Citation Nr: 20004140 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 09-27 137 DATE: January 16, 2020 ORDER Entitlement to an initial rating in excess of 30 percent for headaches is denied. REMANDED Entitlement to service connection for a chronic disability manifested by muscle pain, joint pain, fatigue, and a sleep disturbance to include an undiagnosed illness, caused by “Gulf War Syndrome” is remanded. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s headaches are not manifested by at least very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at all times during the pendency of the appeal. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for headaches have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 4.124, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from May 1990 to May 1994, including verified service in Southwest Asia. In December 2014, the Veteran testified at a personal hearing before the undersigned and a transcript of the hearing is of record. In a December 2015 decision the Board of Veterans’ Appeals (Board) denied the claim of service connection for a chronic disability manifested by muscle pain, joint pain, fatigue, and a sleep disturbance to include an undiagnosed illness, caused by “Gulf War Syndrome.” The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2015 order, the Court vacated the February 2015 Board decision to the extent that it denied service connection for a chronic disability manifested by muscle pain, joint pain, fatigue, and a sleep disturbance to include an undiagnosed illness, caused by “Gulf War Syndrome” and remanded the matter to the Board for development consistent with the parties’ November 2015 Joint Motion for Partial Remand (JMPR). In February 2016 and again in February 2018, the Board remanded the claim for service connection for a chronic disability manifested by muscle pain, joint pain, fatigue, and a sleep disturbance to include an undiagnosed illness, caused by “Gulf War Syndrome” to undertake the development asked for in the JMPR as well as the claim for an initial rating in excess of 30 percent for headaches for the regional office (RO) to issue a statement of the case. The Rating Claim The Veteran contends that his headaches are more severely disabling than represented by the rating assigned at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable 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 Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran’s headaches are rated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months warrants a 10 percent disability rating; with characteristic prostrating attacks occurring on an average once a month over last several months warrants a 30 percent disability rating; and with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent disability rating. With the above criteria in mind, the Board notes that at the June 2014 VA examination the Veteran reported that he had had intermittent throbbing pain in frontal area of his head and sometimes in the neck since 1994/1995. He also reported that the headaches occur almost every day and they last most of the day. However, the Veteran denied having any other associated symptoms except for the pulsating or throbbing head pain. He reported that he treats the headaches with ibuprofen or Excedrin. It was next opined that the Veteran did not have characteristic prostrating attacks of headache pain. It was also opined that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his headaches. The Board also notes that treatment records do not document the Veteran’s complaints and treatment for headaches. Therefore, the Board finds that none of these treatment records show that his headaches cause very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See Colvin, supra. Next, the Board notes that in writings to VA the Veteran reported on observable adverse manifestations of his service-connected headaches. See Davidsons, supra. However, the Board finds that the Veteran is not competent to provide an opinion as to whether his service-connected headaches cause very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability because this is a medical opinion and he does not have the required training. Id. The Board also finds that the opinion provided by the VA examiner as to the severity of his headaches is more probative than the lay claims because a healthcare professional has greater medical expertise. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Given the above, the Board finds that the June 2014 VA examiner’s opinion as to the severity of the Veteran’s headaches the most probative evidence of record because it was provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by the evidence of record and not contradicted by any other evidence of record. See Owens, supra; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly, the Board finds that at all times during the pendency of the appeal the preponderance of the evidence shows that the Veteran’s headaches are not manifested by at least very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability because the June 2014 VA examiner opined that his headaches did not even cause characteristic prostrating attacks of headache pain. Id. Therefore, the Board finds that the criteria for a rating in excess of 30 percent for headaches have not been mate at all times during the pendency of the appeal. See 38 C.F.R. § 4.124a, Diagnostic Code 8100; Fenderson, supra; Hart, supra. It is important for the Veteran to understand that this finding does not suggest, in any way, that the Veteran does not have problems with this condition. A 30% disability will cause the Veteran many problems. The only question in this case is the degree of the problem. The Board has considered if the issue of total rating based on individual unemployability (TDIU) is in appellate status. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, because the record shows that Veteran is currently working full-time (see, e.g., VA examination dated in April 2019) and because the appellant has not claimed his headaches prevent all gainful employment, the Board finds that this issue is not before it. Lastly, in reaching the above conclusion the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claim for a rating in excess of 30 percent for headaches, the Board finds that this doctrine is not for application in this case. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a chronic disability manifested by muscle pain, joint pain, fatigue, and a sleep disturbance to include an undiagnosed illness, caused by “Gulf War Syndrome” is remanded. As to the claim of service connection for a chronic disability manifested by muscle pain, joint pain, fatigue, and a sleep disturbance to include an undiagnosed illness, caused by “Gulf War Syndrome,” in February 2018 the Board remanded this issue to obtain an adequate etiology opinion, to include an opinion as to secondary service connection. However, since the February 2018 remand, the definition of aggravation which the Board provided to the regional office (RO) and which was relied upon by the April 2019 VA examiner in providing his opinion changed. See Ward v. Wilkie, No.16-2157__Vet.App.__, 2019 U.S. App. Vet. Claims LEXIS 994 at *15 (Jun. 14, 2019) (holding that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability)); see also 38 C.F.R. § 3.310(b). Therefore, because the April 2019 VA examiner was given the wrong legal standard of aggravation, his opinion is not adequate. Accordingly, the Board finds that another Remand is required to obtain an adequate etiology opinion. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). While the appeal is in remand status, the agency of original jurisdiction (AOJ) should also obtain and associate with the record any outstanding VA and private treatment records. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran or his representative should submit and new pertinent evidence the Board/VA does not have (if any). 3. Thereafter, obtain an addendum opinion from a suitably-qualified medical professional to address the diagnosis and origins of his disabilities manifested by fatigue, sleep disturbance, and muscle and joint pain in the low back, neck, knees, and right lower ribs to include any qualifying chronic disability under 38 C.F.R. § 3.317. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during an examination, if needed, the examiner is asked to address the following: For each diagnosed disorder that causes the Veteran’s fatigue, sleep disturbance, and muscle and joint pain in the low back, neck, knees, and right lower ribs, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was aggravated by his service-connected headaches. In providing an answer to the above question, the examiner should consider and discuss, among other things, the Veteran’s competent lay reports of observable symptomatology. In providing the etiology opinion, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should be aware of the facts that the Court recently held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.