Citation Nr: 1821690 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 10-02 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased disability rating in excess of 10 percent for post traumatic headaches prior to July 14, 2016, and an evaluation in excess of 50 percent beginning therefrom. 2. Entitlement to an increased disability rating in excess of 10 percent for left ankle arthritis. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to January 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Following a February 2013 remand, the Board issued a decision in January 2014 denying, in relevant part, the claims now on appeal. Thereafter, the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2015 memorandum decision, the Court remanded the increased rating issues to the Board. In December 2015, the Board remanded the increased rating issues on appeal to the agency of original jurisdiction (AOJ) for additional development. During the course of the appeal, in a December 2016 rating decision, the RO increased the disability rating of post traumatic headaches to 50 percent, effective July 14, 2016. The currently assigned staged ratings do not represent the maximum disability ratings assignable for this disability, and the Veteran has not indicated that the current staged ratings are the maximum he is seeking. Because higher ratings are available, and because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the claim for a higher rating, as reflected on the title page, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). The issue of entitlement to a TDIU has been raised as a component of the increased rating claims on appeal. Thus, it is presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In its December 2015 remand, the Board explained that, pursuant to the May 2015 memorandum decision, the Board did not have jurisdiction over issues involving allegations of clear and unmistakable error (CUE) in a rating decision, which the Veteran raised on September 10, 2013. At present, the Board remains without jurisdiction to address the CUE issues. Therefore, they are again referred to the RO for appropriate action. 38 U.S.C. § 7111; 38 C.F.R. § 20.1405(e). Following the RO's last adjudication of the increased rating issue for post traumatic headaches, in a December 2016 supplemental statement of the case (SSOC), additional pertinent evidence was added to the claims file in December 2016, April 2017, and May 2017. In February 2018, the Veteran filed a waiver of initial RO jurisdiction for this evidence. Accordingly, this evidence is subject to initial consideration by the Board in this appeal. See 38 C.F.R. §§ 20.800; 20.1304(c) (2017). The issues of entitlement to an increased rating for the left ankle and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's headache disability prior to June 4, 2013, did not manifest with characteristic prostrating attacks occurring on an average of once a month over the last several months or a higher level of disability. 2. Beginning June 4, 2013, the evidence shows characteristic prostrating attacks occurring on an average of once a month over the last several months. 3. Beginning from July 14, 2016, the Veteran has been assigned the maximum, 50 percent rating, under Diagnostic Code (DC) 8100, and referral for an extraschedular rating is not warranted as there are no symptoms not contemplated by the rating schedule. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability rating in excess of 10 percent for post traumatic headaches prior to June 4, 2013, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a DC 8100 (2017). 2. The criteria for the assignment of a disability rating of 30 percent, but no higher, for post traumatic headaches beginning June 4, 2013, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a DC 8100 (2017). 3. The criteria for the assignment of a disability rating in excess of 50 percent for post traumatic headaches beginning July 14, 2016, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a DC 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that there was substantial compliance with the December 2015 Board remand directives. Specifically, the Veteran was sent a letter in January 2016 asking that he identify any health care providers having additional treatment records pertinent to his appeal. He responded in December 2016 informing VA that he had no other information or evidence to submit. Next, the Veteran's VA treatment records were obtained and associated with the claims file. Next, as directed, the Veteran underwent a VA examination in July 2016 to evaluate the severity of his headache disability. This VA examination, as indicated, is adequate to evaluate the disability. Finally, the matter was readjudicated in a December 2016 supplemental statement of the case (SSOC), as directed by the Board. Accordingly, there was substantial compliance with the prior Board remand directives, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). In a November 2017 brief, the Veteran argued that there was not substantial compliance with the Board's remand directives. He argued that the RO's adjudicative determinations in the October 2017 were "in opposition to the Board remand[.]" The Board notes that the prior remand did not direct the RO to make any specific findings as to the remanded issues. The remand was preliminary in nature and contained no order(s) granting or denying any benefit or which the RO would otherwise have been required to implement. See 38 C.F.R. § 20.1100(b). In fact, contrary to the Veteran's argument, it remained entirely within the RO's adjudicatory authority, and consistent with the Board's remand directives, to make these findings upon remand. Thus, the Veteran's arguments do not show that there was not substantial compliance with the Board's remand directives. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Analysis The Veteran is seeking an increased rating for post traumatic headaches. He filed a claim for increase in September 2007, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This disability has been assigned a 10 percent rating prior to July 2016, and a 50 percent rating beginning from that date. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7 (2017). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's headache disability has been assigned disability ratings under DC 8100 of 38 C.F.R. § 4.124a. The applicable rating schedule is set forth as follows: 8100 Migraine: With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability 50 With characteristic prostrating attacks occurring on an average once a month over last several months 30 With characteristic prostrating attacks averaging one in 2 months over last several months 10 With less frequent attacks 0 "Productive of economic inadaptability" can be read as having either the meaning of "producing" or "capable of producing," and nowhere in DC 8100 is "inadaptability" defined, nor can a definition be found elsewhere in title 38 of the Code of Federal Regulations. But, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). B. Discussion In this case, at the outset, the Board wishes to address the concerns raised in the Court's May 2015 memorandum decision. The Court found, as it pertains to this issue, that the Board declined to award a higher disability rating because the Board found the Veteran's headaches to be "relatively minor and not 'prostrating' in the manner contemplated by the rating schedule." But, the Court explained, the Board did not define "prostrating" or explain how the rating schedule contemplated that term. The Board now wishes to explicitly state that it has looked to the M21-1 for the Secretary's position on the meaning of the term "prostrating" as it is used in DC 8100. See Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed.Cir.2011) (discussing Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009) (an agency's interpretation of its own regulation in the M21 is controlling unless that interpretation is plainly erroneous or inconsistent with the regulation.)). Specifically, according to the M21-1, "prostrating," as used in § 4.124a, DC 8100, means "causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities." See M21-1, III.iv.4.G.7.a. Completely prostrating as used in § 4.124a, DC 8100, means extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. See M21-1, III.iv.4.G.7.b. Examples of prostrating symptoms include 1) experiencing severe headaches and vomiting when exposed to light; 2) not engaging in any activities when this occurs; and 3) must rest or sleep during these episodes. See M21-1, III.iv.4.G.7.d. Prostration is substantially defined by how the disabled individual subjectively feels and functions when having migraine headache symptoms. See M21-1, III.iv.4.G.7.c. The M21-1 further states that medical reports may not use the word "prostration." However this is an adjudicative determination based on the extent to which the facts meet the definition of the term. See M21-1, III.iv.4.G.7.c. On this basis, the Board finds in this case that a 30 percent rating is warranted from June 4, 2013, but no higher ratings are warranted for during any staged rating period. (1) 10% prior to June 4, 2013 From September 2007, when the Veteran filed his claim, until June 4, 2013, at which point a 30 percent rating is now being granted, the Board finds that a rating higher than 10 percent is not warranted because it is not factually ascertainable that the Veteran had characteristic prostrating attacks occurring on an average once a month over last several months or a higher level of disability. As a threshold matter, the Veteran's headaches are not shown to have been prostrating. At a February 2008 VA examination, the Veteran reported nausea and light sensitivity, but was able to go to work. The VA examiner found the headaches to be migraines with "migraine characteristics," but did not identify them as prostrating. Although nausea and light sensitivity are consistent with migraines, the Veteran was able to engage in activities and did not need to rest or sleep during a headache. His ability to function during a headache indicates that they were not prostrating. See VBA Manual M21-1, III.iv.4.G.7.d. He was seen for treatment in August 2010, when he complained of intermittent headaches usually occurring with exertion, such as when walking his dog. These headaches occurred several times per week and were more severe, accompanied by nausea and occasional dizziness. The headaches lasted for a few hours and were not preceded by aura, jagged lights, or undulating lines, and no anopsia. Again, the Board finds that this evidence shows symptoms such as nausea and occasional dizziness, but there is no indication that he was unable to function during these headaches. Thus, these headaches are not consistent with prostrating attacks. Id. In fact, in September 2010 follow-up, the Veteran reported headaches "greatly improved," occurring with much less frequency and severity than the August 2010 visit. Because the evidence prior to June 4, 2013 does not indicate prostrating attacks occurring on average of once a month, a higher rating is not warranted. (2) 30% beginning June 4, 2013 Beginning June 4, 2013, a 30 percent rating is warranted because the evidence shows characteristic prostrating attacks occurring on an average of once a month over the last several months. Specifically, at a June 4, 2013 VA examination, the Veteran reported daily sharp frontal headaches that lasted 45 to 60 minutes. He took over-the-counter pain medication and would lie down as needed for 25 to 30 minutes until the headaches resolved. He had no other symptoms and no non-headache symptoms. The VA examiner found that these were not prostrating attacks, and there was no functional impact on his ability to work. Because the Veteran's headaches required him to lie down for up to 30 minutes, the Board finds that these headaches are consistent with prostrating attacks. The June 2013 VA examiner did not identify them as such, but the facts meet the definition of that term, so the Board finds, as an adjudicative matter, that they were consistent with "prostrating attacks" as used in the rating schedule. See M21-1, III.iv.4.G.7.d. These headaches, according to the June 2013 VA examination, occurred daily. He needed to lie down "as needed," which indicates that they were not prostrating at each occurrence. Nonetheless, when resolving reasonable doubt in the Veteran's favor, the evidence indicates that the prostrating attacks occurred at least on an average once a month over last several months. Accordingly, a 30 percent rating is warranted from June 4, 2013. The 30 percent rating is not warranted prior to that date because it is not factually ascertainable when the 30 percent disability level arose. On this question, the intervening evidence between the September 2010 medical record and the June 2013 VA examination includes the Veteran's records from the Social Security Administration (SSA), including an October 2010 SSA Function Report. The Veteran's application for SSA disability benefits mentions many other medical conditions, but not headaches. It appears reasonable to assume that his headaches would have been documented to support his SSA application if occurring at the prostrating level because he otherwise described similar effects of his other disabilities on his daily life. Thus, his failure to mention any prostrating headaches on his SSA application is some evidence that they had not yet arisen to that level at that time See, e.g., AZ, 731 F.3d at 1315-16, 1317-18. Consequently, the earliest that that it can be factually ascertained that he met the criteria for the 30 percent rating is the date of the June 4, 2013 VA examination. The June 2013 VA examination indicates that the Veteran's headaches had been at the higher level for some months. However, the rating schedule provides for the 30 percent disability rating to be assigned only where the headaches had arisen to that level "over [the] last several months." Accordingly, the 30 percent rating is not for assignment at the beginning of the "several month" period. See 38 C.F.R. § 4.124a, DC 8100. In short, the earlier evidence is nonspecific in show exactly when the 30 percent disability arose, and the rating schedule provides for the assignment of the 30 percent rating only after a several month period. Therefore, the 30 percent rating is assigned from the date of the June 2013 examination and not earlier. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014); see also Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); VAOPGCPREC 12-98. The next higher, 50 percent rating, is not for assignment prior to July 14, 2016, as the evidence does not show very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The current 50 percent rating was assigned based on the results of a VA examination conducted on July 14, 2016. Supporting the 50 percent rating, the June 2016 examiner found, for instance, that the Veteran had constant headaches every day beginning from when he woke up, with nausea and occasional vomiting. He would lie down for 3 to 4 hours, which would decrease the pain level. The headaches were at a level of 7 or 8 until he rested, after which they would decrease to a level 6. The June 2016 VA examiner noted that there was some inconsistency in the intensity of the headaches as reported by the Veteran. The VA examiner mentioned that the Veteran was still able to drive, do light yard work, take morning walks, and remain sexually active despite the reported intensity level. Also, the VA examiner found significant that, despite the Veteran's report of constant, daily headaches, there were several outpatient medical records showing that the Veteran did not have headaches on those days. The RO found that the July 2016 VA examination established headaches at the 50 percent disability level beginning from the date of the examination. The propriety of the 50 percent rating is not at issue in this case and is not being called into question by the Board. See Murphy v. Shinseki, 26 Vet. App. 510 (2014). Nonetheless, the July 2016 VA examination, to the extent it shows a 50 percent disability level, does not establish when that disability level arose, nor does the remaining evidence. Consistent with the VA examiner's review of the medical records, there are intervening outpatient treatment records, such as in June 2016, which show that the Veteran was not having a headache during those visits. Although these visits were for other reasons, the medical reports state "No headache." This appears to be a situation where the Veteran affirmatively denied having a headache. See, e.g., Fountain v. McDonald, 27 Vet. App. 258, 274 (2015) (A medical report stating that the "veteran did not report tinnitus" cannot be considered evidence of a denial of tinnitus during service or after service.). This indicates that the headaches were not "very frequent." See 38 C.F.R. § 4.124a, DC 8100. Moreover, the headaches were not shown prior to the July 2016 VA examination to be productive of severe economic inadaptability. As he indicated in a December 2016 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability, the Veteran stopped working in September 2009 due to a combination of multiple disabilities, including headaches. However, as shown by the July 2016 VA examination, the Veteran "is able to do more activities than he had been able to do in the recent past," such as light yard work and morning walks. Earlier, the June 2013 VA examiner also found that the Veteran's headaches would have no impact on his ability to work. Thus, overall, it is not factually ascertainable prior to the July 2016 VA examination that the Veteran was having headaches at the 50 percent disability. In short, a 30 percent disability level, and no higher, beginning June 4, 2013, is warranted. (3) 50% from July 2016 Beginning from July 14, 2016, the Veteran has been assigned the maximum, 50 percent rating, under DC 8100. Thus, a higher schedular rating cannot be assigned. The Board also finds that referral for an extraschedular rating is not warranted as there are no symptoms not contemplated by the rating schedule. After the July 2016 VA examination, there is a February 2017 VA health evaluation, which continues to indicate dull/throbbing and constant headaches average a level 7, but with a maximum level of 9 in severity. The headaches were better with rest and over-the-counter pain medication, and worse with walking around and noise. As indicated, the Veteran's 50 percent rating contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The term "completely prostrating," as used in the rating schedule contemplates the complete scope of all symptoms to the extent they result in extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. See M21-1, III.iv.4.G.7.b. Therefore, the severity of the symptoms associated with his headaches, whether before July 2016 or afterwards, is contemplated by the rating schedule's use of a broad and non-exclusive continuum. See Grassa v. McDonald, No. 14-1925, 2015 U.S. App. Vet. Claims LEXIS 715, at *11-12 (Vet. App. May 29, 2015) (nonprecedential) (addressing the diagnostic code applicable to hemorrhoids). Otherwise, there is no indication of any symptoms or functional effects that might not be contemplated by the rating schedule. See, e.g., Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (the rating schedule for hearing loss does not contemplate ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating). In short, the rating schedule was purposely designed to compensate for all symptoms of his headache disability. Therefore, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). (CONTINUED ON NEXT PAGE) ORDER A disability rating in excess of 10 percent for post traumatic headaches prior to June 4, 2013, is denied. A disability rating of 30 percent, but no higher, for post traumatic headaches beginning from June 4, 2013, is granted. A disability rating in excess of 50 percent for post traumatic headaches beginning July 14, 2016, is denied. REMAND After conducting a preliminary review of the remaining issues, the Board finds that further evidentiary development is warranted before a final decision may be reached. The Board previously remanded the left ankle and TDIU claims in December 2015 to obtain a new VA examination addressing the severity of the service-connected left ankle disability and its impact on his ability to secure and maintain substantially gainful employment. Upon remand, a VA examination was conducted in July 2016. That examination does not comply with the last sentence of 38 C.F.R. § 4.59 or adequately address the functional limitations during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017); Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Accordingly, a new VA examination is needed. The claim for a TDIU is intertwined with the remanded issue. As such, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); cf Todd v. McDonald, 27 Vet. App. 79 (2014). Accordingly, the case is REMANDED for the following action: 1. After undertaking any preliminary action needed, such as obtaining updated VA medical records, schedule the Veteran for a VA examination to assess the severity of the service-connected left ankle disability. The joint involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Accordingly, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition. Please also describe all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner should ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner should estimate the functional loss due to flares based on all the evidence of record. The examiner is also asked to comment on and describe the functional impairment caused solely by the service-connected disabilities as it pertains to the Veteran's ability to function in an occupational environment. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on such work activities as interacting with customers/coworkers and using technology, plus other such work activities as sitting, standing, walking, lifting, carrying, pushing, and pulling for up to six hours per day. The examiner is asked to identify, to the extent possible, the date on which any change in degree of impairment first occurred. If for any reason 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. Please articulate the reasoning underpinning all medical findings. That is, (1) identify what facts and information, whether found in the record or outside the record, support the conclusion, and (2) explain how that evidence justifies the conclusion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 2. After completing all actions set forth in paragraph 1, plus any further action needed as a consequence of the development completed in paragraph 1 above, readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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.J. Spector Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs