Citation Nr: 18143133 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 15-14 772 DATE: October 18, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for cranial neuropathy associated with facial scars (eye twitch disability) is denied. Entitlement to an initial compensable rating for a deviated septum (sinus disability) is denied. Entitlement to an initial compensable rating for a headache disability as a residual of a traumatic brain injury prior to October 24, 2017 is denied. Entitlement to a 10 percent rating, but not higher, for headaches from October 24, 2017 onward is granted. FINDINGS OF FACT 1. The Veteran’s eye twitch disability is manifested by moderate, incomplete paralysis. 2. The Veteran does not suffer from 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 3. For the period on appeal prior to October 24, 2017, the Veteran’s headache disability was manifested by an overall disability picture that more nearly approximated less frequent headache attacks that were non-prostrating in nature. 4. Since October 24, 2017, the Veteran’s headache disability has been manifested by an overall disability picture that more nearly approximates characteristic prostrating attacks occurring more frequently, but more than one characteristic prostrating attack in a two-month period is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for an eye twitch disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8207 (2017). 2. The criteria for an initial compensable rating for a sinus disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.97, Diagnostic Code 6502 (2017). 3. The criteria for an initial compensable rating for a headache disability, prior to October 24, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2017). 4. The criteria for the assignment of a 10 percent rating, but not higher, for a headache disability from October 24, 2017 onward, have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection for each disability in February 2008. Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, the Board will consider evidence regarding the Veteran’s eye twitch disability from February 2013, sinus disability from February 2013, and headache disability from May 2016. 1. Eye Twitch Disability The Veteran’s eye twitch disability is rated under Diagnostic Code 8207, Seventh (facial) cranial nerve paralysis. 38 C.F.R. § 4.124a. Under this diagnostic code, a 10 percent rating is warranted for moderate incomplete paralysis. A 20 percent rating is warranted for severe incomplete paralysis. A 30 percent rating is warranted for complete paralysis. In May 2014, the Veteran received a VA examination. The examiner reported the Veteran suffered from mild, intermittent pain and twitching in the cranial nerve region. His muscle strength was normal, and his right cranial side nerve showed evidence of moderate, incomplete paralysis. The examiner also noted the Veteran had occasional irritability resulting in periodic twitching of a limited area on the right side of his face. The Veteran’s next VA examination was in March 2015. The examiner similarly noted mild, intermittent pain and numbness on the right side of the Veteran’s face. He also noted there was moderate, incomplete paralysis. These same observations were noted by the March 2016 VA examiner. Both examiners also noted the Veteran’s disability had no impact on his ability to work. In several lay statements, the Veteran reported that his eye twitching caused his eyes to close often. The Veteran stated his eye closing has worsened over time and will take a few seconds to open. The Board considers the evidence of record and finds an increase in the Veteran’s disability rating is not warranted. The medical evidence of record shows the Veteran has consistently suffered from an overall disability picture that more nearly approximates no more than moderate incomplete paralysis for the entire appeal period. The Board considers the Veteran’s statements that his condition has worsened, but find his statements alone do not show the Veteran’s paralysis is best described as severe. Further, the Board notes the examiners have consistently reported the Veteran’s disability has no impact on his employability. Consequently, the Board finds the severity of the Veteran’s disability is adequately captured by the 10 percent rating. See 38 C.F.R. § 4.124a. The Veteran’s representative argues that two separate disability ratings are warranted for this condition because the VA examinations show that both Cranial Nerve V (trigeminal) and Cranial Nerve VII (facial) are affected. However, the Board notes that the examination reports mentioned above describe only one of the two affected cranial nerves as being manifested by an overall disability picture that more nearly approximates moderate incomplete paralysis. The other cranial nerve (V) is described as being manifested by, at most, mild incomplete paralysis. Anything less than moderate incomplete paralysis of either Cranial Nerve V or Cranial Nerve VII warrants a noncompensable rating under Diagnostic Codes 8205 and 8207. According to 38 C.F.R. § 4.31, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. Such is the case here. Accordingly, a separate compensable disability rating in addition to the 10 percent rating already assigned for the Veteran’s eye twitch disability is not warranted. 2. Sinus Disability The Veteran’s sinus disability is evaluated under Diagnostic Code 6502, deviation of the nasal septum. 38 C.F.R. § 4.97 (2017). Under this diagnostic code the maximum rating is 10 percent. A 10 percent evaluation is warranted with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The Veteran received a VA examination in April 2014. The Veteran reported chronic facial pain but had no complaints of sinus infections or chronic rhinitis. He also reported difficulty breathing out of his right nostril. The examiner determined the Veteran did not have at least 50 percent obstruction of his nasal passages nor complete obstruction on either side. The Veteran received another VA examination in March 2015, and the examiner reported similar results. Additionally, both examiners opined the Veteran’s deviated septum had no impact on his ability to work. The April 2014 examiner did note the Veteran’s pain and scarring had made it difficult for him to work. In lay statements the Veteran detailed the impact of his deviated septum on his daily life. The Veteran stated it has caused him trouble breathing out of his nose. He also reported that he consistently had difficulty breathing out of one of his nostrils in the morning. Based on the VA examinations the Board does not find an increased rating under Diagnostic Code 6502 is warranted. The Board considers the Veteran’s lay statements that he has difficulty breathing out of his nostrils. However, the Veteran’s lay opinion is contradicted by the medical evidence of record which shows there is not 50 percent obstruction of both nostrils nor complete obstruction on either side. The Veteran is competent to report he experiences nasal blockage and the impact on his daily life and breathing, but in this case, because he lacks the requisite medical training or other relevant experience, to competently opine that his nasal passage is completely blocked. Thus, the Board assigns the medical opinion higher probative value than the Veteran’s opinion. Accordingly, because the Veteran’s nasal passage is not completely blocked an increased rating is not warranted under Diagnostic Code 6502. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran’s residuals of a nasal fracture does not more closely approximate a compensable rating under the applicable Diagnostic Code. 38 C.F.R. § 4.97. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. The Board concedes the April 2014 VA examiner reports the Veteran’s deviated septum has led to pain and scarring on the Veteran’s face. However, the Board notes the Veteran is already compensated for his facial scarring. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. For purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). Therefore, an increased rating under Diagnostic Code 6502 for any issues caused by the Veteran’s scarring is also not warranted. 3. Headache Disability The Veteran’s headache disability is rated under Diagnostic Code 8100, Migraines. 38 C.F.R. § 4.124a (2017). Under this Diagnostic Code, a noncompensable rating is warranted when migraines cause less frequent attacks. A 10 percent rating is warranted when the migraines cause characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted when the migraines cause characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is warranted when the migraines cause frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. “Because Diagnostic Code 8100 specifically governs migraine headaches, the phrase ‘characteristic prostrating attacks’ plainly describes migraine attacks that typically produce powerlessness or a lack of vitality.” Johnson v. Wilkie, No. 16-3808 (September 19, 2018). The rating criteria do not define “severe economic inadaptability;” however, nothing in Diagnostic Code 8100 requires the claimant to be completely unable to work to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). The Secretary has conceded that the term “productive of economic inadaptability” could be read as either “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). As the Veteran’s headaches are due to a traumatic brain injury (TBI), the Board also considers the criteria for rating TBI in determining whether the Veteran is entitled to a higher disability evaluation. Effective October 23, 2008, the protocol for evaluating TBI was revised. See 73 Fed. Reg. 54, 693 (Sept. 23, 2008). See 38 C.F.R. § 4.124, Note (5) (2013). A veteran whose residuals of TBI are rated under a version of § 4.124a, Diagnostic Code 8045, may request review under Diagnostic Code 8045, irrespective of whether his disability worsened since the last review. Id. Prior to October 23, 2008, Diagnostic Code 8045 provided that purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of hyphenated diagnostic code (e.g., 8045-8911). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9034. This 10 percent rating could be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9034 were not assignable in the absence of a diagnosis of multi-infract dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 845 (effective prior to October 23, 2008). Under the revised Diagnostic Code 8045, effective October 23, 2008, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2017). Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, such as a migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Id. Residuals not listed in the regulations that are reported on an examination should be evaluated under the most appropriate diagnostic code. Each condition should be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Id. The Veteran received a VA examination in March 2015. The examiner noted the Veteran’s headaches did not cause impairment in memory, attention, concentration, or executive function. In addition, his headaches did not interfere with work or instrumental activities of daily living. The Veteran suffered from mild, occasional headaches with no prostrating attacks. The examiner noted that the headaches could interfere with a job that required full brain function. The Veteran’s next examination was in July 2016. He described his headaches as occurring in the early morning and affecting the back of his head. The would occur 3 to 4 times a week and last for about an hour. Occasionally, the Veteran reported feeling mild nausea or dizziness. In addition, though he was retired, he stated when he worked if he had a headache he would continue working. The examiner reported the headaches as pulsating or throbbing pain on both sides of the head. Still, the Veteran did not report having prostrating attacks. The Veteran’s most recent examination was in October 2017. He provided a similar description of his disability to the October 2017 examiner as the description given in July 2016, however he reported that he was getting more frequent attacks. He also noted he was prescribed medication for his headaches by his neurologist. The Veteran’s headaches were similarly noted to cause pulsating or throbbing pain on both sides of his head. He continued to experience nausea, and added he felt light sensitivity. The examiner characterized the Veteran’s headaches as characteristic prostrating attacks, but with less frequent attacks. In 2018 a private examiner also noted the Veteran’s headache complaints. In April, the examiner stated the Veteran’s severe headaches impacted his quality of life. The Veteran continued to report his headache pain in July 2018. The Board also notes at each VA examination his TBI was evaluated. The examiner noted his headaches were the only residual symptom of the Veteran’s TBI. Additionally, the Veteran’s headaches did not cause him any cognitive impairment. Accordingly, the Board finds the Veteran’s migraines are most appropriately rated under Diagnostic Code 8100, which rates migraine headaches, rather than Diagnostic Code 8045, which rates TBI. The Board considers the medical evidence and lay evidence. The evidence of record fails to show the Veteran suffered from characteristic prostrating attacks averaging at least once every 2 months prior to October 24, 2017, as required for the next disability rating. Rather, the examiners prior to October 24, 2017 indicated that the Veteran’s headaches were not prostrating in nature. Accordingly, the criteria for a compensable disability rating prior to October 24, 2017 for headaches is not warranted. The Board concedes the evidence shows the Veteran’s disability has progressed as the Veteran now suffers from sensitivity to light and prostrating attacks. However, the October 2017 VA examiner indicated the frequency of these attacks as “with less frequent attacks,” which is contemplated by a noncompensable rating. However, given the Veteran’s reports that his headaches are more frequent, and given that the VA examiner in October 2017 characterized the headaches as prostrating in nature, the Board finds that an increased rating is warranted as of the date of the October 24, 2017 examination. Moreover, while the VA examiner indicated that the Veteran’s prostrating attacks “occurred less frequently,” the examiner did not specifically indicate how many prostrating attacks the Veteran has per month. Accordingly, the Board will resolve all doubt in the Veteran’s favor, and find that the overall disability picture more nearly approximates characteristic prostrating attacks occurring, on average, once every two months. The Board is mindful that the Veteran reports having headaches several times per week, but according to the medical examiner, the headaches that are characteristically prostrating in nature do not occur that often, and are “less frequent.” Thus, a higher, 30 percent rating is not warranted. Though the April 2018 private examiner opined that the Veteran’s headaches impacts the quality of his life, the examiner failed to provide examples, rationale, or even detail the frequency with which the Veteran experiences characteristic prostrating headaches. Thus, the Board affords the private opinion less probative weight than the multiple VA examinations of record. Therefore, the Board finds that the most probative evidence shows that the Veteran’s headaches have worsened as shown at the time of the October 24, 2017 examination, warranting the assignment of a 10 percent rating as of that date. However, because the evidence does not show that the Veteran’s headache disability is manifested by characteristic prostrating attacks averaging once per month, or more, the assignment of a rating in excess of 10 percent is not for application. Finally, a total disability rating based on individual unemployability (TDIU) is not warranted because the evidence does not show, that his service-connected disabilities renders him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). As noted above, multiple VA examiners opined the Veteran’s eye twitch disability, sinus disability, and headache disability had no impact on his ability to work. The Board acknowledges the August 2014 private medical records documenting that the Veteran feels unable to work due to his scar and mental health issues. However, the Board notes the preponderance of the evidence fails to show the Veteran is unemployable due to service-connected disabilities. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel