Citation Nr: 20022069 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 18-12 873 DATE: March 30, 2020 ORDER Entitlement to an initial compensable rating for tension headaches is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for bilateral tinnitus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s headaches manifest in characteristic prostrating attacks occurring once or twice a month. 2. The frequency of the Veteran’s prostrating attacks is not considered very frequent. CONCLUSION OF LAW The criteria for an initial 30 percent rating for tension headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1991 to August 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran submitted a waiver of initial agency or original jurisdiction (AOJ) consideration of all new evidence associated with the claims file since the February 2018 statement of the case (SOC). Additional VA medical records were associated with the claims file in January 2020 and considered by the AOJ in a rating decision issued that same month. Accordingly, remand for initial AOJ consideration is not required. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to an initial compensable rating for tension headaches The appeal period before the Board begins on March 7, 2013, the effective date of service connection for the Veteran’s tension headaches. For the reasons that follow, the Board finds that an initial 30 percent rating, but no higher, is warranted. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraines. Under DC 8100, a noncompensable rating is warranted for less frequent attacks. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in 2 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. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, rendering 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). The term “very frequent” is not defined in DC 8100. The ordinary definition of “frequent” is “acting or returning regularly or often.” See Merriam Webster Dictionary, https://www.merriam-webster.com/dictionary/frequent. The modifier “very” in front of the word “frequent” is defined as “to a high degree: exceedingly.” See Merriam Webster Dictionary, https://www.merriam-webster.com/dictionary/very. Thus, based on its ordinary definition, the Board understands the combined term “very frequent” to generally refer to something that occurs in excess of regularly or often. The term “prostrating” means causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities. “Completely prostrating” means extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. Examples of prostrating symptoms include (1) experiencing severe headaches and vomiting when exposed to light; (2) not engaging in any activities when this occurs; and (3) must rest or sleep during these episodes. Prostration is substantially defined by how the disabled individual subjectively feels and functions when having migraine headache symptoms. Moreover, the determination of whether a veteran’s symptoms are considered prostrating is an adjudicative determination, not a medical one. See Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). “Productive of economic inadaptability” can be read as having either the meaning of “producing” or “capable of producing,” and nowhere in DC 8100 is “inadaptability” defined, nor can a definition be found elsewhere in title 38 of the Code of Federal Regulations. However, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The evidence shows that the Veteran underwent a VA examination in November 2013. Tension headache was diagnosed. The Veteran stated that his condition onset shortly after an in-service neck injury and that the condition is ongoing. He reported that he treats it with over the counter motrin. The examination report identified the sole symptom as pain on both sides of head with a duration of hours. There were no non-headache symptoms identified. The examiner indicated there were no characteristic prostrating attacks. The examiner further indicated the condition had no functional impact on work. In October 2014, the Veteran sought VA treatment. He reported worsening of headache symptoms. He reported that he went to the hospital with these symptoms and underwent a computerized tomography (CT) scan that returned negative. He reported symptoms of headache, dizzy, and sensitivity to light. In December 2014, the Veteran again sought VA treatment. He reported his current headache is located around his left eye, but some days it is around the right eye and other days it is bifrontal. He described the headache as throbbing. He reported that over the past few months he has been getting headaches once or twice a month, sometimes lasting a few days and sometimes just hours. He reported symptoms of nausea, photophobia, phonophobia, and aura. He stated that he takes 800mg ibuprofen and feels better if he lays under the covers for a few hours. He reported that he does not take ibuprofen every day. In August 2019, the Veteran underwent a VA examination. Diagnoses of migraine headache and tension headache were provided. He reported current symptoms of throbbing pain in the head and sensitivity to light and sound. Current treatment was a prescribed medication named Sumatriptan. He reported that during headaches he isolates in a dark room and has difficulty concentrating. The examination report noted headache pain localized to both sides of the head lasting less than 1 day. Other symptoms noted were nausea, sensitivity to light, sensitivity to sound, and changes in vision. The examiner marked that the Veteran has characteristic prostrating attacks once every month. The examiner also marked that the Veteran has very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The examiner indicated that the headaches impact work in that it is difficult to complete tasks when they flare up. Based on consideration of all evidence of record, the Board finds that a 30 percent rating under DC 8100 is warranted. The Board resolves all reasonable doubt in favor of the Veteran to find that his symptoms of head pain, photophobia, phonophobia, dizzy, nausea, and visual auras have occurred throughout the entire appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the Veteran experiences such symptoms he is generally unable to continue with ordinary activities and requires to take medication and isolate in a dark space. These symptoms occur once or twice a month and can have a duration of hours or days. Such symptoms and effects are consistent with the term “completely prostrating” attacks. Given the available ratings under DC 8100, the Veteran’s headaches meet the criterion corresponding to a 30 percent rating. There is also evidence suggesting that the Veteran’s headaches meet the criterion for a 50 percent rating. First, as noted above, the Veteran’s headaches have completely prostrating attacks. Second, the August 2019 VA examiner indicated that the completely prostrating attacks were productive of severe economic inadaptability; the Board makes no specific finding of fact with regard to this medical opinion. However, the Board finds that the criterion corresponding to a 50 percent rating are not met because the frequency of the Veteran’s completely prostrating attacks is not considered “very frequent” under the ordinary definition of the term. Indeed, the Veteran reported experiencing these headaches once or twice a month throughout the appeal period. Thus, while they do occur on a monthly basis, the Board does not find that they occur in excess of regularly or often. In the absence of a very frequent occurrence, the Board finds that the criteria corresponding to a 50 percent rating under DC 8100 have not been met. In sum, the Veteran’s tension headaches warrant a compensable 30 percent rating, but no higher, for the entire appeal period. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. Remand is required to afford the Veteran a medical examination. The Veteran has a current diagnosis of bilateral chondromalacia lateral articular facet of the patella and small joint effusion. See private treatment record (1/23/2014) (confirmed by magnetic resonance imaging (MRI)). The Board recognizes the Veteran also submitted a February 2013 private treatment record that diagnosed bilateral posttraumatic residual degenerative joint disease and subpatellar bursitis. See private treatment record (2/13/2013). However, the degenerative changes have not been documented on radiographic imaging. The Veteran contends that he injured his knees during active service where the ship moved abnormally while docking and him and several others handling a moor line were thrown to the metal deck, landing on, among other things, their knees. See, e.g., private treatment record (2/13/2013). He reported that they went to see the doctor and that person gave them pain medication and told them to enjoy their time off the boat. Id. The Veteran has also generally stated that he has never had a job that put so much pressure on his knees since the Navy. May 2013 VA Form 21-4138. Review of the Veteran’s service treatment records (STRs) shows no complaints, treatment, or diagnoses related to a knee problem. Nonetheless, in February 2014, a former fellow shipmate of the Veteran’s submitted a statement corroborating the occurrence of their fall to a metal deck. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the event did occur based on this corroborating evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran reported that he has had progressive pain and dysfunction in his knees since the injury. Private treatment record (2/13/2013). The Board notes that his August 1993 separation examination showed a normal clinical evaluation of the lower extremities and on the Report of Medical History he completed in conjunction with the examination, he marked “no” to swollen or painful joint, arthritis, and trick or locked knee. The Board further notes that similar clinical findings and statements were shown on the same forms completed in December 1993 after the Veteran’s discharge from active service and transfer to the reserve service. Thus, while the Veteran is competent to assert the occurrence of in-service knee symptoms and a continuity of symptoms therefrom, the Board finds his credibility is impugned by the prior inconsistent statements noted above, which the Board does find more probative based on their contemporaneous nature. The clinical findings on those two examinations also weigh against the probative value of his lay assertions. In sum, the Board finds that the Veteran did not experience a continuity of symptoms since his discharge from service. The sole competent nexus evidence of record is an opinion provided by a private physician in February 2013. The Board finds that opinion to be of minimal probative value because it is not supported by a rationale. Nonetheless, it was authored by a competent medical provider and the Board finds it is sufficient to provide an indication that there may be a nexus. Accordingly, on remand, the Veteran should be afforded a VA examination to determine the nature and etiology of his left and right knee disabilities. 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for bilateral tinnitus Remand is required to reschedule the Veteran for a medical examination. In January 2018, the RO initiated a request for a medical examination for the Veteran’s claimed hearing loss and tinnitus. VA Form 21-2507a. The request was subsequently cancelled in February 2018 after the Veteran did not respond to the RSVP letter for the examination. See Printout, VBMS record titled “CAPRI”, receipt date 02/07/2018. The Veteran contacted VA and reported that he missed the examination because he was incarcerated. October 2018 VA Form 21-0820. He reported that he has since been released from incarceration and requested that the exam be rescheduled. Id. It is noted that he missed a medical examination for his service-connected tension headaches for the same reason and requested that examination be rescheduled as well. Review of the record shows the RO rescheduled the medical examination for his headaches but did not do so for his claimed hearing loss and tinnitus. Accordingly, on remand, the Veteran should be rescheduled for this examination to determine the nature and etiology of his claimed conditions. 5. Entitlement to a TDIU is remanded. The claim of entitlement to a TDIU is considered part-and-parcel of the increased rating claim for tension headaches. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, it shares the same appeal period, beginning on March 7, 2013. See id. While the Board reached a decision for the schedular rating for headaches above, it has bifurcated the associated TDIU claim for additional development. Locklear v. Shinseki, 24 Vet. App. 311 (2015). Here, the Veteran completed a VA Form 21-8940 in August 2019. He reported that he worked for Nustar Promotions in a marketing role full time from November 1997 to August 2007, and for Zoolix in a marketing role full time from October 2018 to February 2019. However, in a September 2019 VA Form 21-0820, the Veteran reported that his last day of employment at Nustar Promotions was August 2017. Given the Veteran’s latest reporting, the Board finds that there is contradiction between that statement and his VA Form 21-8940. On remand, he should be asked to complete a new VA Form 21-8940 and clarify this discrepancy. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a new VA Form 21-8940. The Veteran should note that in the one submitted in August 2019 he reported working at Nustar Promotions from November 1997 to August 2007 but in September 2019 he reported to VA that he worked for Nustar Promotions until August 2017. The Board requires clarification of this discrepancy. 2. Schedule the Veteran for a VA examination to determine the current nature and etiology of his left and right knee conditions. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with conducting the examination. The examiner is asked to provide responses to the following: A) Identify the Veteran’s current diagnosis for each knee. The examiner should note that a January 2014 MRI showed bilateral chondromalacia lateral articular facet of the patella and small joint effusion. See private treatment record (1/23/2014) (confirmed by magnetic resonance imaging (MRI)). The Board also notes that in February 2013 a private examiner diagnosed bilateral posttraumatic residual degenerative joint disease and subpatellar bursitis. See private treatment record (2/13/2013). However, the degenerative changes have not been documented on radiographic imaging. If any diagnosis is ruled out, it should be clearly explained why that is so. B) For each diagnosed disability, the examiner is to answer whether it is at least as likely as not (a 50 percent or greater probability) the condition was incurred in, or is otherwise related to, the Veteran’s active service. For the purposes of providing this opinion, the examiner should note that the Board has found that the Veteran did fall to the metal deck and hit his knee in service, despite the occurrence of this event not being documented in his STRs. The examiner should also note the Board has found the Veteran’s assertions regarding a continuity of knee symptoms since service not credible. A complete rationale must be provided for all opinions expressed. 3. Schedule the Veteran for a VA examination for his claimed bilateral hearing loss and tinnitus. After review of the file and conducting all requisite testing, the examiner must answer whether it is at least as likely as not his claimed hearing loss and tinnitus conditions were incurred in, or are otherwise related to, his active service. For the purposes of these opinions, the examiner may presume that the Veteran did have in-service exposure to acoustic noise from ship diesel engines and weapons fire during training exercises. A complete rationale must be provided for all opinions expressed. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mike A. Sobiecki, 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.