Citation Nr: 20031841 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 19-31 029 DATE: May 6, 2020 ORDER An effective date prior to February 10, 2011, for the award of service connection for migraine headaches, is denied. Entitlement to an initial 50 percent for service-connected migraine headaches is granted. REMANDED Service connection for a neck disorder, to include as secondary to service-connected left shoulder disability, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 30, 2013 is remanded. FINDINGS OF FACT 1. By a decision entered in August 1990, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for tension headaches; the Veteran was advised of the RO’s decision and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s August 1990 decision during the one-year period following the mailing of notice of that decision; nor was any new evidence received within a year. 3. No claim for service connection for migraine headaches was received prior to February 10, 2011. 4. Beginning on February 10, 2011, the Veteran’s migraine headaches have more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The RO’s August 1990 decision denying service connection for tension headaches is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2018). 2. The criteria for an effective date prior to February 10, 2011, for the award of service connection for migraine headaches, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for the maximum schedular rating of 50 percent for migraine headaches have been met for the period beginning on February 10, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Navy from March 1986 to March 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. This case was previously before the Board in October 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ increased the Veteran’s service-connected migraine headaches to 50 percent effective February 2, 2018 and also granted SMC from February 2, 2018. The AOJ denied an increased initial rating for the Veteran’s migraines headaches and denied an earlier effective date as well. See October 2019 Rating Decision and October 2019 Statement of the Case (SOC). The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, during his May 2011 VA examination, the Veteran noted that he was not working due to his migraine headaches. As the evidence suggests that the Veteran is unemployable due to symptoms of his disabilities, the issue of entitlement to a TDIU has been raised. Earlier Effective Date Migraine Headaches Prior To February 10, 2011 The Veteran seeks an effective date prior to February 10, 2011 for the award of service connection for migraine headaches. The Veteran is arguing that prior to February 10, 2011, the Veteran had a migraine headaches claim that was never adjudicated as he never received a denial letter. See March 2020 Brief. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award based upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. §§ 3.400(q)(2), 3.400(r); Leonard v. Principi, 17 Vet. App. 447, 452 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003). In January 1990 correspondence, the Veteran wrote that he has sustained a head injury during service – causing him to suffer from blurry vision and dizzy spells. In February 1990 the RO deferred the head trauma claim pending the results of an examination report and hospital report. In an August 1990 rating decision, the Veteran was informed that “[s]ervice connection is denied for . . . tension headaches, as service records are also negative for chronic conditions.” The Veteran was mailed notification of the August 1990 rating decision, along with the rating decision itself in September 1990. The address listed was his last-known address in which other correspondences were mailed and the Veteran had previously responded. The Veteran did not appeal this decision nor did he submit new evidence within a one-year period. On February 10, 2011, the Veteran submitted a claim for migraine headaches secondary to his service-connected left shoulder condition. Service connection was granted in a May 2018 rating decision, with the effective date being February 10, 2011, the date of his claim. The Board finds that the earliest effective date for the Veteran’s claim is the currently assigned effective date of February 10, 2011. The August 1990 rating decision found, in effect, that the Veteran’s headaches could not be service-connected. Because no appeal was filed, the August 1990 rating decision became final insofar as it found that the Veteran had not filed a valid claim for compensation. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. Thereafter, a claim for migraine headaches was not filed until February 10, 2011, the Veteran’s current effective date. Therefore, that is the earliest an effective date can be assigned. The Veteran concedes he did not appeal the August 1990 rating decision. Rather, the Veteran’s representative has argued that the Veteran never received a notification letter for the prior August 1990 rating decision. A review of the file, however, reflects that the Veteran was mailed a notification letter in September 1990. The address listed on the September 1990 was confirmed by Veteran himself in August 1991 correspondence. There is a presumption of regularity that public officers perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005); Crain v. Principi, 17 Vet. App. 182 (2003). The presumption of regularity applies to procedures at the VA regional offices. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). The presumption of regularity “supports the official acts of public officers and, in the absence of clear evidence to the contrary courts presume that they have properly discharged their official duties. Fithian v. Shinseki, 24 Vet.App. 146, 150 (2010); see also Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (holding that the presumption of regularity “allows courts to presume what appears regular is regular, the burden shifting to the attacker to show the contrary.”). Given the presumption of regularity that applies to VA operations, it is presumed that the September 1990 notification letter for the August 1990 rating decision was sent to the Veteran as the address listed was correct and there is no objective evidence to the contrary. It is the Veteran that bears the burden of proof to show “clear evidence to the contrary.” Fithian, 24 Vet.App. at 150. The Court has further held that lay statements alone are insufficient to rise to the level of “clear evidence” contrary to the presumption of regularity. Id. Here, the only evidence submitted by the Veteran to contradict the presumption of regularity are his own statements indicating he never received the August 1990 rating decision. His statements, standing alone, are not “clear evidence to the contrary” and are insufficient to rebut the presumption of regularity. See Fithian, 24 Vet.App. at 150; see also Butler, 244 F.3d at 1340. Accordingly, the claim for an effective date earlier than February 10, 2011September 13, 2011, for the grant of service connection for migraine headaches is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Migraine Headaches The Veteran contends that he is entitled to an increased rating for his service-connected migraine headaches. The Veteran’s headache condition is rated as 30 percent disabling pursuant to the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8100, from February 10, 2011 and 50 percent from February 2, 2018. Under Diagnostic Code 8100, migraines are evaluated as follows: a 30 percent rating is assigned for characteristic prostrating attacks occurring on an average once a month over last several months; and, a 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. “Characteristic prostrating attacks’ plainly describes migraine attacks that typically produce powerlessness or a lack of vitality.” Johnson (Willie) v. Wilkie, 30 Vet. App. 245, 251 (2018). In addition, “completely prostrating headaches must render the veteran entirely powerless” and must be long in duration to satisfy the 50 percent requirements. See id. at 253. However, the Board notes that “productive of economic inadaptability” does not require 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). In February 2011 correspondence the Veteran wrote that he had developed migraine headaches that required him to lay down in a quiet, dark room and take medication. In May 2011 correspondence the Veteran’s wife wrote that the Veteran experienced severe headaches that caused him to vomit, 4 to 5 times a month. The headaches lasted 10 to 15 hours and he was fatigued after the headache subsided. On VA examination in May 2011, the Veteran reported that he experienced weekly headaches with most attacks being prostrating. The headaches lasted for 4 hours. The examiner noted that the Veteran treated his headaches with Imitrex but did not require continuous medication. It was noted that the Veteran was not working due to his shoulder and headaches, but if he was, he estimated he would miss 1 to 2 days of work a week. A January 2013 Social Security Administration (SSA) record completed by the Veteran’s wife reflected that the Veteran had migraine headaches that caused him to lay down 10 to 15 hours a day, at least 2 to 3 days a week. See July 2014 SSA Records. A February 2013 VA treatment record reflected the Veteran’s continued complaints of migraines which had not been successfully treated. The Veteran denied a headache at the time of the record. See April 2013 CAPRI. On VA examination in May 2017, the Veteran reported that he experienced headaches 3 to 4 times a week, lasting 16 to 17 hours, with all episodes being prostrating. The Veteran’s headaches caused him to experience pain on both sides of the head, nausea, vomiting, sensitivity to light and sound, changes in vision, and sensory changes. He treated his headaches with a combination of Imitrex and Vicodin, which he did not find to be helpful. The examiner found that the Veteran had prostrating attacks once every month for the last several months. It was noted that the Veteran was unable to work due to his headaches. On VA examination in February 2018, the Veteran reported that he experienced headaches 2 to 3 times a week, which caused him have to lie down in a dark room. The Veteran’s headaches caused him to experience pain on both sides of the head, nausea, vomiting, sensitivity to light and sound, and changes in vision. He treated his headaches with a combination of Imitrex and Vicodin, which he did not find to be helpful. The examiner found that the frequency of prostrating attacks was more than once per month and productive of economic inadaptability. The Board finds that a uniform 50 percent rating, the max schedular rating, is warranted throughout the period. The Veteran’s medical records, lay statements, May 2011and February 2018 examination reports reflect that the Veteran suffers from prostrating and prolonged attacks as evidenced by the more than monthly frequency of migraine headaches that caused the Veteran to have to lie down for at least 4 hours and in many cases in excess of 10 hours. Furthermore, all VA examiners have found that the Veteran’s headaches cause him to be unable to work, indicative of “severe economic inadaptability.” The Board notes that although the May 2017 examiner found that the Veteran had prostrating attacks once every month for the last several months; however, resolving reasonable doubt in favor of the Veteran, the Board finds that the totality of the evidence reflects that the Veteran’s headaches support a finding that his headaches are best characterized as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board has also considered other potentially applicable diagnostic codes; however, the Veteran’s headaches are not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule. An initial 50 percent rating, the highest schedular rating, is granted for service-connected migraine headaches. REASONS FOR REMAND Service connection for a neck disorder, to include as secondary to service-connected left shoulder disability, is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s remaining claim and to afford him every possible consideration. The United States Court of Appeals for Veterans Claims (Court) has held “that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, a right to compliance with the remand orders.” Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, compliance with the terms of the remand is necessary prior to further appellate review, and if not, “the Board itself errs in failing to ensure compliance.” Id. This matter was previously remanded in October 2018 to obtain an addendum opinion from an appropriate clinician to provide a clarifying opinion as to the nature and etiology of the Veteran’s neck disability. The examiner was specifically “advised that they must discuss the Veteran’s self-reported history.” The examiner who prepared he October 2019 addendum opinion wrote that she had already discussed the Veteran’s lay statement in their April 2017 opinion and that she did not have anything to add. As the Boards remand instructions were not followed, a new addendum opinion should be sought. Additionally, the Board notes that to date, no supplemental statement of the case (SSOC) has issued regarding the Veteran’s claim, despite the Board October 2018 remand instructions specifically instructing the RO readjudicate the Veteran’s claim and to provide an SSOC. TDIU Prior To April 30, 2013 The Board finds that the TDIU issue is not fully developed for appellate review, as the Veteran has not been provided with notice of the laws and regulations governing TDIU. The matter must be remanded to initiate this due process. See 38 C.F.R. § 4.16. Additionally, SSA records submitted by the Veteran reflect that he has worked during different periods of time prior to April 30, 2013. See July 2014 SSA Records. In light of this evidence, the Board finds additional information is needed to determine the Veteran’s occupational income during the period of the claim on appeal. Lastly, with regard to the TDIU claim, it is inextricably intertwined with the adjudication of the Veteran’s service connection claim. The Board will defer adjudication of the TDIU claim until the development deemed necessary for the claim has been completed. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). The matters are REMANDED for the following action: 1. Assist the Veteran in uploading updated treatment records. 2. Undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU. This should include sending the Veteran a letter advising him of the information and evidence needed to award a TDIU. The letter should also request that he complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim for a TDIU. 3. Contact the Veteran and request that he provide proof of his annual salary throughout the course of the appeal, such as copies of salary statements, wage receipts, W-2s, and/or tax returns for each year prior to April 30, 2013. 4. Send a VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits, to any employer listed on the Veteran’s submitted VA Form 21-8940. 5. Obtain an addendum opinion from an appropriate clinician, WHO HAS NOT ALREADY PROVIDED AN OPINION, to provide a clarifying opinion as to the nature and etiology of the Veteran’s neck disorder. Specifically, the examiner should opine whether it is at least as likely as not related to an in-service injury, event, or disease, including his head injury in service. The examiner must also provide an opinion as to whether it is a least as likely as not that any diagnosed neck disorder is (a) related to, (b) proximately due to, or (c) aggravated beyond its natural progression by the Veteran’s left shoulder disability. The examiner is to provide a review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of any disability. A complete rationale for any opinions expressed must be provided. The report should set forth all complaints, findings, and diagnoses relating to the Veteran’s neck disorder and provide a rationale for all conclusions reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. A complete rationale is required for all opinions reached. The examiner should note that the Veteran had a post-service complaint of pain with flexion of his neck as noted in a May 1990 VA treatment record, and of pain in the left shoulder and radiating into the neck, as noted in an August 1994 private treatment record following a motor vehicle accident. The examiner is advised that they must discuss the Veteran’s self-reported history. The examiner is notified that the Veteran is competent to report symptomatology observable by a layperson. The examiner is advised that the absence of corroborating clinical records may not be the determinative factor, and the examiner should discuss the Veteran’s reports of continuity of symptomatology since service. 6. Then, readjudicate the Veteran’s claim for service connection for his neck disorder and TDIU claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental SOC. Allow an appropriate period of time for response. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.