Citation Nr: 1752268	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  15-40 988A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to service connection for oral lichen planus (previously claimed as cancer of the mouth and actinic keratosis).  

2.  Entitlement to service connection for neuropathy of the left arm and hand, to include as due to service-connected right shoulder status post rotator cuff tear with joint instability and scapular winging (right shoulder disability).  

3.  Entitlement to service connection for neuropathy of the right arm and hand, to include as due to service-connected right shoulder disability.  

4.  Entitlement to service connection for a left knee condition (claimed as left knee strain), to include as due to service-connected right knee patellofemoral syndrome and thoracolumbar spine strain with intervertebral disc syndrome (IVDS). 

5.  Entitlement to an evaluation in excess of 10 percent for right knee patellofemoral syndrome.  

6.  Entitlement to an evaluation in excess of 10 percent for right shoulder disability.
7.  Entitlement to an evaluation in excess of 10 percent for right sciatic nerve radiculopathy. 

8.  Entitlement to an evaluation in excess of 30 percent for migraine headaches.

9.  Entitlement to a total disability rating based upon unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

H. Daus, Associate Counsel


INTRODUCTION

The Veteran had qualifying service from September 2005 to June 2009.   

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.

The Veteran testified at an April 2017 videoconference hearing before the undersigned Veterans Law Judge.  During this hearing, TDIU was raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009). 
These appeals have been advanced on the Board's docket.  See 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2017).

The following issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ): (1) entitlement to service connection for oral lichen planus; (2) entitlement to service connection for neuropathy of the left arm and hand; (3) entitlement to service connection for neuropathy of the right arm and hand; (4) entitlement to service connection for left knee strain; (5) entitlement to an evaluation in excess of 10 percent for right knee patellofemoral syndrome; (6) entitlement to an evaluation in excess of 10 percent for right shoulder disability; (7) entitlement to an evaluation in excess of 10 percent for right sciatic nerve radiculopathy; and (8) entitlement to a TDIU.


FINDING OF FACT

Throughout the appeal period, the Veteran's migraine headache symptoms have most nearly approximated very frequent completely prostrating and prolonged attacks that are capable of producing severe economic inadaptability.


CONCLUSION OF LAW

The criteria for a schedular evaluation of 50 percent for migraine headaches have been met throughout the appeal period.  See 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8100 (2017). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran generally contends that his migraine headaches have been more severe than contemplated by the 30 percent rating.  For the reasons discussed below, the Board finds that, throughout the entire appeal period, the Veteran's migraine headache symptoms have most nearly approximated very frequent completely prostrating and prolonged attacks that are capable of producing severe economic inadaptability.  As such, an evaluation of 50 percent is warranted.  

Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated as 30 percent disabling.  See 38 C.F.R. § 4.124a, Diagnostic Code 8100.  Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated as 50 percent disabling.  Id.  The Court has interpreted the phrase "productive of severe economic inadaptability" to include both "producing" and "capable of producing" economic inadaptability.  See Pierce, 18 Vet. App. at 446.  Further, the criteria for a 50 percent evaluation do not require the Veteran to be incapable of any substantially gainful employment; rather, "[e]vidence of work impairment includes, but is not necessarily limited to, the use of sick leave or unpaid absence."  See 38 C.F.R. § 4.124a, Diagnostic Code 8100; Pierce, 18 Vet. App. at 446; VA's M21-1 Adjudication Procedures Manual (M21-1), III.iv.4.G.7.e.    

During a November 2013 VA examination, the Veteran described his symptoms as: sometimes weekly or monthly; crippling nausea and severe light sensitivity; vomiting; sensitivity to sound; changes in vision; constant head pain on both sides of the head, beginning behind both eyes; lasting typically less than one day; and prolonged prostrating attacks, more frequently than once per month.

During the April 2017 Board hearing, the Veteran testified to: weekly headaches, on average, but between four to six per month; lasting about one day at a time; sensitivity to sounds and lights; pain; and having to find the darkest, quietest spaces available.  There is no reason to doubt the credibility of the Veteran's reports, as they have remained longitudinally consistent.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994).  

The Veteran's comprehensive symptoms for this period most nearly approximate those contemplated by a 50 percent evaluation.  The 30 percent evaluation only contemplates a frequency of prostrating attacks up to an average of once per month, a frequency which the Veteran's headaches exceed.  Further, a 30 percent evaluation does not consider the duration of the Veteran's attacks, which the Board finds to be prolonged.  Lastly, the Board finds the Veteran's symptoms capable of producing severe economic inadaptability, as someone with the frequency and severity of such symptoms would likely need to use sick leave or unpaid absences beyond what is typically allowed to maintain a substantially gainful occupation. 

Additionally, the Board notes that an evaluation of 50 percent is the highest schedular evaluation available for migraine headaches.  All potentially applicable codes have been considered and staged ratings are not warranted, as the Veteran has had a relatively stable level of symptomatology throughout the appeal.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Fenderson v. West, 12 Vet. App. 119, 126-27.


ORDER

Entitlement to an evaluation of 50 percent for migraine headaches is granted for the entire appeal period, subject to regulations applicable to the payment of monetary benefits.


REMAND

While additional delay is regrettable, the Board finds that a remand is required to fairly decide the remaining claims herein.

Regarding the oral lichen planus (previously claimed as cancer of the mouth and actinic keratosis), the Veteran's April 2017 Board hearing testimony clarified that he was claiming service connection for a recurring, oral, dermatological condition.  Service dental records documented symptoms of and treatment for an oral, dermatological condition involving the buccal mucosa.  A May 2017 treatment record from Puget-Sound VAMC documented a diagnosis of oral lichen planus, which involves the buccal mucosa.  Because the Veteran has never been afforded a VA dermatological examination and the record indicates a possibility of continuous symptomatology, further medical clarification is required.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Regarding the bilateral neuropathy of the arms and hands, further medical clarification is also required.  A December 2013 peripheral nerves examiner assessed bilateral symptoms, but wrote that he could not render an opinion without mere speculation because "critical medical evidence is needed to make [the] association" between suprascapular neuropathy and rotator cuff tears; the examiner stated that an "MRI of the shoulder is necessary to document rotator cuff tear followed by EMG of right upper extremity to define source of neuropathy- ie is the supraspinatus nerve involved."  A March 2016 treatment record from Portland VAMC diagnosed right ulnar entrapment at the elbow, "consistent with a chronic long thoracic nerve injury;" however, the supraspinatus nerve was normal and the provider stated that an MRI of the right brachial plexus should be considered for further understanding of the Veteran's long thoracic nerve condition.  During the April 2017 Board hearing, the Veteran testified that doctors have said that the Veteran's overuse of his right side has led to the problems on his left side.  Oddly, during a July 2017 shoulders/arms examination, the examiner assessed no left arm condition.  As such, the Board remains unclear whether: (1) the Veteran's neuropathy is bilateral or unilateral; (2) whether the right arm/hand neuropathy was at least as likely as not caused by, aggravated by, or otherwise related to the Veteran's long thoracic nerve condition (right shoulder status post rotator cuff tear with joint instability and scapular winging); and (3) whether any left arm/hand neuropathy was at least as likely as not caused by, aggravated by, or otherwise related to the Veteran's service-connected right shoulder disability or another in-service event (see April 2017 testimony that the Veteran could have fallen on his back and had the same issue with the left side and with the right, but was more concerned with the right because it hurt more). 

Regarding the left knee condition, further medical clarification is required.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A November 2013 knee/lower leg examination diagnosed left knee patellofemoral syndrome (PFS) and indicated no instability.  An April 2014 examiner opined that the left knee PFS was less likely than not due to or the result of the Veteran's service-connected right knee PFS and/or thoracolumbar strain with IVDS; the examiner stated that the "most common cause of PFS per UpToDate is 'overuse, ie. training overload'."  During the April 2017 Board hearing, the Veteran testified that his left knee was "extremely unstable," which indicates worsening since the November 2013 examination; the Veteran also seemed to testify that he was overusing his left knee to compensate for his right knee.  Although the Veteran was scheduled for a March 2014 knee/lower leg examination, the Veteran failed to report; however, April 2017 testimony revealed that he never received the examination notice because of frequent changes of address.  Due to the indication of worsening, the possibility that the Veteran did not receive the examination notification, and the Veteran's indication of overuse due to a service-connected disability, further examination/opinion is required.

Regarding the right knee PFS, further examination is required.  See Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016); 38 C.F.R. § 4.59.  During the pendency of the appeal and following the most recent VA examination, it was determined that adequate VA examinations of the joints must, if possible, note facial expressions of pain, crepitation in soft tissues and joint structures, and test for pain throughout range of motion in various ways.  See Correia, 28 Vet. App. at 168-70; 38 C.F.R. § 4.59.  The joints involved "should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  See 38 C.F.R. § 4.59.  As such, a new examination is required to assess the current severity and any functional effects of the Veteran's right knee PFS.

Regarding the right shoulder disability, further development is required.  A March 2017 treatment record from OHSU Ortho Cornell West documented the Veteran's preparations for surgery (pectoralis major tendon transfer to scapula).  A June 2017 treatment record from Roseburg VAMC documented the Veteran's approval for a Mayo Clinic surgical consult for his long thoracic nerve injury.  A July 2017 shoulder/arm examination revealed that scapular winging indicated a worsening of the Veteran's condition.  The examiner indicated that she did not review the Veteran's records and left Section X (regarding surgical procedures) blank.  As such, the Board remains unclear whether the Veteran followed through with this planned surgery, and, if so, whether any of his symptoms were relieved or exacerbated.  Further, the July 2017 examination revealed muscle atrophy in the right upper extremity (10 cm above elbow on the bicep) due to this service-connected right shoulder disability; as such, the AOJ should consider whether a separate compensable rating is warranted for that symptom.

Regarding the right sciatic nerve radiculopathy, further examination is required.  The Veteran's right sciatic nerve radiculopathy is secondary to his service-connected thoracolumbar strain with IVDS.  The March 2015 back examination was negative for signs or symptoms due to radiculopathy in either lower extremity.  However, during the April 2017 hearing, the Veteran testified that he gets right leg numbness and shooting pains on a daily basis and that sometimes he cannot walk.  Due to the indication of worsening, further examination is required. 

Regarding TDIU, further development is required.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).  During the April 2017 hearing, the Veteran testified that he was unable to obtain and/or maintain a substantially gainful occupation due to his service-connected orthopedic disabilities.  As TDIU is inextricably intertwined with the remanded issues, further development is required.   

Accordingly, the case is REMANDED for the following action:

(These appeals have been advanced on the Board's docket.  See 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Seek any relevant, outstanding VA and private treatment records, especially any from OHSU Ortho Cornell West and the Mayo Clinic. 

2.  Schedule the Veteran for an examination to determine whether his oral lichen planus was at least as likely as not (50 percent probability or greater) caused by, aggravated by, or otherwise related to the Veteran's in-service buccal mucosa symptoms/treatment.  

3.  Obtain an addendum opinion to assess whether: 

(a)  the Veteran's neuropathy is bilateral or unilateral; 

(b) the right arm/hand neuropathy was at least as likely as not (50 percent probability or greater) caused by, aggravated by, or otherwise related to the Veteran's long thoracic nerve condition (right shoulder disability); and

(c) any left arm/hand neuropathy was at least as likely as not (50 percent probability or greater) caused by, aggravated by, or otherwise related to the Veteran's service-connected right shoulder disability or another in-service event/injury. 

The Board defers to the examiner's discretion to determine whether another in-person examination is required to render the requested opinion.

4.  Schedule the Veteran for an examination to determine whether his left knee condition was at least as likely as not (50 percent probability or greater) caused by, aggravated by, or otherwise related to the Veteran's: 

(a) service-connected right knee PFS, including any overuse of the left knee to compensate for the right knee; 

(b) service-connected thoracolumbar spine strain with intervertebral disc syndrome (IVDS); and/or

(c)  any other in-service event/injury.  

5.  Schedule the Veteran for an examination to determine the current severity of his right knee PFS.

See Correia, 28 Vet. App. at 168-70; 38 C.F.R. § 4.59.

6.  Obtain an addendum opinion (from a shoulder specialist, if possible) to assess the current severity of the Veteran's right shoulder disability. 

7.  Schedule the Veteran for an examination to determine the current severity of his right sciatic nerve radiculopathy.  

8.  After completing the above development, readjudicate the remanded issues herein, including whether a separate compensable rating is warranted for muscle atrophy secondary to the right shoulder disability (see July 2017 examination).  If any benefit sought remains denied, issue a supplemental statement of the case and then return the case to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the remanded matters.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).  All remanded claims must be handled expeditiously.  See 38 U.S.C.A. §§ 5109B, 7112.



______________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs