Citation Nr: 1751320 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-36 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a cervical spine condition. 2. Entitlement to service connection for a cervical spine condition. 3. Entitlement to service connection for left knee degenerative joint disease with chondromalcia patella, to include as secondary to service-connected chronic right knee strain. 4. Entitlement to a compensable rating for tension headaches. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from September 1989 to June 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In an August 1995 rating decision, the RO denied entitlement to service connection for a cervical spine condition. The Veteran did not perfect his appeal or submit new and material evidence within one year of the August 1995 rating decision. Therefore, the decision became final. The Board finds that the evidence received since the August 1995 rating decision is both new and material to the claim. See 38 C.F.R. § 3.156, 20.302, 20.1103; see also April 2017 Transcript of Hearing at 10, 12, 14; May 2017 Private Nexus Statement. Accordingly, the claim of entitlement to service connection for a cervical spine condition is reopened and will be considered on the merits. Although the issue of entitlement to TDIU was not certified for appeal, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims held that the issue of TDIU is part and parcel of an increased rating claim when it is raised by the record. In this case, the Board finds that the record raised the issue of entitlement to TDIU during the pendency of the appeal. Accordingly, the Board has characterized the issues on appeal to include a claim for entitlement to TDIU and the issue is properly before the Board. As the RO has not had the opportunity to determine whether the Veteran meets the criteria for a TDIU, the issue will be remanded for further development. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993) (noting that "the Board's action on appeal in proceeding to decide a question that the AOJ had not decided raises the possibility that a claimant will be prejudiced by not having been afforded the full benefits of the[] procedural safeguards"). In April 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file contains documents that are either duplicative of the records in VBMS or irrelevant to the issue on appeal. The issues of entitlement to service connection for a cervical spine condition, service connection for left knee degenerative joint disease with chondromalcia patella, to include as secondary to service-connected chronic right knee strain, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 1995 rating decision, the RO denied entitlement to service connection for a cervical spine condition. The Veteran did not file a Notice of Disagreement nor perfect his appeal. Additionally, new and material evidence was not submitted within one year of the August 1995 rating decision. 2. The evidence received since the August 1995 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claim of entitlement to service connection for a cervical spine condition. 3. The Veteran's tension headaches are characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The August 1995 rating decision denying service connection for a cervical spine condition is final. 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2016). 2. New and material evidence has been received and the claim of entitlement to service connection for a cervical spine condition is reopened. 38 C.F.R. §§ 3.156 (2016). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a 50 percent rating for tension headaches have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.124a, Diagnostic Code 8199-8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2016). Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has already been established and 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). Staged ratings are appropriate when the factual findings show distinct times where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, the Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran's service-connected tension headaches are rated as noncompensable, pursuant to the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.20. Under Diagnostic Code 8100, a noncompensable rating for migraine headaches is warranted with less frequent attacks. 38 C.F.R. § 4.124a. A 10 percent rating for migraine headaches is warranted with characteristic prostrating attacks averaging one in two months over the last several months. Id. A 30 percent rating for migraine headaches is warranted with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 50 percent rating for migraine headaches is warranted with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating." By way of reference, "prostration" is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary, 1531 (32nd ed. 2012). Additionally, the rating criteria do not define "severe economic inadaptability;" however, nothing in Diagnostic Code 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). The term "productive of economic inadaptability" could be read as either "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). In February 2010, the Veteran sought an increase for his service-connected tension headaches. He was afforded a VA examination in May 2010. The Veteran reported that his headaches were severe and occurred several times per month for a duration of two hours to two days. He stated that his headaches did not affect his job and that he may have missed one to two days per month due to his headaches. Although he did not lie down at work, at home he took naps that sometimes relieved his headaches. Additionally, he avoided doing chores when he experienced headaches. On examination, he was alert and oriented and his memory was grossly intact. He did not have any tenderness of the head. The examiner diagnosed tension headaches. In April 2017, the Veteran testified that he experienced nausea, light sensitivity, and intense head pain. He stated that the frequency of his headaches was at least four or five per month for a duration of a couple of hours to a day and a half. To relieve his headache pain, he would lie down, sleep, and/or close his eyes in a dark room. He added that his headaches affected his job as a barber in which he missed approximately four days per month and, if not the full day, he missed many half days of work. He was unemployed as a barber due to his headaches. With regard to the Veteran's headaches, the Veteran's private physician submitted a VA Disability Benefits Questionnaire (DBQ) in June 2017. The DBQ indicated a diagnosis for migraine headaches in 2012. The Veteran's symptoms included constant and pulsating or throbbing head pain that worsened with physical activity. The Veteran's head pain was located predominantly on the right side of his head and his pain lasted for one to two days. The Veteran also experienced nausea, vomiting, sensitivity to light and sound, and sensory changes. He had very frequent characteristic prostrating and prolonged attacks of migraine headache pain. Additionally, he experienced prostrating attacks of migraine and non-migraine headache pain more frequently than once per month. The Veteran's headache condition impacted his ability to work due to flare-ups of pain and vomiting. The Board finds that aforementioned evidence more closely approximates a headache disability characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In so finding, the Board notes that while the evidence has varied as to the severity of the Veteran's headache pain, the Veteran's private physician found that the Veteran was diagnosed with migraine headaches in 2012 and he had very frequent prostrating and prolonged attacks of migraine headache pain. Additionally, the June 2017 DBQ indicated that the Veteran's headaches impacted his ability to work. Moreover, the Board finds that the Veteran's April 2017 hearing testimony as to his headaches resulting in missed work and his unemployment are competent and credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that a 50 percent rating is warranted for tension headaches. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). The Board notes that a 50 percent rating is the maximum rating allowed under Diagnostic Code 8100. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a cervical spine condition is reopened. Entitlement to a rating of 50 percent for tension headaches is granted. (CONTINUED ON NEXT PAGE) REMAND Although the Board sincerely regrets the additional delay, it finds that additional evidentiary development is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. Cervical Spine Condition The Veteran contends that VA did not recognize the lack of lordotic curve in his cervical spine since service and that he still lacks a lordotic curve in his cervical spine. See February 2010 VA Form 21-4138 Statement In Support of Claim; April 2017 Transcript of Hearing at 14. Additionally, the Veteran's service treatment records document a diagnosis for cervical thoracic sprain following a motor vehicle accident and absence of the normal lordotic curve in November 1992. The Veteran was also treated for sharp back pains starting in his mid-back region and extending to his left arm in November 1994. A May 2010 VA examiner opined that the Veteran's current cervical disc disease was less likely as not caused by service. He explained that, although the Veteran experienced neck pain during service, it was not noted to be a chronic condition upon separation in June 1995. Additionally, the examiner cited a January 1995 in-service examination showing a normal neck and spine examination. The examiner indicated that the Veteran had another motor vehicle accident after service with neck injuries. However, the examiner did not discuss the absence of the normal lordotic curve and in-service treatment for back pain, as noted above. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, in light of the Veteran's contentions, the Board finds that a remand is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A (d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4) (2016). Left knee degenerative joint disease with chondromalcia patella The Veteran contends that his left knee condition was caused or aggravated by his service-connected chronic right knee strain. Specifically, the Veteran testified that favoring and shifting his weight onto his right knee placed more pressure, weight, and usage on his left knee. See April 2017 Transcript of Hearing at 17. Also, he stated that locking in his right knee caused him to fall and injure his left knee and he later had surgery on his left knee approximately four to five years ago. Although the Veteran was afforded a VA examination with respect to his left knee condition in May 2010, the VA examiner did not provide a nexus opinion as to the nature and etiology of his left knee condition. The May 2010 VA examiner concluded that he could not make a causal relation or aggravation of joint to joint relationship or offer an opinion to that effect because such knowledge was not available in the medical literature or as a consensus expert opinion and any opinion provided would be speculation. Based on the foregoing, the Veteran should be afforded another VA examination to determine the nature and etiology of his left knee condition. See McLendon, 20 Vet. App. at 79, 81; Barr, 21 Vet. App. at 303, 312. TDIU In April 2017, the Veteran testified that he stopped working as a barber in 2013 due to his headaches. See Transcript of Hearing at 9-10. As previously noted, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating includes the issue of whether a TDIU is warranted. Rice, 22 Vet. App. at 453-54. Therefore, the AOJ should develop and adjudicate the issue of the Veteran's entitlement to a TDIU in the first instance. See Bernard, 4 Vet. App. at 393. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain an addendum opinion from a qualified medical professional to determine the nature and etiology of a cervical spine condition. If an examination is necessary, one should be provided. The claims file and a copy of this REMAND must be made available to the examiner for review. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, prior VA examination reports, and lay statements and assertions. All pertinent symptomatology and findings must be reported in detail. The examiner should discuss the Veteran's lay assertion that he has lacked a lordotic curve in his cervical spine since service; the November 1992 service treatment record indicating absence of the normal lordotic curve; and the November 1994 service treatment record note indicating treatment for sharp back pains starting in the Veteran's mid-back region and extending to his left arm. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's cervical spine condition is causally or etiologically related to his military service. In providing this opinion, the examiner should discuss medically known or theoretical causes of the Veteran's cervical spine condition and describe how such a disability generally presents or develops in most cases, in determining the likelihood that cervical spine condition is related to in-service events as opposed to some other cause. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear and complete rationale for any opinions or conclusions expressed should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of his left knee condition. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file and a copy of this REMAND must be made available to the examiner for review. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment and personnel records, post-service medical records, prior VA examination reports, and lay statements and assertions. All pertinent symptomatology and findings must be reported in detail. The examiner should discuss the April 2017 hearing testimony that the Veteran favors and shifts his weight onto his right knee placing more pressure, weight, and usage on his left knee; that locking in his right knee caused him to fall and injure his left knee; and that he had left knee surgery approximately four to five years ago. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee condition was caused or aggravated (i.e., permanently worsen beyond the normal progression of the disability) by his service-connected chronic right knee strain. In providing this opinion, the examiner should discuss medically known or theoretical causes of the Veteran's left knee condition and describe how such a disability generally presents or develops in most cases, in determining the likelihood that a left knee condition is related to in-service events as opposed to some other cause. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear and complete rationale for any opinions or conclusions expressed should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should consider whether the Veteran is entitled to a TDIU under the provisions of 38 C.F.R. § 4.16 (2016), based on impairment attributable to his service-connected disabilities, in accordance with Rice, 22 Vet. App. at 447. In so doing, the RO may decide to pursue further development of the Veteran's employment history, educational and vocational attainment, or to obtain additional medical evidence or opinion, as is deemed necessary. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs