Citation Nr: 20009693 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 18-04 150 DATE: February 6, 2020 ORDER Entitlement to an initial compensable rating for tension headaches associated with traumatic brain injury (TBI) is denied. FINDING OF FACT The preponderance of the evidence does not show that the Veteran’s tension headaches are characterized by at least prostrating attacks averaging one in two months over the last several months. CONCLUSION OF LAW The criteria for an initial compensable disability rating for tension headaches associated with TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Navy from June 1960 to June 1963. This case was remanded to the Agency of Original Jurisdiction (AOJ) in January 2019 to provide the Veteran with another opportunity to identify pertinent treatment records. Furthermore, the AOJ was to obtain VA treatment records from November 2017 to the present. In April 2019, the AOJ requested the Veteran return a release so the VA may obtain treatment records from his medical providers. However, the Veteran did not respond to the AOJ’s letter with a signed release. VA obtained the VA treatment records from November 2017 to the present. The Board finds that there was substantial compliance with the remand directives. In November 2019, the Veteran’s agent requested that the power of attorney be revoked. However, the Board notes that if the agent wishes to withdraw, the proper procedure must be followed. Entitlement to a compensable rating for tension headaches associated with TBI Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the appeal, the assignment of staged ratings is necessary. 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 veteran. 38 C.F.R. § 4.3. Under 38 C.F.R. § 4.124a and DC 8100, a noncompensable rating is assigned when a veteran experiences prostrating migraines with less frequent attacks. A 10 percent disability rating is warranted for migraines characteristic of prostrating attacks averaging one in two months over the last several months. A 30 percent disability is warranted for migraines characteristic of prostrating attacks occurring on an average once a month over the last several months. Finally, a 50 percent disability rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board notes that the criteria for a 50 percent rating are written in the conjunctive; thus, all criteria must be met. Additionally, the rating criteria do not define “prostrating” attacks. “Prostration” is defined as “extreme exhaustion or powerlessness.” See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012). This is consistent with medical guidance used by the VA Compensation Service, which suggests that “[a] prostrating migraine may be described as a condition that causes lack of strength to the point of exhaustion.” See VA Compensation Service’s Medical Electronic Performance Support System (2015). Likewise, the rating criteria does not define “severe economic inadaptability.” The Veteran asserts that his headaches are severe and warrants a higher rating. The Veteran requested a new VA examination because he felt that the December 2016 VA examiner did not consider the effects of the Veteran’s medication before determining the presence or severity of his headaches. The Veteran reported that he experienced intermittent headaches, which were caused by a car accident in service. The Veteran reported that the pain is severe enough to cause him to seek medical treatment. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an initial compensable rating for tension headaches associated with TBI. The reasons follow. While the Board acknowledges that the Veteran has tension headaches, the Diagnostic Code specifies migraines headaches with characteristic prostrating attacks. The Board finds that tension headaches are not the same as migraine headaches. Thus, the Board concedes the Veteran experiences tension headaches at least two times a month, however, the Board does not find that the tension headaches rise to the level of prostrating headaches occurring one in two months over the last several months on average to warrant a compensable disability rating. As further evidence, in the December 2016 VA examination report, the Veteran reported that the headaches were mainly frontal, bilaterally, and lasting less than a day. Additionally, the Veteran reported that he was told he was irritable and experienced some short-term memory loss. The examiner noted that the Veteran’s difficulties with irritability, attention, and memory are more likely related to anxiety than TBI. Furthermore, the examiner concluded that the Veteran did not have prostrating attacks and that these headaches do not impact his ability to work. The Veteran stated in his Notice of Disagreement that his headaches were more severe than what the examiner reported in the December 2016 VA examination. Additionally, the Veteran felt that the examiner erred in considering the effects of his medication before dismissing the presence or severity of his headaches. The Board acknowledges that it previously remanded the claim based on the Veteran’s allegation that the December 2016 VA examination was inadequate and, more so because the record did not contain sufficient details to allow the Board to render an informed decision on the severity of the Veteran’s headaches. However, the Board finds the examination provides an accurate description of the Veteran’s statements about his condition. For example, the Veteran reported improvement in his headaches and that the headaches occur a few times per month, mainly with stressful situations that would come down if he rests. Also, the Veteran reported that he does not take any medication for the headaches anymore. Statements made to medical professionals are especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to receive the best or most appropriate medical care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Accordingly, the Board accords the Veteran’s statements made during the December 2016 VA examination that his headaches have improved, and he does not take medication for those headaches, as highly probative against the finding that the Veteran has prostrating attacks occurring one in two months over the last several months. Additionally, the Board does not find that the December 2016 VA examiner considered the effects of medication at the time of the December 2016 VA examination, as the Veteran specifically told the examiner that he had stopped taking medication. The Veteran was afforded another VA examination in June 2019. During that examination, the Veteran reported that his headaches were one to two times a week. He described the headaches as pressure, like a band on his head in the frontal area and can last from one hour to the whole night. The Veteran described his pain was at a six to seven on a scale from one to 10, and he takes Aleve for relief. He reported that he had short term memory loss, tinnitus, decreased taste, and decreased concentration. The examiner concluded that the Veteran does not have prostrating non-migraine attacks. The examiner also wrote that there is no evidence on record of neuropsychological testing to support the severity of his claimed headaches or memory impairment. A mini-mental state examination was performed, and the examiner found that the Veteran showed no evidence of cognitive impairment. A review of the Veteran’s medical treatment records show that he began complaining of headaches in September 2015, following hitting his head one month before. He reported at that time that his pain started in the occipital lobe and radiated to his temples. At that time, the Veteran denied a history of TBI and reported that his pain was at a six to seven on a scale from one to 10, and he takes Aleve for relief. Furthermore, the Veteran’s medical records show that he did not complain of headaches or denied he had headaches during multiple visits. See February 2017 Attending Emergency Department Note; November 2017 Primary Care Outpatient Note; May 2018 Primary Care Outpatient Note; February 2019 Primary Care Initial Evaluation Note. After examining the evidence of record, the Board does not find that the Veteran’s tension headaches warrant a compensable disability rating. The preponderance of the medical evidence is against a finding that the Veteran has experienced prostrating headaches during the period on appeal. His headaches are light, sometimes resolving within an hour. The preponderance of the evidence show that the Veteran’s tension headaches do not render him incapacitated for any period of time. Thus, the Board finds that the Veteran’s headache condition more closely approximates a noncompensable rating, and his appeal on this issue is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, Associate 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.