Citation Nr: 18158823 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-57 986 DATE: December 18, 2018 ORDER Entitlement to an initial 30 percent rating for migraine headaches is granted. REMANDED Entitlement of service connection for cervical spine disorder is remanded. Entitlement to service connection for a neurological disorder of the left upper extremity is remanded. FINDING OF FACT Throughout the appeal period, without consideration of the ameliorative effects of medication, the Veteran’s migraine headaches are productive of characteristic prostrating attacks occurring on an average of once a month over the last several months. CONCLUSION OF LAW The criteria for an initial rating of 30 percent for migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1975 to October 1975 and August 2004 to January 2006, with extensive Army National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) from June and August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board has recharacterized the Veteran’s claim for left shoulder muscle atrophy as reflected above to conform with his contentions and the evidence of record. 1. Entitlement to an initial rating of 30 percent for migraines is granted. In seeking a 10 percent rating, the Veteran reports two or more debilitating headaches per month that require him to lie down in a dark room for a few hours until they subside, with less debilitating headaches occurring more regularly. See September 2015 Notice of Disagreement (NOD); December 2016 VA Form 9. He states that he is unable to function during these incapacitating episodes and his medication sometimes will control the migraines. He reports that his debilitating migraine duration is anywhere between two to three hours, depending upon the severity level. See September 2015 NOD; October 2015 VA Form 21-4138, Statement in Support of Claim. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 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 a veteran working or seeking work. 38 C.F.R. § 4.2. 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. In the present case, the Veteran’s headaches are currently rated as 0 percent disabling, effective July 2, 2015, the date of his service connection claim for this disability. 38 C.F.R. § 4.124a; DC 8100. Under DC 8100, 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 of once a month over the last several months. A maximum 50 percent disability rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define “prostrating,” and neither has the Court of Appeals for Veterans Claims (Court). See Fenderson v. West, 12 Vet. App. 119 (1999) (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 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). Additionally, the Court held that “the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As DC 8100 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran’s headaches, the Board is precluded from considering the relief afforded by the Veteran’s medication, if any, in evaluating the severity of his disability. See Id. During his July 2015 VA examination, the Veteran reported that he had headaches since childhood, which worsened after 2004. He stated that he obtained Imitrex for deployment and a use of various other medications since that time. The Veteran informed the VA examiner that he has two debilitating headaches per month, usually lasting several hours, requiring him to find a quiet and dim place to relax and lie down. Although the VA examiner found the Veteran did not have characteristic prostrating attacks of headache pain, the examiner also found that the Veteran is functionally impacted by the headaches. Specifically, the examiner noted that when the headaches occur, the Veteran is unable to concentrate well and would have difficulty focusing on tasks such driving and operating heavy equipment. Upon consideration of the evidence of record, and without considering the ameliorative effects of any medication, the Board finds that the Veteran’s migraine headache disability more nearly approximates the criteria for a 30 percent disability rating under DC 8100 for the entire appeal period. He consistently reports headaches at least twice per month that are incapacitating for a few hours and require him to find a quiet and dim room to relax and lie down. While the July 2015 VA examiner did not classify the Veteran’s headaches as “prostrating,” which again has not been defined, the examiner found that the migraines impacted the Veteran’s ability to focus and concentrate, which the Board equates to a characteristic prostrating attack. The record does not support a 50 percent rating, as the Veteran’s headaches are not productive of severe economic inadaptability. In this regard, the Veteran has not indicated that his headaches affect his ability to work, and the record does not otherwise support such a finding. REASONS FOR REMAND 2. Entitlement of service connection for cervical spinal disorder is remanded. 3. Entitlement to service connection for a neurological disorder of the left upper extremity is remanded. The Veteran has not been afforded examinations for these claims. Given his current diagnoses, reported symptoms, and service treatment records (STRs), which note neck and shoulder pain due to wearing Kevlar, treatment for a fall of 6 to 8 feet from a top of a Humvee, and his post-deployment report of left shoulder and left arm pain with tingling, examinations are warranted on remand. Updated records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of cervical spine and left upper extremity neurological disorders. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. All indicated tests and studies should be conducted, and all findings reported in detail. (a) After reviewing the claims file, eliciting a history directly from the Veteran and conducting a thorough examination, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed cervical spine disability: (1) had its onset in service or is otherwise related to service, to include his fall from a Humvee; or (2) in the case of diagnosed arthritis, had its onset within one year of separation from service, or by January 2007. See October 2007 CT of the cervical spine. In addressing these questions, please review and discuss STRs noting that wearing Kevlar may have contributed to his neck pain, and his treatment for a fall of 6 to 8 feet from a top of a Humvee. (b) After reviewing the claims file, eliciting a history directly from the Veteran and conducting a thorough examination, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed left upper extremity neurological disorder: (1) had its onset in service or is otherwise related to service, to include his fall from a Humvee, STRs noting that wearing Kevlar may have contributed to his shoulder pain, and complaints of left shoulder numbness and tingling following his deployment. (2) is proximately due to his cervical spine disability, if service-connected as a result of the questions posed in part (a) above; or (3) has been aggravated (worsened beyond natural progression) by his cervical spine disability, if service-connected as a result of the questions posed in part (a) above. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided (e.g., the limits of the examiner’s knowledge, the limits of medical knowledge in general; or if there is additional evidence that would allow for an opinion on this matter). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria L. Stephens, Associate Counsel