Citation Nr: 18144637 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 11-06 290 DATE: October 25, 2018 ORDER An initial rating of 40 percent, but no higher, for lumbar degenerative disc disease is granted prior to February 22, 2010, and beginning May 1, 2010. Prior to April 17, 2013, an initial rating of 50 percent, but no higher, for mixed headache syndrome, migraine predominant is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted beginning on September 1, 2008. FINDINGS OF FACT 1. The evidence is at least in equipoise with regard to showing that the Veteran’s lumbar degenerative disc disease was manifested by forward flexion of the thoracolumbar spine 30 degrees or less prior to February 22, 2010, and beginning May 1, 2010; the preponderance of the competent medical evidence is against a finding that it has been manifested by unfavorable ankylosis of the entire thoracolumbar spine during the appeal period. 2. The evidence is at least in equipoise with regard to showing that prior to April 17, 2013, the Veteran’s mixed headache syndrome, migraine predominant was manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The evidence is at least in equipoise with regard to showing that the Veteran is unable to obtain and/or maintain substantially gainful employment due solely to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to February 22, 2010, and beginning May 1, 2010, the criteria for an initial rating of 40 percent, but no higher, for lumbar degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 2. Prior to April 17, 2013, the criteria for an initial rating of 50 percent, but no higher, for mixed headache syndrome, migraine predominant have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8100 (2017). 3. Beginning September 1, 2008, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to August 2008. He served honorably in the United States Air Force. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from October and November 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. This matter was previously before the Board in April 2015 when it was remanded for further development, to include for updated VA examinations pursuant to the Veteran’s testimony during the February 2015 Board hearing before the undersigned that his service-connected lumbar degenerative disc disease and mixed headache syndrome, migraine predominant had worsened, as well as for an assessment of their occupational impairment for the purposes of his TDIU claim. Increased Ratings Where a veteran is seeking a higher initial rating for a service-connected disability, the history of that disability from the date of service connection will be evaluated. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings, or separate ratings based on evidence showing that a veteran’s disability was different at distinct times, will always be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA assigns a percentage rating for a disability by comparing a veteran’s disability against criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1. The Schedule is based on the average reduction in earning capacity in civilian occupations resulting from diseases and injuries associated with service in the armed forces. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If a veteran’s symptoms implicate two different ratings under a single Diagnostic Code (DC) in the Schedule, then VA will assign the higher rating provided that the symptoms more closely align with the criteria for the higher rating. See 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA’s determination about which rating to assign is also informed by a broad interpretation of the law consistent with the facts of each case and, if there is a reasonable doubt as to the degree of a veteran’s disability, then the doubt will be resolved in the Veteran’s favor. See id. § 4.3. After VA assigns a rating, that rating may require re-evaluation in the future in keeping with changes to the Veteran’s condition, the law, and medical knowledge. See id. § 4.1. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. Additional reference to the Veteran’s disabilities are presented in additional evidence of 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 disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. For the purpose of evaluating lay evidence, to include a veteran’s statements about his health conditions, competent evidence is “limited to that which the witness has actually observed, and is within the realm of his personal knowledge.” Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptoms of an injury or illness (such as pain or the visible flatness of the feet), a lay person is “not competent to opine as to medical etiology or render medical opinions.” Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Entitlement to an initial rating in excess of 10 percent prior to February 22, 2010; in excess of 10 percent from May 1, 2010, until November 16, 2015; and in excess of 20 percent beginning November 16, 2015, for lumbar degenerative disc disease When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. All applicable rating criteria are to be discussed, in addition to any DCs the Veteran is already rated under. See Butts v. Brown, 5 Vet. App. 532 (1993). Here, the Veteran’s service-connected lumbar degenerative disc disease is rated under DC 5242. Pursuant to the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, DC 5242. As to the first stage, prior to February 22, 2010, where the Veteran has a 10 percent rating, the Board concludes that the evidence is at least in equipoise with regard to showing that the Veteran’s lumbar degenerative disc disease was manifested by forward flexion of the thoracolumbar spine 30 degrees or less. The Veteran retired from the Air Force on August 31, 2008, and he is service-connected beginning the next day on September 1, 2008. Pursuant to the Veteran’s pre-discharge VA examination, lumbar flexion was 30 degrees with pain on motion reported to be 9 out of 10. Private treatment records dated August 2009 show forward flexion 20 degrees with severe back pain. On the other hand, a November 2008 VA examination report shows forward flexion 65 degrees but without addressing additional range of motion loss due to pain or during flare-ups notwithstanding evidence in the report that the Veteran experiences flare-ups resulting in increased pain that interferes with lifting and bending. Similarly, private treatment records dated October 2008 note 75 degrees of flexion but do not address additional functional loss due to pain and during flare-ups despite evidence of both in the report. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that prior to February 22, 2010, forward flexion was 30 degrees or less and a 40 percent rating under DC 5242 is warranted. At the same time, the Board concludes that a higher rating of 50 percent is not warranted because the preponderance of the competent medical evidence is against a finding that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine; the aforementioned medical evidence demonstrates that he retained some flexibility and range of motion. The Board notes that 40 percent is the highest rating available under DC 5242 based on limitation of motion. Accordingly, a 50 percent rating is not warranted. As to the second stage, from May 1, 2010, until November 16, 2015, where the Veteran has a 10 percent rating, the Board concludes that the evidence is at least in equipoise with regard to showing that the Veteran’s lumbar degenerative disc disease was manifested by forward flexion of the thoracolumbar spine 30 degrees or less. In September 2010, the Veteran’s private physician indicated he had back pain such that he avoided bending. Consistently, private treatment records from November 2010 show the Veteran had lumbar pain on flexion that limited his range of motion to 10 and 25 percent in October 2010 and November 2010 respectively. The Board notes that forward flexion range of motion is measured from 0 to 90 degrees and 25 percent of 90 degrees is 22.5 degrees. At the same time, December 2010 private treatment records show flexion of 50 percent (45 degrees) with pain but without addressing additional range of motion loss due to the Veteran’s reported flare-ups after sitting and standing. Also, February 2011 private treatment records contain evidence of no pain on forward flexion in contrast to the September 2010 private treatment records. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that from May 1, 2010, until November 16, 2015, forward flexion was 30 degrees or less and a 40 percent rating under DC 5242 is warranted. At the same time, the Board concludes that a higher rating of 50 percent is not warranted because the preponderance of the competent medical evidence is against a finding that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine; the aforementioned medical evidence demonstrates that he retained some flexibility and range of motion. Accordingly, a 50 percent rating is not warranted. As to the third stage, beginning November 16, 2015, where the Veteran has a 20 percent rating, the Board concludes that the evidence is at least in equipoise with regard to showing that the Veteran’s lumbar degenerative disc disease is manifested by forward flexion of the thoracolumbar spine 30 degrees or less. The February 2018 VA examination report shows forward flexion limited to 35 degrees during flare-ups but the examiner’s negative opinion regarding additional range of motion loss on weight-bearing did not address the Veteran’s competent lay statements as to pain on lifting and contradicts the examiner’s own conclusion as to functional impact that lifting is restricted. Consistently, the November 2015 VA examination report shows forward flexion of 40 degrees but the examiner indicated that no flare-ups were reported notwithstanding the Veteran’s competent lay statements of random sharp pain multiple times each month; as a result, the 40 degree measurement did not account for additional range of motion loss during flare-ups. Similarly, the examiner opined that there was no pain on weight bearing notwithstanding evidence in the report that the Veteran cannot lift a gallon of milk. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that beginning November 16, 2015, forward flexion was 30 degrees or less and a 40 percent rating under DC 5242 is warranted. At the same time, the Board concludes that a higher rating of 50 percent is not warranted because the preponderance of the competent medical evidence is against a finding that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine; both of the aforementioned examination reports affirmatively state that he does not have ankylosis. Accordingly, a 50 percent rating is not warranted. Entitlement to an initial rating in excess of 30 percent prior to April 17, 2013, for mixed headache syndrome, migraine predominant The Veteran’s service-connected mixed headache syndrome, migraine predominant is rated under DC 8100. Prior to April 17, 2013, he has a 30 percent rating and beginning on April 17, 2013, he is in receipt of the maximum 50 percent rating. In the Veteran’s March 2011 substantive appeal, he contended that he should have a 50 percent rating throughout the appeal period. Under DC 8100, a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent rating for migraine headaches is warranted when there are characteristic prostrating attacks occurring on an average once a month over last several months. A maximum rating of 50 percent is warranted for very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. The Rating Schedule does not define “prostrating.” However, “prostration” has been defined as “complete physical or mental exhaustion.” Merriam-Webster’s New Collegiate Dictionary 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). According to Stedman’s Medical Dictionary, 27th Edition (2000), p.1461, “prostration” is defined as “a marked loss of strength, as in exhaustion.” See e.g., Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013). Additionally, the terms “productive of severe economic adaptability” have not been clearly defined by regulations or by case law. The United States Court of Appeals for Veteran’s Claims (Court) has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, “economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at a minimum, capable of producing “severe” economic inadaptability. Furthermore, because the ameliorative effects of medication do not appear to be contemplated by the rating criteria under Diagnostic Code 8100, they should not be considered. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Last, pursuant to the recent Court decision in Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims LEXIS 1253 (Vet. App. Sep. 19, 2018), when determining the proper rating for a veteran’s service-connected headache disability, the evidence must show that all the criteria listed for that particular rating are met as well as all the requirements of the lower ratings. Here, the Board concludes that the evidence is at least in equipoise with regard to showing that prior to April 17, 2013, the Veteran’s mixed headache syndrome, migraine predominant was manifested by very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. Pursuant to the Veteran’s April 2008 pre-discharge VA examination, the Veteran reported experiencing five migraines per month each lasting up to a full day. The examiner noted that the Veteran was experiencing a migraine during the examination and opined that it interfered greatly with his vision and frequently interfered with his ability to carry on normal functions, taking up a great deal of his life. The Veteran reported past attempts at treatment with medications to include Inderal, Verapamil, Topamax, Elavil, Gabapentin, Zomig, Motrin, and Naproxen in connection with seeing a neurologist and numerous emergency room visits. It was also noted that the Veteran’s migraines made him sensitive to light. Consistently, September 2008 medical records show 6-10 migraines per month and October 2008 medical records indicate the Veteran experienced dizziness with his migraines. During the May 2010 VA examination, the Veteran was having 7-10 migraines per month with a pain level 10 out of 10 lasting as long as all night and accompanied by vomiting. Treatment included lying down in a cold, dark room with pillows supporting his head. November 2010 private treatment records describe a migraine lasting a few days. What is more, three buddy statements added to the claims file in March 2009 attest to the high frequency, extreme severity, long duration, and significant economic inadaptability of the Veteran’s migraines during service, including just two months prior to his discharge. For the purposes of the lower rating percentages, the Board finds that the aforementioned evidence is reasonably indicative of characteristic prostrating attacks occurring on an average of once a month over last several months. See Johnson. The Board also finds that the Veteran’s demonstrated symptoms prior to April 17, 2013, are consistent with the evidence cited by the March 2018 rating decision granting a rating of 50 percent beginning on April 17, 2013, to include 7 to 10 migraines per month lasting 4 to 5 hours with pain at 10/10, vomiting, sensitivity to light, and changes in vision. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that prior to April 17, 2013, his mixed headache syndrome, migraine predominant was manifested by very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability and the maximum 50 percent rating under DC 8100 is warranted. Entitlement to a TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry is whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. See 38 C.F.R. § 4.15. Here, taking into account the above initial increased rating determinations in this decision, the Veteran is now in receipt of a 40 percent rating under DC 5242 for lumbar degenerative disc disease throughout this appeal (exclusive of the temporary 100 percent rating period from February 22, 2010, until May 1, 2010) and a 50 percent under DC 8100 for mixed headache syndrome, migraine predominant. His only other compensable rating is 10 percent under DC 5299-5271 for status post nondisplaced right ankle fracture. All of the Veteran’s compensable ratings are effective September 1, 2008. Accordingly, the Veteran meets the schedular TDIU rating percentage requirements throughout the appeal. Turning to the question of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, the Board concludes that the evidence is, at least, in equipoise and a TDIU is warranted. The evidence of record, to include the February 2015 Board hearing transcript, shows that the Veteran has not worked since he retired from the Air Force in 2008. He earned a bachelor’s degree online in business administration in 2010 from Columbia Southern University. Pursuant to the April 2008 pre-discharge VA examiner, the Veteran’s migraines took up a great deal of his life and interfered frequently with his ability to carry on his normal functions. At that time, he was having approximately five migraines per month each lasting a day. They restricted his vision and were accompanied by vomiting. October 2008 medical records showed dizziness, and again vomiting, in connection with his migraines as well as pain associated with his lumbar disc disease being increased when sitting and walking. The Board finds that such symptoms are consistent with buddy statements contained in the claims file, including one covering a period of time immediately before the Veteran retired, attesting to his lost duty time and productivity due to migraines. The November 2008 VA examiner opined that his back disability caused occupational impairment and pain on prolonged sitting was noted. In September 2009, the Veteran’s private physician opined that his back condition disrupted his life significantly. Pursuant to the May 2010 VA examiner, the Veteran’s migraines caused moderate functional limitation notwithstanding associated nausea, vomiting, sensitivities to light, weather, altitude, and noise necessitating the Veteran to lie down in a cold, dark room with flare-ups occurring up to 10 times per month. November 2010 private treatment records document increased back pain when sitting and standing for long periods of time. The November 2015 VA examiner opined that the Veteran’s migraine condition did impact his ability to work, though moderately, notwithstanding prostrating migraines occurring once every month and up to 10 other migraines lasting up to eight hours each. As to his degenerative disc disease, the November 2015 VA examiner opined that it does impact his ability to work, though again only mildly, despite the Veteran reporting back difficulties such as bearing the weight of a gallon of milk. In the February 2018 VA spine examination report, the examiner indicated that the Veteran cannot sit or stand for more than 10 minutes at one time with difficulty putting on his shoes; however, the examiner opined that the only occupational limitations imposed on the Veteran by his condition was no running or heavy lifting. The February 2018 VA migraine examiner opined that the Veteran’s migraines do not impact his ability to work at all, notwithstanding the Veteran’s suggestion during the examination that he would have to take off from a hypothetical job three to four times per month with up to two hour breaks during certain episodes. However, also in February 2018, a VA clinician opined separately that the Veteran’s migraines greatly hamper his ability to carry a job due to his need for frequent rest and time off because his concentration, communication, and processing are hindered during his frequent migraines. A separate VA medical opinion, also from February 2018, states that due to the Veteran’s back condition he can only perform light clerical work. (Continued on the next page)   The Board finds that the Veteran’s service-connected disabilities, taken together, render him unable to secure or follow a substantially gainful occupation throughout the duration of this appeal. To the extent employment is possible, it would be only marginal. Although the Veteran earned a bachelor’s degree in 2010, the Board notes that the Columbia Southern University program is online and thus afforded him a higher degree of flexibility to complete the degree at home and on a schedule adapted to the limitations imposed by his service-connected disabilities. Accordingly, resolving all reasonable doubt in favor of the Veteran, a TDIU is warranted beginning on September 1, 2008. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fales, Associate Counsel