Citation Nr: 18145443 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-08 546 DATE: October 29, 2018 ORDER Entitlement to an initial 30 percent disability evaluation for migraine headaches, for the rating period prior to May 5, 2014, is granted. REMANDED Entitlement to an initial compensable disability evaluation for duodenitis is remanded. Entitlement to an effective date prior to June 26, 2014 for the grant of entitlement to service connection for right acromioclavicular joint osteoarthritis is remanded. Entitlement to a compensable disability evaluation for right elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of flexion, for the period prior to May 5, 2014, is remanded. Entitlement to an increased disability evaluation for right elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of flexion, rated as 10 percent disabling since May 5, 2014, is remanded. Entitlement to a compensable disability evaluation for left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of flexion, for the period prior to May 5, 2014, is remanded. Entitlement to an increased disability evaluation for left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of flexion, rated as 10 percent disabling since May 5, 2014, is remanded. Entitlement to a compensable disability evaluation for right elbow medial epicondylitis with lateral epicondylitis, including tendonitis, impairment of supination and pronation, for the period prior to May 5, 2014, is remanded. Entitlement to an increased disability evaluation for right elbow medial epicondylitis with lateral epicondylitis, including tendonitis, impairment of supination and pronation, rated as 10 percent disabling since May 5, 2014, is remanded. Entitlement to a compensable disability evaluation for left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, impairment of supination and pronation, for the period prior to May 5, 2014, is remanded. Entitlement to an increased disability evaluation for left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, impairment of supination and pronation, rated as 10 percent disabling since May 5, 2014, is remanded. Entitlement to an initial compensable disability evaluation for right elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of extension, is remanded. Entitlement to an initial compensable disability evaluation for left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of extension, is remanded. FINDING OF FACT The Veteran’s migraine headaches most closely approximated prostrating attacks occurring at least once a month over the last several months, for the rating period prior to May 5, 2014. CONCLUSION OF LAW The criteria for an initial 30 percent disability rating, but no higher, for migraine headaches, have been met for the rating period prior to May 5, 2014. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from May 2002 to December 2012. These matters come before the Board of Veterans’ Appeals (Board or BVA) on appeal from rating decisions dated in February 2013, February 2015, and December 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California and Winston-Salem, North Carolina. The Los Angeles, California currently maintains original jurisdiction. The Board observes that, in the VA Form 8 (Certification of Appeal), the RO indicated that the issues of entitlement to increased disability evaluations for right hand strain index and long fingers, right hand strain ring finger, right hand strain little finger, left hand strain index and long fingers, left hand strain ring finger, and left hand strain little finger, as well as the issue of entitlement to an increased disability evaluation for migraine headaches for the rating period since May 5, 2014, were being certified to the Board. However, the Veteran’s February 2016 VA Form 9 (Appeal to the Board of Veterans’ Appeals) expressly indicates that the Veteran was satisfied with the ratings assigned for these disabilities and did not wish to appeal them to the Board. As such, the RO certified these issues in error and these issues are not for consideration. Entitlement to an initial compensable disability evaluation for migraine headaches, for the rating period prior to May 5, 2014 Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued a notice letter to the Veteran. The letter explained the evidence necessary to substantiate the Veteran’s initial claims of entitlement to service connection and the legal criteria for entitlement to such benefits; the claim for an increased disability rating is downstream from the grant of service connection. The letter also informed him of his and VA’s respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the Veteran’s own statements in support of his claim. The Veteran was afforded VA examinations responsive to the claim for an increased disability evaluation. The examination reports contain all the findings needed to assess the Veteran’s service-connected migraine headaches, including history and clinical evaluation. See 38 C.F.R. § 3.327(a) (2018); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the Veteran’s own statements in support of his claim. The Board has reviewed the Veteran’s statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran’s claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Increased Rating Disability evaluations are determined by application of the criteria set forth in the 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. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the service-connected disability on appeal has not materially changed and a uniform evaluation is warranted for the rating period on appeal. The Veteran was initially assigned a noncompensable disability rating, effective December 8, 2012, for his migraine headaches pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. As previously noted, in a December 2015 rating decision, the Veteran was assigned a 30 percent disability rating, effective May 5, 2014 for his migraine headaches; this rating period is not currently on appeal. Under Diagnostic Code 8100, a 10 percent rating is in order where there is evidence of characteristic prostrating attacks due to migraines that average one every two months lasting over several months. A 30 percent disability evaluation is assigned where there are characteristic prostrating attacks occurring on average once a month over the last several months. For a higher, 50 percent disability evaluation to be warranted, there must be migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Neither the rating criteria nor the Court has defined the term “prostrating.” According to Webster’s New World Dictionary of American English, Third College Edition 1080 (1986), “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 term “productive of severe economic inadaptability” is not defined by VA regulations. The Court, however, has stated that this term is not synonymous with being completely unable to work and that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). After a review of the evidence, the Board finds that the Veteran’s headaches most closely approximate the criteria for an initial 30 percent disability evaluation for the rating period prior to May 5, 2014. The Board finds that the Veteran’s symptoms due to his migraine headaches have been relatively consistent and that the 30 percent evaluation takes into account the frequency and severity of the Veteran’s headaches for the rating period prior to May 5, 2014. Throughout the rating period prior to May 5, 2014, the Veteran’s migraine headaches have been characterized by headaches occurring approximately 3 – 4 times a week over the last several months. Upon evaluation in December 2012, the VA examiner noted that the Veteran’s headaches are accompanied by sensitivity to light, worsen with activity, last less than one day, and occur on both sides of the head; in his notice of disagreement, the Veteran also reported sensitivity to sound. The Board acknowledges that the Veteran requires medication to alleviate his symptoms. Nonetheless, the Board points out that the medical evidence does not show that the Veteran experiences very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; rather, the VA examination reports and treatment records indicate that he rarely missed work due to his headaches. The Board acknowledges that the December 2012 VA examiner did not characterize the Veteran’s headaches a prostrating. However, a finding that the Veteran’s migraine headaches worsened on the date of the May 2014 VA examination and not in the interim time period between examinations is incongruous with the medical and lay evidence of record. In particular, the Veteran asserted that his migraine headaches were worsening and he provided a consistent report of related symptomatology during the rating period prior to May 5, 2014. It is clear that the Veteran’s migraine headaches worsened at some, unknown point, prior to the May 5, 2014 VA examination. In conclusion, the evidence of record reveals manifestations consistent with a 30 percent evaluation, but no more, for the rating period prior to May 5, 2014 for migraine headaches. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to an initial compensable disability evaluation for duodenitis is remanded. 2. Entitlement to an effective date prior to June 26, 2014 for the grant of entitlement to service connection for right acromioclavicular joint osteoarthritis is remanded. 3. Entitlement to a compensable disability evaluation for right elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of flexion, for the period prior to May 5, 2014, is remanded. 4. Entitlement to an increased disability evaluation for right elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of flexion, rated as 10 percent disabling since May 5, 2014, is remanded. 5. Entitlement to a compensable disability evaluation for left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of flexion, for the period prior to May 5, 2014, is remanded. 6. Entitlement to an increased disability evaluation for left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of flexion, rated as 10 percent disabling since May 5, 2014, is remanded. 7. Entitlement to a compensable disability evaluation for right elbow medial epicondylitis with lateral epicondylitis, including tendonitis, impairment of supination and pronation, for the period prior to May 5, 2014, is remanded. 8. Entitlement to an increased disability evaluation for right elbow medial epicondylitis with lateral epicondylitis, including tendonitis, impairment of supination and pronation, rated as 10 percent disabling since May 5, 2014, is remanded. 9. Entitlement to a compensable disability evaluation for left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, impairment of supination and pronation, for the period prior to May 5, 2014, is remanded. 10. Entitlement to an increased disability evaluation for left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, impairment of supination and pronation, rated as 10 percent disabling since May 5, 2014, is remanded. 11. Entitlement to an initial compensable disability evaluation for right elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of extension, is remanded. 12. Entitlement to an initial compensable disability evaluation for left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, limitation of extension, is remanded. In February 2013, the RO granted the Veteran’s claim of entitlement to service connection for duodenitis and assigned a noncompensable disability rating, effective December 8, 2012. In February 2015, the RO granted the Veteran’s claim of entitlement to service connection for right acromioclavicular joint osteoarthritis, and assigned a 10 percent disability evaluation effective June 26, 2014. In a December 2015 rating decision, the RO granted entitlement to service connection for the Veteran’s right and left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, with limitation of flexion, impairment of supination and pronation, and limitation of extension; initial noncompensable disability ratings were assigned effective December 8, 2012 and 10 percent disability evaluations were assigned for limitation of flexion and impairment of supination and pronation effective May 5, 2014. In the December 2013 notice of disagreement, the Veteran indicated that he disagreed with the assignment of an initial noncompensable disability evaluation for duodenitis. In the February 2016 VA Form 9 (Appeal to the Board of Veterans’ Appeals), the Veteran indicated that he disagreed with the effective date for the grant of service connection for right acromioclavicular joint osteoarthritis, as well as disagreed with the disability evaluations assigned for his l right and left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, with limitation of flexion, impairment of supination and pronation, and limitation of extension. Because the Veteran filed a notice of disagreement as to these issues, the Veteran is entitled to a statement of the case addressing the issue of entitlement to an initial compensable disability rating for duodenitis and the issues of entitlement to increased disability ratings for right and left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, with limitation of flexion, impairment of supination and pronation, and limitation of extension, as well as the issue of entitlement to an earlier effective date for the grant of service connection for right acromioclavicular joint osteoarthritis. When a claimant files a notice of disagreement to an issue, the Veteran is entitled to a statement of the case addressing the issue. When a claimant has filed a notice of disagreement and there is no statement of the case on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: The RO should issue a statement of the case regarding the statement of the case addressing the issue of entitlement to an initial compensable disability rating for duodenitis and the issues of entitlement to increased disability ratings for right and left elbow medial epicondylitis with lateral epicondylitis, including tendonitis, with limitation of flexion, impairment of supination and pronation, and limitation of extension, as well as the issue of entitlement to an earlier effective date for the grant of service connection for right acromioclavicular joint osteoarthritis. The appellant and his representative should be advised that, for the Board to have jurisdiction of these matters, a timely substantive appeal must be filed. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel