Citation Nr: 1803117	
Decision Date: 01/17/18    Archive Date: 01/29/18

DOCKET NO.  07-39 565	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for spondylosis and/or spondylothesis of the spine.

2.  Entitlement to service connection for right shoulder degenerative arthritis.

3.  Entitlement to service connection for left shoulder degenerative arthritis.

4.  Entitlement to an initial evaluation greater than 10 percent for traumatic brain injury (TBI) prior to February 4, 2008.

5.  Entitlement to an evaluation greater than 40 percent for TBI from February 4, 2008.

6.  Entitlement to an initial compensable evaluation for migraine headaches prior to June 1, 2016.

7.  Entitlement to an evaluation greater than 10 percent for migraine headaches from June 1, 2016.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Buck Denton, Associate Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (2012).

The Veteran served on active duty from January 1951 to January 1953 and from October 1954 to October 1956.  The Veteran had additional service in the Army National Guard between approximately July 1958 and July 1985.

This appeal has a protracted procedural history.  The most recent Board decision was issued in October 2017; this decision granted service connection for tinnitus and remanded claims for higher initial ratings for bilateral elbow disabilities.  These issues are not currently in appellate status.  The issues in appellate status and ready for further Board consideration are those listed on the above Title page.

The issues of entitlement to service connection for spondylosis and/or spondylothesis of the spine, entitlement to service connection for right shoulder degenerative arthritis, entitlement to service connection for left shoulder degenerative arthritis, entitlement to an initial evaluation greater than 10 percent for TBI prior to February 4, 2008, and entitlement to an evaluation greater than 40 percent for TBI from February 4, 2008, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's service-connected migraine headaches have resulted in characteristic prostrating attacks occurring on an average once a month over several months but have not resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.


CONCLUSION OF LAW

For the entire period on appeal, the criteria for a disability rating of 30 percent, but no higher, for headaches have been met.  38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1-4.7, 4.124a, Diagnostic Code 8100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

VA satisfied the duties to notify and assist in the appeal; in light of previous arguments and the evidence of record, the Board grants the partial grant of benefits awarded in this decision.  See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).  Review of the record satisfies the Board can it can proceed with adjudication of this one issue at this time and the evidence is sufficient to determine that the higher rating of 50 percent is not warranted.  

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10 (2017).  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017).  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1. 

Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2017).  Otherwise, the lower rating will be assigned.  Id.  All reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  The schedule recognizes that disability from distinct injuries or diseases may overlap.  See 38 C.F.R. § 4.14 (2017).  However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided.  Id. 

Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant).  When the evidence supports the claim or is in relative equipoise, the claim will be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014).  If the preponderance of the evidence weighs against the claim, it must be denied.  See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

A.  Migraine Headaches

The Veteran has asserted that he is entitled to a higher evaluation for his service-connected migraine headaches.  His migraine headaches had been evaluated as 10 percent from June 1, 2016 under Diagnostic Code 8100.  The Veteran is also seeking entitlement to an initial compensable evaluation for migraine headaches prior to June 1, 2016.

Under Diagnostic Code 8100, a 10 percent evaluation may be assigned for migraine with characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent evaluation requires characteristic prostrating attacks occurring on an average once a month over the last several months.  A 50 percent evaluation requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. 4.124a.  Neither VA regulations nor the Court have defined "prostrating."  38 C.F.R. § 4.124a.  For general medical purposes, "prostration" is defined as "extreme exhaustion or powerlessness."  See Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007).

The Board has carefully reviewed the evidence of record and finds that the competent and credible evidence supports the assignment of a 30 percent rating for the headaches during the entire appeal period.

In November 2008, the Veteran received a VA examination.  At that time, it was noted he experienced 3-4 headaches per week with a duration of 6-10 hours and had experienced persistent headaches with dizziness since his head injury.  The headaches were noted to consist of throbbing, bilateral headache pain, and parietal headache pain.  His headaches were also found to be associated with nausea and visual aura.  The examiner noted that none of the Veteran's attacks were prostrating.  It was documented that the Veteran's headaches resulted in increased absenteeism.

In August 2010, he was diagnosed with post-traumatic headaches.  At that time, he reported daily headaches for which he took Tylenol.  He denied nausea, vomiting, or blurred vision.  The headaches were noted to be non-prostrating.  The Veteran stated that he had experienced daily dizziness since 1975.

The Veteran noted in March 2011 that he experienced migraine headaches that resulted in absenteeism from his work as a barber.  It was documented that he continued to miss work, which caused his customers to switch to his partner.  It was recorded that the Veteran experienced daily pain from multiple sources that was described as chronic and primarily due to headaches.  He described his headaches as varying in duration but stated that it takes all day to recover from a headache.  He reported the pain level of 5 to 7 on a 0 to 10 point scale.  On a bad day, the pain would be a 10, but on a good day, the pain would be at a 4 or 5.

The Veteran reported suffering from headaches during a March 2012 examination for another illness.

The Veteran received a VA examination for his migraine headaches in June 2016.  It was documented that his headaches occurred weekly with symptoms of headache pain on both sides of the head in addition to tingling head pain, nausea, and changes in vision.  The attacks were characterized as being prostrating.  It was documented that prostrating attacks occurred once every few months.  The examiner found that the attacks were not productive of severe economic inadaptability and that the Veteran was unable to concentrate during his attacks.

The examiner found that the Veteran suffered from characteristic prostrating attacks of migraine/non-migraine headache pain.  However, there is no consideration as to whether he just did not experience prostrating attacks before the June 2016 VA examination and whether the June 2016 report reflected an actual change in the disability or a deterioration.  The other medical reports note similar symptoms as reported in the June 2016 VA examination report, and the Veteran's symptoms seem to be consistent throughout the entire appeal period as the Veteran had varying daily to weekly headaches, consisting of nausea, pain, and sensory changes.  In resolving reasonable doubt in favor of the Veteran, a 30 percent rating for the headaches is assigned.  38 U.S.C.A. § 5107 (b); see Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).

However, the Board finds that the evidence does not warrant a rating in excess of 30 percent for headaches.  The evidence does not show that the Veteran's headaches have been productive of severe economic inadaptability.  The record reflects that the Veteran had to take time off from work, but the Board does not find that this rises to the level of severe economic inadaptability.  The Board notes that some degree of industrial impairment is already contemplated by the current 30 percent rating.  Without symptoms productive of severe economic inadaptability, a rating of greater than 30 percent is not warranted.  Accordingly, the Board concludes that the Veteran's headaches have been not more than 30 percent disabling throughout the entire period on appeal.  Staged ratings are not warranted.  See Hart, supra.  As the preponderance of the evidence is against the claim, there is no doubt to be resolved.  38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7.


ORDER

For the entire appellate period, a higher rating of 30 percent for service-connected migraines is granted, but no higher, subject to the law and regulations governing the payment of monetary benefits.


REMAND

The Board sincerely regrets the additional delay that inevitably will result from this remand, but it is necessary to ensure there is a complete record and so the Veteran is afforded every possible consideration.

With regard to the service connection claim for spondylosis and/or spondylothesis of the spine, additional development is required.  In a May 2017 VA addendum report, the examiner opined that the Veteran's back condition on appeal was a "congenital defect".  Service connection may still be granted for a congenital defect unless it is a static congenital defect.  See O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); see also 38 U.S.C.A. § 1153 (2012); 38 C.F.R. § 3.306 (2017).  In this regard, congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes.  See O'Bryan, 771 F.3d at 1380; 38 C.F.R. §§ 3.303 (c), 4.9 (2017).  Therefore, findings with a complete explanation must be made as to whether the Veteran's spondylosis and/or spondylothesis is a static congenital defect, or whether it is progressive in nature, and as such capable of improvement or deterioration.  See O'Bryan, 771 F.3d; VAOPGCPREC 67-90 ("A disease . . . even one which is hereditary in origin, is usually capable of improvement or deterioration").  On remand, an addendum opinion must be obtained.

Regarding the Veteran's bilateral shoulder condition, in its August 2015 Joint Motion for Partial Remand, the Court noted that "it is unclear whether Appellant's diagnosed DJD is degenerative or traumatic."  Accordingly, the Board remanded the Veteran's shoulder claims in January 2016.  However, after reviewing the June 2016 shoulder examiner's rationale, it is still unclear whether the Veteran's current left and right shoulder disabilities are degenerative, traumatic, or both, and more importantly, an explanation is needed as to why the Veteran's trauma would not have contributed to his current bilateral shoulder disabilities.  As a result, a remand is required for an addendum opinion the specifically address the issues above. 

The Board last remanded the Veteran's TBI claims in January 2016 for a neuropsychological evaluation.  The Board then requested that the report be forwarded to the VA examiner who examined the Veteran in March 2011.  The Veteran was evaluated in June 2016.  However, the report was found to be inconclusive.  The June 2016 examiner opined that it was due to poor effort.  In June 2017, the psychiatrist who examined the Veteran in March 2011 reviewed the testing and determined that the Veteran was scheduled for a TBI examination and not a neuropsychological examination.  Although this examiner questioned whether additional testing would lead to additional pertinent information, considering the examination in full, the Board finds that this additional examination is necessary to fulfill the previous Board directives regarding the need for additional neuropsychology testing.  In this regarding, the Board notes that by way of a September 2017 rating decision the RO granted entitlement to service connection for a cognitive disorder with a 30 percent disability rating prior to December 7, 2010 and 50 percent thereafter.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Make arrangements to obtain updated VA treatment records.

2.  After completing directive (1), obtain an addendum opinion to assess the nature of the Veteran's spondylosis and/or spondylothesis of the spine and its relationship to service.  The diagnosis is considered to be a congenital defect.  As a result, the examiner is asked whether it is at least as likely as not that there is additional disability due to disease or injury superimposed upon such defect during service? If so, please identify the additional disability. 

The Veteran's claims file, and a complete copy of this REMAND, must be made available to, and reviewed by, the designated examiner in conjunction with the opinion.  It is left to the discretion of the examiner as to whether another examination is needed; if the examiner determines that such is required to provide the above opinion, this additional examination should be scheduled.

3.  After completing directive (1), obtain an addendum opinion to determine whether the Veteran's shoulder disabilities are degenerative, traumatic, or both and whether any are related to the Veteran's military service.  In providing this opinion, the examiner must fully consider any evidence of trauma in service and, if the examiner finds that in-service trauma did not lead to the current disability, the examiner must fully explain the basis for this negative opinion. 

The Veteran's claims file, and a complete copy of this REMAND, must be made available to, and reviewed by, the designated examiner in conjunction with the opinion.  It is left to the discretion of the examiner as to whether another examination is needed; if the examiner determines that such is required to provide the above opinion, this additional examination should be scheduled.

4.  After completing directive (1), schedule the Veteran for a neuropsychological evaluation.  Ensure that all manifestations of the service-connected TBI, and the severity thereof, are documented in the resultant examinations.  Complete rationales for all conclusions reached should be provided.

A rationale for all opinions and a discussion of the facts and medical principles involved should be provided.  

5.  Finally, after completing any other development that may be indicated, readjudicate the claims on appeal.  If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran 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.A. §§ 5109B, 7112 (2012).



______________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs