Citation Nr: 18149685 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-03 157 DATE: November 13, 2018 ORDER Entitlement to service connection for tinnitus is granted. An initial rating of 30 percent, but no higher, for chronic mixed-feature headaches is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s tinnitus is presumed to have had its onset during active service. 2. During the entire period on appeal, the Veteran’s chronic mixed-feature headaches have manifested by characteristic prostrating attacks occurring on average once a month over the last several months; however, they have not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for a 30 percent rating, but no higher, for chronic mixed-feature headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 2010 to April 2014. These matters are on appeal from an August 2014 rating decision. The Board notes that, during the pendency of this appeal, in a March 2016 rating decision, the Regional Office (RO) increased the Veteran’s rating for chronic mixed-feature headaches to 30 percent disabling effective March 8, 2016. As this increase does not represent a full grant of the benefit sought, the claim for a higher initial rating for chronic mixed-feature headaches remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In his January 2016 substantive appeal, the Veteran requested the opportunity to testify at a hearing before a member of the Board. A Travel Board hearing was scheduled for October 2018; however, the Veteran did not attend. As no further communication from the Veteran with regard to the hearing has been received, the Board considers the request to be withdrawn. The Board notes that in his January 2016 substantive appeal, the Veteran also stated that he is unable to find civilian employment due to his headache disability. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU is part and parcel of an increased rating claim when such is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of Rice, the issue of entitlement to a TDIU has been raised by the record and is within the jurisdiction of the Board. Duties to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, to include tinnitus as an organic disease of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even if there is no evidence of such disease during service. 38 C.F.R. § 3.307(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker, 708 F.3d at 1331. Entitlement to service connection for tinnitus The Veteran seeks service connection for tinnitus, which the Veteran contends was incurred in service. Specifically, the Veteran asserts that he has had tinnitus ever since an incident during service in which his ear protection fell off and he was exposed to loud aircraft noise. The Veteran has stated that he complained about tinnitus repeatedly during service. The Veteran’s service treatment records have been associated with the claims file, including a record from September 2010 describing an incident in which the Veteran’s hearing protection failed and he was exposed to the noise of an aircraft launching. He experienced ear pain and bleeding. On examination, he denied tinnitus. At his March 2014 separation examination, the Veteran denied a history of ear trouble, but reported a history of hearing loss and described the same incident as above. The Veteran underwent a VA audiology examination in July 2014. Upon examination, the Veteran reported recurrent tinnitus, described as a high-pitched ringing that lasts from one to five minutes at a time. He reported to the examiner that his tinnitus had its onset during service in 2010 from an accident on the flight deck when his hearing protection was knocked off during an aircraft launch. The examiner stated that he could not provide a medical opinion regarding the etiology of the Veteran’s tinnitus without resorting to speculation because his hearing was within normal limits. At a December 2014 VA primary care appointment, the Veteran reported that he has had tinnitus since leaving the military. As an initial matter, the Board notes that there is no dispute that the Veteran has a current disability of tinnitus. Moreover, the Veteran has asserted in several consistent statements to VA clinicians and examiners and VA adjudicators that he was exposed to hazardous noise during service. His service treatment records verify such exposure. The Board notes that the Veteran is competent to describe the nature and extent of his in-service noise exposure. See C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) The only question remaining for the Board to decide is whether the Veteran’s tinnitus is etiologically related to this in-service noise exposure. The Board notes that the Veteran was discharged from service in April 2014. He reported recurrent tinnitus to his VA examiner in July 2014, only months after separation. The Board notes that tinnitus is a type of disability that may be established on the basis of lay evidence. Charles v. Principi, 16 Vet. App. 370 (2002). As the Veteran was shown to have tinnitus to a compensable degree within one year of his separation from service, tinnitus is presumed under the law to have had its onset in service. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Accordingly, service connection for tinnitus is granted. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. Entitlement to an initial rating in excess of 10 percent for chronic mixed-feature headaches prior to March 8, 2016, and in excess of 30 percent thereafter The Veteran seeks a higher initial rating for chronic mixed-feature headaches (hereinafter “headache disability”), currently rated 10 percent disabling from April 6, 2014 to March 7, 2016, and 30 percent disabling from March 8, 2016. The Veteran contends that he is entitled to a higher rating because his headache disability and its associated symptoms are more severe than contemplated by his currently assigned rating. The Veteran’s headache disability is rated under Diagnostic Code 8100 for migraine headaches. Under Diagnostic Code 8100, a 30 percent rating is assigned for migraines characterized by characteristic prostrating attacks occurring on average once a month over the last several months. A maximum 50 percent rating is assigned for migraines characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The Board notes that the term “prostrating” is not defined by VA regulations, nor has the United States Court of Appeals for Veterans Claims (Court) defined it. Dorland’s Illustrated Medical Dictionary (32nd ed. 2012) defines “prostrating” as “extreme exhaustion or powerlessness.” Though not binding on the Board, VA’s Adjudication Procedures Manual (M21-1) provides further definitional guidance. The VA Manual defines “prostrating,” as used in 38 C.F.R. § 4.124a, Diagnostic Code 8100, as “extreme exhaustion, powerlessness, debilitation, or incapacitation with substantial inability to engage in ordinary activities.” “Completely prostrating” is defined as “extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities.” See M21-1, Part III, Subpart iv, Chapter 4, Section N, Topic 7(b). The Veteran underwent a VA examination in July 2014. Upon examination, the Veteran reported experiencing daily low-grade headaches, with more severe migraines three to four times per week that last less than a day. He described his headaches as constant, pulsating or throbbing head pain on both sides of the head. He experiences symptoms such as vomiting, sensitivity to light and sound, and changes in vision associated with his headaches. He reported taking prescription medications to treat his headaches. The examiner diagnosed him with mixed-feature headache syndrome with some features of tension headache and some features of migraine, manifesting as a low-grade chronic daily headache which escalates into more severe migrainous type of headaches three to four days per week. The examiner remarked that the Veteran’s more significant headaches are moderately disabling. The examiner determined that the Veteran does not have characteristic prostrating attacks of headache pain. The examiner opined that the Veteran’s headache disability impacts his ability to work, stating that his ability to concentrate and focus during his more severe headaches is moderately impaired. However, it was noted that the Veteran was still able to carry out his supervisory duties during service despite his headaches. In a September 2014 statement, the Veteran disagreed with the VA examiner’s characterization of his headache disability in the examination report, arguing that he experiences daily headaches and “attacks,” or migraines, two to three times per week. At a December 2014 VA primary care visit, the Veteran reported that he has a headache every day, described as shooting pain on both sides of the head and behind his eyes. He gets migraines two to three times per week. With the migraines he experiences aura, as well as increased sensitivity to light and sound. They normally last a day, but sometimes can last as long as two to three days. According to a July 2015 VA primary care note, the Veteran reported that his medication did not work well for his migraines, which he gets two to three times per week. His headache medications were increased. The note states that the Veteran cannot work and “is pretty much unemployable” because his headaches cause him to miss a few days of work per week. However, it was noted that he was currently enrolled in classes at community college and was looking to transfer to a university. In August 2015, after his migraine medications were increased, the Veteran reported to his VA clinician that his medications were working “really, really well.” In his January 2016 substantive appeal, the Veteran reported that he “has not been able to find civilian employment that is tolerant of [his] migraines and headaches.” During service, he lost three to five days of work (out of 15) per month due to his headache disability. The Veteran underwent another VA examination in March 2016 with the same examiner who conducted his July 2014 examination. The Board notes that the Veteran’s description of the frequency and severity of his headaches and migraines did not change from his July 2014 examination. Nonetheless, this time, the examiner determined that the Veteran has characteristic prostrating attacks of migraine and headache pain occurring on average once every month. The examiner determined that the Veteran does not have very prostrating and prolonged attacks of migraine or headache pain productive of severe economic inadaptability. The examiner remarked that the Veteran’s headache disability impacts his ability to work by contributing to occasional work absences, but that significant economic impairment has not been documented. Upon review of the lay and medical evidence of record and affording the Veteran the benefit of the doubt, the Board finds that the preponderance of the evidence demonstrates that the Veteran’s headache disability more nearly approximated the criteria for a 30 percent rating since the April 6, 2014 effective date of the grant of service connection. Prior to March 8, 2016, the Veteran is in receipt of a 10 percent rating for his headache disability. As noted above, to be eligible for the next higher disability rating of 30 percent, the Veteran’s headaches must be characterized by characteristic prostrating attacks occurring on average once a month over the last several months. First, the Court has held that lay evidence may be probative of the frequency, prolongation, and severity of headaches. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Therefore, the Veteran’s own reports regarding his headache symptoms and his limitations when having those symptoms can establish prostration as long as they are credible and consistent with the medical evidence of record. Notably, as set out above, the Veteran has consistently reported that he has a dull headache every day, and that he has a more severe migraine two to three times per week. During migraines, he experiences visual changes, sensitivity to light and sound, and, sometimes, nausea and vomiting. These symptoms typically last one day, but have also lasted as long as two to three days. The Board is mindful that nowhere in the record has the Veteran described how these periods of migraine impact his ability to engage in ordinary activities or whether these migraines render him incapacitated. However, based on the symptoms described by the Veteran, the Board finds that his competent lay reports are sufficient to demonstrate that his migraines are prostrating in nature. In making this finding, the Board is mindful that the July 2014 VA examiner did not find that the Veteran experiences characteristic prostrating attacks of headache pain. However, in the examination report, the examiner noted that the Veteran experiences “severe migrainous type of headaches three to four days per week,” which she characterized as “moderately disabling.” Therefore, the Board is satisfied that the medical evidence of record supports a finding that the Veteran experiences episodes of migraines that can described as “characteristic prostrating attacks.” In regard to frequency, the Board notes that at a minimum, the Veteran has reported experiencing severe migraines two to three times per week. A frequency of two to three migraines per week is significantly higher than the frequency of once per month contemplated by a 30 percent rating. Therefore, the Board finds that the Veteran’s migraines occur very frequently during the entirety of the period on appeal. Because the lay and medical evidence of record demonstrates that the Veteran’s headache disability manifests by characteristic prostrating attacks occurring on average once a month over the last several months, a 30 percent rating is warranted during the entire period on appeal. The Board has further considered whether the Veteran is eligible for an initial rating in excess of 30 percent. However, the preponderance of the evidence does not show that the Veteran’s headache disability is eligible for the maximum 50 percent rating at any time since the April 6, 2014 effective date of the grant of service connection. A 50 percent rating is assigned for headaches characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As noted above, the Board accepts the Veteran’s competent lay assertions of experiencing prostrating attacks of headache pain as frequent as two to three times per week. However, the competent lay and medical evidence of record does not establish that these headaches are completely prostrating. The evidence does not support, and the Veteran has not alleged, that when he experiences severe migraines his symptoms are so severe as to render him totally incapable of engaging in ordinary, daily activities. In fact, according to an August 2015 VA treatment note, the Veteran reported to his clinician that his prescription migraine medications were working “really, really well,” which indicates that the Veteran’s migraines are capable of being controlled with medication. Moreover, as of July 2015, the Veteran was enrolled in classes at a community college and was considering transferring to a university. Therefore, the evidence does not support a showing that the Veteran’s experiences very frequent completely prostrating and prolonged attacks due to his headache disability that are productive of severe economic inadaptability. Because of the successive nature of the rating criteria under Diagnostic Code 8100, the evaluation for each higher disability rating includes the criteria of each lower disability rating. See Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims LEXIS 1253, at *16 (Sept. 19, 2018). Although, in this case, there is evidence of “very frequent” headaches, each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). The Federal Circuit Court has held that if disability rating criteria are written in the conjunctive, as they are here, “a Veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation” and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). In essence, despite a showing of “very frequent” headaches, absent a credible showing of headaches that are also “completely prostrating,” there is no basis to assign a 50 percent rating under Diagnostic Code 8100. Consequently, any further discussion of the remaining elements of the criteria for a 50 percent rating, such as “productive of severe economic inadaptability,” is not necessary. REASONS FOR REMAND Entitlement to a TDIU is remanded. With respect to the Veteran’s claim of entitlement to a TDIU, the Board notes that the claim is inextricably intertwined with the grant of service connection for tinnitus and the award of an increased rating for a headache disability, contained in the Board’s decision herein, because it may be affected by the assignment of the disability ratings and effective date for the grant of service connection. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Thus, adjudication of the claim for a TDIU is deferred pending the assignment of the disability ratings and effective date for the grant of service connection. On remand, the RO should comply with the duties to notify and assist in connection with the TDIU claim. The matter is REMANDED for the following action: (Continued on the next page)   Provide the Veteran appropriate notice in connection with the claim for a TDIU. The Veteran should be requested to complete and submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940). Once the RO has assigned the disability ratings and effective date for the grant of service connection, pursuant to this Board decision, and after completing any other development deemed necessary, readjudicate the claim of entitlement to a TDIU in light of all pertinent evidence and legal authority. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel