Citation Nr: 20007199 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 13-21 042A DATE: January 28, 2020 ORDER Entitlement to a higher rating greater than 30 percent for service-connected post-traumatic headaches, prior to November 29, 2016, is denied. Entitlement to a higher 50 percent rating for service-connected post-traumatic headaches, from November 29, 2016, is granted, subject ot the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. During the period prior to November 29, 2016, the evidence indicates that the Veteran experienced chronic post-traumatic headaches, with prostrating headaches that occurred approximately once a month for several months. 2. During the period from November 29, 2016, and resolving reasonable doubt in his favor, the evidence indicates that the Veteran experienced post-traumatic headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. During the period prior to November 29, 2016, the criteria for a higher rating greater than 30 percent for post-traumatic headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. 2. During the period from August 29, 2016, the criteria for an evaluation of 50 percent but no higher for post-traumatic headaches have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1973 to November 1974. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in July 2011 that granted service connection and a 40 percent rating for residuals of post-traumatic head injury, granted service connection and a 30 percent rating for post-traumatic headaches associated with post-traumatic head injury, and denied service connection for a psychiatric disorder. The Veteran appealed for entitlement to higher initial ratings for residuals of a head injury and post-traumatic headaches, and for service connection for a psychiatric disorder. The Veteran testified before the undersigned Veterans Law Judge at a January 2018 hearing; a transcript of the hearing is of record. This case was previously remanded to the AOJ in June 2018 for additional development and was subsequently returned to the Board. In an October 2019 rating decision, the AOJ granted service connection for major depressive disorder as secondary to service-connected post-traumatic head injury. The AOJ recharacterized this combined disability as post-traumatic head injury with secondary major depressive disorder, and granted an increased 100 percent rating, effective November 24, 2010, under Diagnostic Codes 8045-9434, pertaining to residuals of traumatic brain injury (TBI) and major depressive disorder, respectively. The AOJ found that since the VA examiner could not separate the overlapping symptomatology of service-connected post-traumatic head injury and major depressive disorder, they constitute the same disability and must be rated together to avoid improper pyramiding. The Board notes that the August 2019 VA examiner diagnosed TBI, and stated that this is a change and a progression of the prior diagnosis of post-traumatic head injury. This disability has now been rated as 100 percent disabling throughout the rating period on appeal. The AOJ notified the Veteran that this determination constituted a full grant of the benefits sought as to these issues. See AB v. Brown, 6 Vet. App. 35, 39 (1993). These matters are not in appellate status and will not be addressed by the Board. In its decision, the AOJ also granted a higher 50 percent rating for service-connected post-traumatic headaches, effective August 1, 2019, under Diagnostic Code 8100, which is the maximum schedular rating under the rating criteria. Since this increase did not constitute a full grant of the benefits sought throughout the rating period on appeal, the issue of entitlement to a rating greater than 30 percent prior to August 1, 2019 remains in appellate status. See AB, supra. 1. Entitlement to a higher rating for post traumatic headaches prior to August 1, 2019 The Veteran contends that during the period prior to August 1, 2019, his service-connected post-traumatic headaches were more disabling than currently evaluated. The Veteran has not provided any argument in support of a rating higher than 50 percent during the period from August 1, 2019. In the rating decision on appeal, the AOJ granted service connection and a 30 percent rating for post-traumatic headaches associated with post-traumatic head injury, effective November 24, 2010, the date of his claim for service connection. In an October 2019 rating decision, the AOJ granted a higher 50 percent rating for the service-connected headaches effective August 1, 2019, the date of a VA examination. During the rating period on appeal, this disability has been rated as 30 percent disabling prior to August 1, 2019, and as 50 percent disabling from that date, under 38 C.F.R. § 4.124a, Diagnostic Code 8100, which provides that migraine headaches are rated based upon their frequency and severity. Under this Diagnostic Code, a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation is warranted for migraines with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. This the maximum rating under this Diagnostic Code. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14. In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes. In this regard, the Board notes that the rating criteria for TBI include headaches as a symptom of TBI. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Veteran's separately service-connected disability of post-traumatic head injury with secondary major depressive disorder is rated as 100 percent disabling under Diagnostic Code 8045. Distinct comorbid diagnoses are separately evaluated under the applicable diagnostic code unless the associated signs and symptoms overlap with those used to assign the rating under Diagnostic Code 8045. See 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (1); Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (stating that “a listed condition should be rated under the DC that specifically pertains to it”). In this case, the AOJ has assigned a separate rating for the comorbid post-traumatic headaches under Diagnostic Code 8100. On VA examination in June 2011, the Veteran reported that he had headaches with sensitivity to light and noise. He stated that he had nausea and vomiting with the headaches, and vomited two to three times per month. He also reported daily headaches at a level of 6.5 to 7 out of 10. He reported flare-ups five or six times per month, to a level of 8 out of 10, that lasted for one to two days. He denied seeing a neurologist for his headaches, and stated that the methadone he took for back pain also helped his headaches. The examiner indicated that he had daily mild to moderate headaches. VA outpatient treatment records reflect treatment for headaches. In September 2015, the Veteran reported that he had daily pounding headaches. The examiner indicated that they were of moderate severity, and that the Veteran had worsening headaches. In June 2016, he complained of severe headaches. On November 29, 2016, the Veteran reported that his headaches were worse in the past five months, and he got them four to five days per week. He reported nausea but no emesis. He was diagnosed with a persistent headache. In a March 2017 addendum, the physician stated that as discussed in the November 2016 visit, he was referred for a neurology consult due to his severe and persistent headaches. One week later in March 2017, he reported having three to four headaches per day at a pain level of 7 out of 10, for the past two weeks. He said the headaches came and went, and could last for two hours. He said he only got two hours of sleep per night. At the January 2018 Board hearing, the Veteran testified that he had headaches three or four times per week, and sometimes they were so severe that he had nausea and wanted to vomit. He reported headache symptoms including blurred vision, dizziness, nausea, and sensitivity to light and noise. He and his spouse testified that during a severe headache he had to lie down for three or four hours until it was over. The Veteran reported that he took methadone for his headaches and back disability. In a February 2018 VA neurology consult, the Veteran reported that his headaches had worsened in the last 10-15 years. He said the headaches could occur in any part of the head on either side, and was sometimes sharp and sometimes dull, and lasted for a couple of hours. He reported blurred vision, and the frequency of the headaches averaged 2 times per week. He said he used to vomit during headaches in the past, but not now. He took methadone daily for his back pain for the past 10 years. The neurologist opined that the Veteran had chronic headache after a 1973 head injury. He indicated that the history was very suggestive of obstructive sleep apnea. In an addendum, he stated that the differential diagnosis was rebound headache, as he had been taking methadone for several years on a daily basis. On August 1, 2019 VA examination, the Veteran reported that he had a bad headache 10 to 15 days per month, with dizziness, nausea, constant noise in his head and ears, and fatigue. He took Sumatriptan for his headaches. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine, once every month, and also stated that he had very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. Symptoms included headache pain, nausea, vomiting, sensitivity to light and sound, changes in vision, sensory changes, and changes to the sense of smell. The examiner diagnosed TBI and stated that the Veteran's diagnosis is changed and it is a progression of the previous diagnosis of post-traumatic head injury. The examiner stated that he had headaches more frequently, up to two to three times per day and they were more painful. The examiner then stated that he had headaches a few times per week, and sometimes more than once a day. The headaches lasted a few hours and he had to stop activity during the headache and rest in a dark room. The headaches happened frequently and the pain was severe. The examiner indicated that the Veteran's headaches were more frequent and severe. She stated that the Veteran reported daily mild to moderate headaches requiring rest 10 to 15 times per month. As noted above, the AOJ assigned an increased 50 percent rating for post-traumatic headaches from August 1, 2019, and thus a staged rating has been assigned. Governing law and regulations provide that the effective date for an increased rating, to include a staged rating, is predicated on when the increase in severity can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). Considering all of the evidence of record, including the Veteran's lay statements and the medical records, the Board finds that a higher 50 percent rating is warranted from November 29, 2016, as it is factually ascertainable that the post-traumatic headaches had worsened and the criteria for a higher rating were more nearly approximated on that date. 38 C.F.R. §§ 4.3, 4.7. 4.124a, Diagnostic Code 8100. However, during the period prior to November 29, 2016, although the medical evidence reveals that the Veteran had headaches which occurred frequently, it is not factually ascertainable that he suffered from very frequent completely prostrating and prolonged attacks that were productive of severe economic inadaptability. In this regard, the preponderance of the evidence shows that the headaches were usually no more than moderate during this period. Accordingly, a rating higher than 30 percent is not warranted for service-connected post-traumatic headaches prior to November 29, 2016. 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. (Continued on the next page)   During the period from November 29, 2016, the evidence of record does not support the assignment of a rating higher than 50 percent for post-traumatic headaches. Since the Veteran is already in receipt of the maximum rating provided under Diagnostic Code 8100 for migraine headaches, the assignment of a schedular rating higher than 50 percent is impossible under this diagnostic criterion. The evidence does not reflect, and the Veteran does not contend that his post-traumatic headaches result in an exceptional or unusual disability picture. Accordingly, the appeal for a rating in excess of 50 percent from November 29, 2016 is denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.