VARICOSE VEINS

Summary

The veteran, who served from August 2006 to February 2011, appeals the denial of increased ratings for right leg varicose veins and a lower back condition, and the grant of a 10 percent rating for migraine headaches. The Board denied the claims for varicose veins and the lower back condition, finding that the evidence did not support ratings higher than the currently assigned 10 percent for each. For varicose veins, the VA examination showed symptoms consistent with the 10 percent rating, lacking objective evidence of persistent edema required for a higher evaluation. For the lower back condition, while pain and flare-ups were acknowledged, the objective findings did not meet the criteria for a higher rating, and the Board found the current 10 percent rating adequate. The Board granted a 10 percent rating for migraine headaches, acknowledging characteristic prostrating attacks but remanded the claim for a higher rating due to an inadequate VA examination that failed to specify the frequency of these attacks. The Board also remanded claims for erectile dysfunction and sleep apnea, finding the existing VA medical opinion inadequate as it did not adequately address causation and aggravation separately from direct causation, and lacked sufficient rationale. The veteran may file a Supplemental Claim for the denied varicose vein and lower back claims if new evidence is submitted.

Rationale

VA examination findings consistent with 10% rating; Lack of persistent edema or other findings for higher rating; Veteran's lay assertions not more persuasive than objective medical findings

Full Decision Text

Citation Nr: A26037688
Decision Date: 04/22/26	Archive Date: 04/22/26

DOCKET NO. 210820-181583
DATE: April 22, 2026

ORDER

Entitlement to a rating in excess of 10 percent for right leg varicose veins is denied.

Entitlement to a rating in excess of 10 percent for a lower back condition is denied.

Entitlement to a 10 percent rating for migraine headaches is granted.

REMANDED

Entitlement to a rating in excess of 10 percent for migraine headaches is remanded.

Entitlement to service connection for erectile dysfunction is remanded.

Entitlement to service connection for sleep apnea is remanded.

FINDINGS OF FACT

1. The Veteran's right leg varicose veins are manifested by aching and fatigue after prolonged standing, with symptoms relieved by elevation; the disability is not manifested by persistent edema, beginning stasis pigmentation or eczema.

2. The Veteran's lower back condition has been manifested by forward flexion limited to no worse than 70 degrees, including after repeated use over time, and a combined range of motion greater than 120 degrees, with pain and functional impairment; it has not been manifested by forward flexion limited to 60 degrees or less, combined range of motion of 120 degrees or less, or muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour.

3. The Veteran's migraine headaches have been manifested by symptoms commensurate to at least characteristic prostrating attacks of headache pain during the appeal period.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for right leg varicose veins have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7120.

2. The criteria for a rating in excess of 10 percent for a lower back condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45; 38 C.F.R. § 4.71a, Diagnostic Code 5237.

3. The criteria for a 10 percent rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 2006 to February 2011.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2021 rating decision by a Department of Veterans Affairs (VA) regional office (RO).

In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on April 30, 2025.

Therefore, the Board may only consider the evidence of record at the time of the July 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

For the claims of entitlement to a rating in excess of 10 percent for right leg varicose veins and rating in excess of 10 percent for a lower back condition, 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 claims of entitlement to a rating in excess of 10 percent for migraine headaches and entitlement to service connection for erectile dysfunction and sleep apnea, any evidence the Board could not consider will be considered by
 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 claims of entitlement to a rating in excess of 10 percent for migraine headaches and entitlement to service connection for erectile dysfunction and sleep apnea, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Increased ratings

Disability ratings are determined by comparing a Veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 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 diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

1. Entitlement to a rating in excess of 10 percent for right leg varicose veins.

The Veteran seeks a higher rating for service-connected right leg varicose veins, currently evaluated as 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7120. For the reasons discussed below, the Board finds that entitlement to an increased rating for this claim is not warranted.

Under Diagnostic Code 7120, a 10 percent rating is warranted for intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. A 20 percent rating is assigned for persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is assigned for persistent edema and stasis pigmentation or eczema with or without intermittent ulceration; and a 60 percent rating is assigned for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is assigned for massive board-like edema with constant pain at rest.?38 C.F.R. § 4.104, Diagnostic Code 7120.

The Note under Diagnostic Code 7120 indicates that the above evaluations are for involvement of a single extremity. If more than one extremity is involved, the note instructs to evaluate each extremity separately and combine them under?38 C.F.R. § 4.25, using the bilateral factor (under?38 C.F.R. § 4.26?if applicable). 

The criteria for rating varicose veins are conjunctive, meaning that each element of the criteria is needed to meet the requirements for the specified evaluation. See Camacho v. Nicholson,?21?Vet. App.?360?(2007); see also Melson v. Derwinski,?1?Vet. App.?334?(1991) (use of the conjunctive "and" in a statutory provision means that all the conditions listed in the provision must be met). 

The Veteran underwent a VA examination in May 2021. The examiner noted that the Veteran's symptoms were aching in the right leg after prolonged standing, and fatigue in right left after prolonged standing. The examiner noted that symptoms were relieved by elevation of right extremity. The examination does not demonstrate the presence of persistent
 each element of the criteria is needed to meet the requirements for the specified evaluation. See Camacho v. Nicholson,?21?Vet. App.?360?(2007); see also Melson v. Derwinski,?1?Vet. App.?334?(1991) (use of the conjunctive "and" in a statutory provision means that all the conditions listed in the provision must be met). 

The Veteran underwent a VA examination in May 2021. The examiner noted that the Veteran's symptoms were aching in the right leg after prolonged standing, and fatigue in right left after prolonged standing. The examiner noted that symptoms were relieved by elevation of right extremity. The examination does not demonstrate the presence of persistent edema, intermittent edema, or any edema at all. Additionally, there are no findings of stasis pigmentation, eczema, ulceration, subcutaneous induration, or constant pain at rest. 

Upon review, the Board notes that these findings are consistent with the currently assigned 10 percent evaluation. The Board acknowledges the Veteran's reported symptoms of pain and fatigue; however, these symptoms are specifically contemplated by the criteria for a 10 percent rating. The next higher rating requires objective evidence of persistent edema, which is not shown in this case.

The Board acknowledges that while the Veteran may believe his symptoms are more severe than contemplated by the currently assigned disability rating, he does not possess the medical expertise to make such an assessment. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). In this regard, while the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional impairment, he is not competent to provide an opinion regarding the severity of his symptoms in accordance with the rating criteria. Woehlaert v. Nicholson,?21 Vet. App. 456?(2007). As such, the Veteran's lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support the assignment of a higher rating for the Veteran's right leg varicose veins.

As the evidence does not show persistent edema or other findings required for a higher evaluation, the criteria for a rating in excess of 10 percent have not been met or more nearly approximated at any time during the appeal period.

Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to a rating in excess of 10 percent for the Veteran's right leg varicose veins. As the most probative evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied.?38 U.S.C. § 5107(b); 38?C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 

2. Entitlement to a rating in excess of 10 percent for a lower back condition.

The Veteran is seeking a rating in excess of 10 percent for his lower back condition, which is currently rated 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5237. For the reasons discussed below, the Board finds that an increased rating is not warranted for this claim.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by painful motion with joints. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v
.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. at 37-38.

Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range of motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell, 25 Vet. App. at 44. Nonetheless, despite the relevance of the background factors delineated in § 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. §§ 4.71a (musculoskeletal system) or 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 is not appropriate. See Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or § 4.73] criteria.").

In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion and in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

As noted above, the Veteran's lower back condition is rated under Diagnostic Code 5237, which rates lumbosacral strain and applies the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under Diagnostic Code 5237 a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.

A 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis

A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine that is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. VA amended the criteria for rating the musculoskeletal system and muscle injuries, effective from February 7, 
 an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis

A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine that is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. VA amended the criteria for rating the musculoskeletal system and muscle injuries, effective from February 7, 2021. However, the criteria were not changed in a manner that affects the analysis in this case.

Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5).

If functional loss is consistent with that contemplated by "a complete limitation of motion," 38 C.F.R. §§ 4.40 and 4.45 permit a rating for ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021).

An alternative method for rating disabilities of the spine is based on incapacitating episodes of intervertebral disc syndrome (IVDS), pursuant to Diagnostic Code 5243. Under Diagnostic Code 5243, IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, warrants a 40 percent rating, and IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a 60 percent rating. 

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note (1).

Turning to the evidence of record, the Veteran underwent a VA examination in May 2021. The Veteran demonstrated forward flexion of 72 degrees for active and passive range of motion, with an estimated limitation to 70 degrees following repeated use over time. The combined range of motion was greater than 120 degrees. The examiner specifically found no additional loss of range of motion following repetitive use testing and did not indicate that muscle spasm or guarding resulted in an abnormal gait or abnormal spinal contour.

The Board has considered the Veteran's reports of pain, flare-ups, and functional impairment, including difficulty sitting or lying down for prolonged periods and the need for constant repositioning. The examination reflects that pain causes functional loss and that flare-ups occur; however, even when accounting for such functional impairment, the examiner estimated that forward flexion would be limited to 70 degrees during repeated use over time. This does not more nearly approximate limitation of flexion to 60 degrees or less. 

Further, the evidence reflects that the Veteran's lower back condition is not manifested by IVDS or other associated objective neurologic abnormalities, such as bowel or bladder issues, or radiculopathy for the period on appeal. 

In reaching this determination, the Board acknowledges that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use." Ingram v. Collins, 38 Vet. App. 130 (2025). Here, the Board is aware that the Veteran has taken medication to address the symptoms of the disability at issue. That having been said, certain symptoms listed in the criteria for the currently assigned rating have not been shown, and the Board finds that the Veteran's symptoms during the appeal period and the use of medication, viewed in tandem, are essentially commensurate to the disability picture contemplated by the currently assigned rating. 

Accordingly, the Board finds that the Veteran's disability picture is adequately contemplated by the currently assigned 10 percent rating. The criteria for a rating in excess of 10 percent for a lower back condition have not been met or more nearly approximated at any time during the appeal period, and this claim is denied.

3. Entitlement to a 10 percent rating for migraine headaches.

The Veteran is seeking a compensable rating for migraine
 issue. That having been said, certain symptoms listed in the criteria for the currently assigned rating have not been shown, and the Board finds that the Veteran's symptoms during the appeal period and the use of medication, viewed in tandem, are essentially commensurate to the disability picture contemplated by the currently assigned rating. 

Accordingly, the Board finds that the Veteran's disability picture is adequately contemplated by the currently assigned 10 percent rating. The criteria for a rating in excess of 10 percent for a lower back condition have not been met or more nearly approximated at any time during the appeal period, and this claim is denied.

3. Entitlement to a 10 percent rating for migraine headaches.

The Veteran is seeking a compensable rating for migraine headaches, which is currently rated non-compensable (zero percent) under 38 C.F.R. § 4.124a, Diagnostic Code 8100.

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 maximum rating of 50 percent is warranted for migraines with very frequent complexly prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. 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 v. Wilkie, 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.

VA regulations also do not define "economic inadaptability." In Pierce v. Principi, 18 Vet. App. 440, 445 (2004), the United States Court of Appeals for Veterans Claims (Court) examined the term "productive of severe economic inadaptability" in the criteria for a 50 percent rating under Diagnostic Code 8100 and noted that "[n]owhere in the Diagnostic Code is 'inadaptability' defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.]." Id. at 446. The Court explained that, "nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent 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 percent rating." Id. The Court therefore rejected the notion that "severe economic inadaptability" was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for a TDIU. Id. In addition, the Court acknowledged VA'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 rating headaches or migraines under Diagnostic Code 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

The Board is aware that the evidence in this case reflects a pre-decisional duty to assist error requiring remand, as detailed below. At the same time, the existing evidence is sufficient to support a 10 percent rating. In a May 2021 VA examination for headaches, the VA examiner noted that the Veteran has characteristic prostrating attacks of migraine headaches but did not note the frequency with which these attacks occur. As the Veteran was noted to have characteristic prostrating attacks of migraine headaches, the Board finds that the Veteran, at a minimum, meets the criteria for
 not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012).

The Board is aware that the evidence in this case reflects a pre-decisional duty to assist error requiring remand, as detailed below. At the same time, the existing evidence is sufficient to support a 10 percent rating. In a May 2021 VA examination for headaches, the VA examiner noted that the Veteran has characteristic prostrating attacks of migraine headaches but did not note the frequency with which these attacks occur. As the Veteran was noted to have characteristic prostrating attacks of migraine headaches, the Board finds that the Veteran, at a minimum, meets the criteria for a 10 percent disability rating, and to that extent only the appeal is granted here. The question of whether an even higher rating is warranted will be deferred pending remand.

Finally, the Veteran has not raised any other issues; nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 370 (2017). As well, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for TDIU due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disabilities at issue render him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised.

REASONS FOR REMAND

1. Entitlement to a rating in excess of 10 percent for migraine headaches.

For the claim of entitlement to a rating in excess of the now-assigned 10 percent for migraine headaches, the Board finds that a remand is warranted to correct a pre-decisional duty to assist error by the AOJ.

As noted above, in the May 2021 VA examination for headaches, the examiner noted that the Veteran has characteristic prostrating attacks of migraine headaches but did not note the frequency with which these attacks occur. The frequency of characteristic prostrating attacks is a critical element in evaluating headaches under Diagnostic Code 8100. Without this information, the Board is unable to determine whether a higher rating is warranted. As such, the examination does not contain sufficient detail to allow for a fully informed evaluation of the disability and is considered inadequate for rating purposes. As failure to obtain an adequate VA examination is a pre-decisional duty to assist error, a remand is required to obtain an adequate VA medical examination for this claim. Barr v. Nicholson, 21 Vet. App. 303 (2007).

2. Entitlement to service connection for erectile dysfunction.

3. Entitlement to service connection for sleep apnea.

The Veteran contends that entitlement to service connection for erectile dysfunction and sleep apnea is warranted as secondary to service-connected posttraumatic stress disorder (PTSD). The Board regrets the delay but finds that a remand is warranted to correct a pre-decisional duty to assist error by the AOJ.

The claims file contains a VA medical opinion on secondary service connection for the erectile dysfunction and sleep apnea from May 2021. The examiner opined that sleep apnea and erectile dysfunction are less likely than not proximately due to or the result of the Veteran's service-connected condition. While the VA examiner addressed direct causation, the examiner did not provide an adequate rationale to support this opinion. Further, an adequate medical opinion regarding secondary service connection must address causation and aggravation separately, which this medical opinion does not do. As such, the Board finds this opinion inadequate, and failure to obtain an adequate medical opinion is a pre-decisional duty to assist error that must be corrected upon remand.

The matters are REMANDED for the following action:

(1)	Schedule the Veteran for an examination by an appropriate examiner to determine the current severity of the service-connected migraine headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's migraine headaches under the rating criteria. In doing so, the VA examiner must consider the Veteran's statements regarding his migraine headaches and must provide a written opinion that comments upon the frequency and severity of the migraine headaches without consideration of the ameliorating effects of medication. 

(2)	The entire claims file should be forwarded to an appropriate examiner to determine the nature and etiology of the Veteran's erectile dysfunction and sleep apnea. Prior to providing any conclusions and opinions, the examiner is asked to consider all supporting evidence. After reviewing the claims file, the examiner is asked to op
 to determine the current severity of the service-connected migraine headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's migraine headaches under the rating criteria. In doing so, the VA examiner must consider the Veteran's statements regarding his migraine headaches and must provide a written opinion that comments upon the frequency and severity of the migraine headaches without consideration of the ameliorating effects of medication. 

(2)	The entire claims file should be forwarded to an appropriate examiner to determine the nature and etiology of the Veteran's erectile dysfunction and sleep apnea. Prior to providing any conclusions and opinions, the examiner is asked to consider all supporting evidence. After reviewing the claims file, the examiner is asked to opine on the following:

Whether the claimed erectile dysfunction and sleep apnea are at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) proximately due to the Veteran's service-connected PTSD?

Whether the claimed erectile dysfunction and sleep apnea are at least as likely as not aggravated by the Veteran's service-connected PTSD? 

In providing responses, the examiner is asked to provide separate opinions for causation and aggravation, each with their own separate and distinct rationale.

 

 

A. C. MACKENZIE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Khan, Associate 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.