Citation Nr: 20076748 Decision Date: 12/02/20 Archive Date: 12/02/20 DOCKET NO. 14-15 196 DATE: December 2, 2020 ORDER Throughout the appeal period, a rating of 30 percent, but no higher, for migraine headaches is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Service connection for an eye disability, to include amaurosis fugax, and to include as secondary to the Veteran’s service-connected migraine headaches is remanded. Service connection for residuals of mild esotropia of the right eye is remanded. Entitlement to an initial rating in excess of 10 percent for cervical spine arthritis is remanded. Entitlement to an initial compensable rating for limitation of extension of the left knee, to include the period prior to February 4, 2015, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the left knee is remanded. Entitlement to an initial compensable rating for limitation of extension of the right knee, to include the period prior to February 4, 2015, is remanded. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the right knee is remanded. FINDING OF FACT During the appeal period, resolving all doubt in his favor, the evidence demonstrates the Veteran experienced on average one prostrating headache attack per month; the preponderance of the evidence weighs against a finding he experienced very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a disability rating of 30 percent, but no higher, for migraine headaches have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1983 to July 1986, from November 1989 to July 1991, from May 2005 to October 2006, from March 2008 to May 2009, and from November 2011 to May 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision. Although the Veteran initially requested a Board hearing in connection with his claims, in March 2017, he submitted a brief which he indicated he wished the Board to consider in lieu of hearing testimony. Thus, the Board finds his hearing request has been withdrawn. With respect to the issue decided herein, the Board finds the Agency of Original Jurisdiction (AOJ) has complied with its prior remand directives by obtaining all available outstanding relevant treatment records and affording the Veteran a more recent examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board acknowledges that additional VA treatment records were associated with the evidence of record after the most recent Supplemental Statement of the Case. However, given that these records do not contain any treatment or even references to the Veteran’s headache disorder, aside from noting headaches in the problem list, the Board finds that to remand this issue for the AOJ to consider in the first instance would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Entitlement to an initial compensable rating for migraine headaches prior to February 4, 2015, and in excess of 10 percent thereafter The Veteran’s headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, which evaluates impairment due to migraine headaches. Under this Diagnostic Code, a 10 percent rating is warranted for characteristic prostrating attacks averaging once every two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. The maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. These rating criteria are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). In evaluating headaches under Diagnostic Code 8100, consideration may not be given to the ameliorative effects of medication. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Neither VA regulations nor the Court have delineated what “prostrating” entails. “Prostration” has been defined as “extreme exhaustion or powerlessness.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 1554 (31st Ed. 2007). Similarly, “prostration” has been defined as “complete physical or mental exhaustion.” MERRIAM WEBSTER’S NEW COLLEGIATE DICTIONARY, 999 (11th Ed. 2007). Several undefined phrases are also present in the rating criteria for the maximum 50 percent rating. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” in the 50 percent rating criteria generally means that the headache must render the veteran entirely powerless. Id. The term “productive of severe economic inadaptability” is not defined by VA regulations either. However, the Court has stated that this term is not synonymous with being completely unable to work and that the phrase “productive of” could be read to mean either “producing” or “capable of producing” severe economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). Regarding “severe economic inadaptability,” nothing in the 50 percent criteria requires that the claimant be completely unable to work in order to qualify for that rating. Id. The Veteran contends his headache disability is worse than it is currently rated. At a January 2011 VA examination, the Veteran described the severity of his headaches as a pain level of 4 on a scale of 1 to 10, with ten being the highest level of pain. He reported symptoms of pain and throbbing (behind the eyes, around the head, near the temples), which he stated occurred constantly; the report notes the Veteran experienced headaches “on the average of 24 time(s) per day and they last for 24 hour(s).” He indicated when his headaches occurred, he was able to go to work but required medication (Ibuprofen). When asked to describe functional impairment, he reported he had difficulty focusing. At a February 2015 VA examination, the Veteran reported he began to experience bilateral, throbbing, severe headaches in 2005, which were associated with light and sound sensitivity, changes in vision, and vertigo. He indicated his typical head pain lasted more than two days. In a statement received on March 14, 2017, the Veteran reported a recent increase in the frequency of his migraine headaches to once a month at a level that left him unable to function, feeling fatigued, and with a diminished ability to deal with bright light, which he believes meets the criteria for a 30 percent rating. At a March 2020 VA examination, the Veteran reported symptoms of headaches as constant pain (front of the head over eyes, rear and sides of head), sensitivity to sound and light, and changes in vision. He informed the examiner that the pain was a constant distraction from concentration and affected his sleep; duration of typical head pain was described as more than two days. The examiner checked the boxes indicating the Veteran did not have characteristic prostrating attacks of migraine/non-migraine head pain and did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. Upon review, the Board finds the preponderance of evidence of record supports an increased 30 percent rating for the Veteran’s migraine headaches throughout the appeal period. Notably, the rating criteria for migraine headaches is largely based on subjective reports of symptomatology. Initially, there is a question as to whether the Veteran’s headaches are always prostrating in nature; however, the Board will resolve this question in favor of the Veteran. In that regard, the Board infers from the Veteran’s lay reports of symptoms of light and sound sensitivity, vision changes, and vertigo that his headaches are at least prostrating in nature some of the time. The Board acknowledges the Veteran’s lay statements that he suffers from headaches constantly or almost every day; yet he has simultaneously informed examiners typical headache pain lasts one to two days. Further, while the Board is precluded from considering the ameliorative effects of medication, it may consider the disability picture without the benefit of medication. In this case, the Veteran has reported using Ibuprofen for his headaches as needed. See June 2010 VA treatment record. However, he has reported it is only partially effective for control. See October 2019 VA treatment records. Thus, the Board finds the preponderance evidence weighs in favor of a finding that the Veteran has experienced, on average, at least one prostrating attack a month throughout the appeal period, meeting the criteria for a 30 percent rating. The preponderance of the evidence weighs against a finding that the Veteran has experienced very frequent, complete prostrating migraine headaches capable of producing severe economic inadaptability. The Board acknowledges that the absence of medical treatment is not necessarily probative on the question of headache frequency as a claimant may not seek treatment for headaches during every episode. As noted, the Veteran indicated in a March 2017 statement that his headaches were prostrating about once a month, and the preponderance of the evidence weighs against a finding that he has a history of completely prostrating and prolonged attacks. While he has reported having headaches every day and/or pain lasting days on end, there is no indication he has very frequent prostrating attacks that have rendered him completely powerless. Moreover, while the Veteran has indicated he has difficulty concentrating due to headache symptoms, the evidence does not suggest this rises to the level such that it is capable of producing severe economic inadaptability. The Veteran discussed several occupational difficulties due to his service-connected psychiatric disorder at mental health appointments, such as difficulty concentrating, however he did not indicate to those providers that his headaches were part of that problem; thus, the Board finds that if his headache disorder rose to the level such it was interfering with his work, he would have mentioned this at those appointment. The Board has made this decision without considering the ameliorative effects of medication; however, it has considered the disability picture without medication and notes that the Veteran has indicated medication did not provide much relief. While the Board recognizes that the Veteran’s headaches cause some level of occupational impairment, this is expected and is contemplated by the 30 percent rating. Based on the foregoing, the maximum 50 percent rating is not warranted. The Veteran has, at times, complained that his headaches cause symptoms not contemplated by the rating criteria, such as sleep impairment and difficulty concentrating. However, the preponderance of the evidence weighs against a finding that his disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Thus, extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1). The Board has afforded the Veteran the benefit of the doubt by granting a 30 percent rating throughout the appeal period. However, the preponderance of the evidence weighs against a finding that his disability picture more nearly approximates the criteria for a 50 percent rating; therefore, it does not apply to warrant a rating in excess of 30 percent. REASONS FOR REMAND Although the Board regrets the further delay, the Veteran’s remaining claims must be remanded again in order to comply with its prior remand directives and to obtain additional outstanding records. 1. Service connection for an eye disability, to include amaurosis fugax, and to include as secondary to the Veteran’s service-connected migraine headaches is remanded. 2. Service connection for residuals of mild esotropia of the right eye is remanded. Initially, the Board notes that VA treatment records reflect the Veteran has received care from community providers through the VA Choice Program and has treated with a private optometrist and ophthalmologist. See December 2016 and August 2017 VA treatment notes. Attempts to obtain these records must be obtained on remand. Diagnoses rendered at a February 2015 VA examination were bilateral cataracts and strabismus of the right eye. The Board remanded the Veteran’s claim to obtain opinions regarding whether the Veteran’s cataracts and strabismus were related to his in-service report of amaurosis fugax (transient blindness). Further, the record reflects the Veteran reported a childhood diagnosis of right eye esotropia (noted as a congenital defect) with surgical correction in 1998; while the February 2015 examiner found the Veteran had not further issues with esotropia, the Board noted that esotropia is a form of strabismus, which is a current diagnosis. Thus, a remand was required to obtain opinions regarding whether the Veteran’s diagnosed strabismus is a current residual of his esotropia, a separate congenital disease or defect, whether it was subject to a superimposed injury in service, or related ot his in-service amaurosis fugax. Unfortunately, the March 2020 opinions do not address all the questions posed by the Board and do not contain rationales for the conclusions reached. Thus, new opinions are required. 3. Entitlement to an initial rating in excess of 10 percent for a cervical spine disability is remanded. VA treatment records reflect that the Veteran has received private chiropractic treatment and acupuncture through the VA Choice Program for, among other disabilities, his cervical spine. See, e.g., October 2019 VA community care note. Attempts to obtain these records must be obtained on remand. 4. Entitlement to an initial compensable rating for limitation of extension of the left knee, to include the period prior to February 4, 2015, is remanded. 5. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the left knee is remanded. 6. Entitlement to an initial compensable rating for limitation of extension of the right knee, to include the period prior to February 4, 2015, is remanded. 7. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the right knee is remanded. In May 2019, VA referred the Veteran to an outside orthopedist for his bilateral knee pain; it does not appear he has followed-up with this referral. However, if the evidence shows he receives outside treatment through the VA Choice Program for his knees, all attempts to obtain these records must be made. The most recent August 2020 Supplemental Statement of the Case only considered VA treatment records through October 2019. Since then, additional VA treatment records were associated with the file and reflect the Veteran reported worsening knee pain in August 2020 and that bilateral knee x-rays were ordered in September 2020. This evidence has not been considered by the AOJ in the first instance. Moreover, the most recent March 2020 VA examination report requires clarification. Significantly, the report indicates that the Veteran tore his left meniscus in 2019; however, there are no corroborating records associated with the evidence before the Board documenting this and the examination report does not reflect the Veteran has had any knee surgeries, which one would expect as a result of a torn meniscus. Accordingly, the Board finds a new examination is required to address this discrepancy and to assess the current severity of the Veteran’s bilateral knee disabilities. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Obtain and associate with the record all outstanding VA treatment records with the claims file. 2. Take all appropriate steps to obtain all community care records for treatment the Veteran receives through the VA Choice Program, to include, but not limited to, optometry, ophthalmology, orthopedic, chiropractic, and acupuncture treatment. All attempts to obtain these records must be documented in the claims file. If any records are unavailable or unable to be obtained, a formal finding must be made in writing and associated with the claims file. 3. Following completion of steps 1 and 2, obtain addendum opinions regarding the nature and etiology of the Veteran’s eye conditions. Following a review of the record, the medical professional must respond to the following: (a) Identify all diagnosed eye conditions since June 2009, to include, but not necessarily limited to, bilateral cataracts and strabismus of the right eye. (b) With respect to each diagnosis in (a), determine whether it is at least as likely as not (50 percent probability) that the eye disorder is a residual of the Veteran’s right eye esotropia? Why or why not? (c) If the answer to (b) is no, determine whether it is at least as likely as not (50 percent probability or higher) that the diagnosed eye disorder is a separate congenital defect or disease than the Veteran’s esotropia. Why or why not? The medical professional is informed that for VA adjudication purposes, “disease” generally refers to a condition considered capable of improving or deteriorating, whereas “defect” generally refers to a condition not considered capable of improving or deteriorating. (d) For any diagnosed eye condition that is (i) a residual of esotropia, or (ii) a separate congenital defect, determine whether it is at least as likely as not (50 percent probability or higher) that there was a superimposed injury or disease in service that resulted in additional eye disability, to include amaurosis fugax. Why or why not? (e) For any diagnosed condition that is a congenital disease, is it clear and unmistakable (undebatable, obvious, manifest) that the condition preexisted any period of the Veteran’s active duty service? Why or why not? (f) If the answer to (e) is yes, does the evidence clearly and unmistakably show that the preexisting eye condition was not aggravated by service or that any increase in disability was not due to the natural progression of the disease? Why or why not? (g) If the answer to (b) and (c) is no, determine whether it is at least as likely as not (50 percent probability or higher) that the eye condition began during or is related to the Veteran’s active duty service, to include as related to his in-service report of amaurosis fugax. Why or why not? (h) With respect to each diagnosis in (a), determine whether it is at least as likely as not (50 percent probability or higher) that the eye condition was caused by the Veteran’s headaches. Why or why not? (i) With respect to each diagnosis in (a), determine whether it is at least as likely as not (50 percent probability or higher) that the eye condition was aggravated by the Veteran’s headaches. Why or why not? A complete rationale for EACH opinion as it pertains to EACH eye condition is required. Citation to accepted medical literature/principles (or lack thereof) would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 4. Following completion of steps 1 and 2, afford the Veteran an examination to assess the current severity of his bilateral knee disabilities. All appropriate diagnostic testing should be performed. The examiner should obtain from the Veteran and record in the examination report a description of the symptoms and impairment due to the knees. The examiner must provide the following information: (a) Obtain from the Veteran and record in the examination report a complete description of the functional impairment and symptoms caused by this disability. This must include the frequency, duration, characteristics, severity, and function loss with repetitive use and during flare-ups. (b) Both passive and active range of motion testing should be performed, in weight-bearing and nonweight-bearing of the bilateral knees. If the examiner is unable to conduct any of the required testing, he or she must explain why this is so. (c) The examiner must attempt to provide estimations regarding any additional loss of range of motion during repetitive use and with flare-ups. Any determination that the examiner cannot formulate an opinion without resorting to speculation based on a finding that the Veteran is not being examined after repetitive use or during a flare-up will be deemed inadequate. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of any additional impairment based on the other evidence of record and the Veteran’s statements. (d) Discuss the March 2020 VA examiner’s findings of a torn left meniscus in 2019 and reconcile this with other evidence of record, to include concurrent medical records and any findings on the current examination. If possible, the examiner should determine the exact date of the torn meniscus. If the examiner finds the prior notation was made in error, a complete explanation must be provided. A complete rationale for EACH opinion is required. If the examiner cannot provide any requested opinion without resorting to speculation, he or she must provide the reasons why this is so. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.