Citation Nr: 18151951 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 10-08 439A DATE: November 20, 2018 ORDER The application to reopen the claim for service connection for lower back condition is granted. Entitlement to an extraschedular rating of 30 percent for migraine headaches is granted. REMANDED Entitlement to service connection for lumbosacral strain is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to an increased rating, in excess of 20 percent disabling, for degenerative arthritis of the cervical spine is remanded. FINDINGS OF FACT 1. A final June 1993 rating decision denied service connection for a lower back on the basis of no current disability. 2. Evidence received since the final June 1993 rating decision denying service connection for a lower back condition is new and material as it reflects a currently diagnosed disability with testimony of chronic low back symptoms since service which, if accepted as true, raises a reasonable possibility of substantiating the claim. 3. Throughout the period on appeal, the Veteran’s migraine headache symptoms have resulted in marked interference with loss of 8 to 12 work days per year which is analogous to the average impairment of earning capacity caused by averaging loss of work once a month. CONCLUSIONS OF LAW 1. New and material evidence has been received to warrant reopening of the claim of service connection for a lower back condition. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156 (2018). 2. The criteria for entitlement to an extraschedular rating of 30 percent for migraine headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.124a, Diagnostic Code 8100 (2018); Thun v. Peake, 22 Vet. App. 111, 114 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to December 1992, and from February 1999 to January 2000. This appeal comes before the Board of Veterans’ Appeals (Board) from March 2009 and July 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia (Agency of Original Jurisdiction (AOJ)). In an October 2015 Board decision, the Board denied an increased rating for migraine headaches. However, the Board determined that the case warranted referral to the Director of Compensation Service for consideration of an extraschedular rating for migraine headaches. The Board also remanded the remaining issues listed on the title page to afford the Veteran a hearing before the Board. In February 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In May 2017, the AOJ referred the increased disability rating for migraines claim for extraschedular consideration by the Director of the VA Compensation and Pension Service, in accordance with 38 C.F.R. §§ 3.321(b)(1), 4.16(b). The requested opinion was rendered in July 2017. New and Material Evidence – low back disorder The Veteran seeks to establish his entitlement to service connection for a low back disorder. The AOJ has determined that the Veteran has submitted new and material evidence sufficient to reopen a previously denied service connection claim. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Rowell v. Principi, 4 Vet. App. 9, 15 (1993); Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). As a general rule, once a claim has been disallowed, that claim shall not thereafter be reopened and allowed based solely upon the same factual basis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). However, if the claimant can thereafter present new and material evidence of the previously disallowed claim, then the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The Court interpreted the language of 38 C.F.R. § 3.156(a) as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Under applicable VA law, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for a lumbar spine condition was denied by a June 1993 rating decision. The basis for the denial was there was no evidence that a back disorder was incurred in service, or was aggravated by service, or was due to or aggravated by a service-connected disability. The evidence of record at that time included service treatment records reflecting treatment for low back pain on one occasion in October 1992 without further complaints. There was no postservice medical evidence of a current lumbar spine disability. The Veteran was notified of this decision, and his appellate rights, by letter dated July 13, 1993. The Veteran did not submit a notice of disagreement, and new and material evidence was not received, within one year of the notice of denial. As such, the July 1993 rating decision is final. 38 U.S.C. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1993) Pertinent evidence received since the June 1993 final unappealed rating decision includes a February 2010 VA examination report reflecting a currently diagnosed low back disability, and recent testimony of a low back injury at the time of a cervical spine injury during service with chronic symptoms since service. This evidence, if accepted as true for purposes of reopening, raises a reasonable possibility of substantiating the claim. Thus, the Board finds that the criteria for reopening the claim have been met. The Board defers consideration of the claim on the merits pending additional development addressed in the REMAND section below. Extraschedular Consideration – migraine headaches The Veteran contends that his migraine headaches warrant a compensable rating, on either a schedular or extraschedular basis. The Veteran currently receives a noncompensable (zero percent rating) schedular rating for service-connected migraine headaches under Diagnostic Code (DC) 8100. Under DC 8100, a noncompensable evaluation will be assigned for less frequent headaches. Under DC 8100, a 10 percent evaluation is assigned when migraines are productive of characteristic prostrating attacks averaging one in two months over last several months. Under DC 8100, a 30 percent evaluation will be assigned for migraine headaches resulting in characteristic prostrating attacks occurring on an average once a month over the prior several months. A 50 percent evaluation will be assigned for migraine headaches with very frequent completely prostrating prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. In an October 2015 decision, the Board concluded that the criteria for a compensable rating for migraine headaches were not met. The Board noted that At a March 2011, hearing before RO personnel, the Veteran reported headaches, which he treated with over-the-counter medication and that he had never received treatment for the disability. The Veteran was afforded a VA examination in April 2011. He reported headaches on a daily basis. These were alleviated by use of Ativan and Ultram. He denied seeing dots and spots during headaches. He also reported that sounds and lights did not aggravate headaches. He denied nausea, vomiting, and upset stomachs. He also denied any physician-prescribed bed rest or emergency room visits because of headaches. The Veteran was afforded another VA examination in September 2013 to determine the severity of the migraines. The Veteran again reported headaches on a daily basis, with more severe headaches 3-4 times per week with a duration of 24-48 hours. He stated that his headaches were worse when he was depressed and when he had episodes of Crohn’s disease. He also reported that loud noises and bright light intensified the severity of headaches. His methods of treatment included over-the-counter Motrin and heating pads. He described pulsating and throbbing head pain on both sides of his head that worsened with physical activity. His non-headache symptoms included nausea and sensitivity to light and sounds. He denied prostrating attacks characteristic of migraine and non-migraine headaches. The examiner noted that the Veteran does not have any other pertinent physical findings, complications, conditions, signs, or symptoms associated with the headaches. The examiner also referenced a December 2012, CT scan of the Veteran’s brain, which showed no abnormalities. The Veteran reported that his headaches impacted his ability to work in that he at times had to go in his office, close the door, and turn out the lights. He also had to leave work early due to headaches. He sometimes had to cut down on interactions and cancel or reschedule meetings. He reported missing 8-12 days in the prior 12 months due to headaches. The Veteran again reported on his April 2014 VA Form 9 that he experienced daily headaches with more severe headaches occurring 2-3 times per week. The Board found that the evidence did not show that the Veteran’s headaches resulted in characteristic prostrating attacks as the Veteran specifically denied having prostrating attacks during his September 2013 VA examination. As of April 2014, he reported continued headaches but not prostrating attacks. As such, the Board found that the evidence was against an initial compensable rating at any time since the effective date of service connection. The Board’s decision denying a compensable rating for migraine headaches on a schedular basis was not appealed and, therefore, is final. 38 U.S.C. § 7105. However, in the October 2015 decision, the Board considered whether an extraschedular rating was warranted. The Board determined that there was sufficient evidence to warrant referral to the Director of Compensation Service for consideration of an extraschedular rating. In particular, the Board specifically found that the Veteran’s loss of work due to headaches demonstrated marked interference with employment. VA may consider an extraschedular rating in cases that are exceptional, such that the standards of the rating schedule appear to be inadequate to evaluate a disability. 38 C.F.R. § 3.321(b)(1). Extraschedular ratings under 38 C.F.R. § 3.321(b)(1) are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. The Board does not have the authority to assign, in the first instance, higher ratings on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). When an extraschedular rating may be warranted, the Board must refer the case to designated VA officials. Bagwell v. Brown, 9 Vet. App. 377 (1996). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedular is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors, such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. In a July 2017 memorandum, the Director of Compensation Service found that an extraschedular rating was not warranted. The Director summarized the evidence of record, as follows Past medical history is shown for but not limited to: bicipital tendonitis, headaches, post-traumatic stress disorder, crohn's disease, gastroesophageal reflux disorder, hearing loss, low back pain, depression, and anxiety. VA Medical examinations from September 2013 showed the Veteran asserting a history of headaches daily now lasting one to two days three or four times per week. Functional impact on his ability to work is that he has to sometimes isolate himself in his office, and leave early other times amounting to missing eighteen days in the last twelve months. The Director stated that None of the available objective medical evidence reveals that any of the Veteran’s conditions warrants an increased evaluation on a schedular or extra-schedular basis. None of the available evidence supports the Veteran’s contention that any of his service connected disabilities or a combination of the effects of the disabilities prevents employment now or has prevented past employment. The Veteran stated that he loses only eighteen days per years from his current job; there clearly is no marked interference in employment as he continues to work without frequent hospitalization or unusual disability picture. In conclusion, the Director stated Based on the totality of evidence of record, extra-schedular entitlement for headaches is not warranted under 38 C.F.R. 3.321(b)(1). Upon review of the record there is no nexus or any evidence showing a collective impact on migraine headaches. Pursuant to 38 C.F.R. 4.124(a) under diagnostic code 8100 the rating schedule is not shown to be inadequate for rating purposes and preservation remains for analogy under 38 C.F.R. 4.20. Therefore, the Veteran is not entitled to a higher evaluation. The Director’s extraschedular decision is not binding on the Board. Rather, the decision is one of fact, not one of opinion, discretion, or policy, and is reviewable by the Board on a de novo basis. Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); The Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating “in the first instance.” Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). With respect to the term “in the first instance,” the Court clarified that the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. Considering the question of whether the Board has the requisite experience to assign an extraschedular rating, the Court noted that the Board considers the average impairment in earning capacity in every decision involving the rating schedule. Although “average impairment in earning capacity is not a clearly defined standard,” the fact that “average impairment in earning capacity” forms the basis for the entire rating schedule, and simultaneously serves as a limiting principle on the Secretary's discretion in § 3.321(b), is sufficient to establish a “judicially manageable standard.” The Court did not, at this time, provide the Board with further guidance as to how such ratings should be determined, other than noting that frequently, such as when rating a disability by analogy or conducting an analysis of a psychiatric disability under Diagnostic Code 9411, the Board goes beyond mere mechanical application of the rating schedule. The Court also addressed what must be included in a decision by the Director, holding that “to allow for a proper review, the Board must have before it an actual decision complete with a statement of reasons or bases.” The Board is satisfied that the Director provided a statement of reasons or bases for the decision and a summary of the evidence considered. The Board has considered whether the Veteran’s migraines affect the average impairment in earning capacity involving the rating schedule and finds that entitlement to an extraschedular rating of 30 percent is warranted. Based on a review of the record, the Veteran’s symptoms did not result in characteristically prostrating attacks which is why a schedular rating was denied. However, the Veteran has reported workplace interference to the extent of missing work 8 to 12 days per year. As noted above, the Board already found that the loss of work impact was not specifically listed or fully contemplated by the rating schedule for less than the maximum rating. Notably, the criteria for a 30 percent rating contemplates prostrating attacks which occur approximately 12 times per year which would equate with an inability to work 12 times per year. The Veteran reports missing work between 8 to 12 times per year. Thus, the Veteran’s headache disorder results in a similar impairment of earning capacity as contemplated in the criteria for a 30 percent rating. As such, the Board finds that, by analogy, the criteria for a 30 percent extraschedular rating have been met. The Board, however, finds that a higher extraschedular rating is not warranted. In this respect, the loss of working time due to headaches meets, or is somewhat less, than the loss of working time contemplated by the 30 percent schedular rating. The Veteran himself has shown an ability to adapt to his disability and remains employed in substantially gainful employment. REASONS FOR REMAND 1. Entitlement to service connection for lumbosacral strain is remanded. The Veteran asserts that his current lumbar condition is related to his service. Specifically, he asserts that his condition is the result of an inservice lower back injury in 1992. Alternatively, he asserts that the lumbar condition is related to his service-connected cervical spine condition. A January 2009 VA examination focused on the cervical spine condition and did not address any lumbar conditions. In a February 2010 VA examination, the examiner found that the lumbar condition was not related to military service. The examiner opined that The Veteran’s current low back condition is not caused by or a result of his military service. The Veteran was seen on 10/05/1992 with complaints of back pain while in service. This issue seems to be self-limiting in nature as there were no followup visits while in service. By his own admission, he did not recall a specific injury to his back or seeing a doctor for his back again until 2004 closer to the time that he underwent low back surgery. After the initial report of back pain in 1992 the Veteran reentered active duty in February 1999 until January 2000. He was able to pass all physical requirements for this re-entry indicating that there was not any problem with his back at that time. The Board finds that the VA examination is incomplete and inadequate. The examiner did not consider the possible effects of the Veteran’s cervical spine condition, nor the effect that the motor vehicle accident that caused it, may have had on the Veteran’s lower back condition. Additionally, while noting that it was a “self-limiting” condition, the examiner did not address the Veteran’s complaints and lay statements regarding ongoing pain since service. Furthermore, on remand, the Board finds that a new VA examination should consider the claimed condition as secondary to the cervical spine condition. The examination should specifically address whether the current lumbar condition has been caused or aggravated by the service-connected cervical spine disability. 2. Entitlement to service connection for left ear hearing loss is remanded. The Veteran is service-connected for right ear hearing loss and tinnitus. He has been denied service connection for left ear hearing loss on the basis that his left ear hearing loss per the standards of 38 C.F.R. § 3.385. In an April 2011 VA audiological examination, the examiner noted that Patient reported excessive noise exposure while serving in Iraq from small tanks, IEDs, explosions, and loud weaponry. He also reported excessive noise exposure from loud vehicles and equipment. After military he began working as a corrections officer and has performed this work for 12 years, currently working at the Mount Olive Correction Center in WV. He reported no occupational or recreational noise exposure. On the authorized audiological evaluation in April 2011, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 25 40 LEFT 15 20 20 20 30 Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 96 in the left ear. In an August 2012 treatment note, the treating audiologist noted that “pure tone testing revealed a mild, sloping, sensorineural hearing loss in the left ear, and a mild to moderate, high frequency, sensorineural hearing loss in the right. Speech reception thresholds confirmed puretone findings.” The audiologist noted that “hearing testing did not reveal a significant change since last audiological exam.” Treatment notes in February 2017 noted that “the case history revealed tinnitus + AU, otalgia -, vertigo + (occasionally). Pure tone testing revealed a mild progressing to moderate SNHL AS and an essentially moderate progressing to severe SNHL AD. Speech reception thresholds were in agreeance with pure tone findings.” The Veteran has submitted the graphical data from audiometric testing in February 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 35 35 50 50 LEFT 30 35 40 45 45 Speech audiometry revealed speech recognition ability of 40 percent in the right ear and of 35 in the left ear under SRT/SDT. As a current left ear hearing loss appears to be shown, the Board finds that a new VA audiological examination should be provided to the Veteran to determine whether the Veteran manifests a current left ear hearing loss associated with service. 3. Entitlement to an increased rating, in excess of 20 percent disabling, for degenerative arthritis of the spine is remanded. While the record contains a contemporaneous VA examination regarding the Veteran’s cervical spine, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examinations do not contain passive range of motion measurements or pain on weight-bearing testing. In addition, the examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Thus, remand is required for a more adequate examination. The matters are REMANDED for the following action: 1. Associate with the claims folder records of the Veteran’s updated private and/or VA treatment records. Specifically, associate any audiological testing or audiogram related to the Veteran. 2. Arrange for the Veteran’s claims file to be sent to an audiologist or other appropriate health care professional to obtain an opinion as to whether the Veteran’s current left ear hearing loss is related to military noise exposure. All necessary tests should be conducted. The examiner is requested to review the claims file. After considering the pertinent information in the record in its entirety, the examiner should provide an opinion on the following question: Does the Veteran have left ear hearing loss for VA purposes? Is it at least as likely as not (50 percent probability or greater) that any currently diagnosed left ear hearing loss is related to military service, including in-service noise exposure? In so doing, the examiner should consider that the Veteran is service-connected for right ear hearing loss and tinnitus. A complete rationale must be provided for any opinion rendered. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. If the opinion cannot be made without additional examination of the Veteran, such an examination should be provided. 3. Afford the Veteran an appropriate VA examination to determine the nature and severity of his service-connected cervical spine disability and whether the Veteran’s low back disability is related to miliary service. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. In addition to the evaluation of the Veteran’s cervical spine disability, the examiner is asked to provide the following medical opinions regarding the Veteran’s claimed lumbar spine condition: (a) Is it at least as likely as not (50 percent probability or greater) that any diagnosed lower back disability is related to service, to include as residual from a September 1992 roll over motor vehicle accident? In providing this opinion, the examiner should consider the following evidence: • the September 1992 motor vehicle accident resulting in C5 facet fracture; • records from Humana Hospital in September 1992 (received in March 1993) describing a roll over motor vehicle accident with the Veteran reporting pain of the cervical spine and left wrist, and denying any other areas of pain; • an October 1992 service treatment record (STR) reflecting treatment for low back pain of two days duration; • a November 1992 STR reflecting continuing treatment for low back pain; • the Veteran’s December 1992 Application for Compensation and Pension wherein he sought service connection for a low back disability; • a January 1999 enlistment examination reflecting a normal clinical evaluation of the spine and denial of permanent back pain or any back injury; • a July 2006 private clinic record reflecting treatment for low back and leg pain of 6 weeks duration with a past medical history significant for mid back pain with an MRI interpreted as showing herniated lumbar disc with radiculopathy, and spondylosis followed by lumbar laminectomy surgery that same month; and • the examiner should accept as true the Veteran’s description of the motor vehicle accident in September 1992 but may rely on the Board’s factual finding that his description of chronic/recurrent back pain since 1992 is not an accurate reflection of his medical history. (b) Is it at least as likely as not (50 percent probability or greater) that any diagnosed lower back disability, was caused by service-connected disabilities, to include the Veteran’s service-connected cervical spine disability? (c) Is it at least as likely as not (50 percent probability or greater) that any diagnosed lower back disability was aggravated (permanently worsened beyond the normal progress of the disorder) by service-connected cervical spine, or any other disability? (continued on next page) 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael J. O'Connor