Citation Nr: 19150397 Decision Date: 06/27/19 Archive Date: 06/27/19 DOCKET NO. 16-11 195 DATE: June 27, 2019 ORDER Entitlement to service connection for cervical spine radiculopathy into the right upper extremity is granted. Entitlement to service connection for cervical spine radiculopathy into the left upper extremity is granted. Entitlement to a disability rating higher than 10 percent for chronic tension headaches prior to December 5, 2014, is denied. Entitlement to a 30 rating, but not higher, for chronic tension headache is granted as of December 5, 2014, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to a disability rating higher than 10 percent for dorsal and low back strain is remanded. Entitlement to a disability rating higher than 10 percent for chronic cervical strain/degenerative disc disease (DDD) is remanded. Entitlement to a disability rating higher than 10 percent for neuropathy of the left lower extremity is remanded. Entitlement to a disability rating higher than 10 percent for neuropathy of the right lower extremity is remanded. FINDINGS OF FACT 1. The Veteran at least as likely as not has cervical spine radiculopathy into the bilateral upper extremities, secondary to service-connected cervical strain/DDD. 2. The preponderance of the evidence is against finding that the Veteran had characteristic prostrating headache attacks occurring on an average of one time per month prior to December 5, 2014. 3. The Veteran’s headache disability has consisted of characteristic prostrating headache attacks occurring on an average of one time per month since December 5, 2014, but has not consisted of very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine radiculopathy into the right upper extremity, as secondary to service-connected cervical spine strain/DDD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for cervical spine radiculopathy into the left upper extremity, as secondary to service-connected cervical spine strain/DDD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for a disability rating higher than 10 percent for chronic tension headaches, for the period prior to December 5, 2014, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. 4. The criteria for a 30 percent disability rating, but not higher, for chronic tension headaches are met as of December 5, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1999 to July 2004. These matters are on appeal from December 2011 and October 2013 rating decisions. The Veteran has filed a notice of disagreement with the denial of service connection claims for hypertension, obesity, bilateral hearing loss, and tinnitus, and a left hip disability; and with the denial of higher ratings for service-connected gastroesophageal reflux disease, bilateral hydroceles, and right index finger, right ankle, right knee, and right foot disabilities. The Agency of Original Jurisdiction (AOJ) issued a statement of the case on these issues in May 2019. The Veteran, however, has not perfected an appeal as to these claims. Thus, they are not currently on appeal before the Board. Service Connection The Veteran asserts that his service-connected cervical spine disability has resulted in neuropathy or radiculopathy into the bilateral upper extremities. Service connection may be established on a secondary basis for disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439 (1995). The record contains contrasting evidence with respect to whether the Veteran has cervical spine radiculopathy into the bilateral upper extremities. Evidence supporting the Veteran’s claims includes a February 2013 private consultation report completed by a chiropractic practitioner. In the report, the clinician noted that the Veteran had developed bilateral ulnar radicular pain due to worsening cervical spine disability. The private clinician described the process involved in the development of radicular pain, noting that foraminal compression caused increased ulnar radicular pain bilaterally along with spasm of the posterior right arm in the triceps area, and flexion closure of the right hand and fingers. More recently, January 2018 VA pain clinical consultation reports noted that the Veteran had neck pain radiating into the bilateral upper extremities. Also supporting the Veteran’s claims is the fact that the Veteran complained of radiating neck pain as early as in March 2004, during his active service, after incurrence of his neck disability. In light of this evidence, including the chiropractic practitioner’s opinion, which was based on the Veteran’s medical history, including his treatment history with the clinician, the Board finds that the record contains sufficient evidence to support a finding that the Veteran’s cervical spine disability has resulted in bilateral upper extremity radiculopathy. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Evidence weighing against a finding that the Veteran has current upper extremity radiculopathy includes February 2011 and August 2018 VA neck condition examination reports, which cursorily note that the Veteran did not have radicular pain or signs or symptoms due to radiculopathy. In light of the Veteran’s ongoing complaints of radicular neck pain, as noted in the record, these reports appear to not be based on review of evidence or based on questioning of the Veteran, and are therefore do not constitute reliable evidence. Additionally, while the examiner conducting an August 2013 VA peripheral nerve examination report concluded that there was no objective evidence of peripheral neuropathy of the bilateral upper extremities, it is not clear whether the examiner specifically considered whether the subjective reports supported a current radiculopathy diagnosis. Regardless, as noted, the more recent private chiropractic consultation report and VA treatment reports support a finding of current cervical spine radiculopathy into the bilateral upper extremities. In all, the Board finds that the evidence is at least in equipoise with respect to whether the Veteran has cervical spine radiculopathy into the bilateral upper extremities, and therefore, as a result of service-connected cervical spine disability. Thus, his claims must prevail. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for right and left cervical spine radiculopathy on a secondary basis. Higher Rating for Tension Headaches The Veteran contends that he is entitled to a disability rating higher than 10 percent for service-connected tension headaches. The service-connected tension headache disability is currently assigned a 10 percent rating as analogous to migraine headaches under the provisions of 38 C.F.R. § 4.124a, DC 8100. See 38 C.F.R. § 4.20 (VA may evaluate an unlisted condition under a DC for a “closely related disease or injury” with “closely analogous” functional impairment, anatomic localization, and symptoms). Under DC 8100, headaches are rated as follows: a 50 percent rating is warranted for very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability; a 30 percent rating is warranted for characteristic prostrating headache attacks occurring on an average of once a month over the last several months; a 10 percent rating is warranted for characteristic prostrating headache attacks averaging one in two months over the last several months; and a noncompensable rating is warranted with less frequent attacks. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define “prostrating.” Dorland’s Illustrated Medical Dictionary defines “prostration” as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). Turning to the pertinent evidence of record, during VA examination in February 2011, the Veteran reported having headaches nearly every day, with no specific treatment given. He reported using over-the-counter (OTC) Tylenol. During the preceding 12-month period, the headaches were noted to occur at least weekly, lasting hours at a time. The headache attacks were not prostrating, and the Veteran was not be able to specifically perform ordinary activity during his headaches. The Veteran has periodically complained of headaches during the course of his VA treatment. A June 2011 primary care nursing note indicated that he reported having bad headaches with sharp pain more frequently. An August 2012 VA neurology consultation report noted the Veteran’s complaint of having headaches for the prior eight years. He described the headaches as located in the right temporal region but also involving the neck with occasional shooting sensation from the right occipital region. The headaches were throbbing in nature, and associated with occasional nausea and photophobia. He reported no longer using OTC medication as he was placed on Tramadol for his low back pain. A December 2014 VA headache examination report described the Veteran’s headaches as lasting less than one day, occurring on both sides of the head, and accompanied by nausea, light and sound sensitivity, and changes in vision. The examiner determined that the Veteran had characteristic prostrating headache attacks one time per month, but that he did not have very prostrating and prolonged headache attacks, productive of severe economic inadaptability. A subsequent October 2015 VA examination report noted that the Veteran had worse headache since he was no longer taking Topamax. While the examiner otherwise described the same symptomatology for the Veteran’s headaches, she specifically noted that the Veteran did not have characteristic prostrating headache attacks. During a January 2018 VA pain clinical consultation, the Veteran described his headaches as consisting of a dull ache all day long. Most recently, during an August 2018 VA headache examination, the Veteran reported essentially the same symptomatology accompanied his service-connected headache disability as reported in the prior examinations, but additionally reported having vomiting, and sensory changes, such as felling pins and needles in extremities. The examiner again determined that the Veteran had characteristic prostrating headache attacks occurring once every month. The examiner further determined that the Veteran did not have very prostrating and prolonged headache attacks, productive of severe economic inadaptability. Based on the evidence presented, and affording the Veteran the benefit of the doubt, the Board finds that a 30 percent rating for the service-connected headache disability is warranted effective December 5, 2014, but not earlier. The December 2014 VA examination report consists of the first evidence of record describing the Veteran’s headache disability as consisting of prostrating headache attacks occurring one time per month. Although the VA examiner conducting the October 2015 examination noted that the Veteran did not have characteristic prostrating headache attacks, the Veteran otherwise reported substantially similar symptoms, and further maintained that his headaches were worse without the use of Topamax. Moreover, the August 2018 VA examination again noted that he had characteristic prostrating headache attacks one time per month. Thus, the Board will consider that the Veteran’s headache disability has at least maintained the same severity since the December 2014 VA examination. Although the examination findings are largely based on the Veteran’s lay reports, the Veteran’s statements are credible, and he is competent to report the severity of his headache symptomatology, including frequency and severity. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). While the December 2014 VA examination described the Veteran has having characteristic prostrating headache attacks one time per month, there is no evidence dated prior to the examination indicating that the severity of the Veteran’s headaches had reached a level where he was having such characteristic prostrating attacks on average one time per month. The prior February 2011 VA examination report indicated that he did not have prostrating headache attacks, but rather that he could perform ordinary activities during his headaches. Additionally, the August 2012 VA neurology consultation report noted the Veteran’s description of headaches in the right temporal region with occasional shooting sensation from the right occipital region, but did not otherwise indicate that the headaches were prostrating. Thus, there is no lay or medical evidence indicating that the Veteran experienced characteristic prostrating headache attacks on average one time per month prior to the December 2014 VA examination report. Accordingly, there is no basis to assign a rating higher than 10 percent prior to December 5, 2014. Finally, the medical evidence has not provided any indication that he has suffered from very frequent completely prostrating and prolonged headache attacks at any point during the current appeal period. Neither has the Veteran provided any lay evidence or argument contending as much. Thus, there is no basis to assign a rating higher than 30 percent for the headache disability at any point during the appeal period. For all the foregoing reasons, the Board finds that with resolution of all reasonable doubt in the Veteran’s favor, the criteria for a 30 percent rating, but not higher, for chronic tension headaches are met as of December 5, 2014. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 4.3. The preponderance of the evidence, however, is against finding that disability rating higher than 10 percent is warranted prior to December 5, 2014. REASONS FOR REMAND Higher Disability Ratings for Dorsal and Low Back Strain and Chronic Cervical Strain/DDD The record contains August 2018 VA examination reports assessing the severity of the Veteran’s dorsal and low back strain and cervical strain/DDD, the examination reports, however, do not comply with requirements as annunciated by the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the examinations do not contain range of motion findings in both active and passive, and in weight-bearing and nonweight-bearing. The examiner also noted the Veteran’s report of radiating pain, but, without explanation, indicated that the Veteran did not experience any radicular pain, or other radicular symptoms. Remand is required to afford the Veteran a new VA examination of the cervical and thoracolumbar spine. Entitlement to Higher Disability Ratings for Neuropathy of the Right and Left Lower Extremities While an August 2013 VA peripheral nerves examination report concluded that the Veteran had neuropathy of the right and left lower extremities associated with service-connected low back disability, the examination report did not clearly describe the severity of the bilateral neuropathy. Moreover, the associated low back disability appears to have increased in severity over the years where examination reports have noted reduced range of motion of the thoracolumbar spine. As such, and in light of the conflicting statements from the August 2018 examiner regarding radicular pain, the Board finds that a contemporary peripheral nerve examination is required to properly determine the severity of the Veteran’s peripheral neuropathy of the right and left lower extremities. These matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2019 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any outstanding private treatment. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for VA examination to assess the current severity of his thoracolumbar and cervical spine disabilities. The examiner must test the Veteran’s thoracolumbar and cervical spine ranges of motion in active motion, passive motion, and in weight-bearing and non-weight bearing. The examiner must also attempt to elicit information regarding the severity, frequency, characteristics and duration of any flare-ups of the spine disabilities, and the degree of functional loss during flare-ups and with repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to service-connected thoracolumbar and cervical spine disabilities alone and discuss the effects of disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding symptoms, or functional impairment with flare-ups or with repeated use over time based on direct observation, without speculation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups or repeated use over time based on the other evidence of record and the Veteran’s statements. The examiner should provide reasons for all opinions, addressing the medical and lay evidence. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected peripheral neuropathy of the right and left lower extremities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, to include a determination of the extent and severity of all lower extremity nerve paralysis. (CONTINUED ON NEXT PAGE) The examiner should provide reasons for all opinions, addressing the medical and lay evidence. JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.