Citation Nr: 1805633 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 12-03 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable rating for migraine headaches. 2. Entitlement to an initial compensable rating for degenerative disc disease (DDD) of the lumbar spine prior to February 13, 2015, and in excess of 10 percent thereafter. 3. Entitlement to an initial compensable rating for right patellofemoral syndrome prior to February 13, 2015, and in excess of 10 percent thereafter. 4. Entitlement to an initial compensable rating for left knee patellofemoral syndrome prior to February 13, 2015, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Barrett, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1981 to July 1992. He also had service in the Air National Guard of Alabama from March 1994 to March 2003. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for the disabilities on appeal effective June 24, 2009. In a February 2015 rating decision, an increased rating of 10 percent was assigned to the Veteran's back and right and left knee disabilities, effective February 13, 2015. However, as these ratings are less than the maximum benefit available, the appeals are still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board remanded this appeal for further development in September 2016, which has been completed. Additional VA medical records obtained subsequent to the Board's remand are not relevant or are essentially duplicative of the evidence already of record as it pertains to the service-connected migraine disability. Hence, a waiver of initial AOJ review is not necessary. 38 C.F.R. § 20.1304 (2017). The issues entitlement to higher initial ratings for the service-connected lumbar spine DDD and patellofemoral syndrome of the bilateral knees are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, since the grant of service connection, chronic migraines have manifested with symptoms that more nearly approximate prostrating attacks occurring on average once a month over last several months. CONCLUSION OF LAW The criteria for an initial rating of 30 percent, and no higher, for chronic migraines have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 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) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2017). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is currently assigned a noncompensable (zero percent) rating for migraine headaches under DC 8100. Under DC 8100 pertaining to migraines, a 10 percent rating requires that the condition be productive of headaches with characteristic prostrating attacks averaging one in two months over last several months. A 30 percent rating requires headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating requires that the disability be manifested by very frequent and prostrating and prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define "prostrating," nor has the Court. See 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 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." The Board notes that in assigning a disability rating, "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As the rating criteria under 38 C.F.R. § 4.124a, DC 8100, do not explicitly contemplate the ameliorative effects of medication, the assigned rating for migraines should contemplate the frequency of characteristic prostrating attacks that would occur without medication. Private treatment records indicate the Veteran reported headaches as early as January 2009. He also experienced severe migraine headaches requiring the prescription of oxygen for home use. See Birmingham VA Medical Center (VAMC) treatment records from November 2012 and November 2014. In November 2014 the Veteran had the oxygen prescription discontinued because his headaches were no longer bothersome. Treatment records do not indicate a consistent reliance on medication for the condition. The Veteran has tried a variety of medication, but with conflicting success. A November 2012 treatment note indicates the headaches were well controlled by medication but the Veteran decided to discontinue using them. Headaches then returned, albeit less frequently. The Veteran was afforded a VA examination for his migraine headaches in October 2009. He reported front and orbital headaches with photophobia that occurred about twice a month and lasted for two to three days. The attacks were not prostrating and ordinary activity was possible. He was treated with meditation and Tylenol, but other medication was ineffective. No specific triggers were reported. In the Veteran's July 2010 notice of disagreement, he asserted that he suffered with headaches 2 to 3 times a week that last for hours; sometimes one headache can last for days. He has intense throbbing and pounding pain at the temple from the forehead around the eyes to the back of the head. Sometimes he feels very nauseated and has sensitivity to light and sound; all of these conditions occurred with severe pain cause fatigue, irritability and sleepiness. These conditions reportedly interfere with his day to day activity and employment. On his February 2012 VA Form 9, the Veteran reported that he has migraines twice a month that are so intense, he has to leave work when they occur. The Veteran was afforded another VA examination in February 2015. He reported pulsating or throbbing head pain with duration of less than a day. The headaches were right side frontal and to the back of the head. Non-headache symptoms included sensitivity to light and sound. He reported occasional prostrating attacks for which he was prescribed the oxygen. As noted, he returned the equipment in November 2014 since the attacks were not occurring as often. However, he still reported the prostrating attacks occurred, just with less frequently. The examiner opined that he does not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner further opined that his headache condition does not impact his or her ability to work. After careful review of the evidence, the Board finds that an initial rating of 30 percent, and no higher, is warranted for the service-connected migraines. The Veteran is competent to report the nature, frequency, and severity of the headache symptoms he has experienced. They have reportedly occurred at least twice a month and lasted from two to three days. The Veteran reported using over the counter medication and subsequently stopped taking it around November 2012. His headaches were not described as prostrating until the February 2015 examination. Taking into consideration the Veteran's reported headache symptoms and affording him the benefit of reasonable doubt, the Board finds that his migraines warrant an initial 30 percent rating based on symptoms and a history that more closely approximate characteristic prostrating attacks occurring on an average once a month over the last several months and in the absence of prescribed headache medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that the Board, in assigning a disability rating, may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria). A 50 percent rating is not warranted unless the Veteran suffers from very frequent and prostrating and prolonged attacks that are productive of severe economic inadaptability. The Veteran has not described very frequent headaches that are productive of severe economic inadaptability, nor is his clinical history consistent with very prostrating and prolonged migraines productive of severe economic inadaptability. He subjectively reported being incapacitated by migraines for about twice a month on his VA Form 9. He reported only occasional prostrating attacks during the February 2015 examination. Further, the 2015 VA examination opined that the Veteran does not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. For these reasons, a higher rating is not warranted. Accordingly, an initial rating of 30 percent rating, and no higher, is warranted after all reasonable doubt is resolved in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). There are no additional expressly or reasonably raised issues presented on the record. ORDER An initial rating of 30 percent, and no higher, for migraines headaches is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND While further delay is regrettable, the Board finds that additional development is necessary prior to adjudication of the Veteran's remaining increased rating claims. In the Veteran's February 2017 written statement, the Veteran asserted that his back and bilateral knee disabilities have severely worsened. In this letter, he described his symptoms and functional impairment caused by his knees and back. He also indicated that he had visited the VA clinic several times for his knees. The Board observes that the Veteran's last VA examination was in August 2016; at that time the VA examiners indicated there was no functional loss or impairment due to these conditions. In a December 2017 Informal Hearing Presentation, the Veteran's representation asserted that the disabilities had worsened in severity, and requested new examinations. VA's duty to assist requires affording the Veteran a new VA examination in order to accurately assess the current level of impairment when there is evidence that the disability may have worsened. Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). The claim is thus remanded for an examination, which includes consideration of the newly added VA medical records, and to assess the current severity of the Veteran's bilateral knee and back disabilities. In addition to the assertion of worsening, the Board notes that the most recent supplemental statement of the case was issued in January 2017; this document indicates review of VA treatment records up to June 28, 2016. Since then, additional VA treatment records from October 2009 through November 2017 have been added to the file and they contain evidence relevant to the orthopedic claims on appeal. A waiver has not been submitted in this case as it pertains to the specific evidence identified above. As the claims are being remanded, no prejudice will result. See 38 U.S.C. § 20.1304 (2017). Finally, the Board notes that in the February 2017 correspondence, the Veteran expressed confusion about the effective date of February 13, 2015 assigned to his back and knee ratings. For purposes of clarification, this effective date was only assigned for the increased award of 10 percent for the service-connected back and bilateral knee disabilities. The original date of service connection for these disabilities, which is June 24, 2009, was undisturbed. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of his service-connected back and bilateral knee disabilities. The claims file should be reviewed and all appropriate testing should be conducted. The lumbar spine and bilateral knees should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary or is not medically appropriate in this case, he or she should clearly explain why that is so. The examiner is asked to express an opinion regarding whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use overtime OR during flare-ups. The examiner should assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional loss during such events based on the Veteran's description of their severity, frequency, duration, and/or functional loss manifestations. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. A complete rationale must be provided for all opinions expressed. 2. Readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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 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 (West 2014). ______________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs