Citation Nr: 18155183 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-44 831 DATE: December 4, 2018 ORDER Entitlement to an initial rating of 50 percent for headaches is granted. Entitlement to an earlier effective date, prior to June 13, 2014, for the award of service connection for headaches is denied. FINDINGS OF FACT 1. The evidence of record favors a finding that the Veteran’s service-connected headaches have manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the period on appeal. 2. In an October 2002 rating decision, the AOJ denied entitlement to service connection for headaches. The Veteran did not submit a notice of disagreement or new and material evidence within one year of the decision. 3. Following the final October 2002 rating decision that denied service connection for headaches, VA first received the Veteran’s application to reopen his claim for service connection for headaches on June 13, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 50 percent, but no higher, for headaches have been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8100 (2018). 2. The criteria for an effective date prior to June 13, 2014, for the grant of service connection for headaches have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1982 to September 2002, to include service in Southwest Asia. This case comes on appeal of a February 2015 rating decision. By way of background, the Veteran first filed a claim of entitlement to service connection for headaches in June 2002. The regional office (RO) denied the claim in an October 2002 rating decision, which the Veteran did not appeal. He filed an application to reopen his service-connection claim for headaches in June 2014. The RO reopened and granted the Veteran’s claim in a February 2015 rating decision, setting the effective date for the award as June 13, 2014, which is the date of his application to reopen the claim. The Veteran disagreed with the assigned effective date, and perfected this appeal. Notably, in his June 2015 notice of disagreement, the Veteran alleged that the RO clearly erred in previously denying his service-connection claim in 2002. He stated that he did not think the doctor who examined him in July 2002 had seen his service treatment records. He alleged that this omission caused the doctor not to see his in-service treatment for headaches, thus the doctor was not able to come to a conclusion that the Veteran’s headaches at the time of the examination were causally related to service. Insofar as the RO relied on the VA examiner’s opinion to deny the claim, the Veteran has alleged error. The Board finds that the Veteran has pled with enough specificity a petition for revision of the prior October 2002 rating decision on the basis of clear and unmistakable error (CUE). Although the RO recognized the Veteran’s CUE motion, it did not separately adjudicate the motion in a new rating decision. Rather, in an August 2016 Statement of the Case, the RO adjudicated the effective date claim currently before the Board, and simply mentioned at the end of the analysis that “[t]here is no evidence the prior decision was a clear and unmistakable error. Service treatment records were available at that time.” The RO did not cite to any law and regulations pertinent to the adjudication of CUE motions, and did not directly address any of the Veteran’s contentions. Subsequent Supplemental Statements of the Case (SSOCs) did not address CUE at all. The Board finds that in this case, the Veterans allegation of CUE in the October 2002 rating decision has not been fully adjudicated in the first instance by the RO. See Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (concluding that, because the Board lacked jurisdiction over a theory of CUE that had not been adjudicated by the AOJ, the appropriate course of action for the Board was to refer the CUE matter to the AOJ for adjudication in the first instance). The matter is therefore referred to the AOJ for appropriate action. The Board currently has jurisdiction over the effective date issue, and may go ahead and adjudicate the appealed effective date issue now, without waiting for CUE adjudication. There is no potential prejudice in this approach because the CUE issue will be adjudicated and the Veteran can appeal any adverse determination. Also, any future CUE grant will result in an earlier effective date. 1. Entitlement to an initial rating in excess of 30 percent for headaches Disability evaluations are determined by the application of the facts presented to the VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. (1999); Hart v. Mansfield, 21 Vet. App. (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). The Veteran filed the present claim in June 2014. By a February 2015 rating decision, the AOJ granted service connection at a rating of 30 percent. The Veteran has appealed the initial rating of the disability. The Veteran is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraines. Pursuant to Diagnostic Code 8100, a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. To warrant a 50 percent evaluation, the evidence must demonstrate migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the maximum rating available under Diagnostic Code 8100. The Rating Schedule does not define “prostrating.” “Prostration” has been defined as “complete physical or mental exhaustion.” Merriam-Webster’s New Collegiate Dictionary 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). According to Stedman’s Medical Dictionary, 27th Edition (2000), p. 1461, “prostration” is defined as “a marked loss of strength, as in exhaustion.” See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013) (The Board adopts the Court’s definition as its own.). Additionally, the term “productive of severe economic adaptability” has not been clearly defined by regulations or by case law. The United States Court of Appeals for Veteran’s Claims (Court) has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, “economic inadaptability” does not mean unemployability, as that would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at minimum capable of producing “severe” economic inadaptability. Pursuant to the claim, the Veteran underwent a VA headaches examination in February 2015. The examiner diagnosed migraines, including migraine variants. According to the examiner, the Veteran reported having moderate to severe headaches two to three times per week. The headaches were marked by a “pounding type” pain to the crown of the head and regularly lasted for four-to-six hours. When having the headaches, the Veteran would have nausea, changes in vision, and sensitivity to noise and light. At the time of the examination, the Veteran reported using Motrin and methocarbamol—a prescription muscle relaxant–to treat the headaches. The examiner reported that the Veteran had characteristic prostrating attacks of headaches an average of once per month, although the examiner did not provide an explanation for reaching that determination. The Veteran underwent an additional VA headaches examination in March 2018. At that time, according to the examiner, the Veteran reported having prostrating headaches one-to-two times per month. The Veteran was taking several over-the-counter and prescription medications to alleviate his headaches. The Veteran reported experiencing constant, pulsating or throbbing pain on both sides of the head, worsening with physical activity. He also reported experiencing nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision at the time of a headache. He stated that there was no duration of headaches as typical head pain was nearly constant. The examiner assessed characteristic prostrating attacks of migraines once per month. In doing so, she acknowledged that the Veteran experienced severe headaches most days, but noted that headaches only caused the Veteran to miss work one or two days per month. Additional medical evidence of record demonstrates a consistent pattern of severe headaches, as was indicated by the VA examinations. VA treatment records show that the Veteran reported to VA clinics on multiple occasions throughout the claim period, complaining of recurrent headaches that were as low as a six, but were more frequently an eight or nine on a pain scale from one to ten, where ten is the most severe. The headaches were consistently accompanied by nausea and occasional vomiting, change in vision, dizziness, and sensitivity to light and noise. The Veteran has been treated with over-the-counter and prescription medication for headaches during this time. In a statement accompanying his initial claim in June 2014, the Veteran reported that he was able to go to work, but that his headaches were so severe that, once at work, he would often need to find a dark, quiet place where he could put his head down and rest. In his June 2015 notice of disagreement, the Veteran reported that he experienced severe headaches “four or five times a week” and that “trying to stay focused at work with severe headaches is not working.” The Board notes that the Veteran’s statements regarding his headaches have not raised any question of credibility. The Veteran’s spouse also submitted a statement, describing the difficulty that headaches had placed on the Veteran’s professional life, and explaining that the Veteran’s doctor had suggested staying away from light during severe headaches. The record clearly demonstrates that the Veteran regularly experiences severe headaches—often at least four or five times per week, for several hours at a time. This fact has been consistently shown in the course of the Veteran’s ordinary medical treatment, and has been confirmed by VA examiners as well as the Veteran himself. Based on the evidence above, the Board will resolve all doubt in the Veteran’s favor and find that the Veteran’s headache disability is of a severity that more closely approximates criteria warranting the maximum 50 percent rating under Diagnostic Code 8100. Indeed, the Board finds that the Veteran’s description of having to find a dark, quiet place to rest his head during headaches while at work or at home to cope with headache symptoms such as severe pulsing or throbbing pain, nausea, vomiting, dizziness, blurred vision, and sensitivity to light and sound, up to five times per week and up to six hours, to be considered frequent and completely prostrating. Furthermore, although the Veteran has managed to maintain his employment throughout the claim period, this fact alone does not mean that his headache symptoms are not producing, or capable of producing severe economic inadaptability. On the contrary, the Veteran has reported that while at work he still must take time out to find a dark room and rest during a headache (up to 5 times a week, for hours at a time), and that he is has increasing problems focusing while at work. The severity and frequency of the headache symptoms described by the Veteran, and outlined above, more closely approximate an impairment level that is productive of severe economic inadaptability. Based on the foregoing, and resolving all reasonable degree of doubt as to the severity of the disability in the Veteran’s favor, the Veteran’s symptoms more closely approximate very frequent prostrating and prolonged attacks, as opposed to prostrating attacks on an average of once per month, productive of severe economic inadaptability. Accordingly, giving full consideration to 38 C.F.R. § 4.7, the Board finds that a rating of 50 percent for service-connected headaches is warranted throughout the claim period. 2. Entitlement to an earlier effective date, prior to June 13, 2014, for the award of service connection of headaches Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim reopened after final disallowance 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. For claims received prior to March 24, 2015, as pertinent to this case, a “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1 (p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. As noted above, the Veteran first filed a claim of entitlement to service connection for headaches in June 2002. The AOJ denied service connection for headaches in an October 2002 rating decision, which the Veteran did not appeal. At the time of the decision, the Veteran’s service treatment records were on file and reviewed by the RO. The Veteran filed an application to reopen his claim on June 13, 2014. The AOJ granted service connection in a February 2015 rating decision, effective the date of the request to reopen the claim. After receipt of a rating decision, a claimant has one year either to submit a notice of disagreement appealing the decision, or to submit new and material evidence. If the Veteran does not do either of those things, the rating decision becomes final. 38 C.F.R. §§ 3.156(b), 20.302(a). Here, the Veteran did not submit a notice of disagreement or new and material evidence within one year of the October 2002 rating decision; therefore, that decision became final. Although it appears that some treatment records were added to the record in October 2003, such records were either duplicative of records that were already on file prior to the October 2002 rating decision, or were not material to the headaches claim. There is no correspondence in the record dated from October 2002 to June 2014 that can be construed as a formal or informal claim to reopen his prior headaches claim. Evidence added to the record during this time period includes duplicate copies of service records previously on file prior to the RO’s October 2002 rating decision, and more recent treatment reports that are not material to the Veteran’s headaches claim. The Veteran does not point to any correspondence, or argue that he filed an application to reopen his headaches claim at any time prior to June 2014. The Board adds that in granting entitlement to service connection for headaches in February 2015, the RO did not rely on any newly-added service treatment records that were not otherwise on file in October 2002. As such, the provisions of 38 C.F.R. § 3.156(c) are not for application in this case. Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim to reopen after a final disallowance or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. With regard to the Veteran’s headache disability, based on this regulation, the effective date has been appropriately assigned as the date his petition to reopen his service-connection claim was received after the final October 2002 rating decision, namely June 13, 2014. Thus, an effective date prior to June 13, 2014 is not warranted, and the benefit sought on appeal is denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel