Citation Nr: 18152532 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 11-09 474 DATE: November 23, 2018 ORDER Service connection for a left shoulder disability is granted. Service connection for a right shoulder disability, claimed as secondary to a left shoulder disability, is granted. For the period prior to October 23, 2008, a higher initial rating in excess of 10 percent for a posttraumatic headache disability is denied. For the period as of October 23, 2008, a higher initial rating of 50 percent, but no greater, for a posttraumatic headache disability is granted. An earlier effective date, prior to August 10, 2006, for a posttraumatic headache disability is denied. REMANDED Entitlement to service connection for alcohol dependence, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and/or a major depressive disorder, is remanded. FINDINGS OF FACT 1. The Veteran has provided credible evidence indicating left shoulder disability symptomatology during service, continuous left shoulder disability symptomatology since service discharge, and has diagnosed degenerative left shoulder joint disease, confirmed by X-ray examination. 2. Resolving reasonable doubt in the Veteran’s favor, the Veteran's right shoulder disability was permanently aggravated beyond its natural progression by the Veteran's left shoulder disability. 3. During the period prior to October 23, 2008, the Veteran's posttraumatic headache disability was productive of headaches, recognized as symptomatic of brain trauma. 4. During the initial rating period as of October 23, 2008, the Veteran's posttraumatic headache disability symptomatology more nearly approximated very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 5. On August 10, 2016, more than a year after his February 1971 discharge from service, the Veteran submitted his claim for service connection for a posttraumatic headache disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a left shoulder disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a).   2. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for a right shoulder disability, claimed as due to a left shoulder disability, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. For the initial rating period prior to October 23, 2008, the criteria for a higher initial rating in excess of 10 percent for posttraumatic headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045-9304 (2008). 4. For the initial rating period as of October 23, 2008, the criteria for a higher initial rating of 50 percent, but no greater, for posttraumatic headaches have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045-8100. 5. The criteria for entitlement to an earlier effective date, prior to August 10, 2016, for the grant of service connection for a posttraumatic headache disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.816(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to service connection for a left shoulder disability. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). The Board concludes that while the Veteran’s left shoulder disability was not diagnosed during service and did not manifest to a compensable degree within the applicable presumptive period, the evidence indicates that the Veteran experienced chronic left shoulder disability symptomatology during service and continuity of the same symptomatology since service. Although the service treatment records contain no notation indicating report or diagnosis of shoulder disability symptomatology during service, the Veteran has made credible lay statements indicating an in-service onset of shoulder disability symptomatology. In a December 2016 VA medical examination report, the Veteran reported that he injured his left shoulder when he fell off a truck during service. The Veteran reported experiencing left shoulder pain since that incident. After an examination, the VA examiner diagnosed degenerative joint disease of the left shoulder, confirmed by X-ray reports. Having found the Veteran to be credible, the examiner indicated that the Veteran’s left shoulder disability more likely than not began during service. As the VA examiner attributed the Veteran's current left shoulder degenerative joint disease symptoms to the Veteran’s in-service left shoulder injury, continuity of symptomatology is established. The criteria for the grant of service connection for a left shoulder disability have been met. 2. Entitlement to service connection for a right shoulder disability. Service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. As indicated above, the Board finds that the criteria for a grant of service connection for the Veteran's left shoulder disability have been met. In a December 2016 VA medical examination report, a VA examiner diagnosed degenerative joint disease of the bilateral shoulders, right greater than left, confirmed by X-ray reports. Having reviewed the evidence, the examiner found that the Veteran most likely relied on his right shoulder over the years to compensate for his left shoulder disability symptomatology. The examiner indicated that this overreliance on the right shoulder caused the right shoulder degenerative joint disease to be worse than that in the left shoulder. Based on the examiner’s opinion and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran’s left shoulder disability permanently aggravated the right shoulder disability. Therefore, the criteria for the grant of service connection for a right shoulder disability have been met. 3. Entitlement to a higher initial rating in excess of 10 percent for a posttraumatic headache disability, prior to June 9, 2017. 4. Entitlement to a higher initial rating in excess of 30 percent for a posttraumatic headache disability, as of June 9, 2017. The Board notes that the issues most recently certified to the Board involved the assignment of higher initial ratings for a posttraumatic headache disability, in excess of 10 percent for the period prior to June 9, 2017, and in excess of 30 percent thereafter, as listed above. However, as will be explained below, in deciding the case according to VA regulations in the manner most favorable to the Veteran, the Board will actually determine the propriety of higher initial ratings for the headache disability prior to and as of October 23, 2008. Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.   If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. A Veteran’s entire history is to be considered when assigning ratings. 38 C.F.R. § 4.1. Separate ratings can be assigned for separate periods of time during the claim period based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is service connected for posttraumatic headaches related to a traumatic brain injury (TBI). The criteria for rating TBI were revised during the pendency of this appeal. 73 Fed. Reg. 54,693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. 38 C.F.R. § 4.124, Note (5). For claims received by VA before that effective date, a Veteran is to be rated under the old criteria for any periods prior to October 23, 2008, but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. See VBA Fast Letter 8-36 (October 24, 2008). Before October 23, 2008, Diagnostic Code 8045 provided that TBI resulting in purely subjective complaints such as headache, dizziness, insomnia, recognized as symptomatic of brain trauma, were to be rated as no greater than 10 percent disabling under Diagnostic Code 9304, for dementia due to head trauma. This 10 percent rating was not to be combined with any other rating for disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 were not assignable absent a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045-9304 (2008). Reviewing the evidence for the period prior to October 23, 2008, in a January 2007 VA medical examination report, the Veteran reported experiencing terrible headaches, but also indicated that he had not had a migraine in years. The Veteran described the headache pain as being dull and aching, occurring three to four times per week. The Veteran stated that the symptoms would start at the back of his head and spread to the sides. The Veteran indicated that the pain would be brought on by worsening of his low back pain. He said that he did not experience any nausea, vomiting, or photophobia. The Veteran reported that the pain would usually resolve on the same day as onset after he used some over-the-counter aspirin. The examiner diagnosed muscle contraction headaches. The examiner stated that that the disability would cause significant effects on the Veteran's occupation due to pain, but would not affect his daily activities. In a July 2007 VA medical examination report, the Veteran reported experiencing weekly migraines. The Veteran indicated that the use of over-the-counter aspirin or acetaminophen would occasionally help. The Veteran stated that less than half of the attacks were prostrating and incapacitating, and would last for a few hours. The Veteran said that his other headaches would usually last for one to two days. The Veteran reported missing four to six days per month of work due to his headaches. The Veteran indicated that he did not know what caused the headaches, but reported that light and noise would aggravate them. Reviewing this evidence, the Board finds that the Veteran's posttraumatic headache disability did not more nearly approximate that required for a rating in excess of 10 percent under Diagnostic Code 8045-9304 for the period prior to October 23, 2008. The Veteran's headaches are, by nature, subjective and are symptomatic of residuals of in-service brain trauma. As the Veteran was not diagnosed with multi-infarct dementia associated with brain trauma during the applicable period, the 10 percent rating currently assigned is the maximum possible rating allowed for the Veteran's posttraumatic headache disability under VA regulations for the period prior to October 23, 2008. Therefore, the Veteran's claim for a higher initial rating for that period must be denied. 38 C.F.R. § 4.124a (2008). As of October 23, 2008, VA regulations allow for the rating of posttraumatic headaches under Diagnostic Code 8045-8100, utilizing the criteria for rating migraine headaches. 38 C.F.R. § 4.124a. Under Diagnostic Code 8100, migraines with symptomatology more nearly approximating characteristic prostrating attacks averaging one in two months over the last several months are assigned a 10 percent rating. Migraine headaches with symptomatology more nearly approximating characteristic prostrating attacks occurring on an average once a month over the last several months are assigned a 30 percent rating. Migraine headaches with symptomatology more nearly approximating very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability are assigned a 50 percent rating. 38 C.F.R. § 4.124a. Reviewing the evidence of record as of October 23, 2008, in a September 2010 VA medical examination report, the Veteran reported experiencing headaches three to four times a week, lasting from hours up to a day, of moderate intensity. The Veteran indicated that, on a weekly basis, he would have a headache that would be incapacitating in nature, lasting from hours to up to a day in duration. The Veteran stated that the he would treat such headaches with ibuprofen or aspirin, and rest in a quiet environment. The Veteran reported experiencing some photophobia, phonophobia, and occasional nausea with the headaches. He indicated that the headaches were stable and persistent. Having reviewed the record, the September 2010 VA examiner stated that the Veteran's headaches would likely result in some functional limitations to occupational duties in that he experienced headaches three to four times a week that would result in pain, distraction, and decreased concentration, resulting in decreased performance of occupational duties. Furthermore, the examiner noted, the Veteran would experience an incapacitating headache on average one to two times a week that would result in increased absenteeism from the workplace. The examiner reported that, if the Veteran was not provided specific accommodations for frequent absences, he would have difficulty in maintaining gainful employment due to the frequent incapacitating headaches. In a February 2013 VA psychiatric consultation report, the Veteran reported experiencing daily headaches. He said that he took aspirin for treatment, but indicated that the pain would sometimes become so bad that he would vomit. He stated that he would feel better after vomiting. In a December 2014 VA medical examination report, the Veteran described experiencing right-sided headaches that could occur, on average, three times a month, lasting from hours up to a day in duration. The Veteran said that the headaches could be accompanied by nausea, vomiting., and light sensitivity, typically without any phonophobia. The Veteran stated that he would rest in a quiet, dark environment and take medication for treatment. The Veteran reported experiencing incapacitating or prostrating headaches occur approximately every two months. In a June 2017 VA medical examination report, the Veteran headache causing constant head pain several times a month, localized to the right side of the head; The Veteran reported experiencing nausea, vomiting, and sensitivity to light during each headache. The headaches would last less than one day. The Board finds that, for the higher initial rating period from October 23, 2008, the Veteran's posttraumatic headache disability was productive of symptomatology more nearly approximating that required for a maximum 50 percent rating under Diagnostic Code 8045-8100. Specifically, during that period, the Veteran's headaches disability was manifested consistently by headaches, sometimes debilitating, occurring multiple times every month. In a September 2010 VA medical examination report, a VA examiner specifically stated that the Veteran's headaches would cause the Veteran great difficulty in maintaining employment. The Board finds that the Veteran's symptoms during the increased rating period from October 23, 2008, more nearly approximate the very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability required for a 50 percent rating under Diagnostic Code 8045-8100. As the 50 percent rating is the maximum allowed under that Diagnostic Code, an even higher rating under that code’s criteria cannot be assigned. 38 C.F.R. § 4.124a. For the higher initial rating period as of October 23, 2008, the Board has considered whether the Veteran’s headache disability symptomatology more nearly approximated that of another Diagnostic Code that would allow for the assignment of a higher rating than the 50 percent rating assigned under Diagnostic Code 8045-8100. However, Diagnostic Code 8100 contains the rating criteria more nearly approximating the Veteran's symptomatology, specifically debilitating headaches. As such, a rating under another Diagnostic Code is not applicable in this matter. Therefore, for the period as of October 23, 2008, a higher initial rating of 50 percent, but no greater, for the Veteran's migraine headaches is granted. 5. Entitlement to an earlier effective date, prior to August 10, 2006, for a posttraumatic headache disability. Generally, the effective date for service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran was discharged from service in February 1971. The Veteran filed a claim for service connection for his headache disability on August 10, 2006. The Board can find no other document filed prior to that date that could be interpreted as a claim for service connection for headaches. As the Veteran filed his claim for service connection more than a year after his discharge from service, the earliest possible effective date for the grant of service connection is the date of the filing of the claim, August 10, 2006. Therefore, the Veteran’s claim for an earlier effective date is denied. REASONS FOR REMAND Entitlement to service connection for alcohol dependence, to include as secondary to service-connected PTSD and/or a major depressive disorder, is remanded. The Board cannot make a fully-informed decision on the issue of service connection for alcohol dependence because no VA examiner has opined whether the disability was caused or permanently aggravated beyond its normal progression by the newly service-connected major depressive disorder. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2017 to the Present. 2. Schedule the Veteran for an examination by a VA psychiatrist who has not previously examined the Veteran to determine the nature and etiology of the Veteran's claimed alcohol dependence. The examiner must opine whether that disability is at least as likely as not (1) proximately due to the Veteran's service-connected psychiatric disabilities (to include both PTSD and the newly service-connected major depressive (Continued on the next page)   disorder, or (2) aggravated beyond its natural progression by the Veteran's service-connected disabilities. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.M. Gillett, Counsel