Citation Nr: 1754983 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-23 846A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased rating in excess of 30 percent for the service-connected headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from January 2003 to October 2003 and from May 2006 to September 2007. He also served on various periods of active duty for training, to include from September 1986 to December 1986, and inactive duty for training. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts that denied entitlement to an increased rating in excess of 10 percent for the service-connected headaches. The Veteran was afforded a hearing before the undersigned Veterans Law Judge at the RO in September 2012. In June 2014, the Board remanded the issue of entitlement to an increased rating for headaches for additional development. Following completion of the requested evidentiary development, the RO, in a November 2014 rating action, awarded an increased evaluation of 30 percent, effective from July 1, 2014, for the service-connected headaches. In January 2017, the Board assigned a 30 percent disability rating to the headaches prior to June 30, 2014 and denied entitlement to a disability rating in excess of 30 percent for the entire appeal period. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Per a September 2017 Joint Motion for Remand (JMR) and September 2017 Court Order, the portion of the January 2017 Board decision that denied entitlement to a disability evaluation in excess of 30 percent for headaches was vacated and remanded for compliance with the JMR. FINDING OF FACT It is as likely as not that the service-connected headaches approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a 50 percent disability rating for the service-connected headaches have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. In deciding this appeal, VA has specifically considered whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran's appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). VA interprets examination reports in light of the entire recorded history, reconciling the various reports into a consistent picture so that the current rating accurately reflects the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's service-connected headaches are rated by analogy to migraines under 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 10 percent rating is assigned for characteristic prostrating attacks averaging one in two months over the last several months. Characteristic prostrating attacks occurring on an average of once a month over the last several months merits a 30 percent rating. The maximum rating of 50 percent is reserved for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Prostrating means causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities. M21-1, III.iv.4.G.7.b. Completely prostrating means extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. Id. Severe economic inadaptability denotes substantial work impairment, but it does not denote an inability to work. M21-1, III.iv.4.G.7.e.; Pierce v. Principi, 18 Vet. App. 440 (2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Resolving any reasonable doubt in the Veteran's favor, the Board finds that the service-connected headaches involve symptoms and impairment that more nearly approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Specifically, the Veteran has experienced very frequent headaches. Private treatment records dated in 2008 and 2009 contain his reports of having a headache which lasts an hour every few days. At the November 2009 VA medical examination, he indicated that the headaches occurred three times per week and lasted an hour to two hours. He noted in his September 2011 substantive appeal that the headaches occurred several times per week and month, while he similarly testified at the September 2012 hearing that they occurred several times per month. The frequency of his headaches was not set forth at the July 2014 VA medical examination but the duration was reported as one to two days. Throughout the period on appeal, the Veteran has reported taking over-the-counter medication once he gets a headache. He consistently has denied taking over-the-counter or prescription medication on a regular basis, such as daily, to control them. However, it appears that the frequency with which the Veteran has experienced headaches accordingly has not been lessened by medication. The Veteran reported in the aforementioned private treatment records that the headaches resolved with over-the-counter medication. At the November 2009 and July 1, 2014 VA medical examinations, he stated that he required such medication for his headaches. The ameliorative effects of medication, whether prescription or over-the-counter, cannot be considered if not contemplated by the applicable rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). They are not contemplated by these criteria here. The duration of the Veteran's headaches when he does not take over-the-counter medication therefore is of primary import. No information in this regard is available, however. In other words, the duration of the Veteran's headaches when he does not take over-the-counter medication is unknown. The only conclusion that can be drawn thus is that they most likely would have lasted somewhat longer. The Board finds that the evidence is in equipoise as to whether the headaches can be classified as prolonged. For the period through June 30, 2014, all indications up until then are that the Veteran's headaches would have lasted at worst only somewhat longer than one to two hours. For the period beginning July 1, 2014, the headaches lasted one to two days even with medication. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's headaches were very frequent as well as prolonged headaches. The Board also finds that the evidence is in equipoise as to whether the headaches were typically prostrating. In the 2008 and 2009 private treatment records, the Veteran's denial of nausea, vomiting, visual changes, and photophobia associated with his headaches is documented. A May 2008 private treatment record further includes his treatment provider describing them as mild. On the other hand, the Veteran complained of associated nausea and visual changes at the November 2009 VA medical examination. He additionally complained that he has no motivation and feels like doing nothing during the headaches. If he is at home when one occurs, he lies down and closes his eyes. R.M. related in a February 2010 statement that the Veteran has had sleep problems due to his various health conditions, one of which is headaches. F.D. described the Veteran's headaches as severe in another February 2010 statement. In his September 2011 substantive appeal, the Veteran noted getting four to five severe headaches per month for the past few years. At the September 2012 hearing, he again described his headaches as severe. The Veteran further testified that he does not have to go into a dark room when he gets a headache but he does stop what he was doing, sit down, and close his eyes. He related that they make him dizzy and nauseous as well as blur his vision. Simply putting on sunglasses can trigger one. At the July 1, 2014, VA medical examination, he reported sensitivity to light as well as visual changes and sensory changes associated with his headaches. He then indicated that he sometimes goes to bed as a result. It was determined that the Veteran had characteristic prostrating attacks once per month over the last several months. Specifically, the repeated classification of the Veteran's headaches as severe is accurate as they usually involve a host of associated symptoms and as he discontinues his ordinary activities during them (whether by going to bed or lying down if he is at home or by sitting still and closing his eyes otherwise). The Board finds that resolving reasonable doubt in favor of the Veteran, this description of the headaches comports with the definition of completely prostrating, and the Veteran's headaches, in sum, have been very frequent and completely prostrating on average of more than once a month throughout the appeal period. In addition, the Board finds that the evidence is in equipoise as to whether the Veteran's headaches have been productive of severe economic inadaptability. According to the 2008 and 2009 private treatment records as well as the November 2009 VA medical examination, he was employed as a stock broker. The November 2009 VA examination included the Veteran's averment that he was able to work with a headache as long as he took over-the-counter medication. It also included the determination that his conditions, which included headaches as well as elbow disabilities and gastroesophageal reflux disease (GERD), had a moderate effect on his occupation. The statement from F.D. confirms that the Veteran remained in his position as stock broker as of February 2010. R.M. related in her statement that the Veteran has taken time off work due to his various health conditions, one of which is headaches. In his September 2011 substantive appeal, he noted sometimes having to take sick days off work due to his headaches because they precluded him from staring at his computer screen. Numerous sick days plus short-term disability also were referenced in relation to a kidney disorder and associated complications in the Veteran's substantive appeal. At the September 2012 hearing, he testified that he was no longer working. He denied that this was because of his headaches, however. It finally was determined at the July 1, 2014, VA medical examination that he did not have very prostrating and prolonged attacks productive of severe economic inadaptability. A further determination was that his headaches do not impact his ability to work. This further determination is not in agreement with the other evidence. Indeed, that the Veteran's headaches would have at least some impact on his occupational activities if he were to engage in such activities follows from them being typically prostrating. He even gave examples from when he was still employed of having to close his eyes and sometimes even having to take sick days because he could not stare at his computer screen. In conclusion, the Board finds that the evidence is in equipoise as to whether the Veteran's headaches are productive of frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. Resolving reasonable doubt in favor of the Veteran, a 50 percent disability rating is warranted, and the claim for an increased rating is granted to that extent. As 50 percent is the highest rating available for headaches, no higher schedular evaluation is available for consideration. 38 C.F.R. § 4.124a, Diagnostic Code 8100. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Given the favorable outcome of this decision, no prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). (CONTINUED ON NEXT PAGE) ORDER A maximum schedular rating of 50 percent for the service-connected headaches is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs