Citation Nr: 1808203	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  11-23 662	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1.  Entitlement to service connection for right ear hearing loss.

2.  Entitlement to service connection for a bilateral shoulder injury.

3.  Entitlement to an initial disability rating for tension headaches with photophobia, rated as 10 percent disabling prior to April 29, 2016, and 30 percent disabling thereafter.

4.  Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and neurocognitive disorder, previously rated as PTSD/traumatic brain injury.

5.  Entitlement to an initial disability rating in excess of 40 percent for traumatic brain injury (TBI). 




REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESSES AT HEARING ON APPEAL

The Veteran and his parents


ATTORNEY FOR THE BOARD

J. Abrams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 2001 to December 2008.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.  In August 2014, the Board remanded the case for additional development.  Concerning only the claims for a bilateral shoulder disability and initial disability ratings for PTSD and TBI, unfortunately, for the reasons discussed below, another remand is required.  See Stegall v. West, 11. Vet. App. 268 (1998).  Concerning the other claims on appeal, the Board finds that there has been substantial compliance with its prior remand directives.  Id.

Concerning the issues of entitlement to service connection for a right knee disability, low back, and cervical spine disabilities, as well as entitlement to an increased rating for tension headaches, the Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court), and in October 2015 the Veteran's representative and VA's General Counsel filed an Amended Joint Motion for Partial Remand.  The Court granted the motion and remanded those claims.  

In March 2016, the Board once again remanded the claims for service connection for a right knee disability, low back, and cervical spine disability, as well as the increased rating claim for tension headaches.  During the period of the appeal, the RO granted service connection for a right knee disability, low back, and cervical spine disability in a September 2016 Rating Decision.  Therefore, those claims have been resolved and are no longer before the Board on appeal.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).

In a May 2015 Rating Decision, the RO increased the disability rating for the Veteran's service-connected tension headaches with photophobia from noncompensable to 10 percent, effective December 24, 2008, the original date of claim.  In a September 2016 Rating Decision, the RO increased the disability rating from 10 percent to 30 percent, effective April 29, 2016.  Additionally, in an August 2017 Rating Decision, in granting the Veteran's claim for individual unemployability, the RO increased the ratings of the Veteran's service-connected PTSD and neurocognitive disorder to 70 percent, as well as his service-connected TBI to 40 percent, effective December 24, 2008, the original date of claims.  The Veteran since has continued to appeal for even higher ratings.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (it is presumed a claimant is seeking the greatest possible rating for a disability unless he/she specifically indicates otherwise).

In an August 2017 letter, the Veteran was notified that the Veterans Law Judge (VLJ) who conducted his June 2013 hearing was no longer employed at the Board.  The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision on that appeal.  38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2017).  The Veteran had thirty days to respond to the letter and request a new Board hearing.  No response was received from the Veteran within the thirty day time period, and the case is now before the Board.

The issues of entitlement to service connection for a bilateral shoulder disability, and increased ratings for PTSD and TBI are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran does not currently have a right ear hearing loss disability for VA purposes.

2.  Prior to June 19, 2013, the Veteran's tension headaches with photophobia have been characterized by prostrating attacks averaging one in two months over the last several months.

3.  Affording the Veteran the benefit of the doubt, for the entire period from June 19, 2013, his tension headaches with photophobia have been characterized by prostrating attacks occurring on an average once a month over the last several months.  

4.  At no point during the appeal have the Veteran's tension headaches with photophobia been characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.


CONCLUSIONS OF LAW

1.  The criteria for service connection for right ear hearing loss have not been met.  38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

2.  Prior to June 19, 2013, the criteria for an initial disability rating in excess of 10 percent for tension headaches with photophobia have not been met.  38 U.S.C. 
§§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2017).

3.  From June 19, 2013 until April 29, 2016, the criteria for a disability rating of 30 percent, but no higher, for tension headaches with photophobia have been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, DC 8100 (2017).

4.  From April 29, 2016, the criteria for a disability rating in excess of 30 percent for tension headaches with photophobia have not been met.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, DC 8100 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).   

The Board also notes that, with regard to the claims decided herein, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104, (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required).

II.  Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C. § 1110.  Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  Certain disabilities are presumed to be serviced connected if manifested to a compensable degree within one year following service.  38 C.F.R. §§ 3.303, 3.307, 3.309.

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.  With initial evaluations, as here, separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.

III.  Analysis

Service Connection for Right Ear Hearing Loss

The Veteran contends that service connection is warranted for his claimed right ear hearing loss.  Based on the analysis below, the Board determines that the preponderance of the evidence is against the claim and that service connection is not warranted.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).

Under 38 C.F.R. § 3.385 (2017), disability due to impaired hearing, for the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.

The Board finds that service connection for right ear hearing loss is not warranted because the Veteran's hearing is clinically within normal limits for VA disability purposes.  Id.     

In an April 2009 VA audiology examination report, the Veteran reported that he had difficulty distinguishing speech clearly in background noise.  During his time in active service, the Veteran's military occupational specialty (MOS) was as a combat engineer.  He was exposed to combat noise and was in close proximity to an improvised explosive device (IED) explosion.

Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
5
5
0
15
LEFT
15
5
0
0
15

The Maryland CNC Word List Speech recognition score for the Veteran's right and left ears was 100 percent.  No further abnormalities were noted, and the Veteran was diagnosed with upper normal hearing sensitivity in both ears.  

In a May 2017 VA audiology examination report, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
10
10
35
LEFT
15
10
5
10
25

The Maryland CNC Word List Speech recognition score for the Veteran's right and left ears was 100 percent.  The Veteran was diagnosed with mixed hearing loss in both ears.  

The examiner opined that it was less likely than not that the Veteran's claimed right ear hearing loss was caused by or a result of an event in military service.  The rationale was that the Veteran's MOS had a high probability for exposure to hazardous noise and there was strong evidence that the Veteran experienced a perforation of his right tympanic membrane resulting in conductive hearing loss following an IED attack in 2004.  However, the Veteran's tympanic membrane eventually healed, and subsequent hearing tests showed improved pure tone thresholds in his right ear.  The VA examiner concluded by noting that the Veteran's hearing had normal hearing sensitivity during the April 2009 VA examination and during the current examination.

The Board notes that the VA examiner opined that the Veteran's left ear hearing loss was at least as likely as not caused by or a result of an event in military service.  The rationale was that despite not meeting VA standards for a ratable hearing loss, the Veteran had hearing loss at 6000 Hz at the time of his April 2008 VA examination.  However, as noted above, for the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  For VA disability purposes, the 6000 Hz frequency is not rated.

Despite finding that the Veteran's left ear hearing loss at 6000 Hz was related to service, the VA examiner found that the Veteran did not have a hearing loss disability in either ear.  

The Board has not overlooked the Veteran's statements with regard to his hearing loss.  The Veteran is competent to report on factual matters of which he had firsthand knowledge; and the Board finds that his reports concerning diminished auditory acuity have been credible.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, there is no basis for concluding that a lay person such as the Veteran is competent of discerning whether his hearing loss represents a disability per 38 C.F.R. § 3.385, in the absence of specialized training, which in this case the Veteran has not established.  As such, the Veteran's lay contentions lack probative value, particularly in comparison to the examination evidence noted above.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Board finds that the April 2009 and May 2017 VA examination reports are the most probative evidence of record, as the examiners reviewed the claims file and provided a detailed rationale.  Id.

In the absence of evidence of a hearing loss disability for VA purposes, the Veteran's claim must be denied.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017).

Increased Rating for Tension Headaches with Photophobia

The Veteran contends that his migraines are more severe than the assigned disability ratings reflect.  The Board notes that the Veteran's tension headaches with photophobia are rated as 10 percent disabling, effective December 24, 2008, and 30 percent disabling effective April 29, 2016.  The Veteran's migraine headaches have been rated under 38 C.F.R. § 4.124a, DC 8100 (2017).

DC 8100 provides ratings for migraines.  The minimum zero percent, noncompensable rating is warranted for migraines with less frequent attacks.  Id.  A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months.  Id.  A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months.  Id.  The maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Id.  

Prior to June 19, 2013

In a May 2009 VA examination report, the Veteran was diagnosed with chronic tension headaches.  The Veteran reported that during active service, an IED exploded while he was on patrol and caused TBI.  He reported that he had headaches about three times per month, but did not say if they were prostrating.  The VA examiner noted that the Veteran's headaches were not prostrating and that ordinary activity was possible.  The usual duration of a headache lasted for about one to two days.  

Prior to June 19, 2013, the Veteran was rated as 10 percent disabled for his tension headaches with photophobia under DC 8100.  38 C.F.R. § 4.124a, DC 8100 (2017).  As discussed above, to warrant a 30 percent disability rating under DC 8100, the Veteran must have migraines with characteristic prostrating attacks occurring on an average once a month over the last several months.  Id.  Based on this record, the Board is unable to identify any clinical findings that would warrant an increased evaluation for the Veteran's tension headaches with photophobia prior to June 19, 2013.  Prior to June 19, 2013, the 10 percent rating adequately compensates the Veteran for any functional impairment attributable to his tension headaches with photophobia.  See 38 C.F.R. §§ 4.41, 4.10 (2017).

From June 19, 2013

During his June 19, 2013 hearing, the Veteran testified that he used caffeine and over the counter medication to try and alleviate his headache symptoms.  He reported headaches that lasted at least three to five days a month and were debilitating.  The Veteran further testified that he had migraines three times a week.  The Board notes that the Veteran received VA treatment for his headaches from 2009 to 2016, but these treatment reports do not detail the severity and frequency of the Veteran's headaches.

In an April 2016 VA examination report, the Veteran was diagnosed with migraines, including migraine variants, and tension headaches.  The Veteran reported that he had one to two migraines a week and that he treated them with Maxalt and Excedrin.  During his migraines, the Veteran noted that he could not function and had to lie down in a cool dark room. He stated that most migraines lasted approximately six hours.  The Veteran also reported tension headaches two to three times a week.  

The VA examiner noted that the Veteran experienced headache pain that was pulsating or throbbing.  It was located to one side of his head and worsened with physical activity.  The examiner reported that the Veteran's headaches typically occurred in the occipital region on the left side and then moved over the top of the left side.  The Veteran experienced symptoms of nausea, sensitivity to light and sound, and changes in vision.  He also experienced blurry vision and occasional dizziness during his migraines.  The Veteran's migraines typically lasted less than one a day and were located on the left side of his head.

The VA examiner reported that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain.  He did not have very prostrating and prolonged attacks of migraines/non-migraine pain, productive of severe economic inadaptability.  

In a June 2017 VA examination report, the Veteran was diagnosed with migraines, including migraine variants.  The Veteran stated that his condition had stayed the same since his last examination.  He reported that he experienced headache pain, which worsened with physical activity.  The Veteran's symptoms included sensitivity to light, sensitivity to sound, and sensory changes such as feelings of pins and needles in his extremities.  The duration of his typical head pain lasted less than one day and was located on the left side of his head.  The VA examiner noted that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain with less frequent attacks.  The Veteran did not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability.  

Based on this record, from June 19, 2013, the Veteran's tension headaches with photophobia more nearly approximate a 30 percent disability rating under DC 8100.  His headaches have been of a degree of severity and frequency commensurate with characteristic prostrating attacks occurring on an average once a month over the last several months.   38 C.F.R. § 4.124a, DC 8100.  As discussed above, to warrant the maximum 50 percent disability rating under DC 8100, the Veteran must have migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Id.  There is currently no evidence of record suggesting such a degree of disability, however, at any point since June 19, 2013.

Based on the above analysis, the Board determines that June 19, 2013 is the first time that there is evidence showing that the Veteran's tension headaches with photophobia could be characterized as prostrating.  From June 19, 2013, affording the Veteran the benefit of the doubt, a 30 percent rating adequately compensates the Veteran for any functional impairment attributable to his tension headaches with photophobia.  See 38 C.F.R. §§ 3.102 4.41, 4.10 (2017).  The Board is unable to identify any clinical findings that would warrant a 50 percent evaluation for the Veteran's tension headaches with photophobia at any point thereafter, however.

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) (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).  The Board notes that the Veteran has already been granted a total disability rating based upon individual unemployability.


ORDER

Entitlement to service connection for right ear hearing loss is denied.

Prior to June 19, 2013, an initial disability rating in excess of 10 percent for tension headaches with photophobia is denied.

From June 19, 2013 until April 29, 2016, a disability rating of 30 percent, but no higher, for tension headaches with photophobia is granted, subject to the laws and regulations governing monetary benefits.

From April 29, 2016, a disability rating in excess of 30 percent for tension headaches with photophobia is denied.


REMAND

Concerning the claim of entitlement to service connection for a bilateral shoulder disability, in the August 2014 remand, the VA examiner was specifically requested to address whether the Veteran's shoulder pain represented a neurological manifestation of his service-connected TBI.  In the June 2017 VA examination report, the examiner reported that the Veteran did not have a disability in either shoulder.  However, this examination report only addressed the orthopedic aspects of the Veteran's shoulders, not the neurological aspects.  While the examiner noted that the Veteran experienced pain and numbness in his shoulders, no explanation was provided.  A new VA examination is necessary to determine if the Veteran has a neurological manifestation in his shoulders and whether it is etiologically related to active service or secondarily related to his service-connected TBI.

Concerning the increased rating claims for PTSD, with neurocognitive disorder, and TBI, in the August 2014 remand, the Board ordered the RO to readjudicate these issues.  In an August 2017 Rating Decision, the RO, in granting the Veteran's claim for individual unemployability, also increased the ratings for the Veteran's PTSD to 70 percent, and his TBI to 40 percent.  While the RO characterized these increases as "a full grant of the benefit sought on appeal," this is not the case.  The maximum rating allowed for PTSD is 100 percent, and the maximum rating for TBI is 70 percent.  The Veteran was not granted these ratings.  Because the benefit sought on appeal was not completely granted, the RO should have readjudicated these claims in a Supplemental Statement of the Case (SSOC).  This was never accomplished.  As a result, the RO must readjudicate the Veteran's increased rating claims for PTSD and TBI in an SSOC. 

Accordingly, the case is REMANDED for the following actions:

1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all VA and private treatment records concerning the claims on appeal.

2. After the above has been completed, schedule the Veteran for a VA medical examination to determine the nature and etiology of any diagnosed conditions concerning his claim a for bilateral shoulder disability.  Prior to the examinations, the claims folder and a copy of this remand must be made available to the examiner for review of the case.  A notation to the effect that this review took place should be included in the report.  A rationale must be provided for all opinions.  

For any diagnosed disability found, to include neurological manifestations, an opinion must be provided that such disability is at least as likely as not (a 50 percent or greater probability) either directly related to active military service or is proximately due to or chronically aggravated by the Veteran's service-connected TBI.  

If there are any claimed disabilities for which a current diagnosis cannot be rendered, the examiner should so explain.  A complete rationale for each opinion must be provided.

3. After the completion of the above development, and any other development deemed necessary, readjudicate the three claims on appeal, to include the claims for increased ratings for PTSD, with neurocognitive disorder, and TBI, furnish the Veteran with a supplemental statement of the case, and give him an opportunity to respond before the case is returned to the Board.

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).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs