Citation Nr: 18149440 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-42 450 DATE: November 9, 2018 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to an initial 50 percent disability rating for service-connected migraine headaches with aura and photophobia is granted. REMANDED Entitlement to service connection for a liver disorder is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected left knee patellofemoral syndrome with left shin splints (left knee disability) is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected right knee patellofemoral syndrome with shin splints (right knee disability) is remanded. Entitlement to an initial rating in excess of 50 percent prior to December 4, 2015, for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder with traumatic brain injury (TBI), to include the propriety of combining the ratings for service-connected PTSD with major depressive disorder and TBI, effective December 4, 2015, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The probative evidence is against a finding that the Veteran has, or has had at any time during the appeal, a current bilateral hearing loss disability. 2. Throughout the period of the appeal, the Veteran has experienced very frequent, completely prostrating migraine headaches productive of severe economic inadaptability. CONCLUSION OF LAW 1. The criteria for service connection for a bilateral hearing loss disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2017). 2. The criteria for an initial 50 percent disability rating for service-connected migraine headaches with aura and photophobia are met, effective June 6, 2014. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2001 to June 2014. 1. Entitlement to service connection for bilateral hearing loss The Veteran claims entitlement to service connection for a bilateral hearing loss disability. The question for the Board is whether he has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current bilateral hearing loss disability as defined by VA under the provisions of 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies are 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. An October 2013 service treatment record notes the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 10 15 LEFT 15 5 10 15 15 An October 2014 VA examination notes the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 20 15 25 LEFT 10 15 15 10 10 Speech audiometry revealed speech recognition ability of 100 percent bilaterally. Because the audiometric results did not meet VA’s definition of hearing loss in 38 C.F.R. § 3.385, the examiner did not provide an opinion as to nexus to service. In comparing the results of the audiological testing to the regulatory criteria set forth in 38 C.F.R. § 3.385, the Board must conclude that the evidence is against a finding that the Veteran currently suffers from a hearing loss disability as defined by VA. Crucially, no other competent medical evidence in the record indicates a bilateral hearing loss disability in accordance with 38 C.F.R. § 3.385. In the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board in no way calls into question the Veteran’s observations of diminished hearing acuity. The probative evidence discussed above, however, does not demonstrate that the Veteran’s hearing loss is so severe as to constitute a disability for VA purposes. He has not asserted that his hearing loss has worsened in severity since he was last examined by VA. Therefore, the Board finds that service connection for bilateral hearing loss is not warranted. In reaching this decision, because a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and his claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to an initial compensable rating prior to August 25, 2015, and in excess 30 percent thereafter, for service-connected migraine headaches with aura and photophobia Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Historically, service connection for migraine headaches with aura and photophobia was granted in the June 2014 rating decision on appeal, at which time the AOJ assigned an initial noncompensable disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, effective June 6, 2014. In a March 2016 rating decision, the AOJ increased his disability rating to 30 percent, effective August 25, 2015. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; and a 50 percent evaluation is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 50 percent rating is the maximum rating available under Diagnostic Code 8100. The Rating Schedule does not define “prostrating.” “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 Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013) (The Board adopts the Court’s definition as its own.). 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 a total disability rating based on individual unemployability. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at minimum capable of producing “severe” economic inadaptability. Pertinent evidence of record includes the Veteran’s service treatment records, his lay statements, VA examinations dated in February 2014, August 2015, and June 2016, and VA treatment records. In February 2014, the Veteran underwent a VA examination prior to his discharge. The examiner noted that he had been diagnosed with migraine variants, and that his symptoms included constant head pain experienced more frequently than once per month. The examiner indicated that the Veteran’s migraine headaches were not characteristically prostrating. A March 2014 service treatment record noted that the Veteran was prescribed medication for his headaches that he was supposed to take at the onset of a headache. He was counseled to rest in a dark quiet place for two hours after taking the medication. A March 2014 Intake History Form noted the Veteran’s reports of headaches two to three times a week. He stated that that he experienced a throbbing pain on the top of his head, as well as light sensitivity. In addition to taking medication, the Veteran indicated that he would need to turn the lights off and retreat to a quiet room at the onset of a headache. In another questionnaire, the Veteran indicated that he experienced severe headache pain very often; that his headaches very often limited his ability to perform activities of daily living; that he always wished he could lie down when he experienced a headache; and that, very often, his headaches limited his ability to concentrate on work or daily activities. A March 2014 headache diary indicated that the Veteran experienced seven headaches from March 11 to March 25. He described his head pain as throbbing, pulsing, and stabbing. During three of those headaches, the Veteran indicated that he went to a dark room to find relief. In a June 2014 questionnaire, the Veteran rated his headaches as severe, which was defined as “frequently present and disrupts activities; I can only do things that are fairly simple or take little effort; I feel I need help.” A June 2014 service treatment record noted the Veteran’s complaint of headaches two to three times per week. An August 2015 VA headaches examination noted that the Veteran’s experienced migraine type headaches, and has been sensitive to light and had visual difficulties. The examiner noted that he experienced two to three headaches per week. His symptoms included constant head pain, pulsating or throbbing head pain, and pain on both sides of his head. Additionally, he experienced sensitivity to light and sound, and changes in vision. The typical duration of head pain was two hours. The examiner opined that the Veteran experienced characteristically prostrating attacks once a month, but that his attacks did not result in very prostrating and prolonged attacks productive of severe economic inadaptability. However, the examiner did note that that the Veteran’s migraine headaches impacted his ability to work. Specifically, the examiner noted that, when he suffered from a headache, he became more irritable which made employment and interpersonal communications difficult. A June 2016 VA headaches examination noted that the Veteran experienced four to five headaches per week. His symptoms included pulsating or throbbing head pain, pain on both sides of his head, and worsening pain with physical activity. Additionally, he experienced sensitivity to light and sound, and changes in vision. The typical duration of head pain was less than one day. The examiner opined that the Veteran experienced characteristically prostrating attacks more than once a month, and that his attacks resulted in very prostrating and prolonged attacks productive of severe economic inadaptability. Moreover, the examiner noted that that the Veteran’s migraine headaches impacted his ability to work, and that he would have to confine himself to a dark space in the corner of a room four to five times per week for a couple of hours. In an August 2016 statement, the Veteran argued that, prior to his discharge, he experienced three to four prostrating migraines per week, and that his sensitivity to noise and sound was severe. Upon review of all the evidence, and after resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected headache disability results in very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. The various symptoms such as a throbbing, pulsing, and stabbing pain; light and sound sensitivity; changes in vision; as well as the need to retreat to a dark, quiet room for multiple hours to find relief rest during his attacks are representative of severe headaches that can reasonably be described as completely prostrating. Both prior to and following his discharge, the Veteran has credibly stated that his completely prostrating and prolonged usually lasted close to two hours, and that he experienced between two and five per week. The Board has no reason to question the credibility of the Veteran’s report of the frequency and duration of his headache symptoms. Lay evidence is competent when provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159(a)(2) (2016); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Moreover, his reports are supported by his in-service treatment records, and the June 2016 VA examiner who noted that the Veteran experienced characteristically prostrating attacks more than once a month. The Board finds that the Veteran’s headaches impair his functioning at work to a degree that amounts to “severe economic inadaptability.” As noted above, even prior to his discharge, he stated that, very often, his migraine headaches limited his ability to perform and concentrate on work activities of daily living. Furthermore, given the frequency and duration of the Veteran’s prostrating attacks, up to five prostrating attacks per weeks lasting hours at a time, the Board finds that such would severely impact his ability to function in any form of employment. Moreover, this finding is further supported by the August 2015 VA examiner who indicated that the Veteran’s migraine headaches impact his ability to work, as well as the June 2016 VA examiner who noted that he experienced very frequent characteristically prostrating attacks that require confinement to a dark space. The Board therefore finds that the symptoms of the Veteran’s headaches more nearly approximate the criteria for a 50 percent rating for the entire period under review. His headaches are more frequent than the once-per-month envisioned by the 30 percent rating. The headaches are shown to be completely prostrating and prolonged, as well as productive of severe economic inadaptability. Thus, an initial 50 percent disability rating is warranted for the Veteran’s service-connected migraine headaches with aura and photophobia, effective June 6, 2014. See 38 C.F.R. § 4.124(a), Diagnostic Code 8100. The Board observes that a schedular rating in excess of 50 percent is not available for headaches under these rating criteria. REASONS FOR REMAND 1. Entitlement to service connection for a liver disorder is remanded. A May 2013 service treatment record notes that ultrasound results revealed a mildly enlarged fatty liver versus diffuse hepatic parenchymal disease. In connection with his claim for service connection, the Veteran underwent a VA examination in February 2014. The examiner noted his history of abnormal liver function tests with other multiple abnormal lab results, but that a liver condition had not been formally diagnosed to date. The examiner indicated that the Veteran needed further evaluation by his physician. Subsequently, a September 2015 VA treatment record noted that the Veteran’s problems included “liver disease (fatty liver).” Because the February 2014 VA examination report is unclear as to the presence of a currently-diagnosed liver disorder and whether such is related to his military service, and because the September 2015 VA treatment record indicates a current diagnosis, the Veteran should be afforded a new VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to initial ratings in excess of 10 percent for service-connected left knee disability and right knee disability are remanded. The most recent VA examination to assess the nature and severity of the Veteran’s service-connected left knee disability and right knee disability was in February 2014, at which time, the examiner indicated that his bilateral knee disabilities did not interfere with sitting, standing, or weight bearing. However, in his September 2016 substantive appeal, the Veteran indicated that he could not stand for any prolonged periods of time due to the severity of pain in his knees. When available evidence is too old for an adequate evaluation of the Veteran’s current condition, VA’s duty to assist includes providing a new examination. See Weggerman v. Brown, 5 Vet. App. 281 (1993). Not only is this last examination remote, but the record indicates that his condition may have worsened since the February 2014 VA examination. As such, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the claim for higher initial ratings. (Continued on Next Page) 3. Entitlement to an initial rating in excess of 50 percent prior to December 4, 2015, for service-connected PTSD with major depressive disorder with TBI, to include the propriety of combining the ratings for service-connected PTSD with major depressive disorder and TBI, effective December 4, 2015, is remanded. By way of background, the June 2014 rating decision on appeal granted service connection for PTSD with major depressive disorder, and assigned a 50 percent disability rating, effective June 6, 2014, the day after the Veteran was discharged from active duty. In June 2015, the Veteran filed a notice of agreement with the initially assigned rating. That same month he also filed a claim for service connection for TBI. In a September 2015 rating decision, the AOJ granted service connection for TBI, and assigned a 70 percent disability rating, effective June 5, 2015, the day his claim was received. A December 2015 VA examiner concluded that it was possible to differentiate between the symptoms and the level of occupational and social impairment attributable to the Veteran’s service-connected PTSD and his service-connected TBI; however, the examiner also indicated that, while his major impairment was due to his PTSD, the symptoms associated with his TBI exacerbates and makes his PTSD symptoms much worse to address or to treat. In June 2016, the Veteran underwent a VA TBI examination. Contrary to the findings of the December 2015 examiner, the June 2016 VA examiner stated it was not possible to differentiate between the symptoms and functional impairment attributable to the Veteran’s service-connected PTSD and his service-connected TBI, as both were comorbid and shared symptoms. No further explanation was provided; instead, the examiner explained that it was not possible to differentiate the symptoms attributed to separate TBIs. In a June 2016 rating decision, the AOJ combined the Veteran’s disability ratings for his service-connected PTSD and major depressive disorder and his service-connected TBI into one rating, and assigned a 100 percent disability rating, effective December 4, 2015, pursuant to 38 C.F.R. § 4.126 (2017). The July 2016 statement of the case continued the Veteran’s initial 50 percent rating prior to December 4, 2015, and his combined 100 percent for service-connected PTSD and TBI thereafter. The Veteran continues to assert his ratings are incorrect, and has not expressed satisfaction with the combined 100 percent rating for PTSD and TBI in combination. Because it is unclear as to whether the Veteran’s TBI and PTSD symptoms can be medically differentiated, the Board believes additional assessment is necessary so that the Board may address the propriety of combining the ratings. 4. Entitlement to a TDIU is remanded. In October 2015, the Veteran filed a formal claim for a TDIU, alleging that he was unemployable as a result of his service-connected PTSD. See VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Because entitlement to a TDIU was raised in connection with his claim for a higher initial rating for his service-connected PTSD with major depressive disorder, the Board finds that his claim for a TDIU is part and parcel of his claim for a higher initial rating which is on appeal. 38 C.F.R. § 3.400(o) (2017); Rice v. Shinseki, 22 Vet. App. 447 (2009). In a February 2016 rating decision, the RO indicated that the claim for TDIU was moot because the Veteran’s service-connected disabilities had a combined evaluation of 100 percent from October 14, 2015. However, because entitlement to a TDIU prior October 14, 2015, is still available, and because a TDIU award if based on a single disability may warrant a potential special monthly compensation (SMC) allowance, the issue is not moot. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). On remand, the AOJ should send the Veteran proper TDIU notice, request that he complete an updated VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and then adjudicate this matter in the first instance. On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through October 29, 2015, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. The matters are REMANDED for the following action: 1. Send the Veteran the proper notice that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask request that he complete an updated VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Associate any VA treatment records dated from October 29, 2015, to the present with the Veteran’s claims file. 3. Send the Veteran a letter requesting that he submit, or authorize VA to obtain on his behalf, any additional records of private care he may have in his possession pertaining to the issues on appeal. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 4. Schedule the Veteran for a VA examination to determine whether any currently-diagnosed liver disorder had its onset during, or is otherwise related to his military service. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. Following a review of the entire record, the examiner should address the following questions: (a) Identify any currently-diagnosed liver disorder(s). In this regard, please address the Veteran’s service treatment records, including the May 2013 ultrasound results revealing a mildly enlarged fatty liver versus diffuse hepatic parenchymal disease; as well as the September 2015 finding of liver disease (fatty liver). (b) For any currently diagnosed liver disorder, is it at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset during, or is otherwise related to, his active duty service? In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service and continuity of symptomatology. A clearly-stated rationale for any opinion offered should be provided 5. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected right knee disability and left knee disability. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following inquiries: a) The examiner should describe all symptoms associated with the Veteran’s service-connected right knee disability and left knee disability. b) For each knee, the examiner should test for pain in active motion, passive motion, weight-bearing, and nonweight-bearing. If such testing cannot be completed, an explanation should be provided as to why this is so. c) For each knee, the examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to his flare-ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use. For each knee where the examination does not occur during a flare-up, the examiner should estimate the functional loss, including loss of range of motion, due to flare-ups or following repeated use based on all the evidence of record including the Veteran’s lay statements. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 6. Schedule the Veteran for a VA mental health examination to determine the current nature and severity of his service-connected PTSD with major depressive disorder. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of his service-connected PTSD with major depressive disorder, as well as the impact that such has on his social and occupational functioning. In particular, the examiner should, to the extent possible distinguish all PTSD/depressive disorder symptoms from symptoms of the Veteran’s TBI. If symptoms overlap and cannot be distinguished, please identify those symptoms and explain why this is the case. If these questions cannot be answered without the Veteran undergoing a TBI examination, such should be scheduled. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 7. Thereafter, and after any further development deemed necessary, the issues on appeal, to include entitlement to a TDIU, should be reajudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel