Citation Nr: 18143729 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-37 274 DATE: October 22, 2018 ORDER Entitlement to an initial rating of 50 percent for migraines is granted. Entitlement to an initial rating in excess of 10 percent for residual pain scar status post surgery for De Quervain’s Syndrome, right wrist, is denied. Entitlement to a compensable initial rating for residual linear scar status post surgery for De Quervain’s Syndrome, right wrist, is denied. REMANDED Entitlement to service connection for HIV is remanded. Entitlement to service connection for Hepatitis C is remanded. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. Entitlement to service connection for depression is remanded. Entitlement to an increased rating for right ankle injury, right heel, and tendonitis, currently evaluated as 10 percent disabling is remanded. Entitlement to an increased rating for residuals of surgery (other than scars) for De Quervain’s Syndrome of the right upper extremity, currently evaluated as 10 percent disabling is remanded. Entitlement to an increased rating for degenerative disc disease, currently evaluated as 20 percent disabling is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity associated with DDD and IVDS of the spine is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity associated with DDD and IVDS of the spine is remanded. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran has had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Throughout the rating period on appeal, the Veteran has not had more than two scars; has not had a scar which is both painful and unstable; has not had a scar which is deep and nonlinear; has not had a scar with underlying soft tissue damage; and has not had a scar which is an area of 144 inches or greater. CONCLUSIONS OF LAW 1. The criteria for a 50 percent evaluation for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for a rating in excess of 10 percent for residual pain scar status post surgery for De Quervain’s Syndrome have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.118, DCs 7800-7805; 83 Fed. Reg. 32,592 (July 13, 2018). 3. The criteria for a compensable initial rating for residual linear scar status post surgery for De Quervain’s Syndrome have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.118, DCs 7800-7805; 83 Fed. Reg. 32,592 (July 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1980 to September 1983. These matters come before the Board of Veterans’ Appeals (Board) from February 2013 and January 2015 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. Increased Rating Although the Board, in its remand below, finds that Social Security Administration (SSA) records may be relevant to the remanded issues, the Board finds that it may adjudicate the issues of entitlement to increased ratings for migraines and scars without SSA records. In the decision below, the Board grants the maximum rating under DC 8100 for the Veteran’s migraines; thus, a remand for SSA records would serve no useful purpose to the Veteran and merely delay adjudication of the claim. With regard to the scars, the Veteran has not averred, and there is no evidence in the record that SSA records may contain information with regard to the Veteran’s scar(s) disability. In addition, given the nature of the scar(s) disability and the clinical findings of evidence, the Board does not find that it is reasonably likely that the SSA records would contain relevant information. Based on the foregoing, the Board finds that VA does not have a duty to attempt to obtain SSA records with respect to the claims decided herein. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Legal Criteria Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that 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). Reference to the Veteran’s disabilities is presented in the record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. 1. Entitlement to an initial rating in excess of 30 percent for migraines. The Veteran is in receipt of service connection for migraines including migraine variants, evaluated as 30 percent disabling under Diagnostic Code 8100 from January 30, 2014, the effective date of service connection. The Veteran would be entitled to a 50 percent rating (the maximum rating) if she had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined “prostrating.” However, “prostration” is defined as “extreme exhaustion or powerlessness,” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007), or as “physically or emotionally exhausted,” Webster II New College Dictionary 889 (3rd ed. 2001). The Board finds, based on the evidence of record, and in giving the benefit to the Veteran, that the criteria for a 50 percent rating has been met. A June 2014 VA clinical record reflects that the Veteran called a VA facility and wished to have care for her migraines; she stated that she has “about 15 migraines a month and that they last all day.” A July 2014 VA mental health initial evaluation note reflects that the Veteran has complaints of frequent migraine headaches and would like for her treatment providers to consider Effexor XR as a migraine prophylaxis. A November 2014 VA psychiatry note reflects that the Veteran reported that she has frequent headaches. A December 31, 2014 DBQ reflects that the Veteran was treated for migraines with Sumatriptan and Tramadol. The duration of typical head pain was noted to be 1 to 2 days. She was noted to have prostrating attacks of migraine headaches with a frequency of more than once per month. The report reflects that she has “very frequent prostrating and prolonged attacks of migraine headache pain.” The report further reflects that the Veteran reported that when she has a migraine, she “is not able to work at all. She has to go to a dark place and be still.” The 2014 DBQ also notes that the Veteran reported that her symptoms included pulsating or throbbing head pain on both sides of the head which worsens with physical activity. She also reported the following symptoms associated with headaches: nausea, vomiting, sensitivity to light and sound, changes in vision, and sensory changes. VA records in 2015 and 2016 reflect that the Veteran continued to be prescribed Sumatriptan for headaches. A June 2015 VA mental health record reflects that the Veteran complained of a headache while meeting with a provider. Based on the foregoing, the Board finds that the criteria for a 50 percent rating have been met. Although the DBQ does not specifically state that the Veteran’s migraines attacks are productive of severe economic inadaptability, the Board finds that having approximately 15 migraines a month which require the Veteran to “go to a dark place and be still” and with each migraine lasting all day is indicative of severe economic inadaptability. In essence, the Veteran is affected by her migraines 50 percent of the time; such could reasonably cause economic inadaptability. Therefore, a rating of 50 percent is warranted. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to an initial rating in excess of 10 percent for residual pain scar status post surgery for De Quervain’s Syndrome, and 3. Entitlement to a compensable initial rating for residual linear scar status post surgery for De Quervain’s Syndrome. The Veteran’s painful scar is rated as 10 percent disabling under DC 7804 during the entirety of the rating period on appeal. Her scar is also rated as noncompensable under DC 7805, which is the rating code for disabling effects not considered under another diagnostic code. The Board notes that, effective August 13, 2018, VA has revised 38 C.F.R. § 4.118. These revisions apply to all claims filed on or after August 13, 2018. As to claims filed prior to and pending on August 13, 2018, they are to be considered under both the old and new rating criteria and whatever criteria is more favorable to the veteran will be applied. 83 Fed. Reg. 32592. However, these changes do not provide the Veteran with a higher rating as they deal with treatment for skin disabilities (i.e. topical vs. systemic), replace some terminology under DCs 7801 and 7802, and pertain to multiple affected areas of the skin. Under DC 7804, the Veteran would be entitled to a higher rating if she had more than two scars and/or a scar was both painful and unstable. The evidence is against such a finding. A January 2013 DBQ reflects that the Veteran reported a burning, tingling/throbbing ache to her scar. The single scar was not both painful and unstable. The examiner noted that the scar was “barely visible”; it was a linear scar which was one centimeter in length. Clinical treatment records do not reflect that the Veteran complained of, or sought treatment, for an unstable scar or that she has more than two scars. The records also do not reflect that her scar, which is superficial, barely visible, and only a centimeter in length, causes any impairment in motion of her wrist or thumb, or any other disabling effect; thus, a compensable rating under DC 7805 is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Although a November 2016 DBQ reflects that the Veteran informed the examiner that she had stopped working in 2010 due to her medical issues and did not want to file for Social Security Administration (SSA) disability benefits, an August 2013 VA physical therapy record reflects that the Veteran reported that she had applied for SSA disability benefits three times and been denied each time. In contrast, a January 2013 Vocational Rehabilitation record reflects that the Veteran reported that she was in receipt of SSA disability benefits. A remand is required to allow VA to request SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). (The Veteran was diagnosed with HIV and Hepatitis C in approximately 2010. She contends that her left wrist symptoms began in 2010. Thus, SSA may have records pertinent to her claimed disabilities.) Evidence also indicates that there may be outstanding relevant VA treatment records. A November 2006 VA record reflects that the Veteran telephoned the Durham, North Carolina VA Medical Center (VAMC) and reported that she had been treated in Washington DC and Columbia, South Carolina. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues of entitlement to service connection which are on appeal. A remand is required to allow VA to obtain them. VA clinical records in 2016 reflect that the Veteran requested to use the Choice option to see a provider(s) outside the VA system for possibly her service-connected back disability. A remand is required to allow VA to obtain authorization and request these records 1. Entitlement to service connection for HIV is remanded. A January 2010 private record reflects abnormal test results for HIV and a positive result for HIV-1 IGG antibodies. An April 2010 VA clinical record reflects that the Veteran was at high risk for HIV given her comorbid infections and social risk factors; she denied a history of HIV. The Veteran was diagnosed with HIV more than two decades after separation from service. As noted above, additional records may be useful in adjudicating her claim. 2. Entitlement to service connection for Hepatitis C is remanded. The Veteran was diagnosed with Hepatitis C in approximately March 2010, more than two decades after separation from service. An April 2010 VA clinical record reflects that she reported having received a tattoo five years earlier, having used cocaine (but not in the last year), and that she had not had unprotected sex in the last five years. As noted above, additional records may be useful in adjudicating her claim.   3. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. The Veteran was diagnosed with left carpal tunnel syndrome in approximately, 2010, more than two decades after separation from service. A January 2013 DBQ reflects that the Veteran reported that the pain began in her shoulder and neck; the Veteran is not in receipt of service connection for a shoulder and/or neck disability. The examiner found that the Veteran’s left wrist disability is less likely than not due to a service-connected disability because if the Veteran had been over-using her left wrist to compensate for her right upper extremity disability (Dequervain’s Syndrome surgery for the wrist and thumb), she would have exhibited left wrist problems in the 1980s, 1990s, or 2000s, rather than developing carpal tunnel syndrome in the left wrist over the past year. While the Board finds that the DBQ is probative, the Board also finds that adjudicating the issue at this point would be premature because there may be outstanding relevant records (e.g. SSA). Thus, the matter must be remanded. 4. Entitlement to service connection for depression is remanded. The Veteran contends that the severity of her service-connected disabilities causes her depression. As noted herein, the severity of the Veteran’s disabilities are at issue, and there has been some inconsistency between her subjective complaints and objective complaints. Moreover, she has several nonservice-connected disabilities which have been noted to cause functional limitations and are responsible for her not having a significant other/partner which makes her feel “lonely”. Because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to service connection for depression, the issues are inextricably intertwined. A remand of the claim of entitlement to service connection for depression is required.   5. Entitlement to an increased rating for right ankle injury, right heel, and tendonitis, currently evaluated as 10 percent disabling is remanded. The Veteran’s disability is rated as 10 percent disabling under DC 5099-5024 for the entirety of the rating period on appeal. Under DC 5024, the Veteran’s disability is to be rated on limitation of motion of the affected parts as degenerative arthritis. A January 2013 DBQ reflects that the Veteran reported flare-ups, which she described as stiffness and tight nagging pain. It was noted how often these flare-ups occur. The Veteran had full strength, no instability, and full range of motion, albeit with pain at the endpoints. With regard to her right heel strain, tendonitis and degenerative changes, it was noted that the condition was asymptomatic. The examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) because it does not contain evidence passive range of motion measurements, and pain on weight-bearing testing for the ankle. Moreover, it does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) with regard to frequency and duration of flare-ups. Thus, a remand is warranted. 6. Entitlement to service connection for residuals of surgery for De Quervain’s Syndrome of the right wrist and thumb is remanded. The Veteran’s disability is rated as 10 percent disabling under DC 8520 for the entirety of the rating period on appeal. A January 2013 DBQ for the wrist reflects that the Veteran reported that she has flare-ups in that it is difficult to twist her wrist. Upon examination of the wrist, the Veteran had full muscle strength, and range of motion, albeit with pain at the endpoint. A January 2013 DBQ for the hand and fingers reflects that the Veteran reported that during a flare-up, she has no strength in the hand, pain, stiffness, burning, and loss of grip. Upon muscle strength testing, she had 4/5 for hand grip. The examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) because they do not contain evidence passive range of motion measurements, and pain on weight-bearing testing for the wrist and thumb. Moreover, they do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) with regard to frequency and duration of flare-ups. Thus, a remand is warranted. The Board notes that the Veteran has also been diagnosed with carpal tunnel syndrome, cubital tunnel syndrome, and upper extremity radiculopathy due to a cervical disability; none of which is service-connected. The Board finds that it may be helpful for an examiner to distinguish which of the Veteran’s symptoms are related to her service-connected disability from those that are unrelated. 7. Entitlement to an increased rating for degenerative disc disease, currently evaluated as 20 percent disabling is remanded. The Veteran underwent an examination for her back in January 2013. The report reflects that she described a flare up as a burning sensation and stiffness. The examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) with regard to frequency and duration of flare-ups. Thus, a remand is warranted. The Board also notes that clinicians have previously found that the Veteran’s complaints of pain have not been consistent with her physical examination. For instance, a December 2009 VA examiner found that the Veteran did not allow for the straight leg raise testing, but seemed to be able to sit up with assistance; the clinician (N.H.) found that the exam was “somewhat questionable.” Another December 2009 VA examiner (J.L.) found that the Veteran’s back examination was out of proportion, there were distractibility factors, and there were inconsistent factors. (The Board also notes that with regard to a September 2013 shoulder examination, the examiner (L.J.) found that the Veteran did not provide full effort upon testing, moved the right upper extremity without hesitation in the lobby, but then demonstrated restrictions upon formal testing.) Thus, because at least three examiners have found the Veteran’s testing to be questionable or open to doubt, the examiner should pay particular attention to effort put forth by the Veteran and consistency of symptoms and actions. In addition, as noted above, the Veteran has indicated that she would be interested in using Choice to obtain an outside provider for her back pain; thus, those records may be useful (see January 2016 VA clinical records). 8. Entitlement to an initial rating in excess of 20 percent disabling for radiculopathy of the left lower extremity is remanded and 9. Entitlement to an increased rating for radiculopathy of the right lower extremity, currently evaluated as 20 percent disabling is remanded. The Veteran’s right and left lower extremity disability are each evaluated as 20 percent disabling for each lower extremity effective from February 2011. A January 2013 DBQ reflects that the Veteran had constant severe pain, paresthesias, numbness of the lower extremities; however, the clinician found that her symptoms were only consistent with moderate incomplete paralysis. The Board finds that clarification may be useful to the Board. In addition, as the Veteran’s back is being remanded for another examiner, and as the lower extremity disabilities are related to the back, the Board finds they should also be remanded for examination. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran’s VA treatment records for the period from prior to September 2007 at the Durham, NC VAMC, Washington DC VAMC, Columbia SC VA facility, and from all VA treatment from August 2016 to present at the Durham VAMC, Greenville, NC, and all other relevant facilities, including through the Choice program. 3. Ask the Veteran to complete a VA Form 21-4142 for providers who have treated her right ankle and foot, back, radiculopathy, wrists, right hand, Hep C, HIV, and depression from 2016 to present. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for examinations of the current severity of (a.) Right wrist residuals of surgery for De Quervain’s syndrome: i. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. ii. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups expressed or estimated in terms of additional limitation of motion. iii. With regard to the Veteran’s RIGHT WRIST AND THUMB RESIDUALS FROM SURGERY FOR DE QUERVAIN’S SYNDROME, the examiner, to the extent reasonably possible, should differentiate symptoms from her service-connected disability from nonservice-connected disabilities (i.e. carpal tunnel syndrome, cubital tunnel syndrome, and cervical radiculopathy). (b.) Right ankle/heel strain/tendonitis/ degenerative changes i. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. ii. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups expressed or estimated in terms of additional limitation of motion. (c.) DDD of the thoracolumbar spine with IVDS, and bilateral lower extremity radiculopathy i. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. ii. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups expressed or estimated in terms of additional limitation of motion. iii. With regard to the Veteran’s LOWER EXTREMITY RADICULPATHY, the clinician, should if reasonably possible, elaborate on why the Veteran’s January 2013 DBQ findings are indicate of only “moderate” radiculopathy. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disabilities alone and discuss the effect of each of the Veteran’s on any occupational functioning. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). For all of Veteran’s symptoms for all disabilities, the examiner(s) should assess the integrity of the Veteran’s reported symptoms to include with regard to range of motion and pain due to a past clinical findings of inconsistency, distractibility findings, and examination findings of lack of full effort. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard