Citation Nr: 18160190 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 16-62 667 DATE: December 26, 2018 ORDER Entitlement to a 30 percent rating for chronic headaches, beginning September 19, 2014, is granted, subject to the laws and regulations governing monetary benefits. REMANDED Entitlement to a rating in excess of 20 percent for lumbosacral disc degenerative disease (DDD) with lumbosacral strain is remanded. FINDING OF FACT Beginning September 19, 2014, the Veteran’s chronic headaches manifested in prostrating attacks on average of at least once a month without prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating for chronic headaches beginning September 19, 2014 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1984 to August 2005. The Board notes that in May 2018, the Veteran opted into the Rapid Appeals Modernization program (RAMP) higher level review process with regard to a claim for an increased rating for erectile dysfunction. Therefore, the matter is not presently before the Board. The issues on appeal in the decision herein were already under the Board’s jurisdiction prior to the Veteran’s May 2018 RAMP election, and therefore the issues were not eligible for consideration under RAMP. The Veteran has not asserted that his service-connected disabilities render him unemployable. Accordingly, the Board finds that a total disability rating claim based upon individual unemployability is not part of the Veteran’s claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Entitlement to a 30 percent rating for chronic headaches beginning September 19, 2014 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The term “prostrating attack” is not defined in regulation or case law, but can be defined as extreme exhaustion or powerlessness. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack); DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012). Further, “severe economic inadaptability” is also not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the United States Court of Appeals for Veterans Claims (Court) has held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. In this regard, it was explained by the Court that if “economic inadaptability” were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a total disability rating rather than just a 50 percent rating. Id., citing 38 C.F.R. § 4.16. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words “productive of” could be read to mean either “producing” or “capable of producing.” Id. at 446-447. In an April 2015 VA neurology report, the examiner noted infrequent attacks of sometimes three days in length that may occur from zero to two or three times per week with photophobia and visual spectra. The Veteran was afforded a VA examination in June 2015. The Veteran reported that he continued to have approximately two episodes of migraines per month. The Veteran endorsed symptoms of nausea, sensitivity to light, and changes in vision. The examiner provided a positive response for prostrating attacks, and indicated “less frequent attacks.” Veteran indicated his migraines did not affect his job. Based on the totality of the evidence, and affording the Veteran the benefit of the doubt, the Board finds the Veteran’s chronic headaches most closely approximate a 30 percent rating. The Veteran’s VA treatment records prior to the VA examination provide evidence of the Veteran experiencing severe headaches from zero to two or three times per week. During the Veteran’s VA examination, the Veteran reported two episodes of migraines per month. The Veteran acknowledged that the Veteran’s headaches symptoms included characteristic prostrating attacks. Although the examiner noted less frequent attacks, the Veteran is competent to report pain (i.e. headaches), frequency, and duration, and other alike lay observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). The Board has considered these competent reports of symptoms from the Veteran contained in the VA treatment records and VA examinations. Based on competent reports of the frequency and severity of the Veteran’s headaches, and the medical evidence supporting characteristic prostrating attacks; the Veteran experiences characteristic prostrating attacks at least once per month. As such, the rating is increased to 30 percent beginning September 19, 2014, the date of the Veteran’s claim. 38 C.F.R. § 4.7. The Board notes there is no evidence in the record to suggest severe economic inadaptability, and therefore there is no basis for an even higher rating. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for lumbosacral DDD with lumbosacral strain is remanded. Regarding the lumbar spine rating, remand is required for an adequate examination. In Correia, the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In this case, a June 2015 VA examiner addressed the Veteran’s lumbar spine disability with respect to weight-bearing and nonweight-bearing. It also appears that he performed range of motion testing of the Veteran’s lumbar spine. However, it is unclear as to whether he performed both active and passive range of motion testing of the Veteran’s lumbar spine. Moreover, this examination is more than three years old and may not necessarily represent the Veteran’s current level of disability. Therefore, the Board finds that a remand is necessary to obtain an adequate VA examination prior to adjudication of the Veteran’s claims. The matter is REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records regarding the Veteran’s back in accordance with the duties set forth in 38 C.F.R. § 3.159(c). (Continued on the next page)   2. Afford the Veteran a VA spine examination for his back disability, with a qualified medical examiner who has reviewed the claims file in conjunction with the examination. The most current Disability Benefits Questionnaire must be employed, and all relevant findings indicated in that questionnaire must be addressed. Examinations must include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. Any associated objective neurological abnormalities must be identified and described in terms of their current severity. All opinions must be supported by a detailed rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel