Citation Nr: 18151055 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-13 028 DATE: November 16, 2018 ORDER Entitlement to an initial compensable rating for a bilateral hearing loss is denied. Entitlement to an initial rating greater than 30 percent for migraine headaches is denied. REMANDED Entitlement to service connection for transient ischemic attacks, also claimed as residuals of a stroke, to include secondary to a closed head injury, is remanded. Entitlement to service connection for a lack of right sided strength is remanded. Entitlement to an initial compensable rating for residuals of a closed head injury is remanded. Entitlement to an initial rating greater than 10 percent for a right angle area mandible fracture is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. On examination in May 2012, the Veteran had level I hearing in each ear. 2. The Veteran’s migraine headaches are not manifested by very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for a bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an initial rating greater than 30 percent for migraine headaches are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to July 1969. The October 2017 statement of the case also addressed issues of entitlement to a rating greater than 10 percent for multiple head lacerations; and entitlement to earlier effective dates for service connection for multiple head lacerations, a right mandible fracture, migraine headaches, and closed head injury. The Veteran, however, did not thereafter perfect a timely appeal as to those issues. Hence, they are not for appellate consideration. 38 U.S.C. § 7105. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Entitlement to an initial compensable rating for a bilateral hearing loss In April 2013, VA granted entitlement to service connection for bilateral hearing loss and assigned a noncompensable rating effective January 5, 2011. The Veteran disagreed with the rating and perfected this appeal. The rating for a hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). The Veteran underwent a VA examination in May 2012. He reported difficulty hearing the television. Objectively, puretone thresholds at 1000, 2000, 3000, and 4000 Hertz were 15, 15, 35, and 40 in the right ear; and 15, 20, 35, and 40 in the left ear. Puretone threshold average was 26 in the right ear and 28 in the left ear. Speech discrimination testing was 100 percent in both ears. An exceptional pattern of hearing impairment was not shown in either ear. Considering the above results, the Veteran had a level I hearing loss in both ears which corresponds to a noncompensable rating. 38 C.F.R. § 4.85. The Veteran does not contend his hearing loss has worsened since the last examination. Hence, an additional examination is not warranted. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. Entitlement to an initial rating greater than 30 percent for migraine headaches In January 2016, VA granted entitlement to service connection for migraine headaches and assigned a noncompensable rating from January 5, 2011. The Veteran disagreed with the rating and perfected this appeal. In September 2018, VA increased the rating for migraine headaches to 30 percent also effective January 5, 2011. A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is assigned for migraine headaches 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 United States Court of Appeals for Veterans Claims (Court) have 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 rating criteria also do not define “severe economic inadaptability.” However, nothing in Diagnostic Code 8100 requires that the Veteran be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440 (2004). In May 2013, the Veteran completed a Bioesthetics Questionnaire. He indicated that he experienced headaches which were seldom, but intense (8 on a scale of 0-10). He did report frequent (weekly) parietal and occipital head pain, and pain behind his ears, that lasted for hours. A May 2013 statement from the Veteran’s private physician, Dr. B.T., indicates that the claimant suffered from chronic headaches. In January 2017, the Veteran submitted a copy of his “ migraine log”, which covered a period of several months in 2016. The log shows multiple headaches per month lasting anywhere from 30 minutes to 8 hours and treated with medications. The notes indicate that on a few occasions he had to cancel a meeting, a show, and visits with his grandchildren. The Veteran underwent a VA headache examination in May 2018. He reported that he gets three headaches a week – reportedly some were bad and some were not so bad. He took Naratriptan for acute headaches a couple of times a week. He also took Tylenol or Tylenol 3 for headaches. The Veteran reportedly experienced pulsating or throbbing head pain, pain localized to one side of the head, pain worse with physical activity, and throbbing pain behind the ears. He also experienced nausea, sensitivity to light and sound, changes in visions (halos in visual field), and rare vomiting. The headaches typically last less than one day. The examiner indicated the Veteran had characteristic prostrating attacks of migraines once every month over the last several months. He did not experience very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The Veteran reported that sometimes he went home from work a couple of times per month. In considering whether a rating greater than 30 percent is warranted, the Board notes the United States Court of Veterans Claims recently determined that Diagnostic Code 8100 contains successive rating criteria. Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims Lexis 1253 (Sept. 19, 2018). The Court found that “completely” prostrating attacks necessarily subsumes “characteristically” prostrating attacks and that the phrase “very frequent,” while inexact, connotes a frequency greater than once a month. Further, the use of the conjunctive “and” before “prolonged” makes clear that the headaches must be both “very frequent,” long in duration, and productive of economic inadaptability. Id. The Veteran is competent to report his symptoms and the Board has considered his migraine logs. Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the logs document frequent headaches, there is no indication they were completely prostrating. The recent VA examiner specifically stated that prostrating attacks were only once a month and that the Veteran did not experience very prostrating and prolonged migraine attacks productive of severe economic inadaptability. On review, the criteria for a 50 percent rating are not met or more nearly approximated at any time during the appeal period. As the preponderance of the most probative evidence is against the claim the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. The claim is denied. REASONS FOR REMAND As to all issues remanded, updated VA medical records should be obtained. 38 C.F.R. § 3.159(c)(2). Entitlement to service connection for transient ischemic attacks In March 2014, VA continued the denial of entitlement to service connection for transient ischemic attacks, also claimed as residuals of a stroke, to include secondary to a closed head injury. The Veteran disagreed and perfected this appeal. The Veteran generally contends that his transient ischemic attacks were caused by his service-connected closed head injury (traumatic brain injury). The Veteran underwent a VA examination in May 2012. The examiner stated that it was highly unlikely that the transient ischemic attack or stroke he sustained 30 years later is related to the in-service concussion history. In February 2014, the same examiner reviewed a letter from the Veteran’s private neurologist and further opined that it was highly unlikely that his stroke was related to his traumatic brain injury history as stroke risk is not increased following traumatic brain injury. In March 2016, the attorney argued that the VA opinions were inadequate. In support of his argument, he cited to a study in the Official Journal of the American Academy of Neurology titled “Traumatic brain injury may be an independent risk factor for stroke” (July 2, 2013). In pertinent part, the study concluded that “[i]n this large cohort, [traumatic brain injury] is associated with ischemic stroke, independent of other major predictors.” On April 9, 2016, VA requested an addendum. The examiner was specifically requested to address the medical literature submitted by the Veteran’s attorney. On April 13, 2016, the VA examiner provided an addendum. He stated that based on his review of the records, including prior notes, it was highly unlikely that the Veteran’s stroke was related to his traumatic brain injury history as this was not a stroke risk. The VA examiner further stated that there was no study that indicates that there was a causal relationship between a traumatic brain injury and stroke decades later, and that it was less likely that his stroke was a result or sequela of traumatic brain injury. In April 2016, VA certified the appeal. The Decision Review Officer noted that additional evidence was submitted after the statement of the case and that a medical opinion was requested and received prior to certification. Because no change was warranted based on the medical opinion, the appeal was being certified. On review, a remand is necessary. First, the submitted study and the April 2016 opinion are relevant to the issue and were received prior to certification. Thus, a supplemental statement of the case was required. 38 C.F.R. § 20.1304. It is clear the attorney was not aware of the additional opinion because in July 2016, he argued the case was transferred to the Board without considering the July 2013 study or requesting an addendum. Second, the VA addendum is inadequate. That is, the examiner simply stated there was no evidence supporting a causal relationship without discussing the submitted study which appears to suggest otherwise. Hence, further development is required. Entitlement to service connection for lack of right sided strength In March 2014, VA continued to deny entitlement to service connection for lack of right sided strength. The Veteran disagreed and perfected this appeal. Medical evidence suggests the Veteran has loss of right sided strength due to a stroke. For example, a November 2003 private medical statement indicates the Veteran “suffered an apparent stroke with a resultant right hemiparesis which is mild.” This issue is inextricably intertwined with the issue of entitlement to service connection for transient ischemic attacks and is deferred pending completion of that issue. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Entitlement to an initial compensable rating for closed head injury In January 2016, VA granted entitlement to service connection for a closed head injury and assigned a noncompensable rating effective January 5, 2011. The Veteran disagreed and perfected this appeal. In December 2017, the attorney argued that VA continued to use the presence of the Veteran’s nonservice-connected transient ischemic attacks, a separate issue being concurrently adjudicated, as a maneuver around “properly” evaluating the Veteran’s deficits due to his service-connected closed head injury. The attorney requested an examination and medical opinion by a qualified medical professional who could attempt to medically parse out the symptomatology. This was accomplished in May 2018 and at that time, the examiner, a VA neurologist, attributed the Veteran’s headaches to his closed head injury. In a September 2018 addendum, the examiner stated that the Veteran’s present cognitive problems were less likely than not due to the mild traumatic brain injury from the car accident in 1966. The record, however, contains evidence suggesting that the Veteran’s neurocognitive status reflects the cumulative effect of multiple transient ischemic attacks in combination with a microvascular disease. See April 18, 2011 Rehab/Neuro Psych Report. Given this, the Board finds the issue inextricably intertwined with the issue of entitlement to service connection for transient ischemic attacks and it must be deferred. Harris. Entitlement to an initial rating greater than 10 percent for right angle area mandible fracture In January 2016, VA granted entitlement to service connection for right angle area mandible fracture and assigned a 10 percent rating from January 5, 2011. The Veteran disagreed and perfected this appeal. In July 2012, the Veteran underwent a VA dental and oral examination. In May 2013, a private dentist, Dr. R.V.H., indicated her initial clinical impression was a cranial base to mandibular discrepancy resulting in an unstable condylar position. Multiple additional symptoms were noted and the dentist opined that the Veteran’s current head and neck symptoms, as well as his complaints of pain were consistent with trauma in 1966 when he fractured his mandible. In July 2016, a private doctor of dental medicine, Dr. D.B., indicated the Veteran’s chief complaint was severe pain behind his left and right ear along with neck pain. Dr. D.B. further stated that he would support the 2013 assessment that the Veteran’s symptoms and conditions are directly related to the injuries he sustained in 1966. In the December 2017 Form 9, the attorney argued that the current rating does not reflect the additional residuals the Veteran has due to his jaw fracture. The representative specifically requested that the Veteran be provided a complete examination to include evaluation of neck impairment. VA considered the Form 9 as a request for application and in April 2018, invited the Veteran to submit an application for a neck condition secondary to the service-connected jaw condition. In May 2018, the attorney responded that the neck impairment is not a stand-alone claim but part of the residuals of a jaw fracture and he again requested an examination. Considering the attorney’s arguments, the private medical statements, and the length of time since the last VA examination, the Board finds a current examination is needed. See 38 C.F.R. § 3.327. Entitlement to a total disability rating based on individual unemployability In his May 2012 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran indicated he was unable to work due to transient ischemic attacks and memory loss. In April 2013, VA denied entitlement to individual unemployability. The Veteran disagreed and perfected this appeal. On review, the individual unemployability issue is inextricably intertwined with the issues remanded herein and must be deferred pending the requested development. See Harris. Additionally, on VA traumatic brain injury examination in May 2018, the Veteran reported he was working part-time in the dairy department of a grocery store. The Veteran should be asked to provide updated employment information. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period since June 2018. If the AOJ cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Return the April 2016 VA opinion for an addendum. If the April 2016 physician is not available the information should be requested from a similarly qualified physician examiner. The Veteran’s VBMS and Virtual VA/Legacy folders must be available for review. The physician examiner is to opine whether it is at least as likely as not that the Veteran’s transient ischemic attacks are proximately due to, or aggravated by his service-connected closed head injury. In making this determination, the examiner must specifically discuss the July 2013 study titled “Traumatic brain injury may be an independent risk factor for stroke”. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. Schedule the Veteran for an examination by an oral and maxillofacial specialist, to determine the current residuals of the service-connected right area angle mandible fracture. The oral and maxillofacial specialist, should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the oral and maxillofacial specialist, should identify any symptoms and functional impairments due to his right mandible fracture and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. The oral and maxillofacial specialist, is to identify any impairment of the neck related to the right mandible fracture. In making this determination, the oral and maxillofacial specialist, should consider the May 2013 statement from Dr. R.V.H. and the July 2016 statement from Dr. D.B. If a cervical spine examination is needed, it should be completed by an appropriate examiner. If it is not possible to provide any specific information or opinion requested herein, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Contact the Veteran and ask him to provide updated information concerning any employment since his   5. application for individual unemployability was received in May 2012. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel