Citation Nr: 1753025	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  09-23 102A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 30 percent for migraine headaches.  

2.  Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right great toe, status post bunionectomy.

3.  Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the left great toe, status post bunionectomy.

4.  Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Costello, Associate Counsel


INTRODUCTION

The Veteran had active duty service from July 1982 to May 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  Jurisdiction was subsequently transferred to Chicago, Illinois.

In April 2011 the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.  

The Board previously remanded this matter for additional development in October 2015.  The case was remanded to obtain VA examinations.  The Veteran was scheduled for and notified of VA examinations in December 2015.  The Board is satisfied that there has been substantial compliance with the remand directives set out in April 2012.  Stegall v. West, 11 Vet. App. 268 (1998). 

In a November 2015 rating decision, the Agency of Original Jurisdiction (AOJ) implemented that part of the Board's October 2015 decision that resulted in grants of higher disability ratings.  This resulted in a 100 percent combined schedular evaluation from an earlier date, May 20, 2009.  

The Board also notes further that the Veteran is in receipt of special monthly compensation under 38 U.S.C. § 1114, subsection (s) (housebound benefits) but only from May 20, 2009, to July 2, 2010, based on right hip replacement being rating 100 percent for this period, and additional service-connected disabilities independently ratable at 60 percent.  Therefore, the provisions of Bradley v. Peake, 22 Vet. App. 280, 293, are applicable for the remainder of the appellate period.  The TDIU issue has therefore been recharacterized. 


FINDINGS OF FACT

1.  The Veteran failed to report for his December 2015 VA examinations scheduled by VA in conjunction with his increased rating claim for migraine headaches,  degenerative joint disease of the right and left great toes, and TDIU, good cause for his failure to report has not been shown.

2.  Symptoms of the Veteran's migraine headaches disability have not more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic adaptability.

3.  The Veteran's right great toe manifested symptoms of pain.

4.  The Veteran's left great toe manifested symptoms of pain. 


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 30 percent for migraine headaches have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.21, 4.124a, DC 8100 (2017).

2.  The criteria for a disability evaluation in excess of 10 percent for degenerative joint disease of the right great toe, status post bunionectomy, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2017).

3.  The criteria for a disability evaluation in excess of 10 percent for degenerative joint disease of the left great toe, status post bunionectomy, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2017).

4.  Entitlement to a TDIU is denied as a matter of law.  38 C.F.R. § 3.655 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate.  38 C.F.R. § 3.655 (b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655 (c) applies to running awards, when the issue is continuing entitlement.  More specifically, when a claimant fails to report for a scheduled medical examination, without good cause, a claim for an increase shall be denied without review of the evidence of record.  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member.  See 38 C.F.R. § 3.655. 

In this case, the TDIU claim on appeal is not the original claim for compensation as contemplated by the operative VA regulations.  The United States Court of Appeals for Veterans Claims (Court) has held that the burden was upon VA to demonstrate that notice was sent to the claimant's last address of record and that the claimant lacked adequate reason or good cause for failing to report for a scheduled examination.  Hyson v. Brown, 5 Vet. App. 262, 265 (1993).  The Court has held, however, that VA's "duty to assist is not always a one-way street."  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence.  In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process.  Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)).  Notification for VA purposes is a written notice sent to the claimant's last address of record.  See 38 C.F.R. § 3.1 (q).

In this case, the Board determined that an additional examination was needed to assess TDIU.  Thus, the claim was remanded back to the RO. The RO scheduled the Veteran for a VA examination.  He was sent an appropriate notification in November 2015, but failed to report to his December 2015 VA examinations.  The Veteran has not provided any reason for failing to report for the examinations.  As the Veteran has provided no explanation for his failure to report for examinations, the Board is satisfied that he received notice and failed to report to the scheduled VA examinations without good cause.  See 38 C.F.R. § 3.655.  Therefore, the TDIU claim on appeal must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Thus, since the Veteran failed to report for his scheduled VA examinations without any evidence of good cause, his bilateral toe and migraine headache claims must be decided based on the evidence of record.

Ratings

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on 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 apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Before proceeding with its analysis of the Veteran's claim, the Board finds that some discussion of Fenderson v. West, 12 Vet. App 119 (1999) is warranted.  In that case, the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a Veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  See also Hart v. Mansfield, 21 Vet. App. 505 (2007).  In this case, there has not been a material change in the disability level and a uniform rating is warranted.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

Migraine Headaches

Diagnostic Code 8100 provides that frequent completely prostrating attacks and prolonged attacks productive of severe economic adaptability are rated at the schedular maximum of 50 percent disabling.  Characteristic prostrating attacks occurring on an average once a month over the last several months are rated as 30 percent disabling.  38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). 

The regulations do not define prostrating.  However, Dorland's Illustrated Medical Dictionary defines prostration as extreme exhaustion or powerlessness. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1554 (31st ed. 2007). VA's Adjudication Procedures Manual (M21-1) defines prostrating under Diagnostic Code 8100 as "causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities."  See M21-1, pt. III, Subpt. iv, Ch. 4, Sec. G(7)(b).

In Pierce v. Principi, the Court examined the "productive of severe economic inadaptability" criterion for a 50 percent evaluation 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.]." 18 Vet. App. 440, 446 (2004).  The Court explained that, contrary to the Secretary's argument, "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 TDIU.  Id. (citing 38 C.F.R. § 4.16 (a)).  In addition, the Court in Pierce acknowledged the Secretary'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.

The Veteran was afforded a VA examination in April 2009.  The Veteran reported headaches, which were relieved by taking headache medication and by avoiding lights and noises.  He stated that every few weeks headaches were sharp, throbbing, and last between one to six hours.  The examiner diagnosed the Veteran with tension headaches with associated migraines.  The examiner opined that headaches did not impact the Veteran's daily activities.

The Veteran testified at his April 2011 Board hearing that he had recently experienced a three-month period of excruciating headaches that occurred daily.  He testified that he changed medications and had since experienced migraine headaches once or twice a week.  

A VA Gulf War Guidelines examination dated in May 2012 noted that the Veteran's headaches were stable and fully rated; however, the examiner did not describe the nature and frequency of the Veteran's migraine headaches.   

The Board concludes that a rating in excess of 30 percent is not warranted.  Diagnostic Code 8100 requires symptoms more nearly approximating very frequent completely prostrating and prolonged attacks productive of severe economic adaptability for a 50 percent rating.  While the Veteran experienced prostrating migraine headaches on occasion, the evidence does not reflect that those headaches more nearly approximated very frequent completely prostrating and prolonged attacks.  Further, on the April 2009VA examination, the examiner explained that the Veteran only experienced prostrating migraines about once per month and that headaches did not impact the Veteran's daily activities.  As such, the Board concludes that the symptoms did not produce, and were not capable of producing, severe economic inadaptability warranting a rating in excess of 30 percent for migraine headaches.

The Board has considered whether staged ratings are appropriate.  The evidence of record shows that the Veteran's migraine headaches symptoms have not fluctuated materially during the course of this appeal as to warrant a disability rating in excess of 30 percent.  As such, a staged rating is not warranted.

Toe Disabilities

In June 2007, the RO granted service connection for degenerative joint disease of the right great toe, status post bunionectomy and degenerative joint disease of the left great toe, status post bunionectomy and assigned a 10 percent rating for each effective February 19, 2007.  In August 2007, the Veteran requested reconsideration of the prior rating.  In July 2009, the RO continued the 10 percent ratings for the right and left foot degenerative joint disease of the great toes.  The Veteran disagreed with the decision and perfected this appeal. 

The RO rated the right foot disability pursuant to Diagnostic Code 5280.  Under this provision, hallux valgus, unilateral is rated as follows: operated with resection of metatarsal head (10 percent); and severe, if equivalent to amputation of great toe (10 percent).  38 C.F.R. § 4.71a, Diagnostic Code 5280. 

The April 2009 VA examination noted that during service, the Veteran underwent bilateral bunionectomies to correct bilateral hallux valgus.  He reported bilateral foot pain and stated that his toes deviated.  On examination, posture was functional and psychological.  Ambulation was with good balance and coordination.  Bilateral hallux valgus caused a biomechanical shift in ambulation.  There was no evidence of a malunion or nonunion of the tarsal or metatarsal bones.  Achilles and midfoot alignment were normal.  Moderate pronation was found.  No atrophy was noted.  There was no evidence of painful motion, swelling, tenderness, instability, weakness.  The Veteran was diagnosed with bilateral hallux valgus and bilateral degenerative changes of the first metatarsal joints status post bunionectomy.  The examiner opined that a good insole/ arch support would lessen weight bearing joint pain.  

On review, the Veteran is currently receiving the maximum schedular rating available under the assigned diagnostic code. 

The Board acknowledges that there are other diagnostic codes pertaining to the foot which provide for ratings greater than 10 percent.  The Veteran is not shown to have claw foot or malunion or nonunion of the tarsal or metatarsal bones and Diagnostic Codes 5278 and 5283 are not for consideration. 

During the April 2011 Travel Board hearing, the Veteran's representative argued that the Veteran's bilateral degenerative joint disease of his great toes would be more appropriately rated as a foot condition.

As concerns Diagnostic Code 5284, VA's General Counsel has issued a precedential opinion advising that this code contemplates such miscellaneous injuries as "trauma to the foot involving the forefoot and toes, the talus and midfoot, and the os calcis and heel cord," as well as "[f]ractures and dislocations [that] may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints."  See VAOPGCPREC 9-98 (Aug. 14, 1998).  As set forth, the Veteran is service-connected for residuals of a bunionectomy.  The rating schedule contains a diagnostic code specifically addressing this disability and therefore, consideration under Diagnostic Code 5284 is not warranted. 

At no time during the appeal period has the right foot bunionectomy been more than 10 percent disabling and staged ratings are not warranted.  See Hart. 

The Board acknowledges the Veteran has scarring related to his in-service right foot surgeries.  The scars are not shown to be unstable or painful and a separate rating is not warranted.  See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017).












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ORDER

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

Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right great toe, status post bunionectomy is denied.

Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the left great toe, status post bunionectomy is denied.

Entitlement to a TDIU is denied.





S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs