Citation Nr: 1817451 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 13-44 034A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date prior to March 11, 2003 for the grant of service connection for cluster headaches. 2. Entitlement to an initial compensable rating prior the December 23, 2010, and in excess of 30 percent thereafter for cluster headaches. 3. Entitlement to service connection for traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1994 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2011 and November 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction is now with the RO in Roanoke, Virginia. The Veteran testified before the undersigned Veterans Law Judge in January 2018, and a transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. VA received the Veteran's claim for service connection for cluster headaches on September 7, 2000; no communication prior to September 7, 2000, was received that could be construed as an informal or formal claim of entitlement to service connection for cluster headaches. 2. Entitlement for service connection for cluster headaches arose on September 7, 2000, the same date the Veteran filed a claim for service connection. 3. Prior to December 23, 2010, the Veteran's cluster headache disability was not manifested by characteristic prostrating migraine attacks averaging one in two months over the last several months. 4. As of December 23, 2010, the Veteran's cluster headaches have been manifested by symptoms most consistent with characteristic prostrating attacks averaging one in two months over last several months. Severe economic inadaptability has not been shown. 5. The Veteran does not have residuals of a TBI. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 7, 2000 but no earlier, for the grant of service connection for cluster headaches are met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for a compensable rating for cluster headaches prior to December 23, 2010 have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). 3. The criteria for a rating in excess of 30 percent for cluster headaches for the period as of December 23, 2010 have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017). 4. The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice to a claimant should be provided at the time or immediately after VA receives a complete or substantially complete application for benefits. 38 U.S.C. § 5103 (a) (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with 38 U.S.C. § 5103(a)-compliant notice in January 2011, April 2012, and January 2013. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran was provided VA examinations with respect to the claims decided herein. The examinations adequately provide the findings necessary to a resolution to the appeal. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Earlier Effective Date Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2017). The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b) (2012); 38 C.F.R. § 3.400 (b)(2) (2017). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a) (2012); 38 C.F.R. § 3.151 (a) (2017). Claim or application means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p) (2017). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or representative, or other party, may be considered an informal claim. An informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2017). The Veteran contends that he is entitled to earlier effective dates for the grant of service connection for cluster headaches, effective March 11, 2003. With regards to the Veteran's claim for an earlier effective date prior to March 11, 2003 for the grant of service connection for cluster headaches, the Board notes that the Veteran's claim for service connection for cluster headaches was received by VA on September 7, 2000. In that claim, the Veteran attached a statement, reported experiencing headaches. The RO determined that while the Veteran's September 2000 statement was a claim for entitlement for service connection for headaches, it was not until March 2003 that the condition was first diagnosed as probable cluster headaches in a VA treatment record. Therefore, the RO determined that the proper effective date was March 11, 2003, which is the date the cluster headaches first arose and was later than the September 2000 claim for service connection. Initially, a thorough review of the record does not show any written communication by or on behalf of the Veteran was received prior September 7, 2000, in which he requested a determination of entitlement or evidencing a belief in entitlement to service connection for cluster headaches. The record does not show that the Veteran filed any claim of entitlement to service connection for cluster headaches prior to September 7, 2000. Therefore, this case hinges on when the Veteran's cluster headaches arose. Moreover, the Veteran does not contend in his statements that he actually filed any such claim prior to that date. A June 1998 service treatment separation examination report shows that the Veteran reported experiencing headaches. A September 2000 statement submitted in support of the Veteran's claim for service connection shows that he reported symptoms of headaches. An August 2001 VA treatment report shows that the Veteran reported burning eyes and headaches. An April 2002 VA treatment report shows that the Veteran reported headaches with vomiting. A January 2002 VA examination report shows that the Veteran reported headaches when doing working on a computer close up for long periods of time. The examiner reported that the Veteran's left eye drift caused eye strain and headaches. A March 2003 VA examination report shows that the Veteran sought treatment for headaches and was diagnosed with probable cluster headaches. A January 2011 VA examination report shows that the Veteran reported his headaches occurred in service. The examiner reported and opined that the cluster headaches were at least as likely due to an in-service eye injury. The examiner also stated that the Veteran's left eye convergence was not the cause of the headaches. The Veteran reported having headaches on average 5 to 8 times per month. The Veteran reported taking zolmig during headaches and would be bed-ridden when they occurred. After a review of the evidence of record, the Board finds that the Veteran is entitled to an earlier effective date of September 7, 2000 for the grant of service connection for cluster headaches. The Board finds that the evidence is in equipoise as to whether the Veteran was experiencing cluster headaches when he filed his claim for service connection on September 7, 2000. Here, as noted above the Veteran reported experiencing headaches on his separation examination in 1998 and following service in August 2001. The Veteran is competent to report symptoms of headaches. Moreover, there is positive and negative evidence in the form of VA examination reports that concluded both that the headaches were due to his service connected left eye condition and that the headaches were not due to his service connected left eye condition but due instead to an injury incurred in service. Therefore, based on the above stated facts and regulations, the Board finds that the legally correct date for the grant of service connection for cluster headaches is September 7, 2000, the date the Veteran filed his claim for service connection for headaches, which is later than the condition arose, which the Veteran has reported competently he experienced since separation from service. Therefore, the Veteran is entitled to an earlier effective date of September 7, 2000, but no earlier, for the grant of service connection for cluster headaches, and his claim must be granted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Increased Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The Veteran's service connected cluster headache disability is currently assigned a noncompensable rating by analogy to 38 C.F.R. § 4.124a, Diagnostic Code 8100 prior to December 23, 2010, and a 30 percent rating thereafter. Under Diagnostic Code 8100, a noncompensable rating is warranted for less frequent prostrating attacks. A 10 percent rating is assigned for migraines with characterized prostrating attacks averaging 1 in 2 months over the previous several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the previous several months. A maximum 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). Although the rating criteria do not define "prostrating," according to Dorland's Illustrated Medical Dictionary, 32nd Edition (2012), p. 1531, "prostration" is defined as "extreme exhaustion or powerlessness." An August 2001 VA treatment report shows that the Veteran reported burning eyes and headaches. An April 2002 VA treatment report shows that the Veteran reported headaches with vomiting. A January 2002 VA examination report shows that the Veteran reported headaches when doing working on a computer close up for long periods of time. The examiner reported that the Veteran's left eye drift caused eye strain and headaches. A March 2003 VA examination report shows that the Veteran sought treatment for headaches and was diagnosed with probable cluster headaches. A January 2011 VA examination report shows that the Veteran reported his headaches first occurred in service. The examiner opined that the cluster headaches were at least as likely as not due to an eye injury in service. The examiner also stated, however, that the Veteran's left eye convergence was not the cause of the headaches. The Veteran reported that symptoms were vomiting. He reported having a headaches on average 5 to 8 times per month. The Veteran reported taking zolmig during headaches and would be bed-ridden when they occurred. A June 2015 VA examination report diagnosed the Veteran with cluster headaches. The Veteran reported symptoms of severe pain behind the left eye that led to vomiting on a number of occasions. Medication was noted to be used for his treatment plan for cluster headaches. Headache pain was noted to occur with pain localized to one side of the head with nausea less than one day. Prostrating attacks of migraine headache pain were not reported. The examiner did report that the Veteran had non-migraine prostrating attacks occurring more than once per month, but found that the Veteran did not have very frequent prostrating and prolonged attacks of non-migraine headaches. Functional impacts on his ability to work were that he could not work when headaches were intense. A November 2016 VA examination report shows that the Veteran was diagnosed with cluster headaches lasting 4 to 8 hours. Veteran reported that headaches could occurred any time of day which would cause him to lie down. The Veteran reported frequency of 10 to 12 days per month. He reported that medication helped. The examiner referenced that the treatment plan for the headaches required medication. Symptoms were noted as constant pain, localized on one side of head lasting less than one day, worsened with physical activity. Non-headache symptoms were noted as nausea and vomiting. Characteristic prostrating attacks of migraine were noted to occur once every month. Very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability were not reported. Functional impact of the headaches were noted to impact his ability to work. After a review of the evidence of record the Board finds, first, that a compensable rating is not warranted prior to December 23, 2010 for cluster headaches pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board finds that the evidence does not indicate that the Veteran suffered from characteristic prostrating attacks averaging one in 2 months over last several months. In this regard, the Veteran's cluster headaches were noted in VA treatment records prior to December 23, 2010, as headaches that caused vomiting, and headaches occurring when staring at a computer screen. However, the VA treatment records did not show that the Veteran experienced characteristic prostrating attacks of migraine headaches averaging at least one in 2 months over a period of several months (i.e., at least a 10 percent rating under Diagnostic Code 8100) such that a compensable disability is warranted for the Veteran's service-connected headaches prior to December 23, 2010. The Veteran also has not identified or submitted any evidence demonstrating his entitlement to a compensable disability rating prior to December 23, 2010 for headaches. Thus, the Board finds that the criteria for a compensable disability rating prior to December 23, 2010 for headaches have not been met. The Board further finds that the preponderance of the evidence weighs against the Veteran's claim for a rating in excess of 30 percent for his headaches as of December 23, 2010. While it is apparent that Veteran's migraines are frequent, in that he has three or so per month, and that they impact somewhat on his ability to work, the evidence does not establish that the headache disorder is productive of severe economic inadaptability. While the VA examiners' opinions of record concluded that the cluster headaches did impact his ability to work, the reports never concluded that the cluster headaches resulted in severe economic inadaptability, which is required for the next higher rating. The Board notes that this is supported by the Veteran's continued employment, and the absence of other indicia of economic inadaptability. In so finding, the Board points out that the Veteran's current 30 percent disability rating contemplates economic losses due to time off from work, as prostrating attacks on a monthly basis are reasonably likely to cause an individual to miss time off from work without causing them severe economic inadaptability. Additionally, while the Veteran must miss time from work when headaches are severe, there have been no reports of reduced income severe enough to suggest severe economic inadaptability. The Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected cluster headaches and notes that his lay testimony is competent to describe the symptoms associated with such disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and are contemplated by the noncompensable rating assigned prior to December 23, 2010, and the 30 percent disability rating assigned thereafter. Moreover, the Board finds that the competent medical evidence offers detailed specific findings pertinent to the rating criteria; this is the most probative evidence with regard to evaluating the pertinent symptoms of his cluster headaches. As such, while the Board accepts the Veteran's assertions with regard to the matters he is competent to address, such as severity of symptoms and missing work, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected cluster headaches. Based on the above, the Board finds that the Veteran's cluster headaches are more consistent with the noncompensable rating assigned prior to December 23, 2010, and the currently assigned 30 percent rating on and after that date, and that the preponderance of the evidence is against assignment of any higher ratings. IV. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (d) (2017). The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of a showing of a current disability, service connection cannot be granted. Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Veteran asserts that he experienced a TBI during service and currently has residuals of a TBI. Specifically, he reported that while playing flag football he was injured and lost consciousness. A July 1995 service treatment record shows that the Veteran reported reinjuring his right shoulder from playing football. At that time, the Veteran did not report head trauma, passing out, or losing consciousness. A September 1996 service treatment record shows that the Veteran suffered an injury affecting the eye while playing basketball. No head injuries or loss of consciousness were reported. A December 1997 service treatment record shows that the Veteran was treated for low back and right hip pain while playing football three days prior. A June 1998 service treatment record shows that on the Veteran's final physical he self-reported no head injury, but did report headaches. A May 2012 buddy statement shows that the fellow service member remembered the Veteran playing football, and the Veteran getting knocked down during a play. It was reported that the Veteran passed out shortly thereafter. Two team members were reported to pick up the Veteran to take him to medical and he was out of work for 2 to 3 days. An October 2013 VA examination report shows that after a review of the evidence of record, the examiner determined that the it was less likely than not that a TBI was related to service. The examiner's rationale was that although the Veteran reported injuring his eye while playing basketball, there were no reports of loss of consciousness or evidence of a head injury stemming from that event. The examiner noted that the Veteran did not have a TBI or any residuals of a TBI. The examiner acknowledged the Veteran's and his fellow service members reports of a football injury that led to a reported loss of consciousness. The examiner noted, however, that there was no mention of head injury or loss of consciousness in the service treatment records. A February 2015 letter from a VA physician reported that the Veteran had a history of trauma-blunt injury. An April 2015 VA neuropsychologist treatment report diagnosed the Veteran with an impression of mild neurocognitive disorder due to TBI. A November 2016 VA examination report shows that the VA examiner was a neurologist. The examiner reported that the Veteran did not have a TBI or any residuals from a TBI. The Veteran reported that he had suffered a TBI in 1998 when he was playing flag football and separated his shoulder. He reported that he lost consciousness but did not recall for how long. He also reported that his roommate said he lost consciousness and was taken to medical, but no diagnosis of concussion was made. The Veteran reported that he currently worked as an IT project manager. He reported memory issues but was not sure when they onset. The Veteran reported that headaches onset after the flag football incident. After a review of the claims file, to include service treatment records, post-service treatment record, and a physical examination, the examiner opined that it was less likely than not that a TBI was incurred in or caused by his shoulder injury while playing football during service. The examiner's rationale was that a TBI could not be confirmed as having occurred during active duty. The examiner noted the provided buddy statements and TBI screenings, but concluded that there were no medical entries for possible head injury noted in service, to include the separation examinations, that would support a finding that the Veteran had incurred a TBI during service. After a review of the evidence of record, the Board finds that the preponderance of the evidence weighs against the Veteran having suffered a TBI during service or having any current residuals of a TBI. Despite the in-service events, the Veteran does not have a current TBI diagnosis. Post-service treatment records show notations mentioning TBI; however, the October 2013 and November 2016 VA examination reports concluded that the Veteran did not sustain a TBI in service and that he was not currently suffering from such a disability. The examiners' findings are competent, as they were based on a review of the claims folder, an in-person interview, and a neurological examination that included assessment of the TBI-related cognitive impairment and subjective symptoms. There is no competent evidence in the Veteran's claims folder that reflects a diagnosis of a TBI at any time since the claim for service connection was filed. Absent the current existence of a claimed condition, there may be no service connection. Degmetich v. Brown, 104 F.3d 1328 (1997). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present when the claim is adjudicated. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (a recent diagnosis of a disability prior to the claim may also constitute current disability). In certain circumstances, a layperson is competent to identify a simple medical condition. However, a diagnosis of a TBI disability requires specialized medical knowledge or training that the Veteran is not shown to possess. A TBI diagnosis is a complex medical question, unlike testimony as to varicose veins or flat feet, which are capable of direct observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. (Fed. Cir. 2007). As a TBI is not a simple medical condition, the Veteran is not competent to provide such a diagnosis to satisfy the service connection framework in this regard, namely a current disability. Even assuming arguendo that the Veteran did sustain a TBI during service and has a current disability, the Board still finds that service connection is not warranted because the competent medical evidence, as well as the records contemporaneous to service, are all against a finding of any residuals of a TBI related to his active service. Moreover, the Board notes that it does not find that the Veteran's lay statements regarding his TBI during service lack credibility merely because they are unaccompanied by contemporaneous medical evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Rather, the Board finds the Veteran's lay statements credible as to his in-service experiences, but, as discussed above, as he and his fellow service member are lay persons, their statements lack competence as to the diagnosis or etiology of the claimed TBI. As the record presents no competent evidence to establish a present TBI disability during the appeal, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Service connection for a TBI is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an effective date of September 7, 2000, for the grant of service connection for cluster headaches is granted. Entitlement to an initial compensable rating prior to December 23, 2010, and in excess of 30 percent thereafter for cluster headaches is denied. Entitlement to service connection for TBI is denied. ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs