Citation Nr: 1803411 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 01-09 846A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increase for residual scars, supraorbital rim (right forehead) and right side of neck, status post excision, epitheloid hemangioma/angiolymphoid hyperplasia and hair transplant, currently evaluated as 30 percent disabling. 2. Entitlement to an effective date earlier than March 19, 2004, for the award of service connection for a low back disability. 3. Whether the correct bilateral factor was applied effective April 16, 2003. 4. Entitlement to an initial rating of 40 percent prior to December 7, 2015, for lumbar strain. 5. Entitlement to an initial compensable rating and a rating in excess of 30 percent from December 7, 2015, for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from August 1983 to October 1998. This matter came before the Board of Veterans' Appeals (Board) from a June 2017 decision by the Department of Veterans Affairs (VA) Regional Office (RO). Regarding the low back disability, the Veteran's notice of disagreement indicates that his disagreement is limited to the period in which the Veteran is not in receipt of a 40 percent rating. The Board has limited the issue accordingly. The Board notes that the issues of entitlement to service connection for right shoulder pain, left shoulder pain, a disorder of the bilateral forearms and wrists, and entitlement to a total disability rating based on individual unemployability (TDIU) were remanded by the Board in February 2017. Those issues are pending development; they have not been certified for appellate consideration. See August 2017 letter. Jurisdiction over the claims remains with the RO. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. A rating in excess of 30 percent residual scars, supraorbital rim (right forehead) and right side of neck, status post excision, epitheloid hemangioma/angiolymphoid hyperplasia and hair transplant, was denied by the Board in a February 2017 decision that is final. 2. There was no pending claim for service connection for a low back disability prior to March 19, 2004. 3. A bilateral factor of 3.4 is warranted effective April 16, 2003. 4. With resolution of reasonable doubt in the Veteran's favor, given the Veteran's pain and corresponding functional loss, including during flare-ups, his disability approximated limitation of flexion to 30 degrees throughout the appeal. 5. The Veteran's migraine headaches have most nearly approximated characteristic prostrating attacks occurring on an average once a month; the headache disability does not and has not resulted in very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Regarding the issues of entitlement to a rating in excess of 30 percent for residual scars, supraorbital rim (right forehead) and right side of neck, status post excision, epitheloid hemangioma/angiolymphoid hyperplasia and hair transplant, there is no appeal before the Board. 38 U.S.C. § 7105 (West 2012). 2. The criteria for an effective date earlier than March 19, 2004, for the award of service connection for a low back disability have not been met. 38 U.S.C. § 5110 (West. 2012); 38 C.F.R. § 3.400 (2017). 3. The appropriate bilateral factor was assigned effective April 16, 2003. 38 C.F.R. § 4.26 (2017). 4. Effective March 19, 2004, the criteria for an initial rating of 40 percent rating for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. § 4.59, 4.71a, Diagnostic Code 5237 (2017). 5. The criteria for an initial 30 percent rating, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Residual Scar In February 2017, the Board granted a 30 percent rating effective March 24, 2004, for residual scar and denied a rating in excess of 30 percent. That decision was implemented in a June 2017 rating decision. The Veteran submitted an appeal regarding the 30 percent rating, contending that the rating should be higher. The issue of the appropriate rating for residual scar was decided by the Board in a final decision issued in February 2017. Although the Veteran filed an appeal with the U.S. Court of Appeals for Veterans Claim, the Veteran withdrew the appeal and did not refile, he has not alleged clear and unmistakable error in the February 2017 Board decision, and a motion for reconsideration was denied by the Board in October 2017. There is no justiciable case or controversy for the Board to adjudicate. Thus, the matter is dismissed. Effective Date Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant's discharge from service, shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The effective date, "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a). As in effect prior to March 2015, under 38 C.F.R. § 3.155(a) any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. On March 19, 2004, VA received an informal claim for service connection for a low back disorder. In a February 2017 decision, the Board granted the claim of service connection. In a June 2017 rating decision, the RO assigned an effective date of March 19, 2004, for the award of a low back disability. The appellant has appealed the effective date assigned, contending that the appropriate effective date is February 27, 2004. The Board has reviewed the evidence dated prior to March 19, 2004, but finds no evidence that could be interpreted as a pending claim for service connection for a low back disability. The evidence of record prior to March 19, 2004, includes claims for service connection, medical records, and statements from the Veteran. However, the records do not reveal any statement, history, or finding that could be construed as a pending claim for service connection for a low back disability; there is nothing to suggest an intent to file for benefits for a low back disability. Notably, the Board finds the September 2002 claim for "joint" pain does not include the back, particularly as the corresponding records and statements include no history or finding regarding the back and the April 2003 statement clarifies that the reported joints involved the arms and legs. See April 7, 2003 statement. See also August and November 2003 lay statements (reporting joint pain on the upper and lower extremities); December 2003 VA examination (reporting joint pain of the knees, ankles, wrists, elbows, and shoulders). The Veteran contends that his claim was received on February 27, 2004, as noted in an October 2004 letter from VA. The October 2004 letter was incorrect; the record documents that the date of receipt of the claim was March 19, 2004. In sum, the Board finds the earliest possible effective date for the award of service connection for the low back disability is the currently assigned effective date. The claim for an earlier effective date for the award of service connection must be denied. 38 U.S.C. § 5107(b) (West 2012); 38 C.F.R. § 3.102 (2017). Bilateral Factor Under 38 C.F.R. § 4.26, when a partial disability results from a disease or injury of both arms or legs, the ratings for the disabilities of the right and left sides will be combined as usual under 38 C.F.R. § 4.25, and 10 percent of this value will be added (i.e. not combined) before proceeding with further combinations, or converting to degree of disability. This is known as the bilateral factor. The record indicates that the June 2017 rating decision awarded a bilateral factor of 3.4 percent effective April 16, 2003, based on the right and left ankle strain, which are rated under Diagnostic Code 5271, and left and right knee strain, which are rated under Diagnostic Code 5260. The bilateral factor was then increased to 5.7 percent effective February 27, 2004, based on additional disability from peripheral neuropathies of each extremity. The Veteran contends that the wrong bilateral factor was applied effective April 16, 2003. After review of the record, the Board finds the bilateral factor was properly determined. Effective April 16, 2003, the Veteran is rated at 10 percent each for right ankle strain, left ankle strain, right knee strain, and left knee strain, which corresponds to a 34 percent rating under 38 C.F.R. § 4.25 Table 1. Ten percent of 34 percent is 3.4, which is the bilateral factor of record. Thus, the claim is denied. Higher Ratings Low Back Disability The Veteran does not challenge the current 40 percent rating but asserts that the 40 percent rating should be effective the date of service connection. He reports he had pain and functional impairment, especially during flare-ups. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disabilities of the thoracolumbar spine are rated under a General Rating Formula (Formula). 38 C.F.R. § 4.71a. The Formula ratings apply with or without symptoms such as pain, stiffness, or aching. An evaluation of 10 percent is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, 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 the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The Formula provides for a separate rating for any associated objective neurologic impairment. The Formula for Rating Intervertebral Disc Syndrome (IDS) Based on Incapacitating Episodes provides ratings for incapacitating episodes. An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." The Veteran was afforded two VA examination during the appeal, in December 2004 and in December 2015. Based on the findings of the latter examination, the current 40 percent rating was assigned. The December 2004 VA examination report reflects that the Veteran complained of an exhibited pain on motion of the low back. The examination report, however, states he had full passive range of motion. The reports of the December 2004 and December 2015 VA examination show that the examinations are not consistent with Sharp. In light of the Veteran's competent and credible contentions, and resolving all reasonable doubt in his favor, the Board finds that a 40 percent rating is warranted throughout the appeal. The Board also notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). As such a higher rating is not warranted. Finally, because the evidence affirmatively shows that the Veteran does not have ankylosis of the low back, and indeed he does not contend otherwise, a rating in excess of 40 percent is not warranted. Migraine Headaches The Veteran's service-connected headache disability is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100 for migraine headaches. Diagnostic Code 8100 provides a 10 percent rating for prostrating attacks averaging one in two months over several months. A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. The maximum schedular disability rating of 50 percent is warranted for migraine headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). By way of reference, the Board notes that 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 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." A February 2002 statement reveals the Veteran's history of occasional frontal headaches. Lay statements dated in November 2003 reveal histories that the Veteran experienced "periodic" episodes of headaches. A December 2003 VA examination record reveals the Veteran's history of bifrontal headaches approximately three times per month that are usually unrelieved by Tylenol and that last for three hours. He distinguished these headaches from "regular" headaches that resolve with Tylenol. He reported that during the bifrontal headaches, he becomes irritable and has "extreme difficulty" concentrating and is unable to do any other activity. He reported missing two days per month from work for problems with his headaches and joints. A July 2004 VA treatment record reveals the Veteran's history of frontal headaches twice per week. The Veteran reported that the headaches lasted for three to four hours and were squeezing in quality. A December 2004 VA treatment record reveals the Veteran's history that the headaches were increasing in frequency. He reported that he had headaches several times per month and historically could be symptom-free for a month and now had headaches three times per week. He estimated that the headache pain was 7.5/10. He reported that he continued to work when he had the headaches. An April 2005 VA treatment record reveals history of frontal headache. The Veteran reported that the headaches were increasing in frequency, with one to four per week. A May 2005 VA treatment record reveals the Veteran's history of headaches which vary in frequency, from no headaches in two weeks to three headaches in one week. A July 2005 VA treatment record reveals the Veteran's history of three migraines in the previous week that lasted from one to eight hours. He denied nausea, vomiting, visual changes, flashes of lights, or dizziness but reported phonophobia and weakness. The diagnosis was headache, questionably migraine. An August 2005 VA treatment records reports history of headaches that were variable, sometimes once a week, sometimes less often. He reported having seven in the previous three months. He denied photo or phonophobia, nausea, or visual symptoms. The headaches were believed to be most probably muscular/tension-type headaches. A May 2006 VA treatment record reports a history of frontal headaches without vision problems approximately every one to two weeks. The record indicates that the headaches were believed related to myofascial neck pain. An August 2006 VA genitourinary examination record reveals the Veteran's history of headaches that were "well-controlled." He reported using Flexeril every day, several times a day. An April 2007 private medical statement reports that the Veteran reported chronic episodic headache lasting between six to 48 hours with frequency occurring two to three times weekly. The statement indicates that the findings were based solely on review of the record; there is no indication that an examination or interview occurred. A September 2007 treatment record reveals the Veteran's history of headaches five times per month. April and August 2011 VA treatment records reveal the Veteran's history of probing frontal headaches. He reported headaches twice per week the previous month, with each headache lasting one hour. He reported that he took medication, which "sometimes" helped. A September 2012 VA treatment record reveals the Veteran's history that he was "without problem" from migraines. Another September 2012 VA treatment record indicates that the headaches were well-controlled. A March 12, 2013, VA treatment record reveals the Veteran's history of no flares or problems with migraines. A March 13, 2013, VA eye examination record reveals the Veteran's history of migraines approximately three times per week that lasted from two minutes to four hours. He reported that during a headache, he takes medication and relaxes. A July 2014 private medical statement reports that the Veteran had "characteristic of prolonged prostrating attacks occurring on an average 3 to 4 times once a month from a few minutes to several hours per day over the last several years." The statement indicates that the findings were based solely on review of the record; there is no indication that an examination or interview occurred. A December 2015 VA examination record reveals the Veteran's history of headaches three times per week. The examiner determined that the Veteran has characteristic prostrating attacks of headache pain once every month. He did not have very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. After review of the record, the Board finds a 30 percent rating is warranted for the entire period of the claim. The record indicates that the Veteran has both prostrating and nonprostrating headaches and most treatment records are ambiguous as to the nature of the headaches reported by the Veteran. Resolving all doubt in favor of the Veteran, the Board finds the Veteran has experienced an average of one prostrating headache per month over the period of the claim. The Board finds a rating in excess of 30 percent is not warranted because the probative evidence fails to show that the headaches more nearly approximate the severe, very frequent, completely prostrating and prolonged attacks producing severe economic inadaptability required for the higher rating. Although the Veteran has competently reported headaches of varying frequency, the probative evidence does not suggest that the Veteran has "completely prostrating" and "prolonged" headaches on a "very frequent" basis. Notably, the 2015 VA examiner determined that the Veteran's headache disability only resulted in characteristic headaches once a month and were not productive of severe economic inadaptability. This determination is consistent with the medical record which indicates that many of the Veteran's headaches subside within an hour with the predominant episodes resolving within four hours, which the Board finds is not "very prolonged." The record is also absent a history of "very prostrating" headaches other than that provided in December 2003. Records subsequent to December 2003 indicate a reported improvement in the headaches, so the Board finds the December 2003 history is not indicative of the nature and severity of the headaches throughout the period of the claim. Notably, the Board finds the March 2013 history of "relaxing" during a headache is too ambiguous to indicate "very prostrating headaches." The Board notes that the record includes an April 2007 private medical statement that reports headaches that last up to 48 hours multiple times per week and a July 2014 private medical statement that reports that the Veteran had "characteristic of prolonged prostrating attacks occurring on an average 3 to 4 times once a month from a few minutes to several hours per day over the last several years." The Board finds the statements are not probative as they are inconsistent with the evidence dated during the period of the claim. Notably, the statements are based solely on review of the record, and not clinical evaluation. Based on the inconsistency with the record, and the internal inconsistency of the July 2014 statement (the statement is unclear whether the Veteran experienced headaches once a month or three to four times per months), and the lack of additional explanation as to how the determinations were made, the Board finds the medical statements are not probative for rating purposes. In sum, the Board finds the Veteran's headache disability has most nearly approximated the impairment contemplated by a 30 percent rating and no higher for the entire period of the claim. ORDER The appeal for increased rating for residual scars is dismissed. An effective date earlier than March 19, 2004, for service connection of a low back disorder is denied. Having determined the bilateral factor was correct, the claim is denied. Effective March 19, 2004, a 40 percent rating, but no higher, for a low back disorder is granted. A 30 percent rating, but no higher, for migraine headaches is granted for the entire period of the claim. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs