service related to the Veteran's right hip, and the right hip disability is not secondary to a service-connected disability. 5. During the period on appeal, the Veteran's PTSD manifested with symptoms of intermittent suicidal and homicidal ideation, recurrent distressing dreams and nightmares, dissociative reactions, avoidance, feelings of detachment or estrangement from others, hypervigilance, sleep disturbance, depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 6. Prior to September 15, 2015, the Veteran's service-connected PTSD prevented him from securing and maintaining a substantially gainful occupation. 7. Prior to September 15, 2015, the Veteran was permanently and totally disabled for purposes of DEA benefits. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability, including as secondary to a lower back condition, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2024); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2024). 2. The criteria for service connection for a right knee disability, including as secondary to a lower back condition, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2024); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2024). 3. The criteria for service connection for a right hip disability, including as secondary to a lower back condition, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2024); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2024). 4. The criteria for service connection for a left hip disability, including as secondary to a lower back condition, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2024); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2024). 5. The criteria for entitlement to an evaluation of 70 percent, but no higher, from April 28, 2014 to September 14, 2015 for PTSD with alcohol use disorder and cannabis use disorder have been met. 38 U.S.C. §§ 1155, 5107 (2024); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Code 9411 (2024). 6. The criteria for entitlement to an evaluation in excess of 70 percent from September 15, 2015 for PTSD with alcohol use disorder and cannabis use disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2024); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Code 9411 (2024). 7. The criteria for entitlement to TDIU from April 28, 2014, but no earlier, have been met. 38 U.S.C. §§ 1155, 5107 (2024); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2024). 8. The criteria for entitlement to an effective date of April 28, 2014, but no earlier, for the grant of basic eligibility to DEA benefits have been met. 38 U.S.C. §§ 5101, 5110 (2024); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2024). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to July 1980. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions dated April 2023 and May 2023 of the Department of Veterans Affairs (VA). In the February 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, regarding the issues of service connection for left and right knees and left and right hips, and an initial higher rating for service-connected migraine headaches the Board may only consider the evidence of record at the time of the March 2022 agency of original jurisdiction (AOJ) decision which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. Regarding the issues of a higher rating for PTSD and granted entitlement to TDIU and Dependents' Educational Assistance under 38 USC chapter 35, the Board may only consider the evidence of record at the time of the May 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of an initial higher rating for service-connected migraine headaches, any evidence the Board could not consider will be considered by the AOJ in the adjudication of this claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Service connection for a left knee disability, including as secondary to a lower back condition 2. Service connection for a right knee disability, including as secondary to a lower back condition 3. Service connection for a left hip disability, including as secondary to a lower back condition 4. Service connection for a right hip disability, including as secondary to a lower back condition Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Arthritis is considered a chronic disease for purposes of presumptive service connection. 38 C.F.R. § 3.309. Osteoarthritis is compensable when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations or limited or painful motion of an affected joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In the absence of a current diagnosed disability, service connection cannot be granted for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain with functional impairment can be considered a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 21 F.4 th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The Veteran contends that his left and right knee and left and right hip conditions are due to his back condition. See January 2022 VA Form 21-526EZ. Post-service treatment records show that the Veteran was severely injured as a result of a motor vehicle accident in April 1986. His injuries included compound fractures to the left and right femurs. The Veteran has been diagnosed with left knee osteoarthritis and post-traumatic arthritis of the right knee. See September 2017, April 2022 VA Treatment Records. Regarding the hips, subsequent x-rays show remote history of supracondylar left femur fracture with resultant recurvatum and an old fracture involving the visualized distal right femoral diaphysis with a moderate chronic remodeling deformity in this location. See February 2022 VA Treatment Records. Post-service treatment records have attributed the Veteran's left and right knee and left and right hip pain and disabilities to the April 1986 motor vehicle accident. See October 2003, June 2008, July 2009, and February 2022 VA Treatment Records. The Veteran has not reported any complaints or injuries to the knees or hips during service and service treatment records are silent for any complaints or injuries regarding the knees or hips, including on separation examination. As such, the Board finds that there is no probative evidence establishing an event, injury, or disease occurred in service. Because the probative evidence does not establish that an event, injury, or disease occurred in service, remand for a VA examination is not warranted. As previously noted, the evidence reflects that the Veteran was injured in the April 1986 motor vehicle accident and his current disabilities of the knees and hips have been attributed to this accident. There is no probative evidence that the Veteran experienced an in-service event related to his left and right knees and left and right hips, to include symptoms relating to the knees and hips or a similar disability occurring during service. The first notation in the record regarding arthritis of the knees dates to April 2010 and any notation of pain of the knees or hips are following the April 1986 motor vehicle accident. There is simply no competent evidence of record that establishes either an earlier onset of disabilities of the knees and hips or a relationship between those disabilities and active service and the Veteran has not otherwise claimed such. Additionally, to the extent that the Veteran contends that his left and right knees and left and right hips are due to a back condition, the AOJ denied service connection for a back condition in the May 2020 rating decision. Therefore, a back disability may not serve as a predicate service-connected disability upon which to base this claim, and a claim for disabilities of the left and right knees and left and right hips based on secondary service connection fails as a matter of law. See 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). There is no evidence to show that a service-connected disability caused or aggravated the Veteran's disabilities of the left and right knees and left and right hips. The Board has carefully considered the benefit of the doubt doctrine. However, the record is silent for any indication, including lay evidence, of a relationship between the disabilities of the left and right knees and left and right hips and the Veteran's service. The Board therefore finds that the preponderance of the evidence indicates that the Veteran's disabilities of the left and right knees and left and right hips were not caused by or incurred in service, did not manifest within a year of discharge from service and are not secondary to any service-connected disability. Service connection is therefore not warranted. 5. Entitlement to an evaluation higher than 50 percent from April 28, 2014 to September 14, 2015, and higher than 70 percent from September 15, 2015 for PTSD with alcohol use disorder and cannabis use disorder As an initial matter, the Board notes that in the May 2023 rating decision on appeal, the AOJ sua sponte found a clear and unmistakable error (CUE) in the assignments of previous ratings for PTSD. Specifically, it found CUE regarding the October 2014 rating decision that assigned an effective date of May 16, 2014, the date of claim for an increased rating, for the grant of a higher 50 percent rating for PTSD. The AOJ found that the effective date of April 28, 2014 should have been assigned as that was the date showing an increase in the disability for PTSD, which was within one year prior to the date of claim for the increased rating. 38 C.F.R. § 3.400. The AOJ also found CUE with the March 2022 rating decision that assigned an effective date of January 21, 2022, the date of claim for an increased rating, for the grant of a 100 percent rating for PTSD. The AOJ found that the effective date of December 23, 2021 should have been assigned as that was the date showing an increase in the disability for PTSD, which was within one year prior to the date of claim for the increased rating. 38 C.F.R. § 3.400. The current appeal ensued. The Board notes that because the AOJ sua sponte found CUE, (1) the higher legal standard of CUE is not involved; it is a standard claim for increased ratings; and (2) the entire period on appeal, back to the Veteran's original claim, is on appeal. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). During the period on appeal, the Veteran's PTSD has been rated at 50 percent under the General Rating Formula for Mental Disorders (General Formula) from April 28, 2014 to September 14, 2015 and at 70 percent from September 15, 2015. The Veteran has also been assigned 100 percent ratings from August 8, 2018 to October 31, 2018 and from December 23, 2021, forward. Because a rating in excess of 100 percent cannot be assigned, these periods are not on appeal. Under the General Rating Formula, a 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Code 9411. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency and duration, have caused the level of occupational and social impairment associated with a rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Bankhead, 29 Vet. App. at 19. As relevant to this case, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court's holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board assigns the GAF scores mentioned in the record no probative value, and will not discuss them specifically. See also Golden v. Shulkin, 29 Vet, App. 221 (2018). Following a review of the evidence, the Board finds that a 70 percent rating is warranted from April 28, 2014 to September 14, 2015. Private treatment records dated April 2014 show that the Veteran received emergency department treatment for suicidal ideations. Admission records state that the Veteran had a history of passive suicidal ideation and denied attempts. He complained of being depressed and this was his fourth psychiatric hospitalization. He was sent by a VA psychiatrist for inpatient treatment and was awaiting transfer to a VA facility. VA treatment records from April 2014 stated that the Veteran was admitted due to suicidal thoughts. He went through drug rehabilitation in 2003, but relapsed in 2005. At that the time, he smoked marijuana 3 or 4 times per week and used cocaine 2 or 3 times days per week. Inpatient treatment notes stated that he was suicidal before being admitted, but was no longer suicidal. He endorsed depression and PTSD symptoms, including poor sleep, inadequate hygiene, was withdrawn and isolated, had suicidal ideation and depressed mood and seemed to get irritated when he talked about his problems. It was noted that he was at risk for injury as evidenced by thoughts of harming himself. During inpatient treatment, the Veteran's mood improved and he smiled spontaneously at least once a day, slept 5 or more hours per night, bathed and changed clothes at least 3 times per week, participated in or attended one social/group activity per day, and reported absence of suicidal ideation. Following discharge, the Veteran continued group therapy for depression and suicidal ideation. In September 2014, the Veteran was afforded a VA examination. The examiner indicated that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. It was noted that the Veteran is attending outpatient clinics at VA and was stable with medication. His PTSD symptoms included recurrent distressing dreams, dissociative reactions, avoidance, feelings of detachment or estrangement from others, hypervigilance, sleep disturbance, depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. VA treatment in December 2014 noted that the Veteran's affect was quite restricted and congruent with his chronic PTSD, anxiety and depressed mood. He also had affective lability, irritability, anger and free-floating homicidal ideation that was circumstantial and related to conflict with others, but without plan or intention. There were no impulse control issues reported and memory and perception were intact. April 2015 treatment stated that he was having good results with current medications. The Veteran contends that he should be granted a 70 percent rating for his symptoms from his April 28, 2014 hospitalization as he was hospitalized for depression and suicidal ideation. The Board agrees. As noted above, suicidal ideation alone may cause occupational and social impairment in most areas, consistent with a 70 percent rating. See Bankhead, 29 Vet. App. 10. In light of the symptoms described above, including the Veteran's hospitalization for suicidal ideation in April 2014 and ongoing, intermittent suicidal and homicidal ideation noted thereafter, the severity of the Veteran's PTSD disability is reflected in the criteria for a 70 percent disability rating during the period on appeal. Although the September 2014 VA examiner indicated that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, the Board finds that this is inconsistent with the severity of the symptoms reported during the examination. At that time, his PTSD symptoms included recurrent distressing dreams, dissociative reactions, avoidance, feelings of detachment or estrangement from others, hypervigilance, sleep disturbance, depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. As such, the Board finds that the September 2014 VA examination is not probative as it is internally inconsistent and inconsistent with the contemporaneous medical evidence. From April 28, 2014, the Veteran's PTSD symptoms manifested in occupational and social impairment with deficiencies in most areas and a 70 percent rating is warranted. A rating of 100 percent is not warranted from April 28, 2014 because the record does not reflect total occupational and social impairment. Additionally, the record did not reflect that the Veteran had symptoms of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. April 2015 VA treatment states that the Veteran reported improvement with his depressive and PTSD symptoms and he was working with his brother doing landscaping work. Throughout the period on appeal, the Veteran reported living with his mother until she passed away and having a good relationship with his grown children and grandchildren. See April 2015 VA Treatment Records; April 2016, October 2016, October 2017, November 2018, March 2019, February 2020, July 2020, May 2021 VA examinations. Additionally, the Veteran denied having hallucinations or delusions; he had a good response to his medications with controlling severe symptoms; and his cognitive functioning, memory, concentration, insight and judgment were good. See February 2016, April 2016 VA Treatment Records; October 2016, October 2017, November 2018, March 2019, February 2020, July 2020, May 2021 VA examinations. The Veteran did report experiencing olfactory hallucinations and had some memory problems on testing during the October 2017 VA examination; however, he was oriented to time, place and person and his symptoms did not otherwise meet the criteria for a total rating. Significantly, there were no other reports of hallucinations or significant memory problems during the period on appeal. Finally, the Board notes that the Veteran was admitted in August 2018 to the High Intensity Psychiatric Unit (HIPU) due to his report of depression with suicidal ideation and substance abuse issues; however, this is during the time that the Veteran was assigned a temporary 100 percent rating and at the time of discharge the Veteran was assessed as not a threat to himself or others. Thus, a rating of 100 percent is not warranted for the Veteran's PTSD. 6. Entitlement to TDIU prior to September 15, 2015. A request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. As a result, a claim for entitlement to TDIU is inferred from a claim for an increased rating where there is evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Because TDIU can come up basically any time VA is rating a disability, VA may need to address it as part of separate claim streams when it is rating different disabilities. TDIU is not its own separate benefit that VA can grant or deny unmoored from the underlying service-connection claim or rating. Instead, TDIU is part of that underlying claim-as an option for a potential rating-and the eventual effective date depends on the specific claim VA is then adjudicating. Phillips v. McDonough, No. 22-2575 (Ct. App. Vet. Cl., July 30, 2024). As previously explained, the Veteran's 70 percent rating for PTSD, which was granted in this decision, dates back to the date of April 28, 2014, the date showing an increase in the disability within one year prior to the May 16, 2014 claim for an increased rating. 38 C.F.R. § 3.400. TDIU was raised during the course of the ongoing claim for an increased rating for PTSD and was granted in the rating decision on appeal effective September 15, 2015, the date of the 70 percent rating previously assigned for PTSD. See May 2023 Rating Decision. The Veteran contends that TDIU should be assigned an effective date prior to September 15, 2015. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the Veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16 (a). The Veteran qualifies for schedular TDIU during the time period beginning April 28, 2014 based on the grant in this decision of the higher 70 percent rating assigned for PTSD from April 28, 2014. Furthermore, the AOJ found that the Veteran's PTSD prevents him from securing and maintaining a substantially gainful occupation. See May 2023 Rating Decision. The Board finds that this a favorable finding. Under the Appeals Modernization Act, the Board is bound by the favorable findings of the AOJ in the absence of clear and unmistakable error. 38 C.F.R. § 3.104. The Board finds no clear and unmistakable error in this instance. Thus, entitlement to TDIU from April 28, 2014 is warranted. The Board notes that entitlement to special monthly compensation (SMC) based on housebound status has been considered. However, the Veteran does not meet the criteria as the evidence does not show that he is housebound. 38 U.S.C. §§ 1114 (s). As such, the issue of entitlement to SMC has not been raised by the record. 7. Entitlement to an effective date prior to September 15, 2015 for the grant of basic eligibility to DEA benefits. To establish an effective date earlier than September 15, 2015, for the grant of eligibility to DEA benefits, the Veteran would need to show (1) that he had a prior claim for DEA benefits or an increased rating that remained pending, and, if so, (2) that he was eligible for DEA benefits prior to June 20, 2017. See 38 C.F.R. § 3.400. As discussed above, CUE was found in the October 2014 rating decision, which stems from the May 16, 2014 claim; therefore, there was a pending claim for an increased rating for the Veteran's PTSD from May 16, 2014. Thus, the date of claim for this matter is May 16, 2014. In the case of a Veteran who is alive, the conditions for basic eligibility for DEA include: (1) discharge from service under conditions other than dishonorable; and (2) a permanent total service-connected disability. 38 C.F.R. § 3.807 (a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340 (b). The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501 (a)(7). The Veteran has been granted an effective date of April 28, 2014 for the grant of entitlement to TDIU based on PTSD as an increase in disability was shown within the one year prior to the May 16, 2014 claim. Thus, the Veteran has a permanent total service-connected disability from April 28, 2014, and such is the date of entitlement for this matter. Because the date of entitlement is within the year period prior to the date of claim, the Veteran is warranted an effective date of April 28, 2014, but no earlier, for the grant of eligibility for DEA benefits. REASONS FOR REMAND 1. Entitlement to an initial rating higher than 30 percent for service-connected migraine headaches is remanded. After a thorough consideration of the evidence considered at the time of the April 2023 rating decision, the Board finds a remand is necessary in order to cure a pre-decisional duty to assist error. During the period on appeal, the Veteran has been afforded a VA examination with regards to his claim for migraine headaches. See February 2022 VA Examination. It was noted during this examination that the Veteran took Tylenol daily for his migraine headache disability; however, there is no evidence that the ameliorative effects of medication were considered in assessing the severity of the Veteran's disability. Where the rating criteria does not specifically contemplate the effects of medication, a higher rating may not be denied based on relief provided by medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Accordingly, a remand is necessary to assess the current severity of his migraine headache disability while discounting the ameliorative effects of medication. Additionally, clarification is needed as to whether the migraine headache disability is productive of severe economic inadaptability. The February 2022 VA examiner indicated that it was not; however, the examination report shows severe headache symptoms that occur four times a week for several hours. See February 2022 VA Examination. Therefore, an opinion clarifying the effects of the Veteran's symptoms is needed. The matters are REMANDED for the following action: 1. The AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected migraine headaches. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran's disability. Any indicated tests or studies should be conducted. The examiner is specifically requested to address the following: (a.) Provide a detailed opinion and explanation as to whether the Veteran's migraine headache disability is productive of severe economic inadaptability. The examiner must specifically consider the reported severe headache symptoms that occur four times a week for several hours. (b.) Indicate what the severity of the migraine headaches might be when discounting the ameliorative effects of medication for the entire appellate period beginning January 21, 2022. This directive must not be interpreted as either a suggestion or order that the Veteran stop using any medication for his migraine headaches. Rather, it must be read as a request for an examiner to attempt to assess the severity of the Veteran's migraine headaches, both with and without medication. The examiner must explain the rationale for all opinions and conclusions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report post-service symptom experiences; other witnesses are competent to report observable symptoms. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Meawad, Julie 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.