Citation Nr: 1806530 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-02 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 10 percent for migraines. 2. Entitlement to a compensable rating for tinea versicolor 3. Entitlement to a compensable rating for limitation of motion, right thumb. 4. Entitlement to a compensable rating for keratitis. 5. Entitlement to service connection for a calf muscle disability. ATTORNEY FOR THE BOARD Michael J. O'Connor, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1988 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs Regional Office (RO) in Jackson, Mississippi (Agency of Original Jurisdiction (AOJ)). The Veteran was scheduled to testify at an October 2017 Videoconference Board hearing; however, the Veteran was determined to be a no-show for that hearing. To date, the Veteran has not requested a new Board hearing. Accordingly, the Board considers his hearing request to be withdrawn. 38 C.F.R. § 20.704(d). The Board further notes that, in an October 2016 rating decision, the AOJ denied service connection for essential thrombocythemia. In October 2017, the Veteran submitted a timely Notice of Disagreement. See 38 C.F.R. § 20.201. VA's Veterans Appeals Control and Locator System (VACOLS), which is an automated database for tracking appeals, reflects that the AOJ has acknowledged the NOD, is continuing to develop the claim and will issue the Veteran a Statement of the Case (SOC) if the claim is not granted in full. As such, the situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where an NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable in the present case. Therefore, this claim remains under the jurisdiction of the AOJ at this time. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action, on his part, is required. REMAND Migraine Headache The Veteran seeks a rating greater than 10 percent for migraine headaches. The record contains ambiguity as to the frequency, severity and duration of the Veteran's headaches. Migraine headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensable. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated at 10 percent. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated at 30 percent. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated at 50 percent. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating" for purposes of Diagnostic Code 8100. 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." Similarly, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), "prostration" is defined as "extreme exhaustion or powerlessness." On his initial VA examination in May 2010, the Veteran reported having a severe migraine at least once a month which he treated with Midrin and Flexeril. He had no other treatment except for closing his eyes and trying to rest in a dark room. He described the headaches as being manifested by bi-temporal, sharp pain - about 8/10 in severity - which radiated to the occipital area. His type of headache occurred once a month and lasted 3-4 hours in duration. His other symptoms included nausea and scotoma with sensitivity to light and noise. He described being prescribed 1 day of bed rest in February and December 2009 by KBR Clinic in Khowst Providence in Afghanistan. Otherwise, he described his headaches as reducing his productivity but not affecting his activities of daily living (ADLs). The examiner diagnosed migraine headaches, stable with current treatment, causing minimal functional limitations. In February 2013, the Veteran underwent a VA examination regarding his migraine headaches. The examiner noted that the Veteran "gets migraines 4-5 times month. Vary in intensity from being able to take otc (over the counter) Midrin and flexeril up to having to go home for the day. Headache is occipital extending around both sides of head. Sometimes nausea/vomiting light sensitivity. Tend to last 1 day to 2 weeks." The examiner also noted that the Veteran had prostrating attacks averaging once every two months. The available clinic records only reflect the Veteran's description of "occasional" headaches. See private treatment record dated January 2016. Based upon the above, the Board cannot determine whether the Veteran's May 2010 description of "severe" headaches occurring once per month meets the criteria for prostrating headaches. He did report 2 episodes of doctor prescribed bedrest which would appear to meet the definition of "prostrating." In an effort to reconcile this ambiguity, the Veteran should be requested to identify all providers of treatment for headaches, including KBR Clinic in Khowst Providence in Afghanistan and the physician(s) who prescribe him Midrin and Flexeril. Dermatophytosis The Veteran is also seeking a compensable rating for service-connected dermaphytosis (tinea versicolor). The last VA examination was conducted while the skin condition was quiescent, and did not reflect sufficient description of the percentage of affected areas when active. Therefore, the issue is also remanded for an additional examination. Right thumb The Veteran seeks a compensable rating for his right thumb disability. He reports intermittent episodes of painful motion and stiffness. At the February 2013 VA examiner, the Veteran described episodic flares of stiffness and aches with occasions where he could not lift over 40-50 pounds. However, the examiner stated that the Veteran did not report flares of disability or describe the extent of the Veteran's functional impairment during flares. Given the Veteran's statements concerning flare-ups and a recent holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), additional VA examination is required. Additionally, the Court has held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a minimum compensable rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. Burton v. Shinseki, 25 Vet. App. 1 (2011). On remand, the AOJ should consider the provisions of 38 C.F.R. § 4.59. Keratitis The Veteran seeks a compensable rating for herpes simplex keratitis which, per VA examination, has left a residual corneal scar. The record is unclear, however, what current eye impairment is attributable to residuals of herpes simplex keratitis. This issue will be remanded for an examiner to describe the herpes simplex keratitis disease process and to delineate which symptoms and visual impairments, if any, are attributable to this disorder. Calf muscle injury The Veteran seeks service connection for residuals of a calf muscle injury. His service treatment records reflect treatment for right calf hematoma in service. At VA examination in February 2013, the examiner recorded the Veteran's description of left calf symptoms, correctly referred to in service treatment for right calf muscle hematoma, and provided a diagnosis of left gastrocnemius hematoma with no residuals. This examination report must be returned as inadequate. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to identify all providers of treatment for headaches, including KBR Clinic in Khowst Providence in Afghanistan and the physician(s) who prescribe him Midrin and Flexeril. The Veteran should also identify any providers of treatment for tinea versicolor, right thumb disability, keratitis, and/or residuals of a calf injury. 2. Afford the Veteran VA skin examination to determine the nature and severity of his service-connected tinea versicolor. The examiner should take history from the Veteran regarding the frequency, severity and duration of tinea versicolor outbreaks as well as a description of the percentage of entire body and exposed body affected during flares. 3. Afford the Veteran an appropriate VA examination to determine the nature and severity of his service-connected right thumb disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 4. Afford Veteran VA eye examination to determine the nature and severity of his service-connected herpes simplex keratitis of the right eye. The examiner should describe the herpes simplex keratitis disease process and delineate which symptoms and visual impairments, if any, are attributable to this disorder. 5. Schedule the Veteran for VA examination to determine the current nature and severity of his claimed calf disability. The claims folder contents must be made available to the examiner. The examiner should clarify whether the Veteran seeks to service connect disability of the right or left calf, and identify all current symptoms reported by the Veteran. Thereafter, the examiner should identify whether the Veteran has a current calf disability explaining the medical significance, if any, of the Veteran's current reported symptoms. If a current disability is found, provide opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset in service or is otherwise related to service. The examiner's report must include a complete rationale for all opinions expressed. 6. Thereafter, readjudicate the claims. With respect to the right thumb disability, the AOJ should consider the holding in Burton v. Shinseki, 25 Vet. App. 1 (2011) which held that 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a minimum compensable rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).