Citation Nr: 18153979 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 18-39 884 DATE: November 29, 2018 ORDER Entitlement to a compensable initial rating for tension headaches prior to April 13, 2016, is denied. FINDING OF FACT Prior to April 13, 2016, the Veteran’s symptoms of tension headaches more closely approximated less frequent attacks with no characteristic prostrating attacks. CONCLUSION OF LAW The criteria for a compensable initial rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1955 to October 1957, and from September 1961 to September 1963. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed his initial rating and requested an initial rating of 20 percent. In an April 2016 rating decision, the RO awarded a rating of 30 percent for tension headaches effective April 13, 2016. In a May 2016 notice of disagreement, the Veteran contended that the effective date for the award of the 30 percent rating should be May 2013. 1. Entitlement to a compensable initial rating for tension headaches prior to April 13, 2016 The Veteran is currently service-connected for tension headaches, rated as noncompensable from May 15, 2013 and 30 percent from April 13, 2016. He contends that his tension headaches warrant a 30 percent initial rating from May 15, 2013, the date of the claim for service connection for this disability. The RO characterized the issue as entitlement to an earlier effective date of May 15, 2013, for the 30 percent evaluation assigned for tension headaches. The issue before the Board can also be characterized, as here, as entitlement to an initial compensable rating for tension headaches prior to April 13, 2016. The Board notes that the grant of any compensation benefit necessarily includes implementation of an award and the selection of an effective date, since no award is granted in a legal vacuum. Here, the Board has phrased the issue as entitlement to an initial compensable rating for tension headaches prior to April 13, 2016 because, in essence, the RO has granted a staged rating and part of the appeal has been satisfied by the grant of the 30 percent rating from April 13, 2016. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, 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. 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 reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 589. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Diagnostic Code 8100 provides that a 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable rating is warranted for headaches with less frequent attacks. 38 C.F.R. § 4.124a. In Pierce v. Principi, 18 Vet. App. 440 (2004), the Court held that, where the Board refused to award a 50 percent disability rating for a headache disorder without discussing the “interplay” among the regulations found at 38 C.F.R. § 4.3 (reasonable doubt resolved in favor of claimant), 38 C.F.R. § 4.7 (higher possible evaluation applies “if disability picture more nearly approximates the criteria for that rating[;] otherwise, the lower rating will be assigned”), and 38 C.F.R. § 4.21 (all the elements specified in a disability grade need not necessarily be found although “coordination of rating with impairment of function will, however, be expected in all instances”), the Board committed reasons or bases error. 18 Vet. App. at 445. However, in Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims Lexis 1253 (Sept. 19, 2018), the Court clarified that the criteria of DC 8100 are successive, and 38 C.F.R. §§ 4.7 and 4.21 are not for application. The Court also held in Pierce that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 [percent] rating,” and “[i]f ‘economic inadaptability’ were read to import unemployability, the appellant, if he met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability resulting from a service-connected disability (TDIU) rather than just a 50% rating.” 18 Vet. App. 440, 446 (2004). In addition, the Court in Pierce acknowledged the Secretary’s concession that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Id. at 445. VA treatment records and lay evidence from April 2012 to September 2013 are silent as to any complaints, treatment, or symptoms of tension headaches. To the contrary, the Veteran denied headaches in January 2013 and May 2013. A July 2013 VA examination report reflects diagnosis of tension headaches. The Veteran reported his condition as intermittent with remissions. He experienced constant pulsating or throbbing head pain on both sides of the head, but he did not experience non-headaches symptoms such as nausea, vomiting, or light and sound sensitivity. He reported that a typical headache lasted one to two days, and the examiner noted that he did not have characteristic prostrating attacks of migraine headache pain or non-migraine headache pain. VA treatment records and lay evidence from July 2013 to April 2016 are silent as to any complaints, treatments, or symptoms for migraine headaches. To the contrary, the Veteran denied headaches in March 2014 and January 2015. An April 2016 VA examination report reflects daily constant throbbing headaches on both sides of the head with sensitivity to sound and light, which worsened with physical activity. The Veteran endorsed monthly exacerbations with nausea and vomiting, stating that he had to stay in bed during this time. The prostrating attacks lasted two days and were not relieved by daily constant use of medication. The examiner found that he experienced characteristic prostrating attacks once every month. Upon review of the evidence, the Board finds that a compensable initial rating prior to April 13, 2016, for tension headaches is not warranted. Prior to April 13, 2016, the evidence reflects that the Veteran had intermittent tension headaches with remissions. While the Veteran’s headache symptoms included constant pulsating or throbbing pain on both sides of the head, the Veteran denied any non-headache symptoms. He stated his headaches lasted one to two days, and the July 2013 VA examiner found that he did not have characteristic prostrating attacks of migraine headache pain or non-migraine headache pain. There is no evidence, lay or medical, that the Veteran had characteristic prostrating headaches, or that his headache symptoms more nearly approximated a compensable rating prior to April 13, 2016. 38 C.F.R. § 4.124a, DC 8100. In addition, the Veteran contends that his current tension headaches warranted a compensable rating from May 15, 2013, the date of claim, because he had experienced headaches since service. As a general matter, the Veteran is correct that effective dates should not be assigned based only on medical evidence as to how severe the disability was at a particular time. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (“an effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran’s disability] first manifested”). However, as noted above, other than the July 2013 VA examination report there is no lay or medical evidence indicating the severity of the Veteran’s headaches prior to April 13, 2016. VA treatment records prior to April 2016 reflect negative responses for headaches, and the Veteran did not provide any statements describing his headache symptomatology. While the Board acknowledges the Veteran’s statements that he has experienced headaches since service, the lay and medical evidence do not reflect that the headache symptoms did not more nearly approximate the criteria for a compensable rating prior to April 13, 2016. (Continued on the next page)   The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel