Citation Nr: 1815303	
Decision Date: 03/16/18    Archive Date: 03/23/18

DOCKET NO.  14-28 322	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for refractive error.

2.  Whether new and material evidence has been received to reopen a claim for service connection for tinnitus.

3.  Entitlement to service connection for a disorder manifested by dizziness.  

4.  Entitlement to service connection for a sinus disorder.

5.  Entitlement to service connection for a back disorder.

6.  Entitlement to service connection for a stomach disorder.

7.  Entitlement to service connection for hypertension. 

8.  Entitlement to a 30 percent rating for migraine headaches prior to May 18, 2014.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Snyder, Counsel


INTRODUCTION

The Veteran had active service from February 1978 to March 1982 and December 1990 to May 1991.  

This matter came before the Board of Veterans' Appeals (Board) from an April 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO).  In a July 2014 rating decision, the RO increased the rating for migraine headaches to 30 percent effective May 8, 2014.  In statements and testimony subsequent to the increase, the Veteran indicated that he wished to limit the appeal to entitlement to a 30 percent rating for the period prior to May 8, 2014.  The issue has been characterized accordingly.  

A hearing before the undersigned Veterans Law Judge was held at the RO in September 2016.  The hearing transcript has been associated with the claims file.

The Veteran previously submitted a claim of entitlement to service connection for a disorder manifested by dizziness, which was denied in an August 1997 rating decision.  Service connection was denied, at least in part, due to the absence of a service-connectable disability.  The August 1997 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period.  See 38 C.F.R. § 3.156(b).  In connection with the Veteran's claim to reopen, evidence has been added to the record, which includes a diagnosis of vertigo.  Thus, the Board finds that new and material evidence has been received sufficient to reopen the previously denied claim.  38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

The application to reopen the claim for service connection for tinnitus and claims for service connection for a sinus disorder, back disorder, stomach disorder, and hypertension are addressed in the REMAND portion of the decision below.


FINDINGS OF FACT

1.  At the September 2016 hearing before the Board, the Veteran withdrew his appeal for service connection for refractive error.

2.  The Veteran's vertigo is related to his second period of active service.  

3.  The Veteran's migraine headaches most nearly approximated characteristic prostrating attacks occurring on an average once a month for the period prior to May 8, 2014.  


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a Substantive Appeal by the Veteran with respect to the application to reopen the claim for service connection for refractive error have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. §§ 20.202, 20.204 (2017).

2.  The criteria for service connection for vertigo have been met.  38 U.S.C. § 1110, 1131, 1137, 5104 (West 2012); 38 C.F.R. § 3.303 (2017).  

3.  The criteria for a 30 percent rating for migraine headaches for the period prior to May 8, 2014, have been met.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal of Appeal

An appeal may be withdrawn by an appellant or his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  At the September 2016 hearing before the Board, the Veteran withdrew the appeal with respect to the application to reopen the claim for service connection for refractive error.  Hence, there remains no allegation of error of fact or law for appellate consideration with respect to this issue, and it must be dismissed.

Service Connection

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C. §§ 1110, 1131, 1137; 38 C.F.R. § 3.303.  

Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).   

The record includes the Veteran's histories of episodic dizziness during and since service in the Persian Gulf.  It also includes a diagnosis of vertigo by the June 2009 VA examiner.  The Veteran is competent to report a history of symptoms (i.e. dizziness) associated with the currently diagnosed vertigo during and since service.  Resolving all doubt in favor of the Veteran, the Board finds service connection is warranted.  

Increased Rating

For historical purposes, it is noted that service connection was established for a headache disorder by the RO in an August 1997 decision.  A 10 percent disability evaluation was assigned.  A subsequent claim for increased rating was denied in a February 2007 rating decision.  The Veteran submitted a timely notice of disagreement, and a Statement of the Case was issued in November 2007.  The Veteran did not appeal.  In 2009, the Veteran submitted statements that were interpreted as a claim for increased rating.   

The headache disability is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100 for migraine headaches.  Diagnostic Code 8100 provides a 10 percent rating for prostrating attacks averaging one in two months over several months.  A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months.  The maximum schedular disability rating of 50 percent is warranted for migraine headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability.  

The rating criteria do not define "prostrating," nor has the Court.  Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 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 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness."

The Board finds a 30 percent rating is warranted for the period of the claim prior to May 8, 2014.  The record indicates that the Veteran has both prostrating and nonprostrating headaches, and treatment records are ambiguous as to the severity of the headaches reported by the Veteran (i.e. whether they are prostrating).  The May 2014 VA examination record reveals the Veteran's history of progressively worsening headaches and reports the examiner's determination that the Veteran has characteristic prostrating attacks of headache pain on average once every month.  Resolving all doubt in favor of the Veteran, the Board finds the Veteran has experienced an average of one prostrating headache per month over the period of the claim, including that dated prior to May 8, 2014.  


ORDER

The appeal for service connection for refractive error is dismissed.

Service connection for vertigo is granted.

A 30 percent rating for migraine headaches is granted for the period prior to May 8, 2014.


REMAND

The record indicates that the Veteran was previously awarded disability benefits from the Social Security Administration (SSA).  See July 2013 statement (with January 2013 SSA decision letter).  Records in the possession of the SSA could be supportive of the Veteran's claims.  Thus, further development to obtain those records is in order.  

Furthermore, specific to the claim for service connection for a low back disorder, the Board finds an addendum opinion should be obtained to address the findings of sacralization during service in May 1991.  
 


Accordingly, the case is REMANDED for the following action:

1. Undertake appropriate development to obtain a copy of any SSA disability determination(s) for the Veteran and a copy of the records associated with any such determination(s).

2.  Undertake appropriate development to obtain any other outstanding medical records pertinent to the Veteran's claims.   

3.  Obtain a medical opinion from an appropriate medical professional to determine whether the Veteran's current low back disorder was present in or is etiologically related to the Veteran's second period of service, which dates from December 1990 to May 1991.  The examiner should address the findings of sacralization in April and May 1991.  

If the medical professional determines the current disorder was present during service, the medical professional should provide an opinion as to whether it existed prior to service.  

If it is determined that the condition preexisted service, the medical professional should provide an opinion as to whether the condition did not undergo a permanent increase in severity during the Veteran's period of service.  

If the medical professional is unable to provide any required opinion, the medical professional should explain why.  If the medical professional cannot provide an opinion without resorting to mere speculation, the medical professional shall provide a complete explanation as to why this is so.  If the inability to provide a more definitive opinion is the result of a need for additional information, the medical professional should identify the additional information that is needed. 

4.  Thereafter, readjudicate the Veteran's claims.  If the benefits sought on appeal remain denied, the Veteran should be provided a supplemental statement of the case (SSOC).  The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal.  An appropriate period of time should be allowed for response.

The appellant 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.  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 (West 2012).




____________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs