Citation Nr: 18154428 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-63 720 DATE: November 29, 2018 ORDER Service connection for a right inguinal hernia is denied. An initial compensable rating for migraines, to include migraine variants, is denied. REMANDED Entitlement to service connection for a sinus disorder other than allergic rhinitis is remanded. Entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for bilateral leg eczema is remanded. FINDINGS OF FACT 1. At no time during the pendency of the claim does the Veteran have a current diagnosis of a right inguinal hernia, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. 2. For the entire appeal period, the Veteran’s migraines, to include migraine variants, are not manifested by characteristic prostrating attacks. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right inguinal hernia are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating for migraines, to include migraine variants, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1990 to September 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). After the issuance of such rating decision, the Veteran filed a timely notice of disagreement in June 2015 and a statement of the case issued in July 2016. The Veteran then filed an untimely substantive appeal received in November 2016. However, at such time, she indicated that she never received the statement of the case and was not aware of its existence until it was faxed to her in October 2016, following her call to inquire about the status of her pending claims. See November 2016 VA Form 21-4138. Consequently, the RO and the Board has accepted her substantive appeal as timely. See also Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). 1. Entitlement to service connection for a right inguinal hernia. 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). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Upon review of the totality of the record, the Board finds that at no time during the pendency of the claim does the Veteran have a current diagnosis of a right inguinal hernia, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. Consequently, service connection for such claimed disorder is not warranted. In this regard, the Veteran filed her claim for service connection for a right inguinal hernia in June 2014, and there is no evidence of a diagnosis of hernia in the evidence dated just prior or at the time of the filing of her claim. Specifically, while Veteran’s service treatment records show she was diagnosed with a right inguinal hernia in August 2011 and December 2011, the Bord finds that this is not recent, as the condition was diagnosed approximately 3 years prior to the date the present claim for benefits was filed. Furthermore, the August 2014 VA examiner did not diagnose the Veteran with a hernia condition and a June 2015 VA treatment provider noted that there were no hernias upon physical examination. Consequently, the medical evidence fails to show a diagnosis of a right inguinal hernia at any time pertinent to the pendency of the claim. Furthermore, to the extent the Veteran asserts that she has an inguinal hernia, the Board finds that, while she is competent to report symptoms such as a persistent bump or pain, she is not competent to diagnose such a disability as this is a complex medical question that is beyond the scope of a layperson’s knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, as the first element of service connection is not met at any point during the pendency of the claim, the claims fail on this basis alone. See Brammer, supra (in the absence of proof of present disability there can be no successful claim); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a right inguinal hernia. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 8 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. 2. Entitlement to an initial compensable rating for migraines, to include migraine variants. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s migraines, to include migraine variants, are rated as noncompensable pursuant to DC 8100. Under DC 8100, a noncompensable rating is warranted for less frequent migraine attacks. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. Finally, a maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. VA regulations do not define “prostrating,” nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (in which the Court quotes DC 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to Webster’s New World Dictionary of American English, Third College Edition (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Also, the term “productive of severe economic adaptability” has not been clearly defined by regulations. The Court has, however, explained that “productive of” for purposes of DC 8100 can either mean producing, or capable of producing. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraine headaches need not actually produce severe economic inadaptability to warrant a 50 percent rating under DC 8100. Id. At 445-46. Similarly, “economic inadaptability” does not equate to unemployability, as such would undermine the purpose of regulations pertaining to a TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraine headaches must be, at a minimum, capable of producing severe economic inadaptability in order to meet the 50 percent criteria. Upon review of the totality of the record, the Board finds that an initial compensable rating is not warranted for the Veteran’s migraine disability at any point during the appeal period. On VA examination in August 2014, the Veteran was diagnosed with migraines, to include migraine variants. At such time, she reported experiencing pulsating, throbbing headache pain localized on the right side of the head, accompanied by nausea, vomiting, and sensitivity to light and sound. Typical headache pain was noted to last less than one day. The examiner noted that the Veteran did not have characteristic prostrating attacks of migraine headache pain or non-migraine headache pain. The examiner found that the Veteran’s migraines had no functional impact on her ability to work. VA treatment records indicate that the Veteran is prescribed medication to treat migraines. In a June 2015 VA treatment record, she reported having migraines 4-5 times a week associated with sensitivity to light. She reported taking ibuprofen at the onset of her migraines, and stated that it takes 2-3 hours before she can start doing normal activities. A January 2016 VA treatment record shows the Veteran’s report of headache episodes that were different than her migraines. She described it to be stabbing in nature, which went away after a few minutes, with the last episode occurring two weeks ago. She stated it felt like a hunger headache, denied any nausea or vomiting, and reported that her migraines were stable. There are no other pertinent findings during the period on appeal. The evidence reflects that the severity of the Veteran’s migraine symptoms and resulting disability picture does not warrant a compensable rating. In this regard, the Board acknowledges that the Veteran has a history of migraines that manifested in head pain, sensitivity, nausea, and vomiting during the appeal period; however, there is no indication she has migraines with characteristic prostrating attacks, which is required for a compensable rating. See 38 C.F.R. § 4.124a, DC 8100; Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims LEXIS 1253, at *12-13 (Vet. App. Sep. 19, 2018) (addressing successive and conjunctive rating criteria). While the Veteran indicates that her medical records show prostrating attacks, this statement is inconsistent with the evidence of record. There is nothing in the record that suggests the Veteran suffered from the “extreme exhaustion or powerlessness” or symptoms indicative of the same that is associated with a compensable rating for migraines, and no clinician has characterized the severity of the Veteran’s migraines to be as such. Although she stated it took a few hours for her to resume normal activities after taking ibuprofen, such is not sufficient to more nearly approximate migraines that renders her essentially powerless, or with marked loss of strength/exhaustion, which is defined by the word “prostration.” Furthermore, the Veteran rarely sought medical treatment specifically for migraine pain, and there is no evidence that her migraines are so severe, and/or they render her powerless to the point of missing work, at an average of at least once in two months over the last several months, to support at least a 10 percent disability rating. The Board finds that this infrequency of medical treatment for migraines is inconsistent with a finding that the Veteran’s migraines resulted in the extreme exhaustion or powerlessness that is associated with a compensable rating for a migraine disability. The Board notes that there are no alternative diagnostic codes under which the Veteran’s headaches may be analogously rated. See e.g., Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Board further finds that no staged ratings are warranted as the Veteran’s disability has been consistent throughout the appeal period. See Fenderson, supra. Furthermore, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in connection with her claim for an initial compensable rating for migraines. See Doucette v. Shulkin, 28 Vet. App. 366 (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). In reaching the foregoing decision, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for migraines, such is not applicable and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 3. Entitlement to service connection for a sinus disorder other than allergic rhinitis. The Veteran was afforded VA examinations referable to her claimed sinus disorder in August 2014 and October 2016. While VA examiners found that the Veteran did not have a sinus condition other than allergic rhinitis, her current medical treatment records reflect a diagnosis of sinusitis. See January 2015, August 2015, and September 2015 Naval Hospital treatment records. Therefore, a remand is necessary in order to afford the Veteran a new VA examination so as to ascertain the nature and etiology of any sinus disorder other than allergic rhinitis. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 4. Entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome. The Veteran reports that her left carpal tunnel syndrome has worsened since her last VA examination, which was in August 2014. See November 2016 VA Form 9. Specifically, she reported symptoms of tingling, numbness, and moderate pain that interfere with her left hand functional abilities. Consequently, as the current treatment records do not address such symptoms in connection with the Veteran’s left carpal tunnel syndrome, the Board finds that remand for an updated VA examination is warranted. See 38 U.S.C. § 5103A(d); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 5. Entitlement to an initial rating in excess of 10 percent for bilateral leg eczema. The most recent adjudication of the Veteran’s claim for a higher initial rating bilateral leg eczema was in the July 2016 statement of the case. Subsequently, she was afforded a VA skin diseases examination in December 2016, which addressed the current severity of her service-connected eczema. However, the Agency of Original Jurisdiction (AOJ) did not readjudicate the Veteran’s claim with consideration of such relevant evidence in a supplemental statement of the case. Rather, the issue was certified to the Board in August 2018. When additional evidence received after the statement of the case, but before certification, is pertinent and not duplicative, the (AOJ) must furnish a supplemental statement of the case as provided in 38 C.F.R. § 19.31. In this regard, the waiver process of 38 C.F.R. § 20.1304(c) applies only to evidence submitted following certification of the appeal to the Board. There is no similar waiver process in the regulations for evidence received prior to such certification. As the December 2016 VA examination report is not duplicative of evidence previously received and is highly relevant to the issue on appeal, the Veteran’s claim must be remanded to the AOJ for consideration of such additional evidence in a supplemental statement of the case. See 38 C.F.R. § 19.31. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of her claimed sinus disorder other than allergic rhinitis. The record, to include a complete copy of this remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. The examiner should then address the following inquiries: (A) Identify all current sinus disorders other than allergic rhinitis that has been present at any time pertinent to the Veteran’s June 2014 claim, even if such is asymptomatic or has resolved. If the examiner finds that the Veteran does not have a diagnosis of sinusitis, he or she should reconcile such determination with her medical records showing treatment for such disorder. See January 2015, August 2015, and September 2015 Naval Hospital treatment records. (B) For each currently diagnosed sinus disorder other than allergic rhinitis, offer an offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, the Veteran’s military service, to include her March 2012 diagnosis of sinusitis. A rationale for any opinion offered should be provided. 2. Schedule the Veteran for a VA examination to assess the current nature and severity of her left carpal tunnel syndrome. The record, to include a complete copy of this remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. The examiner should describe the nature and severity of all manifestations of the Veteran’s left carpal tunnel syndrome, to include any resulting functional impairment. A rationale for any opinion offered should be provided. 3. After completing the above and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran’s claims based on the entirety of the evidence, to specifically include the December 2016 VA examination pertinent to the Veteran’s claim for a higher initial rating for eczema of the bilateral legs. If the claims remain denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel