Citation Nr: 20021593 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-24 658A DATE: March 26, 2020 ORDER A 50 percent evaluation for migraine headaches is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. REMANDED A rating in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. A rating in excess of 10 percent for left knee chondromalacia with a lateral meniscus tear, status post-surgical repair, is remanded. A total disability rating based on individual unemployability (TDIU) on a schedular basis is remanded. FINDING OF FACT For the entire rating period on appeal, the Veteran’s tension headaches have been productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW For the entire appeal period, and resolving reasonable doubt in the Veteran’s favor, the criteria for an evaluation of 50 percent for tension headaches have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1996 to September 1998. These matters come before the Board of Veterans’ Appeals (Board) from a December 2013 rating decision. In November 2018, the Board remanded these issues for additional development. The claims have been returned to the Board for further appellate review. Legal Criteria for Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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. If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. A 50 percent evaluation for migraine headaches is granted, subject to the laws and regulations controlling the disbursement of monetary benefits. The Veteran submitted an informal claim for an increase of his migraine headache disability on January 16, 2013. A December 2013 rating decision continued the 30 percent evaluation for his migraine headaches. However, the Veteran contends the rating for his migraine headaches should be higher. The Veteran’s service-connected headaches have been rated under DC 8100. Under DC 8100, a 10 percent evaluation is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability evaluation is assigned where there are characteristic prostrating attacks occurring on average once a month over the last several months. For a higher, 50 percent disability evaluation to be warranted, there must be migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The Board notes that the Rating Schedule does not define “prostrating.” “Prostration” has been defined as “complete physical or mental exhaustion.” Merriam-Webster’s New Collegiate Dictionary 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1534 (32nd ed. 2012). According to Stedman’s Medical Dictionary, 27th Edition (2000), p. 1461, “prostration” is defined as “a marked loss of strength, as in exhaustion.” See Eady v. Shinseki, No. 11-3223, 2013 U.S. App. Vet. Claims LEXIS 204 (Vet. App. Feb. 12, 2013) (the Board adopts the Court’s definition as its own). Additionally, the phrase “productive of severe economic adaptability” has not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans Claims (Court) has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, “economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the headaches must be, at minimum, capable of producing “severe” economic inadaptability. The Veteran received a VA examination in November 2013. The Veteran reported symptoms of throbbing pain on both sides of the head, disturbed vision, photophobia, phonophobia, auras, light flashes, and vomiting. Symptoms were noted to include constant head pain, pulsating or throbbing head pain on both sides of the head, pain that worsens with physical activity, in addition to nausea, vomiting, photophobia, phonophobia, changes in vision, and sensory changes. Typical head pain was noted to last for more than two days and was documented to be located on both sides of the head. Prostrating attacks of migraine and non-migraine head pain were found to occur more frequently than once per month. The examiner did not note whether the Veteran’s very prostrating and prolonged attacks of migraine/non-migraine headache pain are productive of severe economic inadaptability. Regarding functional impact, the Veteran noted that he could not go to work during a migraine. A migraine examination is of record from November 2016. The Veteran reported migraines that have become more frequent and severe over the years. He indicated that he has more than one prostrating migraine a month accompanied by nausea and vomiting, photophobia, phonophobia, disturbed concentration, blurred vision, and dizziness. The prostrating migraine attacks were noted to last up to 48 hours. Symptoms were found to include pulsating or throbbing head pain localized on one side of the head, pain that worsens with physical activity, pain over the eyes, feelings of pressure, in addition to nausea, vomiting, photophobia, phonophobia, changes in vision, disturbed concentration, and dizziness. Typical head pain was noted to last for one to two days, located on the right side of the head. Prostrating attacks of migraine and non-migraine head pain were found to occur more frequently than once per month. The examiner did not note whether the Veteran’s very prostrating and prolonged attacks of migraine/non-migraine headache pain are productive of severe economic inadaptability. Regarding functional impact, the examiner stated that the Veteran suffers from occasional nausea and vomiting, phonophobia, photophobia, blurred vision, dizziness, and a reduced power of concentration. The examiner noted that the Veteran would not be able to maintain substantial gainful employment due to the amount of work missed and would require frequent unscheduled breaks. The Veteran received a VA examination in April 2019. The Veteran reported that during a migraine, he experiences nausea and vomiting. He also reported migraines about four times per month that last for two to three days. Until his symptoms wear off, he must rest at home, lying down, with the lights off. He reported no relief with triptan. Symptoms were noted to include pulsating or throbbing head pain with pain localized to one side of the head in addition to nausea, vomiting, photophobia, phonophobia, changes in vision, sensory changes, dizziness, and blurred vision. Typical head pain was noted to last more than two days with pain on the right side of the head. Prostrating attacks of migraine head pain were found to occur more frequently than once per month. The examiner found that the Veteran did not have very prostrating and prolonged attacks of migraine/non-migraine headache pain that are productive of severe economic inadaptability. Regarding functional impacts, it was noted that during major migraine headaches, the Veteran would be unable to concentrate. The Board notes that there is conflicting medical evidence as to whether it is possible to differentiate what portion of the Veteran’s headaches are due to migraines and/or sinusitis. In this regard, the Board will resolve the benefit the doubt in favor of the Veteran and attribute all of his symptoms to his migraines. Based on the examination reports and lay evidence, the Veteran’s headaches more nearly approximate the criteria for a 50 percent rating. Throughout the appeal period, the Veteran has reported very frequent prostrating and prolonged attacks of non-migraine headache pain that last for up to 48 hours. All examinations on record have found that the Veteran’s prostrating attacks of migraine and non-migraine head pain were found to occur more frequently than once per month. The November 2013 and November 2016 VA examination reports did not note whether the Veteran’s very prostrating and prolonged attacks of migraine/non-migraine headache pain are productive of severe economic inadaptability. However, the November 2013 report notes that the Veteran could not go to work when he experiences a migraine. The November 2016 report states that the Veteran’s symptoms would impact his ability to work by noting that the Veteran experiences occasional nausea and vomiting, phonophobia, photophobia, blurred vision, dizziness, and a reduced power of concentration. The examiner concluded that the Veteran would be unable to maintain substantial gainful employment due to the amount of work missed and would require frequent unscheduled breaks. Finally, the Board observes that while the April 2019 VA examiner explicitly found that the Veteran did not have very prostrating and prolonged attacks of migraine/non-migraine headache pain that are productive of severe economic inadaptability, the examiner provided no basis or rationale for their opinion – especially given that the April 2019 examination report demonstrates findings similar to the prior examination reports that show the Veteran would experience significant absenteeism from work due to his migraines. For example, the November 2013 VA examination report notes prostrating attacks of migraine and non-migraine head pain that occur more frequently than once per month, and the November 2016 report notes prostrating migraine attacks that could last up to 48 hours. This evidence shows that just two migraine attacks a month – at the beginning of or middle of a work week – would cause significant absenteeism from work. As such, resolving reasonable doubt in the Veteran’s favor, for the entire rating period on appeal, a 50 percent evaluation for tension headaches is warranted as the evidence shows the Veteran’s migraine headaches have been productive of frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The Board notes a 50 percent rating is the maximum schedular rating warranted for migraine headaches. REASONS FOR REMAND 1. A rating in excess of 10 percent for right knee patellofemoral pain syndrome is remanded. 2. A rating in excess of 10 percent for left knee chondromalacia with a lateral meniscus tear, status post-surgical repair, is remanded. The Board previously remanded this claim in November 2018 to obtain a VA examination. The remand instructed the examiner to provide active and passive range of motion measurements. The examiner was also asked to comment on the functional loss caused by pain and flare-ups. The Veteran was afforded a VA examination in April 2019. A review of the record shows the Veteran’s April 2019 VA knee examination does not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) as instructed by the Board’s May 2018 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Correia mandates that certain examinations include the testing described in 38 C.F.R. § 4.59 (2018) or an explanation as to why such testing is not warranted or not possible. Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. If an estimate cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large or insufficient knowledge of the specific examiner. The Board observes the April 2019 VA knee examination does not include all of the following: active range of motion testing results, passive range of motion testing results, weightbearing range of motion testing results, and non-weightbearing range of motion testing results. Furthermore, while the examination report indicated that the Veteran denied flare-ups, there is lay evidence that suggests the Veteran experiences flare-ups. For example, at his November 2013 VA knee exam, the Veteran reported flare-ups that he described as swelling, stiffness, locking, and creaking sounds. On remand, the examiner should comment on whether the Veteran still experiences such flare-ups or knee pain, swelling, stiffness, or locking that is markedly more severe than is usual and whether there is a loss in range of motion due to any flare-ups. Accordingly, the Board finds the April 2019 VA knee examination insufficient for rating purposes, and a remand is required for a new examination. 3. A TDIU on a schedular basis is remanded. The Board finds that remand is warranted to fully assist the Veteran with the development of his claim. The Board notes the Veteran’s employment and income history during the appellate period is incomplete. Specifically, on the Veteran’s January 2020 VA Form 21-8940, the Veteran did not note the hours per week for his security job. An asterisk was noted in Box C to refer to the Veteran’s remarks; however, nothing is stated in the remarks section as to the number of hours the Veteran works per week. Furthermore, the highest gross earnings per month for his outreach position is not given. The Veteran states on the form that he has been unable to work fulltime due to his service-connected disability since 2013, but the form also states he was unemployed from May 2015 until August 2019. The Board, accordingly, must remand this matter to obtain updated occupational and income information before rendering a decision on the issue of TDIU. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claims. 2. Request that the Veteran complete the following: (a) An updated VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran should be asked to provide a detailed work history for full-time and part-time employment, to include: (i) the number of hours worked per week, (ii) the dates of his employment, (iii) the time lost from his service-connected disability, if any, (iv) highest gross earnings per month, and (v) the reason that the employment ended; (b) Submit a VA Form 21-4192, Request for Employment information in Connection with Claim for Disability Benefits for all identified employers; and (c) Request the Veteran provide additional information regarding his full-time position in security, to include: (i) any educational or skills training being provided; (ii) whether the employer made accommodations based on the Veteran’s symptoms from his service-connected disability; and (iii) details regarding the residential accommodations provided by his employer. 3. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected right and left knee disabilities. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaires should be filled out. For each examination report, the examiner must include all the following: (a) Active range of motion testing results, (b) Passive range of motion testing results, (c) Weightbearing range of motion testing results, and (d) Non-weightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e., active or passive, weightbearing or non-weightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.