Citation Nr: 1753590 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-07 269A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected migraines. 2. Entitlement to an initial disability rating in excess of 10 percent for a service-connected lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from October 1986 to December 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction now resides in Columbia, South Carolina. In February 2017, the Veteran appeared at a Travel Board Hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. FINDINGS OF FACT 1. The Veteran's migraines are not productive of severe economic inadaptability. 2. The Veteran's back disability has manifested in forward flexion of the thoracolumbar spine of no less than 75 degrees, extension of no less than 20 degrees, and muscle spasms but no resulting abnormal gait; there is no unfavorable ankylosis of either the thoracolumbar or entire spine; there is no evidence of intervertebral disc syndrome (IVDS); however there is functional loss due to pain, weakness, and during flare-ups. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 30 percent for migraines have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2017). 2. The criteria for an initial disability rating in excess of 20 percent for a lumbosacral sprain have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159. VA has complied with all duties necessary to notify the Veteran regarding the claims on appeal. The Board finds VA has satisfied its duty to assist the Veteran in the development of the claims as well. VA has obtained all identified and available service and post-service treatment records, and the VA examinations afforded the Veteran in March 2016 are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). For each condition, the VA examiner considered the Veteran's symptoms and history, performed appropriate testing, and addressed all relevant rating criteria. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 and that the Veteran will not be prejudiced as a result of the Board's adjudication of this claim. Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are 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 applies under a particular diagnostic code, the higher of the two evaluations 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. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. Migraines The Veteran's migraines have been evaluated under Diagnostic Code 8100. 38 C.F.R. § 4.124a. Under Diagnostic Code 8100, migraines with less frequent attacks are noncompensable. Migraines with characteristic prostrating attacks averaging one in two months over the last several months are rated at 10 percent. Migraines with characteristic prostrating attacks occurring on average once a month over the last several months are rated at 30 percent. A maximum rating of 50 percent is reserved for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Significantly, the rating criteria under Diagnostic Code 8100 does not contemplate the ameliorating effects of medication to treat migraines; consequently, the Board may not deny entitlement to a higher disability rating based on the relief provided by medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Analysis The Veteran contends that his migraines are more disabling than reflected by his current rating. The medical evidence of record includes a VA examination and private treatment reports, which the Board will discuss chronologically. A May 2015 application for a caregiver program from Columbia VA Medical Center (VAMC) indicates that the Veteran has frequent headaches. In March 2016, the Veteran underwent a VA examination for his headaches. The Disability Benefits Questionnaire (DBQ) reflects the Veteran's description of onset of headaches in approximately 2009 and that they worsen with stress. The Veteran reported that the headaches usually start in the occipital area and that he sees "spots and lights," after which he is "pretty much done" until he gets the headaches under control. He indicated that the headaches usually last about two hours. As to frequency, the Veteran indicated that he has headaches about twice a month and that he takes a prescription that is helpful. The VA examiner indicated that the Veteran takes medication, Verapamil, for his headaches. As to symptoms, the VA examiner indicated pulsating or throbbing head pain, pain on both sides of head, and that the pain that worsens with physical activity. As to non-headache symptoms, the VA examiner noted nausea and changes in vision. The VA examiner indicated there were no prostrating attacks of headache pain and no other pertinent physical findings, complications, conditions, signs or symptoms related to migraines. The VA examiner indicated there were no scars (surgical or otherwise) related to migraines or treatment of. As to lay statements, in his March 2014 VA 9 form, the Veteran indicated that his migraines have gotten worse. The Board notes that the Veteran subsequently underwent the VA examination for his migraines in March 2016. At the February 2017 hearing, he indicated that he currently got a headache every day and gets migraines about twice a week where he has to lay down and stay in the dark. He indicated that he also gets nauseous and everything is bright and blurry. He indicated that he can tell the difference between a migraine and regular headache because his vision gets blurry and he can see spots. He indicated that light usually causes his migraines. Merits Having reviewed the record, medical and lay, the Board finds that a 30 percent rating is warranted for the Veteran's migraines. The Veteran has indicated that he gets migraines twice a week that last for 2-4 hours and require him to lie in the dark and quiet. The Board notes that the Veteran is competent to report physical symptoms, such as a head pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a lay person is competent to report observable symptoms). He has also indicated that he differentiates between headaches and migraines due to symptomatology, such as blurred vision and spots, which he is also competent to report. Jandreau v. Nicholson. The Veteran has also been consistent in reporting the severity and frequency of his migraines including that they became more frequent. As such, the Board has no reason to doubt the credibility of the Veteran's reports and thus finds them probative. The Board acknowledges that the March 2016 VA examiner indicated that the Veteran does not have prostrating attacks resulting from his migraines. As the VA examiner examined the Veteran and assessed relevant rating criteria, the Board finds the VA examination adequate. However, the Board notes that the Veteran takes medication for his headaches. In evaluating the Veteran's headaches as if medication was not used, as is required under Jones v. Shinseki, the Board finds that he has migraines accompanied by nausea, blurred vision, and pulsating pain. Given the severity and frequency of the Veteran's migraines, even if not prostrating, his migraine attacks cannot be described as infrequent attacks. As less frequent attacks are commensurate with a noncompensable rating, the Board finds that the Veteran's migraines more nearly approximate the 30 percent rating. 38 C.F.R. § 4.7. However, a higher rating is not warranted. The record does not suggest that the Veteran's headaches cause severe economic inadaptability. The Board has also considered whether a higher rating is warranted under other potentially applicable diagnostic codes. The March 2016 VA examiner assessed whether the Veteran has any associated scars with his migraines or treatment of and indicated that he does not. As such, Diagnostic Codes 7800-7805 for scars are not for application. 38 C.F.R. § 4.118. Consideration has also been given to assigning staged ratings. However, the Board finds that at no time during the period in question has the disability warranted higher or lower schedular ratings than that assigned. Fenderson v. West, 12 Vet. App. at 119. Accordingly, the Board finds that the disorder has not significantly changed, and a uniform rating is warranted. Accordingly, the Board assigns an initial disability rating of 30 percent, but no higher, for the Veteran's migraines. Back Condition The Veteran's lumbosacral strain has been evaluated under Diagnostic Code 5237. 38 C.F.R. § 4.71a. Diagnostic Code 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides that 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 spasms, 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 height is rated at 10 percent. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 is rated at 20 percent. Forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine is rated at 40 percent. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire thoracolumbar spine is rated 50 percent disabling. A maximum 100 percent rating is reserved for unfavorable ankylosis of the entire spine. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine indicates to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months is rated at 10 percent. Incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months is rated at 20 percent. Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is rated at 40 percent. The maximum rating of 60 percent is for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1) to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes explains that an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome (IVDS) that require bed rest prescribed by a physician and treatment by a physician. Note (2) explains that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, the Court has held that an adequate VA examination for the joints must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. § 4.59. Analysis The Veteran contends that his thoracolumbar back condition is more disabling than reflected by his current rating. The medical evidence of record includes a VA examination and private treatment reports. The treatment reports note chronic low back pain but do not assess necessary rating criteria for the Veteran's back condition. As such, the Board will not discuss the treatment reports in detail. See Gonzales v. West. A February 2014 new patient report from Spartanburg VAMC indicates that the Veteran's back appeared normal and there was no thrombotic thrombocytopenic purpura or costovertebral angel tenderness. The report indicates there was mildly decreased flexion but that the Veteran otherwise had active range of motion. The Board notes that the report did not provide the Veteran's flexion in degrees and thus cannot be used for rating purposes. An October 2015 report from Wellness Family Medicine indicates that the Veteran had tenderness and tight muscle bands and that a straight leg test was positive. The diagnosis was thoracic spine pain. Additional treatment reports from Wellness Family Medicine and Spartanburg VAMC reflect complaints of back pain. Social Security Administration records also note chronic back pain. In March 2016, the Veteran underwent a VA examination for his thoracolumbar back condition. The VA examiner provided a diagnosis of lumbosacral strain. As to the Veteran's history regarding his back, the DBQ indicates that he injured his back in 1998 with a progressive course ever since. The Veteran indicated that he last attended physical therapy in August 2015 and takes Motrin and Flexeril for his back pain. The Veteran also described flare-ups, with the last one in August 2015 where he received an injection. The Veteran specified that his back usually goes out about three times a year and that he usually cannot do anything for 1-2 months after. The Veteran also reported functional loss or impairment of his back. Upon physical examination, the Veteran's initial range of motion was indicated to be abnormal. He had flexion of 0 to 75 degrees and extension of 0 to 20 degrees. The VA examiner indicated that range of motion itself contributes to a functional loss and specified that pain was noted on exam and causes functional loss. The VA examiner indicated there was no evidence of pain with weight bearing but there was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The VA examiner indicated that the Veteran was able to perform repetitive use testing with at least three repetitions and that there was no additional loss of function or range of motion after three repetitions. The VA examiner noted that the Veteran was not being examined immediately after repetitive use over time and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The VA examiner indicated that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. The VA examiner explained that he could not say so because the examination was not being conducted after repeated use and that owing to the same cause, he is also unable to describe any such additional limitation that might be due to pain, weakness, fatigability or incoordination that might occur. As to flare-ups, the VA examiner indicated that the exam was not conducted during a flare-up. The VA examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. The VA examiner indicated that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability during flare-ups. The VA examiner explained that he could not say so because the examination was not being conducted during a flare-up and that owing to the same cause, he is also unable to describe any such additional limitation that might be due to pain, weakness, fatigability or incoordination that might occur. The VA examiner indicated there was no guarding or muscle spasm of the thoracolumbar spine or muscle atrophy. Reflex and sensory exams were all normal. The straight leg test was negative for the right and left legs. The VA examiner indicated there was no radiculopathy, ankyloses, or IVDS. The VA examiner indicated there was also no use of assistive devices. The VA examiner indicated there were no other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition, such as bowel or bladder problems/pathologic reflexes. As to additional factors, the VA examiner indicated that during flare-ups, the Veteran is unable to do prolonged walking, standing or sitting. The VA examiner indicated there were no scars (surgical or otherwise) related to any back conditions or treatment. The VA examiner indicated there was no thoracic vertebral fracture with loss of 50 percent or more of height. The VA examiner indicated there were no other pertinent physical findings, complications, conditions, signs or symptoms related to back condition. As to lay statements, in his March 2014 VA 9 form, the Veteran indicated that his back condition had gotten worse. The Board notes that the Veteran subsequently underwent the VA examination for his thoracolumbar spine (back) in March 2016. At the February 2017 hearing, he indicated that he has trouble bending forward but mainly has trouble sitting. He indicated that he gets a tight feeling when he sits and has to keep moving around. He stated that he has difficulty with stairs also. He indicated that when his back goes out, it usually goes out maybe once a month where he has a spasm and cannot do anything. He also indicated that these flare-ups confine him to bed. He stated that his primary care physician usually gives him a cortisone shot and some flexural and tells him to go home and relax for the next four days or five days. He indicated that his doctor told him this but that he was not sure if the doctor had written it down. He indicated that he would get the doctor to write something to this effect, and the Judge agreed to leave the record open for 60 days. The Board notes that additional records were not submitted. At the hearing, the Veteran also indicated that he probably can drive for about an hour and that he can stand or sit for about 45 minutes and walk for about 10-15 minutes. Merits Having reviewed the evidence, medical and lay, the Board determines that a higher rating is not warranted for the Veteran's lumbosacral strain. Throughout the appeal period, the Veteran's flexion of the thoracolumbar spine was greater than 60 degrees but not greater than 85 degrees. The Board acknowledges that the record reflects that the Veteran has muscle spasms. However, the record does not reflect that his muscle spasms have resulted in an abnormal gait or a spinal contour. The Veteran's recorded flexion and muscle spasms not resulting in abnormal gait or spinal contour are commensurate with a 10 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. As such, the Board finds that the Veteran's symptoms are commensurate with a 10 percent rating. At no time during the appeal does the record evidence that the Veteran's flexion of the thoracolumbar spine was between 30 and 60 degrees, as required for a higher rating based on limitation of motion. Nor is there any indication of favorable or unfavorable ankylosis of the entire or thoracolumbar spine. To the contrary, the adequate VA examination report of record, which is the only medical evidence of record to provide relevant rating criteria, indicates that the Veteran does not have ankylosis of the thoracolumbar or entire spine. As the VA examiner applied appropriate testing and physically examined the Veteran, the Board finds the examiners' assessments highly probative. Nor has the Veteran suggested that he experiences ankylosis of the spine. Thus, the evidence does not support a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. Any rating higher than 20 percent for the thoracolumbar spine requires flexion limited to 30 degrees or less or at least favorable ankylosis of the entire thoracolumbar spine. However, as mentioned, the record is clear as to the Veteran's flexion and that he does not have ankylosis of any form of either the thoracolumbar or entire spine. Thus, there is no basis for a higher rating than 10 percent under the General Rating Formula for Diseases and Injuries of the Spine. However, the Board finds that given the Veteran's reported functional loss an increase to 20 percent rating is warranted. The Veteran's reports that his back condition causes pain and weakens his ability to walk, stand, and sit for prolonged periods, and this, as well as his incapacity during flare-ups cause additional impairment. Therefore, a 20 percent rating is warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. at 206 (1995). While the Board acknowledges the Veteran's indication that his back flare-ups immobilize him and that his doctor instructs him to stay in bed, the probative medical evidence indicates that the Veteran does not have intervertebral disc syndrome. As such, a rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not applicable. Moreover, even in considering the Veteran's reports of bed rest, the total occurrence of these reported episodes are commensurate with a 10 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As such, a higher rating would not be warranted. The Board has also considered whether a higher or separate rating is warranted under other potentially applicable diagnostic codes. The March 2016 VA examiner determined that the Veteran does not have radiculopathy. Thus, the diagnostic codes for organic diseases of the central nervous system under 38 C.F.R. § 4.123-4.124a are not applicable. A separate evaluation for associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, is also not applicable. The March 2016 VA examiner indicated that the Veteran does not have any such conditions. Nor does the Veteran suggest that he has bowel or bladder problems. As such, a separate rating for neurological abnormalities is not applicable. The Board has also considered whether a separate rating is warranted for scars under Diagnostic Codes 7800-7805. 38 C.F.R. § 4.118. However, the record consistently indicates that the Veteran does not have any notable scars associated with his thoracolumbar back condition or its treatment. As such, a separate rating for scars is not applicable. Consideration has also been given to assigning staged ratings. However, the Board finds that at no time during the period in question has the disability warranted a higher schedular rating than assigned. Fenderson v. West. At no time during the appeal did the Veteran's thoracolumbar condition manifest in flexion less than 75 degrees, an abnormal gait due to muscle spasms, or IVDS. Accordingly, the Board finds that the disorder has not significantly changed, and a uniform rating is warranted. In light of the evidence, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran's thoracolumbar back condition throughout the appeal period. (CONTINUED ON NEXT PAGE) ORDER An initial disability rating of 30 percent for the Veteran's service-connected migraines is granted. An initial disability rating in excess of 20 percent for the Veteran's service-connected lumbosacral strain is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs