Citation Nr: 1801014 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 10-47 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for migraine headaches. 2. Entitlement to an initial compensable disability rating prior to March 15, 2016 and in excess of 10 percent thereafter for temporomandibular joint dysfunction. 3. Entitlement to an initial disability rating in excess of 10 percent for left knee strain. 4. Entitlement to an initial compensable disability rating for ovarian cysts. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1984 to September 1992 and June 1996 to June 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that granted service connection for migraine headaches and assigned a 30 percent disability rating, temporomandibular joint (TMJ) dysfunction and assigned a 0 percent (noncompensable) disability rating, left knee strain and assigned a 10 percent disability rating, and for ovarian cysts and assigned a noncompensable disability rating, all effective July 1, 2009. The rating decision also denied service connection for uterine fibroids. The Veteran appealed for higher disability ratings for migraine headaches, TMJ dysfunction, left knee strain, and ovarian cysts and for service connection for uterine fibroids. In April 2015, the Veteran testified before a Decision Review Officer (DRO) at the RO. An October 2016 DRO decision increased the ratings for migraine headaches to 30 percent effective July 1, 2009 and for TMJ to 10 percent effective March 15, 2016. As those increases did not result in the maximum ratings available, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The decision also granted service connection for uterine fibroids. As the Veteran did not file a timely notice of disagreement to the disability rating or effective date of that award, that issue is no longer on appeal. The issue of entitlement to an initial disability rating in excess of 10 percent for left knee strain is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's migraine headaches have not resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Prior to March 15, 2016, the Veteran's TMJ dysfunction had been manifested by painful motion of the jaw. 3. The Veteran's TMJ dysfunction has not been manifested by an inter-incisal range of 21 to 30 mm at any time since the date of service connection. 4. The Veteran's ovarian cysts have not required continuous treatment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.124a, Diagnostic Code 8100 (2017). 2. Resolving the benefit of the doubt, the criteria for an initial disability rating of 10 percent, but not higher, for TMJ dysfunction prior to March 15, 2016 have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.3, 4.150, Diagnostic Code 9905 (2017). 3. The criteria for an initial disability rating in excess of 10 percent for TMJ dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.150, Diagnostic Code 9905 (2017). 4. The criteria for an initial compensable disability rating for ovarian cysts have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.116, Diagnostic Code 7615 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, the claim arises from an appeal of the initial rating following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, no further notice is needed. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor her representative has identified any deficiency in VA's notice or assistance duties. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Higher Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The terms mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, all of the evidence must be evaluated to the end that all decisions are equitable and just. 38 C.F.R. § 4.6 (2017). Use of such descriptive terms by medical examiners, although an element of the evidence to be considered, is not dispositive of an issue. Such evidence must be interpreted in light of the whole recorded history, reconciling the evidence into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Migraine Headaches Effective July 1, 2009, the Veteran's migraine headaches have been assigned a 30 percent disability rating under Diagnostic Code 8100. 38 C.F.R. § 4.124a (2017). Under this diagnostic code, a maximum 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, and a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. 38 C.F.R. § 4.124a. Service treatment records show that the Veteran developed migraine headaches and was prescribed medication. There is no indication that she missed many days of work due to her headaches. Post service treatment records show complaints of migraine headaches but do not show their frequency or any indication that they have resulted in many days of missed work. At a July 2009 VA psychiatric examination, the Veteran reported that she missed about one day of work since discharge from service. Later that month, at a VA headaches examination, she reported having migraine headaches five to six times per month lasting up to eight hours during which time she has to stay in bed and is unable to do anything. Later that day, at a VA dental examination, she reported having morning headaches due to her TMJ dysfunction. Taken together, these reports indicate that while the Veteran has frequent migraine headaches, they are not prolonged or result in many missed days of work. More recently, at a March 2016 VA headaches examination, the Veteran reported having migraine headaches that have caused her to miss work on occasion due to the inability to control or stop the migraine. She indicated that they last one to two days. She reported having characteristic prostrating attacks of migraine headache pain occurring more frequently than once per month, but not having very frequent prostrating and prolonged attacks of migraine headache pain. She denied having prostrating attacks of non-migraine headache pain. She reported that she misses work when the headaches are worse. At a TMJ conditions examination the next day, she reported having severe migraine headaches every few months due to her TMJ dysfunction and some of those migraine headaches prevent her from going to work. These reports indicate that the Veteran has more than one migraine headache per month but they are not prolonged or result in many missed days of work. On her June 2010 notice of disagreement, the Veteran stated that although normally controlled with medication, her migraines still affect her ability to work when they reach the full blown stage and that she had to take an entire day off in March 2010 due to a migraine. She noted that at their worst her migraines can be completely debilitating. Given the above, the Board finds that the Veteran's migraine headaches have not resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. While she may have very frequent completely prostrating attacks of migraine headaches, the record does not show that the attacks are prolonged or productive of severe economic inadaptability. Thus, a higher 50 percent rating is not warranted. In conclusion, an initial disability rating in excess of 30 percent for migraine headaches is not warranted at any time since the date of service connection. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TMJ Dysfunction The Veteran's TMJ dysfunction has been assigned a 0 percent disability rating effective July 1, 2009 and a 10 percent disability rating from March 15, 2016 under Diagnostic Code 9905 for limited motion of temporomandibular articulation. 38 C.F.R. § 4.150 (2017). Under that code, a 40 percent rating is warranted when the inter-incisal range is 0 to 10 mm, 30 percent when the range is 11 to 20 mm, 20 percent when the range is 21 to 30 mm, and 10 percent when the range is 31 to 40 mm. A 10 percent rating is also warranted for range of lateral excursion from 0 to 4 mm. NOTE-Ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. 38 C.F.R. § 4.150. A July 2009 VA dental examination report reflects the Veteran's complaints of pain in the jaw and TMJ as well as locking of the jaw. Examination of the mandible and maxilla was within normal limits. Examination of the ramus and palates revealed no abnormal findings. Examination of temporomandibular articulation revealed that inter-incisal motion was more than 40 mm. There was a range of right lateral excursion of more than 4 mm. There was a range of left lateral excursion of more than 4 mm. A March 2016 VA dental examination report reflects the Veteran's report that initially only her left TMJ hurt but now both sides hurt. Examination revealed an inter-incisal distance of 45 mm and right and left lateral excursion of 6 mm. The examiner noted that while pain was noted on examination the pain did not result in or cause any functional loss. Based on the date of the March 2016 examination, the RO assigned a 10 percent disability rating for painful motion of the jaw due to TMJ dysfunction. Based on the findings of the July 2009 examination, a compensable disability rating is not warranted prior to March 15, 2016 based on limited inter-incisal movement or lateral excursion. However, the Veteran reported jaw pain and locking at that time. While neither was noted on examination, the Board will resolve the benefit of the doubt and find that prior to March 15, 2016, the Veteran's TMJ dysfunction had been manifested by painful motion of the jaw. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Thus, an initial 10 percent disability, but not higher, rating is warranted based on painful motion of the jaw. See 38 C.F.R. § 4.59 (2017). However, as noted, the findings do not support an even higher rating during that time. As for the period since March 15, 2016, the findings for inter-incisal movement and lateral excursion at the March 2016 examination do not warrant a higher 20 percent disability rating. The findings do not even support a compensable disability rating. Thus, a disability rating in excess of 10 percent from March 15, 2016 is simply not warranted. In conclusion, the Board has resolved the benefit of the doubt in granting an initial 10 percent disability rating for TMJ dysfunction prior to March 15, 2016. However, as the preponderance of the evidence is against a higher disability rating for TMJ dysfunction at any time since the date of service connection, those aspects of the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Ovarian Cysts Effective July 1, 2009, the Veteran's disability of ovarian cysts has been assigned a 0 percent rating under Diagnostic Code 7615 for disease, injury, or adhesions of the ovary. 38 C.F.R. § 4.116 (2017). Under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs, a maximum 30 percent rating is warranted when symptoms are not controlled by continuous treatment, a 10 percent rating is warranted for symptoms that require continuous treatment, and a 0 percent rating is warranted for symptoms that do not require continuous treatment. 38 C.F.R. § 4.116. Service treatment records show that the Veteran had a ruptured cyst on the left ovary but they do not indicate any residual symptoms, or any symptoms from new cysts. They also show that she developed dysfunctional uterine bleeding that was treated first with pop (progestogen-only pills) and then with bcp (birth control pills). They also indicate that uterine fibroids, of which she had a history, were suspected of being the cause of the bleeding. They do not indicate that the ovarian cysts were suspected as the cause of the bleeding or of any other symptom. Post service treatment records indicate that the Veteran has a cyst on each ovary. While they show that she was placed on birth control pills to treat her symptoms of severe pain and excessive uterine bleeding, and underwent a partial hysterectomy, they do not show that the birth control pills were prescribed to treat any symptoms of her ovarian cysts. A July 2009 VA examination report reflects that she had a history of a ruptured cyst on the left ovary but that the condition has resolved. More recently, a March 2016 VA examination report indicates that she does not need any treatment or medications for symptoms related to her ovarian cysts. Given the above, the Board finds that the Veteran's ovarian cysts have not required continuous treatment. While she was prescribed hormone therapy, it was for pain and uterine bleeding suspected of being due to fibroids, not ovarian cysts. Her cysts appear to be asymptomatic. Thus, a compensable disability rating is not warranted. The Board notes the Veteran's assertion that complications due to her ovarian cysts led to a hysterectomy. Service connection for residuals of a partial hysterectomy has been granted and is separately rated. Service connection for uterine fibroids also has been granted and is separately rated. However, the evaluations of those disabilities are not on appeal. In conclusion, an initial compensable disability rating for ovarian cysts is not warranted at any time since the date of service connection. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Extra-Schedular Consideration The Board has considered whether the schedular evaluation is inadequate, thus requiring referral of the case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2017). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular rating is adequate, and referral is not required. Id.; 38 C.F.R. § 3.321(b)(1). In this case, the schedular evaluations are adequate. Evaluations in excess of those assigned are provided for certain manifestations of the service-connected migraine headaches, TMJ dysfunction, and ovarian cysts, but the medical evidence reflects that those manifestations are not present in this case. Also, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disabilities, which are migraines with characteristic prostrating attacks, limitation of motion of the jaw, and ovarian cyst symptoms that do not require continuous medication. The Veteran's symptoms of jaw pain and locking are reasonably contemplated by the rating criteria. As the rating schedule is adequate to evaluate the disabilities, referral for extra-schedular consideration is not in order. ORDER An initial disability rating in excess of 30 percent for migraine headaches is denied. An initial 10 percent disability rating for TMJ dysfunction prior to March 15, 2016 is granted, subject to the provisions governing the award of monetary benefits. An initial disability rating in excess of 10 percent for TMJ dysfunction is denied. An initial compensable disability rating for ovarian cysts is denied. REMAND Regrettably, further development is needed on the claim for a higher initial disability rating for left knee strain. While the Veteran was examined by VA for her left knee strain in July 2009 and March 2016, neither examination report includes joint testing for pain in passive motion or weight-bearing and nonweight-bearing. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the AOJ should afford the Veteran a new examination for her left knee strain that includes such findings. Prior to the examination, the AOJ should ask the Veteran to provide the name of any healthcare provider who has treated her for her left knee strain since the issuance of the October 2016 supplemental statement of the case. The AOJ should attempt to obtain any adequately identified records. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the name of any healthcare provider who has treated her for her left knee strain since the issuance of the October 2016 supplemental statement of the case. Attempt to obtain any adequately identified records. 2. Schedule the Veteran for a VA examination to determine the current severity of her left knee strain. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted, to include range of motion testing in active motion, passive motion, weight-bearing, and nonweight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain. The examiner should set forth all objective findings, particularly the current severity of symptoms, and provide a complete rationale for all conclusions. 3. Then, readjudicate the claim. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs