Citation Nr: 18155577 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-00 225 DATE: December 4, 2018 ORDER The appeal seeking a disability rating greater than 20 percent for left shoulder impingement syndrome with degenerative arthritis is dismissed. Service connection for a sleep disorder is denied. An initial 30 percent rating, but no higher, for tension headaches associated with mild degenerative changes of the cervical spine is granted, subject to the regulations governing the award of monetary benefits. A rating greater than 20 percent for mild degenerative changes of the cervical spine is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from February 1982 to May 1982, June 1993 to September 1993, and October 2001 to August 2002. 2. In January 2016, prior to the promulgation of a decision with respect to this appeal, the Veteran withdrew his claim seeking a disability rating greater than 20 percent for a left shoulder disability. 3. The Veteran has not been diagnosed with a sleep disorder. 4. Throughout the rating period on appeal, tension headaches are more closely approximate to characteristic prostrating attacks occurring an average of once a month over the last several months; these headaches were not shown to be very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 5. Throughout the rating period on appeal, the Veteran’s neck disability manifested by subjective complaints of ongoing pain and sleep impairment; objective findings did not demonstrate flexion limited to 15 degrees or less, favorable ankylosis of the entire cervical spine, or intervertebral disc syndrome (IVDS) productive of incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the issue of entitlement to a disability rating greater than 20 percent for left shoulder impingement syndrome with degenerative arthritis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for an initial 30 percent evaluation, but no higher, for tension headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8199-8100. 4. The criteria for a rating greater than 20 percent for mild degenerative changes of the cervical spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). Here, the Veteran submitted a January 2016 written statement withdrawing the issue of entitlement to a disability rating greater than 20 percent for a left shoulder disability. No adjudicatory actions have been taken since that time with respect to this matter. Moreover, this withdrawal was requested prior to the promulgation of a Board decision, such that there are no allegations of error of fact or law remaining for appellate consideration. For the preceding reasons, the Board does not have jurisdiction to further consider this matter and it is hereby dismissed. Briefly, the Board observes that the Veteran submitted a new increased rating claim in June 2017. The claim was denied in an August 2017 rating decision, and the Veteran submitted a Notice of Disagreement (NOD) that same month. Review of the claims file indicates that a Statement of the Case (SOC) as to this issue is forthcoming and will be provided at a later date. Service Connection Next, the Veteran is pursuing service connection for a sleep disorder secondary to his service-connected neck disability. In assessing the merits of this appeal, the Board will limit its analysis to this theory of entitlement. In this respect, service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). However, the evidence does not demonstrate that the Veteran was diagnosed with a sleep disorder during the pendency of this appeal. Although his history of sleep disturbances is noted throughout the record, this symptom is consistently attributed to the Veteran’s service-connected disabilities, including by several VA examiners and the Veteran himself. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, his sleep disturbances are more appropriately contemplated as a symptom of these disabilities rather than as a separately diagnosed disorder for which service connection is warranted. In the absence of a current disability, further inquiry into the in-service event or nexus element is rendered moot and the appeal must be denied. Increased Ratings The Veteran is additionally seeking a compensable initial rating for his tension headaches and a rating greater than 20 percent for his neck disability. Disability ratings are determined by the applications of the 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Headaches The Veteran’s headaches have been rated in accordance with DC 8199-8100. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. Accordingly, the Veteran’s tension headaches have been rated as migraines. Pursuant to 38 C.F.R. § 4.124a, DC 8100, for a compensable rating to be warranted, the evidence must show: • Headaches with characteristic prostrating attacks averaging one in two months over the last several months (10 percent); or • Headaches with characteristic prostrating attacks occurring on an average once a month over the last several months (30 percent). • Headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability (50 percent). Neither the rating criteria nor the Court has defined that which constitutes a “prostrating” attack. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), “prostration” is defined as “extreme exhaustion or powerlessness.” The rating criteria also do not define “severe economic inadaptability.” However, nothing in Diagnostic Code 8100 requires that the Veteran be completely unable to work to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440 (2004). Upon review of the record, a 30 percent initial rating is warranted for the Veteran’s tension headaches. In offering this conclusion, the Board is cognizant that January 2013 and July 2017 VA examiners explicitly denied that the Veteran experienced characteristic prostrating attacks of migraine/non-migraine headache pain. However, the Veteran has offered significant testimony as to the frequency and severity of his headaches. See Layno, 6 Vet. App. at 469. Said testimony establishes that he experiences headaches several times per week, that are of such severity that he “cannot function” and is “down for a day or so” each time. These headaches are often accompanied by additional symptoms including nausea, vomiting, sensitivity to light, changes in vision, and pain that worsens with physical activity. With each occurrence, the Veteran requires rest in a quiet place, which impacts his employment as a school bus driver. Thus, although prior VA examiners have found that the Veteran did not suffer from characteristic prostrating attacks of migraine or non-migraine headaches, by resolving reasonable doubt in his favor, the Board finds that the disability picture in this case is more closely approximate to characteristic prostrating attacks occurring on an average once a month over last several months throughout the appeal period. Such a disability picture is commensurate to a 30 percent rating. In offering this conclusion, the Board has also considered whether a higher rating is warranted. Although the frequency of the Veteran’s headaches could be construed as “very frequent” throughout the appeal period, it does not appear that his disability was productive a severe economic inadaptability. Instead, he maintained steady employment throughout the period on appeal and has not reported any missed work due to his disability. Thus, despite the presence of his symptoms, the Veteran appears largely capable of performing the activities of daily living and his occupation. Consequently, the disability picture presented throughout the appeal period is more closely approximate to very frequent completely prostrating and prolonged migraine headaches that are productive of severe economic inadaptability. Accordingly, the Board finds that an initial 30 percent evaluation, but no higher, is warranted throughout the appeal period for the Veteran’s tension headaches based on the evidence of record. In offering this conclusion, the Board has appropriately applied the benefit of the doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Neck Disability Finally, the Veteran has been awarded a 20 percent rating for his neck disability per DC 5243. For an increased rating to be assigned, there must be evidence of: • Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine (30 percent); or • IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months (40 percent). Here, the evidence does not support the assignment of a rating greater than 20 percent for the Veteran’s neck disability during the period on appeal. During January 2013 and July 2017 VA examinations, flexion was observed to 20 and 30 degrees, respectively. Ankylosis was not reported by the January 2013 examiner, and was explicitly denied in July 2017. Moreover, both examiners denied that the Veteran had incapacitating episodes requiring bed rest as prescribed by a physician, or additional treatment, in the prior 12 months. Accordingly, the Veteran reported only minimal functional impairment as due to his disability, including concerns about his future capacity to maintain employment as a school bus driver due to his neck pain. This understanding of the Veteran’s disability picture is further supported by VA treatment records, which denote his history of chronic neck pain and resultant sleep impairment. However, these symptoms do not appear to cause significant functional impairment, to include as due to such symptoms as weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Thus although the Veteran reported consistent treatment via medication and acupuncture, he remains largely capable of performing the tasks of daily living despite the presence of his symptoms. Accordingly, the Veteran’s disability picture is best embodied in the criteria for a 20 percent rating, as currently assigned. As such, the appeal seeking a higher rating is hereby denied. In offering this conclusion, the Board has considered the Veteran’s testimony regarding the severity of his symptoms. While he is competent to report symptoms capable of lay observation, he is not competent to identify a specific level of disability according to the applicable DCs. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran’s disability, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused and had sufficient facts and data on which to base the conclusions. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel