Citation Nr: 20007293 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-06 709 DATE: January 28, 2020 ORDER Entitlement to a 50 percent rating for chronic vascular headaches from June 6, 2014, to January 14, 2015, is granted. REMANDED Entitlement to service connection of an acquired psychiatric disability, other than somatic symptom disorder, is remanded. Entitlement to service connection of pendulous breasts, claimed as residuals of a breast reduction, is remanded. Entitlement to service connection of lumbago is remanded. Entitlement to service connection of cervicalgia is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. From June 6, 2014, the Veteran’s vascular headaches have resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW 1. From June 6, 2014, the criteria for a 50 percent rating for chronic vascular headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124A, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1988 to March 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board recognizes that the Veteran initially requested a hearing before a Veterans Law Judge. Her hearing was scheduled for October 8, 2019. The Veteran failed to appear for that hearing. To date she has not reinstated her desire for a hearing before a Veterans Law Judge. As is discussed in the below decision, the Veteran was granted a maximum rating for vascular headaches, effective, January 14, 2015. As this maximum schedular grant did not apply to the entire period on appeal, the Board has recharacterized the claim to include a rating in excess of 30 percent from June 6, 2014, the date of her claim for and increased rating, to January 14, 2015, the date she was granted a maximum schedular rating. Concerning the Veteran’s claim of service connection for pendulous breasts, that claim has been developed under the title of a claim of service connection for a breast reduction. The evidence does not suggest that a breast reduction took place in service. Rather, upon review, it is clear that the claim is one for service connection of pendulous breasts, ultimately treated with a breast reduction after service. Therefore, the Board has recharacterized that appeal to reflect a claim of service connection of the actual disability sought. Although denied in a November 2017 rating decision, and not appealed by the Veteran, the Board concludes that the issue of entitlement to TDIU has been raised by the record as part and parcel of her increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, that issue is included in the issues on appeal. It is addressed in the below remand. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issue on appeal in this matter, entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). “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. 1. Entitlement to an increased ratings for chronic vascular headaches, presently rated as 30 percent disabling from June 6, 2014, to January 14, 2015. The Veteran initially sought a rating in excess of 10 percent for her chronic vascular headaches. In the January 2015 rating decision, the RO granted an increased rating of 30 percent, effective June 6, 2014, the date of the Veteran’s claim for an increased rating. The Veteran contested that rating, arguing in favor of a rating in excess of 30 percent, and in February 2017, a rating decision was issued which granted a 50 percent rating, effective January 14, 2015. This constitutes a grant of a maximum available rating for that disability. Therefore, the question before the Board is whether the Veteran should be afforded a rating of 50 percent from June 6, 2014, the date of her initial claim for an increase to January 14, 2015, the date she was granted a maximum schedular rating. The Board finds that such an increase should be granted. The Veteran’s chronic vascular headaches, often described by her treating physicians as migraine headaches, are rated under Diagnostic Code 8100, which compensates for migraine headaches. Under the applicable rating criteria, a 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. a 50 percent rating is assigned for headaches with frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124A, Diagnostic Code (DC) 8100. In connection with her initial claim, the Veteran submitted a private headache disability benefits questionnaire, dated May 30, 2014. In that examination report, a private physician noted headache pain that was pulsating and throbbing in nature, localized to one side of the head. Other associated symptoms included nausea, sensitivity to light, sensitivity to sound, and vision changes. Head pain tended to last less than one day. Characteristic prostrating attacks occurred more frequently than once a month. The examiner stated that she experienced very frequent, completely prostrating, prolonged attacks, which severely impacted her personal and economic quality of life. Her headaches caused her to loce many days of work, and that she was unable to work while having such headaches. In January 2015, the Veteran appeared for a VA examination in connection with her claim for an increased rating. At that time, she presented with constant head pain, throbbing or pulsating in nature, localized to one side of the head. Pain worsened with physical activity, and resulted in light sensitivity, nausea, and vomiting. Head pain lasted more than two days at a time. Her migraine headaches occurred more frequently than once per month. She had very frequent prostrating and prolonged attacks. Non-migraine headache also occurred more frequently than once per month. Functionally, the examiner stated that her headache condition left her unable to do any activity when migraines occurred. She was required to take frequent FMLA (Family Medical Leave Act) leave from work. In light of the above, the Board finds no significant difference between the two examination reports. The Veteran’s headaches have been found consistently since May 2014 to result in frequent, completely prostrating attacks, occurring more than once a month. Further, her headaches interfered with her ability to maintain employment, thus being productive of severe economic adaptability. As such, the Board will afford the Veteran the complete benefit of the doubt and grant her the maximum 50 percent rating for vascular headaches as of June 6, 2014, the date of her claim for an increased disability rating. This constitutes a maximum grant of the benefit sought on appeal. REASONS FOR REMAND 1. Entitlement to service connection of an acquired psychiatric disability, other than somatic symptom disorder, is remanded. The Veteran has filed a claim of service connection of an acquired psychiatric disability, claimed as major depression. Inasmuch as the Board regrets any further delay in the adjudication of this claim, a remand is necessary to ensure a completely developed claim. During the pendency of this appeal, the Veteran submitted a claim for a pain disorder, and in October 2017, a rating decision was issued with granted service connection of somatic symptoms disorder with pain, as secondary to her service-connected headaches. However, in the process of developing that claim, the Veteran was afforded a psychiatric examination. While that examination noted past symptoms such as generalized anxiety disorder and depression, such diagnoses were not confirmed at that time. Considering that that examination was conducted in connection with the pain disorder claim, it is unclear whether or not the examiner fully addressed the Veteran’s potential psychiatric diagnoses. At the very least, it leaves the record unclear as to whether or not the Veteran has a present diagnosis of an acquired psychiatric disorder other than somatic symptom disorder, and if so, whether such a diagnosis is related to either active service or her service-connected headaches. As such, on remand, a new examination should be conducted which assesses any other potential psychiatric diagnoses. 2. Entitlement to service connection of pendulous breasts, also claimed as residuals of a breast reduction, is remanded. 3. Entitlement to service connection of lumbago is remanded. 4. Entitlement to service connection of cervicalgia is remanded. The Veteran seeks service connection of pendulous breasts, also claimed as residuals of a breast reduction, as well as lumbago and cervicalgia, which she asserts were caused by her pendulous breasts. While the Veteran underwent a VA examination in January 2015 about these complaints. Unfortunately, the examination is incomplete, and an addendum opinion is necessary prior to adjudicating those appeals. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The service treatment records do note the Veteran’s breast condition. However, the actual question is whether Veteran’s pendulous breasts qualify as a disability for VA compensation purposes. It is noteworthy that such a condition was not noted upon entry into service, however, the examination forms do not require that such a notation be examined. It was not until February 1993, just prior to separation she was noted in a women’s wellness examination to have pendulous breasts. Defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90 (July 18, 1990). Service connection is generally precluded by regulation for such “defects,” because they are not “diseases” or “injuries” within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is “more or less stationary in nature,” while a disease is “capable of improving or deteriorating.” See VAOPGCPREC 82-90 at para. 2. As particularly relevant to the case at hand, every Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as “noted” for the purpose of this analysis. 38 C.F.R. § 3.304 (b). Congenital or developmental “defects” automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303 (c), 4.9. To date, the Veteran’s claims have been denied as the RO has concluded that pendulous breasts are a congenital defect, and therefore, not eligible for service connection. Although a VA examination was conducted in January 2015, the resulting examination report and opinions opines as to whether the Veteran’s post-service breast reduction was a result of her pendulous breasts, noted in service, and not whether or not those pendulous breasts developed during service, or whether or not they were congenital in nature. There is no question that her breast reduction was done to treat the pendulous breasts. Rather, the question for the Board is whether her pendulous breasts, prior to that reduction, were a congenital defect. In light of this, the Board would request an addendum opinion which assesses whether or not the Veteran’s pendulous breasts, as noted during active service but not upon entrance to service, were congenital in nature, and therefore, constituted a congenital defect. The Board will also remand the claims of service connection of lumbago and cervicalgia as inextricably intertwined with the pendulous breast claim. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Initially, the Board recognizes that the Veteran’s claims of service connection remain on appeal. As the outcome of those appeals may have a direct bearing on the Veteran’s schedular entitlement to TDIU, the Board finds that the claims are inextricably intertwined. Further, the November 2017 rating decision which denied TDIU was based on the Veteran’s failure to return VA Form 21/8940 (Veterans Application for Increased Compensation Based on Unemployability). While a single request was issued for that form, roughly one month before the claim was denied, and the Board recognizes that the Veteran did not respond to that request, the Board still finds that the issue of employability remains at issue, particularly given her pain and headache symptoms. Therefore, on remand, the Veteran should be given a second chance to return the requested employment questionnaire. In doing so, the Board notifies the Veteran that the duty to assist is not a one-way-street, and any future failure to provide the requested evidence may result in a further denial of her claim. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of her claim. Provide the Veteran with a copy of VA Form 21-8940, and request that she return it in a timely manner. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder, other than somatic symptom disorder. The examiner should address the Veteran’s reported medical history and state whether she has any psychiatric disability other than somatic symptoms disorder, to include depression or anxiety. If no other diagnosis is given, an explanation must be given for that conclusion. For each additional diagnosed disability, the examiner should state whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability, to include her somatic symptoms disorder and/or headache disability. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s pendulous breasts, as noted in February 1992, constituted a congenital defect, which is to say a “structural or inherent abnormality or condition which was more or less stationary in nature.” A reasoned opinion should be given for that opinion. If the condition is not “stationary in nature” the examiner is asked to opine whether the Veteran’s condition was worsened during service and, if so, whether it worsened beyond its normal course. The Board is particularly interested in the Veteran’s assertions that her breast condition was the result of the medication she takes for her migraine headaches. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel