Citation Nr: 1800068 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 16-19 570A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a traumatic brain injury (TBI). 2. Entitlement to a rating in excess of 30 percent for migraine headaches. ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. During the course of the Veteran's appeal, the RO issued a rating decision in November 2015 awarding an increased, 30 percent rating for the Veteran's migraine headaches. As higher ratings for the disability remain, the appeal continues. FINDINGS OF FACT 1. A TBI was incurred in service. 2. The Veteran's migraine headache disability is characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The service connection criteria for a TBI have been met. 38 U.S.C. §§ 1101, 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for a 50 percent rating for migraine headaches are met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran contends that he suffers from residuals of TBI due to three in-service concussions, including one as a result of a grenade explosion in March 1991. He noted that he experienced difficulties with migraines, loss of memory, shaking of hands, stuttering speech, and hearing difficulties as a result of the in-service incidents. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 . The Veteran's service treatment records, while not documenting a TBI, do reflect that the Veteran suffered from a penetrating injury to the right eye as a result of a grenade explosion in Saudi Arabia in March 1991. The Veteran also reported problems with his nerves and ringing of the ear surrounding this event. He lost the right eye as a result of the injury and was subsequently discharged. On VA examination in December 2010, the Veteran reported multiple in-service concussive events, the first of which occurred in a training exercise in the spring of 1990 in which he fired a gun and the shock wave made him dizzy. There was no loss of consciousness. The examiner noted that this did not represent even a grade I concussion, as he was not disoriented or confused. The second event occurred that summer, when he was about 100 feet from an explosion. He fell and hit his head while wearing a helmet. He felt that it had gotten dark, but he did not lose consciousness. The examiner indicated that this represented a grade I concussion. In March 1991, the Veteran was 10 feet away from a grenade that exploded and got shrapnel in his right eye; there was no loss of consciousness but he was stunned by the blast. This was also a grade I concussion. The Veteran reported worsening symptoms since the blast, but the examiner noted that his symptoms of TBI would have been expected to stabilize within 18 to 24 months of the injury. The Veteran's complaints included headaches, dizziness, sleep impairment, fatigue, problems with balance, memory impairment, difficulty concentrating, and speech problems. After review of the record and physical/neurological examination, the examiner expressed that the Veteran had a history of grade I concussion that healed without residual many years ago. There was no evidence for TBI borne out by his neuropsychological test results. He did have secondary headaches, and the Veteran's emotional signs and symptoms were attributable to posttraumatic stress disorder. VA treatment records reflect treatment with the Polytrauma/TBI outpatient clinic for speech problems, cognitive difficulties, and memory problems related to the 1991 trauma beginning in February 2010. He had participated in speech therapy, occupational therapy, physical therapy, and audiology treatment. VA ophthalmologic records dated in March 2015 also reflect assessment of photophobia, and monocular status secondary to TBI. In a May 2016 written correspondence, a VA staff psychiatrist, who also served as a professor of psychiatry and neurobehavioral sciences, stated that he was writing on behalf of the Veteran to unequivocally opine that the Veteran suffered multiple conclussions while he was deployed, including a major TBI in March 1991. The Veteran had on-going sequelae, including cognitive difficulties, speech difficulties such as intermittent slurring, headaches, eye enucleation, central hypogonadism (from brain concussion), bilateral hearing loss, and geographical/directional sense impairment. VA-prescribed treatment for the above includes bilateral hearing aids, prosthetic eye, and a global positioning symptoms for drive and other and portable/computerized aids, memory training, speech therapy, testosterone gel, and Botox injections for chronic severe headaches. The Veteran had also received treatment for PTSD that was triggered by the explosion, including for its cognitive aftereffects. The examiner concluded that the Veteran had a history of TBI with persistent neurological, neurocognitive, and neuroendocrine consequences. The Board acknowledges that there are competing opinions of record as to whether the trauma incurred in service led to a TBI with residuals other than that for which service-connection is already in effect. The Board observes that the Veteran is service-connected for PTSD, migraine headaches, enucleation of the right eye, residual of shell fragment wound, bilateral tinnitus, and bilateral hearing loss. While the VA examiner found no other residuals to indicate a TBI, the Veteran's treating VA physician indicated that the Veteran had a TBI with various neurological, neurocognitive, and neuroendocrine residuals. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In this case, while the VA examiner performed examination and considered neuropsychological examination findings in determining that there were no residuals of the in-service concussion, the Veteran's treating physician discussed the Veteran's post-service treatment records and determined that there were various residuals, including cognitive and speech difficulties. The Board finds no reason to discount the treating physician's opinion, which is consistent with VA treatment records documenting TBI residuals. Therefore, the Board finds the medical opinions to be of relative equipoise regarding whether the Veteran has a TBI disability, other than that for which service connection is already in effect, that stems from the documented March 1991 in-service injury. Resolving all reasonable doubt in favor of the Veteran, the Board concludes that a TBI had its onset in service. Accordingly, service connection for a TBI is warranted. II. Increased Rating The Veteran also contends that he is entitled to an increased rating for his migraine headaches. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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 to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). The Veteran's migraines are rated as 30 percent disabling pursuant to the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, migraines are evaluated as follows: a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months; and, a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating," nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (1999) (quoting Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). According to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." "Productive of economic inadaptability" can be read as having either the meaning of "producing" or "capable of producing," and nowhere in Diagnostic Code 8100 is "inadaptability" defined, nor can a definition be found elsewhere in title 38 of the Code of Federal Regulations. But, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). A January 2010 VA treatment report reflects that the Veteran complained of headaches 3 to 4 times a week, even at rest, possible elements of photophobia. He took extra strength Tylenol for treatment with addition to Piroxicam. On VA TBI examination in December 2010, the Veteran reported that his headaches began on the right side of the head and then spread to encompass his entire head. He described his headache pain as pounding in character, and he rated them a severity of level 9 or 10 out of 10. He suffered headaches 4 to 5 times per week and stated that they lasted from 1 hour to all day long. He complained of nausea and phonophobia and osmophobia along with the headaches. He also had scintillation spectra with his headaches. He took prescribed Sumatriptan and Riboflavin and went into a dark room. The headaches were consistent with migraine headaches, status post trauma from right eye enucleation. MRI of the brain revealed no intracranial hemorrhage or mass. The Veteran submitted a headache diary covering the period from June 22, 2011 to July 14, 2011. These records reflect that the Veteran experienced 14 headaches over this time period, lasting 2 to 6 hours at a time. For the majority of these headaches, the Veteran rested/slept and went to a dark room to relieve his symptoms. On VA examination in September 2014, the Veteran reported that his headaches had worsened since the previous examination. He experienced migraines 6 to 7 times per week with each headache lasting 6 to 7 hours at a time. He was treated with medication and Botox injections. He stated that, about 1 to 2 times per week, he was limited from doing anything due to migraine headaches pain. During those times, he stayed in a dark room, took medication, and wore tinted glasses until his migraines passed. He also noted work accommodations including lighting adjustment and tinting on his windows due to migraine headaches. The Veteran's headaches were characterized by pulsating or throbbing head pain, with pain on both sides of the head. He also experienced nausea, sensitivity to light, changes in vision, and blurry vision with seeing spots. The head pain lasted less than 1 day at a time. The examiner indicates that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain occurring once every month. The examiner indicated that the Veteran did not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The examiner diagnosed migraines including migraine variants. He noted that the disability impacted the Veteran's ability to work. The Veteran worked full-time as a substance abused counselor in a rehabilitation facility. He would be limited from sedentary or physical work based on his migraine headaches during severe flare-ups that he stated occurred 1 to 2 times per week that required bed rest, and medical therapy until the severe migraine flare-ups had passed. An April 2016 headaches disability benefits questionnaire completed by a VA physician reflects a medical history of chronic posttraumatic headaches. He noted that the Veteran had failed multiple medications, and took Excedrin and Botox injections for migraines. Symptoms included constant head pain, pulsating or throbbing head pain, and pain on both sides of the head. The Veteran also experienced nausea, sensitivity to light, sensitivity to sound, and sensory changes during headaches. Head pain typically lasted more than 2 days and was located on both sides of the head. The examiner notes that the Veteran experienced prostrating attacks of migraine headache pain that occurred more frequently than once per month. He determined that the Veteran had very frequent prostrating and prolonged attaches of migraine headache pain. The examiner diagnosed migraines. The disability impacted the Veteran's ability to work, in that his employer made accommodations for his photophobia. A May 2016 correspondence from the Veteran's employer reflects that they had granted the Veteran a number of workplace accommodations for his migraines, including altered lighting, a low-contrast computer monitor, and a bed for him to lie down when he needed migraine relief, which the employer indicated was frequent. In addition, the employer noted that the Veteran had utilized his accumulated sick hours, personal time, and vacation on numerous occasions due to not being able to report to work due to his migraines. Continued VA treatment records reflect complaint and treatment of headaches. In this case, the 2016 VA physician who completed the disability benefits questionnaire determined that the Veteran's migraine headache disability was productive of very frequent, prostrating attacks. These prostrating attacks of migraine headaches pain occurred more than once a month. With regard to economic inadaptability, the Board notes that the Veteran is employed. However, the Veteran's employer's statements regarding the frequency of the Veteran's breaks and use of leave, as well as the Veteran's reports regarding the frequency and severity of his headache attacks indicates that the disability is capable of producing severe economic inadaptability. Accordingly, resolving a reasonable doubt in favor of the Veteran, the Board finds that the Veteran's headache disability more nearly approximates the criteria for a 50 percent rating, which contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board notes that a 50 percent rating is the maximum rating allowed under Diagnostic Code 8100. The Board has also considered other potentially applicable diagnostic codes; however, the Veteran's migraine headaches are not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule. 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, 370-71 (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). For the foregoing reasons, the Board concludes that there is no basis for staged ratings of the Veteran's service-connected migraine headaches, as his symptoms have been primarily the same throughout the appeal period. In this regard, the Board finds that a uniform 50 percent rating for migraine headaches is warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a TBI is granted. Entitlement to a 50 percent for migraine headaches is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs