Citation Nr: 20007520 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-56 926 DATE: January 29, 2020 ORDER Entitlement to service connection for a disability of the occipital nerve, left side of the head, is denied. Entitlement to a rating in excess of 10 percent for occipital tension headaches is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for peripheral neuropathy, left arm/hand (lower radicular group) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a disability of the occipital nerve, left side of the head, at any time during or proximate to the pendency of the claim. 2. The probative evidence of record indicates that the Veteran has not experienced characteristic prostrating headache attacks at any time during the relevant rating period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a disability of the occipital nerve, left side of the head, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to a rating higher than 10 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1964 to March 1966. In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. 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). In that regard, the Board notes that the development directed in the Remand section below pertains to the remanded issue, and there is no indication that evidence developed as part of those actions may be relevant to the issues denied in this decision. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to service connection for a disability of the occipital nerve, left side of the head The Veteran seeks entitlement to service connection for a disability of the occipital nerve on the left side of the head. At the May 2019 Board hearing, he testified that the claimed condition is manifested by what feels like an electric shock that travels up the back of his head and over to the front of his head. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosed disability of the occipital nerve of the left side of the head and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s treatment records do not show that he has been diagnosed with a disability of the occipital nerve of the left side of the head. A September 2016 fee-basis examiner examined the Veteran and determined that, although the Veteran reported a history of neck pain with related radiculopathy and neuropathy, he did not report a specific cranial nerves condition, his physical examination was within normal limits, and, therefore, a clinical diagnosis could not be rendered. Although the Veteran believes that he has a current disability of the occipital nerve on the left side of the head and he is competent to report symptoms such as a traveling electrical shock-like sensation, he is not considered competent to provide a diagnosis in this case as the issue is medically complex and it requires specialized medical education and knowledge of the cranial nerves. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board cannot give probative weight to his assertions attributing his current electrical shock-like sensations to a disability of the occipital nerve on the left side of the head. The Board instead attributes probative weight to the competent statements of the September 2016 examiner, who found that a clinical diagnosis could not be rendered based on the Veteran’s subjective reports and the objective examination. The Board acknowledges that subjective complaints, such as pain, may on their own raise to the level of a disability if they are productive of functional loss. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, in this case, the September 2016 examination was within normal limits and did not reveal any functional loss related to the Veteran’s subjective complaints of a traveling electrical shock-like sensation. The record does not otherwise show such functional loss. Therefore, the Veteran’s subjective complaints, on their own, cannot be accepted as evidence of a current disability for which service connection may be granted. See id. In view of the foregoing, the Board concludes that the preponderance of the evidence of record is against finding that the Veteran has had a disability of the occipital nerve on the left side of the head at any time during or proximate to the pendency of the claim. As noted above, in the absence of proof of a current disability, there can be no valid claim for entitlement to service connection. Brammer, 3 Vet. App. at 225. Accordingly, the Board finds that the preponderance of the evidence is against the claim for entitlement to service connection for a disability of the occipital nerve on the left side of the head. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 10 percent for occipital tension headaches The Veteran seeks an increased rating for occipital tension headaches. The applicable rating period is from July 1, 2014, one year prior to receipt of the Veteran’s July 2015 intent to file a claim, through the present. See 38 C.F.R. § 3.400(o)(2). The Veteran contends that his service-connected headaches are more severe than is indicated by the current 10 percent rating and that a 30 percent would be more appropriate. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). The Veteran’s occipital tension headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable rating is assigned for headaches with characteristic prostrating attacks averaging less than one in two months over the last several months. A 10 percent rating is assigned for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum schedular 50 percent rating is assigned for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating.” By way of reference, the Board notes that Dorland’s Illustrated Medical Dictionary 1531 (32nd Ed. 2012), defines “prostration” as “extreme exhaustion or powerlessness.” Turning to the relevant evidence of record, the Veteran’s medical treatment records do not include findings relevant to rating the Veteran’s migraine headaches under Diagnostic Code 8100. At the May 2019 Board hearing, the Veteran testified that his headaches are manifested by constant dull pain and sensitivity to light and sound. The headaches do not cause him to miss work because he owns his own company and is therefore able to remove himself from what is causing or aggravating his headaches. He also testified that the headaches do not cause him to need to lie down and that he does not take medications for the headaches. The Veteran underwent a VA headaches examination in October 2015. At the examination, the Veteran reported that his headaches are located at the back of his head. They are constant, but not intense. He has had the headaches for so long that he cannot identify the triggers. The examiner indicated that the Veteran does not have characteristic prostrating attacks of migraine or non-migraine headache pain. The Veteran underwent a VA-provided headaches examination in September 2016. At the examination, the Veteran reported that his headaches are manifested by constant pain and sensitivity to light on both sides of the head. During headaches, he has difficulties focusing and concentrating, but can perform general activities without significant restrictions. The examiner indicated that the Veteran does not have characteristic prostrating attacks of migraine or non-migraine headache pain. In view of the foregoing, the Board concludes that the relevant evidence of record does not show that the Veteran was entitled to a rating in excess of 10 percent for his occipital tension headaches at any time during the relevant period. The medical treatment records do not indicate that the Veteran had characteristic prostrating headache attacks at any time during the relevant period. The Veteran indicated at the May 2019 Board hearing that he does not require bed rest due to the headaches and can continue working during the headaches. The October 2015 and September 2016 examination reports indicates that the Veteran experienced headache pain with sensitivity to light. However, the reports do not indicate that the headaches include characteristic prostrating attacks. Rather, the Veteran indicated at the examinations that the headaches are constant, but did not indicate that the headaches are productive of extreme exhaustion or powerlessness. They cause difficulties with focusing and concentrating, but he can continue his general activities without significant restrictions. Furthermore, the examiners indicated that the Veteran does not have characteristic prostrating attacks of migraine or non-migraine headache pain. Such symptoms do not more closely approximate the severity contemplated by the criteria for a higher rating of 30 percent under 38 C.F.R. § 4.124a, Diagnostic Code 8100, which require a minimum of characteristic prostrating attacks averaging once per month over the last several months. There is no probative evidence of record that the Veteran experienced prostrating headache attacks at any time during the relevant period. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected headaches, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). The Board therefore finds that the criteria for entitlement to a rating in excess of 10 percent for occipital tension headaches have not been met at any time during the rating period. Accordingly, there is no basis for staged rating of the Veteran’s migraine headaches pursuant to Hart, 21 Vet. App. at 519. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Entitlement to an initial rating in excess of 30 percent for peripheral neuropathy, left arm/hand (lower radicular group) is remanded. The Veteran testified at the May 2019 Board hearing that approximately one month prior to the hearing he had surgery on the left arm in relation to the service-connected peripheral neuropathy. He indicated that, following the surgery, some of his left arm symptoms improved, but that he was also experiencing some new or worsened symptoms. He also indicated that he recently received treatment for his left arm and hand peripheral neuropathy from a Mr. Smith, although he could not remember the name of the facility where the treatment was provided. The Board finds that this issue must be remanded so that the Veteran may be provided an opportunity to identify and authorize release of records from Mr. Smith and any other health care provider, and so that the Veteran may be provided another examination to assess the current nature and severity of his peripheral neuropathy of the left arm and hand in view of his testimony indicating a possible worsening or change in the condition since the most recent VA-provided examination in September 2016. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Mr. Smith and for the surgery he had on his left arm in or around April 2019, which he identified at the May 2019 Board hearing, and for any other private health care provider. The Veteran should also be asked to identify any VA treatment he has received. Make two requests for any authorized private records, unless it is clear after the first request that a second request would be futile. Make as many attempts as necessary to obtain any identified VA treatment records not already of records, unless it is determined that the records sought do not exist or that further efforts to obtain those records would be futile. If any identified and authorized records cannot be obtained, notify the Veteran of such in a manner consistent with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected peripheral neuropathy, left arm/hand (lower radicular group). The examiner should provide a full description of the disability and report all signs and symptoms necessary for rating the disability under the relevant rating criteria. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.