Citation Nr: 18141550 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 15-46 073 DATE: October 11, 2018 ORDER From December 11, 2013, to August 16, 2015, entitlement to a rating in excess of 30 percent for a migraine disorder is denied. From August 17, 2015, to March 23, 2016, entitlement to a rating of 50 percent, but no greater, for a migraine disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. From March 24, 2016, entitlement to a rating in excess of 50 percent for a migraine disorder is denied. REMANDED Entitlement to service connection for traumatic brain injury with symptoms of tinnitus, memory issues, and concentration issues is remanded. FINDINGS OF FACT 1. From December 11, 2013, to August 16, 2015, the Veteran’s migraine disorder is characterized by characteristic prostrating attacks occurring on an average once a month over the last several months. 2. From August 17, 2015, to March 23, 2016, the Veteran’s migraine disorder is characterized by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. From March 24, 2016, the Veteran’s migraine disorder is characterized by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. From December 11, 2013, to August 16, 2015, the criteria for a disability rating in excess of 30 percent for a migraine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.124a, Diagnostic Code 8100. 2. From August 17, 2015, to March 23, 2016, the criteria for a disability rating of 50 percent, but no greater, for a migraine disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.124a, Diagnostic Code 8100. 3. From March 24, 2016, the criteria for a disability rating in excess of 50 percent for a migraine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1980 to June 1989. In May 2017, a central office hearing was held before the undersigned. A transcript of that hearing is of record. In her October 2015 VA Form 9 and at the May 2017 hearing, the Veteran requests that the Board issue a statement of the case (SOC) with regard to all issues identified in her September 2014 notice of disagreement (NOD). The NOD was filed in response to the January 2014 and May 2014 rating decisions and argues three main points. The first point, which addresses the only issue discussed in the January 2014 rating decision, is that her assignment of a 60 percent rating for residuals of a left knee total replacement “should be provided permanent at 60 percent without being subjected to a future review examination.” The rating for the Veteran’s knee disorder was addressed in a September 2015 SOC. The second and third points relate to the TBI claim and migraine claim, respectively, which are the only two issues discussed in the May 2014 rating decision and were later addressed in a November 2015 SOC. Taken together, all three issues contained in the January 2014 and May 2014 rating decisions and appealed in the December 2014 NOD have now been addressed in the September 2015 SOC and the November 2015 SOC. It is therefore not necessary that an additional SOC be issued in response to the December 2014 NOD. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. From December 11, 2013, to August 16, 2015, entitlement to a rating in excess of 30 percent for a migraine disorder In February 1990, the RO granted service connection for migraines at an initial rating of 10 percent under Diagnostic Code 8100 from June 27, 1989, the day after the Veteran left service. In August 1995, the RO increased the Veteran’s rating to 30 percent from March 20, 1995. That decision was not appealed and is final. On December 11, 2013, the Veteran filed a claim of entitlement to an increased rating for migraines. In May 2014, the RO denied the Veteran’s claim. The Veteran is appealing that decision. In June 2016, the RO increased the Veteran’s rating to 50 percent from March 24, 2016. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed. 38 C.F.R. § 3.400(o). See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating). If an increase in severity of disease is ascertainable prior to a year before the filing date, the effective date shall be the date that the increase in severity is discernible. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Under Diagnostic Code 8100, a 50 percent rating is provided for very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 30 percent rating is provided for characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 10 percent rating is provided for characteristic prostrating attacks averaging one in two months over the last several months. Id. A 0 percent rating is provided for less frequent attacks. Id. The rating criteria under Diagnostic Code 8100 are successive, meaning that all criteria must be demonstrated to award the higher rating, and 38 C.F.R. §§ 4.7 and 4.21 do not apply to circumvent these requirements. Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims LEXIS 1253, at *19–20 (Vet. App. Sep. 19, 2018). From December 11, 2013, to August 16, 2015, the Veteran is entitled to a 30 percent rating. The Veteran’s February 2014 VA examination indicates that the Veteran does not have prostrating attacks of migraine headache pain or non-migraine headache pain. The examiner also indicates that the Veteran’s headache condition does not impact her ability to work. The examiner describes the Veteran’s prognosis as “excellent—because of the absence of objective findings” and states that the Veteran “is capable of all physical activity despite the headaches because they are mild and treatable with Vicodin.” In her September 2014 NOD, the Veteran states that migraines “cause interference with employment.” This is reflected by sometimes leaving work early, and wearing sunglasses when in the office so that fluorescent lighting will not trigger symptoms. She works at home as an accommodation, where she will “use indirect and natural lighting to help alleviate any additional potential onset of migraine symptoms.” The Veteran repeated these symptoms in correspondence dated April 2015. In neither submission does the Veteran state that her migraines are completely prostrating or that her migraines occur more than once per month. A February 2015 VA medical record (received 6/14/16, page 72 of 86) indicates regular headaches that “on several occasions . . . become quite painful and the pain level is between 7 to 8/10.” A July 2015 VA medical record (received 9/29/15, page 8 of 142) notes the existence of “headaches as a very common feature” but states that “[s]he does not appear to have neurocognitive deficits from this incident given her high academic and occupational performance post- this injury.” There is no mention of incapacitating episodes and no indication that her migraines occur more than once per month. Taken together, there is no lay or medical evidence dated between December 11, 2013, and August 16, 2015, that mentions prostrating migraine attacks, much less at an incidence of more than once a month at any point during this time period. Also, the Veteran’s February 2014 VA examination describes the Veteran’s prognosis as “excellent” and her September 2014 NOD indicates that she can work with accommodations. These last records suggest that her migraine attacks are not productive of severe economic inadaptability. Taken together, the weight of this evidence is against the existence of very frequent (more than once per month), completely prostrating, and prolonged attacks productive of severe economic inadaptability. Rather, for this period, the evidence more nearly approximates a rating of 30 percent. For the period from December 11, 2013, to August 16, 2015, the only evidence supporting a rating of 50 percent is the Veteran’s May 2017 hearing testimony that she had prostrating attacks of severe economic inadaptability when she originally filed her claim and that such attacks always occurred more than once a month. The Veteran is considered competent to testify regarding these symptoms because they are within the knowledge and personal observations of lay witnesses. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Her credibility is somewhat diminished by her admitted “memory issues,” as specifically stated in her September 2014 NOD and as discussed during her May 2017 Board hearing. Ultimately, the Board will place greater weight in the statements made to treating medical professionals and contemporaneous lay evidence rather than in the Veteran’s subsequently reported medical history. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board further notes that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346, 356 (1992). As the preponderance of the medical and lay evidence is against the existence of very frequent (more than once a month), completely prostrating, and prolonged attacks productive of severe economic inadaptability from December 11, 2013, to August 16, 2015, entitlement to a rating in excess of 30 percent must be denied for this time period. 2. From August 17, 2015, to March 23, 2016, entitlement to a rating of 50 percent, but no greater, for a migraine disorder From August 17, 2015, to March 23, 2016, the Veteran is entitled to a rating of 50 percent. The earliest evidence of completely prostrating headaches is a VA medical record dated August 17, 2015 (received 9/29/15, page 5 of 142). This record states: “Her headache[s] only occur a few times a month. When they do occur they are severely debilitating lasting hours and causing her to need to lay down.” In a later record, the Veteran indicates that she told this doctor that her headaches occur daily. See November 2015 VA medical record (received 6/14/16, page 35 of 86). Consistent with this, a November 2015 VA medical record (received 6/14/16, page 34 of 86) indicates severe daily headaches. In her December 2015 VA Form 9, the Veteran states that her migraines “are severe enough to require missed in office days every month” but she notes that she is only in the office one day a week and teleworks the other four days. A March 10, 2016 VA medical record (received 6/14/16, page 10 of 86) describes the Veteran reporting to urgent care for a headache attack. From August 17, 2015, to March 23, 2016, the evidence supports the existence of very frequent (more than once a month), completely prostrating and prolonged attacks productive of severe economic inadaptability. This evidence is consistent with a rating of 50 percent. The Board will also not refer the Veteran’s claim for extraschedular consideration. More specifically, the Board finds that the Veteran’s symptoms are squarely contemplated by the assigned schedular rating, which already takes into account this disability’s impact in the average occupational setting, and there is nothing asserted that makes the Veteran’s circumstances so unique or exceptional as to warrant extraschedular consideration. The Board also finds that the second Thun element is not satisfied. Specifically, there is no lay or medical evidence that the Veteran’s headaches result in marked interference with her employment or hospitalizations beyond what is already contemplated by her 50 percent rating. For these reasons, the Board finds that the Veteran’s migraine symptoms do not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, the Board will not refer the Veteran’s claim for extraschedular consideration. 3. From March 24, 2016, entitlement to a rating in excess of 50 percent for a migraine disorder From March 24, 2016, the Veteran is not entitled to a rating in excess of 50 percent, which is the highest schedular rating available for migraines. A March 2016 VA migraines examination indicates monthly prostrating attacks of migraine pain. Due to these attacks, the Veteran “has to take sick leave every couple of weeks . . . .” A June 2016 VA medical record (received 6/14/16, page 1 of 86) states that the Veteran “is doing fairly well with her headache frequency overall.” In her May 2017 hearing transcript, the Veteran states that she continues to work with accommodations, including working at home, although “it takes [her] longer to do [her] work than [her] coworkers.” Nevertheless, the Veteran indicates that her performance appraisals would not reflect “a decrease in [her] cognitive abilities” because she works “very, very hard to maintain [her] quality and production.” For reasons already described, the Board will not remand the Veteran’s claim for extraschedular consideration. Her symptoms are squarely contemplated by the assigned schedular rating and there is no lay or medical evidence that her headaches result in marked interference with employment or frequent periods of hospitalization beyond what is already contemplated by her current rating of 50 percent. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. REASONS FOR REMAND 1. Entitlement to service connection for traumatic brain injury with associated symptoms of tinnitus, memory issues, and concentration issues is remanded. In February 2014, a VA traumatic brain injury (TBI) examination was conducted for the Veteran. In May 2014, a VA examiner opined that the Veteran’s TBI is less likely than not related to service, based in part on the fact that she did not lose consciousness during her 1983 motorcycle accident. In her September 2014 NOD, the Veteran stated that tinnitus is a symptom of TBI. That symptom was not addressed in the February 2014 TBI examination. During the May 2017 hearing, she suggested that she did lose consciousness during her 1983 motorcycle accident, in that she remembers a fellow serviceman saying “you need to sit” and remembers being in the emergency room, but does not remember anything between the accident and the emergency room, including the ambulance ride. In light of the amount of time that has transpired since her last examination and the new evidence submitted since that time, the Board finds that a new examination and opinion are required. Additionally, on Remand the RO should obtain all relevant VA treatment records dated from June 2016 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain all VA treatment records from June 2016 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed traumatic brain injury (TBI) with symptoms of tinnitus, memory issues, and concentration issues. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed TBI with symptoms of tinnitus, memory issues, and concentration issues; and (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed TBI with symptoms of tinnitus, memory issues, and concentration issues was incurred in the Veteran’s service, including but not limited to as a result of an in-service motorcycle accident. In rendering these opinions, the examiner should consider the Veteran’s May 2017 hearing testimony. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel