Citation Nr: 1640471 Decision Date: 10/12/16 Archive Date: 10/27/16 DOCKET NO. 10-12 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for urinary tract infections. 2. Entitlement to service connection for thoracolumbar spine disability. 3. Entitlement to service connection for cervical spine disability. 4. Entitlement to service connection for bilateral feet disability. 5. Entitlement to an effective date earlier than March 17, 2014 for the assignment of a 30 percent rating for headaches. 6. Entitlement to a disability rating in excess of 30 percent for headaches, to include the propriety of a rating reduction from 30 percent to 0 percent effective October 29, 2015. REPRESENTATION Appellant represented by: Joseph Moore, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran had active service from April 1989 to April 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in August 2009 (urinary tract infections, thoracolumbar spine disability, cervical spine disability, and bilateral foot disability) and June 2014 (headaches) by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified before the same Veterans Law Judge (VLJ) in September 2011 and February 2012. The transcripts of both proceedings are associated with the record. The aforementioned VLJ is no longer employed by the Board due to retirement. The Veteran was sent a letter and asked whether she desired another hearing. In an October 2015 response, the Veteran's attorney stated that she did not want another hearing. The Board may proceed with a decision. A November 2012 Board decision, in pertinent part, denied the issues for service connection for urinary tract infections, service connection for thoracolumbar spine disability, service connection for cervical spine disability, and service connection for bilateral foot disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 2014, the Court vacated the November 2012 Board decision and remanded the issues to the Board. In January 2016, the Board remanded the issues for development. The issues have now been returned to the Board for review. Concerning the issue of entitlement to a disability rating in excess of 30 percent for headaches, to include the propriety of a rating reduction from 30 percent to 0 percent effective October 29, 2015, the increased rating issue arises from an appeal of the June 2014 rating decision. Thereafter, a May 2016 rating decision decreased the assigned disability rating for headaches from 30 percent to 0 percent effective October 29, 2015. The issue of the propriety of the rating reduction is considered part and parcel to the increased rating issue and is considered to be in appellate status. Thus, the issue has been characterized as shown on the title page of this decision. The Board recognizes that the Veteran's attorney requested remand of the issue of entitlement to an increased rating for headaches due to the pending claim for service connection for traumatic brain injury and stating that the issues are inextricably intertwined. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the Board disagrees. If the issue for entitlement to service connection is granted at a later date, the rating will be assigned accordingly, to include any inclusion of the award for service connection for headaches. 38 C.F.R. § 4.124a. The issue of entitlement to service connection for traumatic brain injury has been raised by the record in a July 2016 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. In August 2016 written correspondence, the Veteran's attorney requested withdrawal of the issue for entitlement to service connection for urinary tract infections. 2. In August 2016 written correspondence, the Veteran's attorney requested withdrawal of the issue for entitlement to service connection for thoracolumbar spine disability. 3. In August 2016 written correspondence, the Veteran's attorney requested withdrawal of the issue for entitlement to service connection for cervical spine disability. 4. In August 2016 written correspondence, the Veteran's attorney requested withdrawal of the issue for entitlement to service connection for bilateral foot disability. 5. VA received a claim for an increased rating for headaches on March 17, 2014. 6. The one-year period prior to the March 17, 2014 informal claim does not reflect a factually ascertainable increase in severity of the Veteran's headaches. 7. The reduction in the 30 percent rating assigned to the service-connected headaches was not supported by adequate evidence demonstrating improvement in the disability at the time of the reduction. 8. The probative evidence does not reflect very frequent completing prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the issue of entitlement to service connection for urinary tract infections are met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 2. The criteria for the withdrawal of the issue of entitlement to service connection for thoracolumbar spine disability are met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 3. The criteria for the withdrawal of the issue of entitlement to service connection for cervical spine disability are met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 4. The criteria for the withdrawal of the issue of entitlement to service connection for bilateral foot disability are met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 5. The criteria for an effective date earlier than March 17, 2014 for the assignment of a 30 percent rating for headaches have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.156(b), 3.160, 3.400 (2015). 6. The reduction of the rating for the service-connected headaches from 30 percent to 0 percent, effective October 29, 2015 was improper and the 30 percent rating is restored. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.344, 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2015). 7. The criteria for a disability rating in excess of 30 percent for headaches have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal The Veteran perfected an appeal as to the issues of entitlement to service connection for urinary tract infections, service connection for thoracolumbar spine disability, service connection for cervical spine disability, and service connection for bilateral foot disability. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the claimant or the claimant's authorized representative. 38 C.F.R. § 20.204 (a). Following certification of the appeal to the Board, in August 2016 written correspondence signed by the Veteran's attorney, withdrawal of the issues of entitlement to service connection for urinary tract infections, service connection for thoracolumbar spine disability, service connection for cervical spine disability, and service connection for bilateral foot disability, was requested. There remain no allegations of errors of fact or law for appellate consideration. As the Board does not have jurisdiction to review the issues, they are dismissed. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Review of the record shows that the Veteran was provided a VA notice letter concerning her claim for an increased rating in March 2014, along with a VA Form 21-4142 General Release for Medical Provider Information so that the RO could obtain all of her treatment records. Therefore, further notification or assistance in this case would be of no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). In addition, concerning the increased rating issue, the Veteran's attorney has presented argument and evidence pertaining to her claim for an increased rating for headaches, demonstrating the actual knowledge to substantiate the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or claimant's representative demonstrating an awareness of what is necessary to substantiate his or her claim). In light of the above, the Board finds that any error in notice is not prejudicial to the appellant and the Board may proceed with a decision. See Bernard v. Brown, 4 Vet. App. 384 (1993). The duty to assist the Veteran has been satisfied. The claims folder contains the Veteran's service medical treatment records, private medical treatment records, and identified VA medical treatment records. Concerning the claim for an increased rating for headaches, the Veteran was provided VA medical examinations in May 2014 and October 2015. The examiners documented the Veteran's reported symptoms, performed physical examinations, and included findings relevant to rating the Veteran's service-connected headaches. The examinations are adequate. See Barr, supra. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected headaches since she was last examined. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Finally, the outcomes of the earlier effective date claim turns on determinations as to when the increased rating claims was filed and the earliest point in time that increased rating was shown to be warranted; no unresolved medical question is raised in the review of the available medical and lay evidence concerning the past severity of the disability. The Board finds that there is no need for further development regarding the earlier effective date claim. Other Considerations In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) (2015) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The undersigned VLJ explained the issues on appeal and addressed any relevant evidence. The Veteran has not suggested any deficiency in the conduct of the hearings. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103 (c)(2). Legal Criteria Earlier Effective Date The assignment of effective dates of awards is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (a) (West 2014); 38 C.F.R. § 3.400 (2015). With respect to procedural history, a December 2012 rating decision granted entitlement to service connection for headaches and assigned a 0 percent rating effective February 27, 2009. A notice of disagreement was not received within one year of notification of the December 2012 rating decision and relevant evidence was not received within one year of notification of the December 2012 rating decision. The decision is final. 38 C.F.R. § 20.1103. On March 17, 2014, VA received an informal claim for an increased rating for headaches. A June 2014 rating decision assigned a higher rating of 30 percent effective March 17, 2014, the date that VA received the Veteran's claim for an increased rating. As such, the earliest effective date assignable in this case is March 17, 2014, the date that VA received the Veteran's claim for an increased rating. An earlier effective date for an increased rating may be granted on the date of a factually ascertainable increase in the disability, if such increase occurred within the one-year period preceding the date of the claim. 38 U.S.C.A. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). The Board considered the evidence of record for the year prior to March 17, 2014, but the evidence does not indicate an increase in severity of the service-connected headaches. An earlier effective date is not warranted. In reaching this decision, the Board finds that the preponderance of the evidence is against the Veteran's claim for assignment of an earlier effective date for the 30 percent rating assigned to the headaches and the claim is denied. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating for Headaches, to include Properiety of the Reduction to 0 percent Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2015). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C.A. § 5107 (b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's headaches are rated as 30 percent disabling under Diagnostic Code 8100 and were reduced to 0 percent effective October 29, 2015. The code provides for a 30 percent rating on evidence of characteristic prostrating attacks occurring on average once a month over the last several months. A maximum schedular rating of 50 percent is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define "prostrating," nor has the Court. According to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, p. 1080 (3rd Ed. 1986), "prostration" is defined as "utter physical exhaustion or helplessness." A similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, p. 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." First, the Board will address the procedural requirements in a rating reduction case. Under 38 C.F.R. § 3.105 (e), where a reduction in a rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. The beneficiary must be notified of the contemplated action and furnished detailed reasons. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. In this case, the reduction of the rating from 30 percent to 0 percent did not involve reduction in the overall amount of compensation payable to the Veteran, and the provisions of 38 C.F.R. § 3.105 (e) are not for application. See VAOPGCPREC 71-91. The issue remaining is whether the reduction was proper based upon the evidence of record. The criteria governing rating reductions for service-connected disabilities is found in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. §§ 3.344 (a) and (b) apply to ratings that have continued for five years or more. In the present case, the 30 percent rating for the Veteran's headaches was in effect since March 17, 2014. The rating reduction was effective October 29, 2015, less than five years later. Therefore, the provisions of 38 C.F.R. §§ 3.344 (a) and (b) do not apply. Instead, reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Nevertheless, in Brown v. Brown, 5 Vet. App. 413 (1993), the Court stated that there are general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. Id. at 420-421, citing 38 C.F.R. §§ 4.1, 4.2, 4.13. Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. 38 C.F.R. § 4.2 establishes that it is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21. The Veteran was provided a VA medical examination in May 2014. The Veteran stated that she began to get headaches while in the service in 1993. She noted that they increased in frequency over the years and she had two to three migraines per week. They typically lasted less than 24 hours. She tries to find a quiet place, if possible. She took Vyvanse for her headaches. She experienced pain on both sides of her head. She experienced nausea, and sensitivity to light. Her pain typically lasted for less than one day. The examiner noted that the Veteran had characteristic prostrating attacks of migraine headache pain more frequently than once per month. The examiner stated that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. The examiner noted that the Veteran had to take days off of work due to headache. She typically worked 1/2 time taking 10 days off a month. The Veteran was provided a VA examination in October 2015. The claims folder was reviewed. Concerning medical history, the Veteran stated that she ran out of her prescription for headaches prescribed by her civilian doctor. She was taking Relpax oral medication on daily basis. The medication gave her side effects but she continued to take it. She had been out of medication for 8 months. She did not follow up with her civilian doctor and did not like going to VA. The headaches varied. One month ago she had a headache which lasted three days in duration. Her headaches averaged once per week and lasted for one day. She had nausea, but no vomiting. She last worked doing harvesting for sugar, which was seasonal work. She did this every October. She had no other work during the year. There were no emergency room visits in the last year for headaches. The examiner stated that the Veteran experienced pain, which was pulsating or throbbing, on both sides of the head and worsened with physical activity. The Veteran experienced nausea, sensitivity to light, sensitivity to sound, and sensory changes with headaches. The examiner stated that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner stated that the condition did not impact her ability to work. The Veteran's 30 percent rating for headaches was reduced to 0 percent as a result of the October 2015 VA medical examination report. In this case, the Board finds that the reduction to 0 percent was improper. As explained above, in all rating reduction cases, the Board must consider the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2; Brown, 5 Vet. App. 413 (1993). The Board must also consider whether the evidence reflects actual change in disability to include improvement in the ability to function under ordinary conditions of life and work. See Brown, id. When compared to the previous VA examination report, the October 2015 VA examination report findings indicate a change in the severity of the Veteran's disability. The examiner stated that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. However, there is no consideration as to whether she just did not experience prostrating attacks at the time of the examination and whether the report reflected actual change in the disability, to include improvement in the ability to function under ordinary conditions of life in work. The October 2015 VA examination report continued to note similar symptoms as reported in the prior VA examination report and that the Veteran had headaches that averaged once per week and lasted for one day, consisting of nausea, pulsating pain, and sensory changes. In resolving reasonable doubt in favor of the Veteran, the 30 percent rating for the headaches is restored. 38 U.S.C.A. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). However, the Board finds that the evidence does not warrant a rating in excess of 30 percent for headaches. The evidence does not show that the Veteran's headaches have been productive of severe economic inadaptability. The May 2014 VA examination report indicated that the Veteran had to take days off from work, but the Board does not find that this rises to the level of severe economic inadaptability. The Board notes that some degree of industrial impairment is already contemplated by the current 30 percent rating. In addition, the October 2015 VA examiner stated that the Veteran's headaches did not impact her ability to work. Without symptoms productive of severe economic inadaptability, a rating of greater than 30 percent is not warranted. Accordingly, the Board concludes that the Veteran's headaches have been not more than 30 percent disabling throughout the entire period on appeal. Staged ratings are not appropriate. See Hart, supra. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Extra-schedular Consideration The Board has considered whether referral for one or more extra-schedular ratings is warranted for service-connected headaches. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. Id. at 115. The schedular rating criteria used to rate the Veteran's service-connected headaches reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the headaches on the basis of frequency and severity, in addition to economic inadaptability resulting from prostrating effect. This includes symptoms such as nausea, vomiting, sensitivity to light, and sensitivity to sound to the extent that these merely represent the underlying symptoms of a prostrating episode. The Board finds that the evidence fails to show unique or unusual symptomatology regarding headaches that would render the schedular criteria inadequate. Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral for consideration of extra-schedular evaluation is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. Total Disability Rating for Compensation Purposes for Individual Unemployability (TDIU) 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 a 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, neither the Veteran nor the record indicates that she is unemployable due to the service-connected headaches. Accordingly, the Board concludes that a claim for a TDIU is not for appellate consideration. ORDER The issue of entitlement to service connection for urinary tract infections is dismissed. The issue of entitlement to service connection for thoracolumbar spine disability is dismissed. The issue of entitlement to service connection for cervical spine disability is dismissed. The issue of entitlement to service connection for bilateral feet disability is dismissed. Entitlement to an effective date earlier than March 17, 2014 for the assignment of a 30 percent rating for headaches is denied. The reduction of the rating for service-connected headaches from 30 percent to 0 percent was improper; the 30 percent rating is restored. Entitlement to a rating in excess of 30 percent for service-connected headaches is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs