Citation Nr: 20033069 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 18-09 346 DATE: May 12, 2020 ORDER Entitlement to a rating in excess of 30 percent for migraine headaches prior to August 31, 2018 is denied. REMANDED Entitlement to a rating in excess of 20 percent for status post arthroplasty and fusion, hallux valgus, right great toe, with degenerative joint disease (DJD) and status post-surgery of the right second toe is remanded. FINDING OF FACT Prior to August 31, 2018, the Veteran's migraine headaches were characterized by prostrating attacks of migraine headache pain more than once per month, but not very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for migraine headaches, prior to August 31, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1970 and from September 1971 to January 1994. This matter initially came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 2015 rating decision which, in part, denied the Veteran’s claims of entitlement to increased ratings for status post arthroplasty and fusion, hallux valgus, right great toe, with DJD and status-post surgery of the right second toe, and migraine headaches. He perfected a timely appeal to that decision. In January 2019, the Board denied a rating in excess of 30 percent for migraine headaches prior to August 31, 2018; the Board also denied the claim for a rating in excess of 20 percent for status post arthroplasty and fusion, hallux valgus, right great toe, with degenerative joint disease (DJD)and status post-surgery of the right second toe. The Veteran timely appealed the January 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In November 2019, the Court granted the Parties' Joint Motion for Partial Remand; vacated that portion of the January 2019 Board decision which denied a rating in excess of 30 percent for migraine headaches prior to August 31, 2018, and a rating in excess of 20 percent for status post arthroplasty and fusion, hallux valgus, right great toe, with degenerative joint disease (DJD)and status post-surgery of the right second toe; and remanded the appeal to the Board for action consistent with the Joint Motion for Partial Remand. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2018). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2 (2018); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2018). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 1. Entitlement to a rating in excess of 30 percent for migraine headaches prior to August 31, 2018 The Veteran maintains that he is entitled to a rating in excess of 30 percent for his migraine headaches prior to August 31, 2018. The April 2010 rating decision granted service connection for headaches at an initial noncompensable evaluation, effective March 9, 2009 under Diagnostic Code 8100. A February 2013 rating decision granted an initial 30 percent rating for headaches, effective March 9, 2009 and in the April 2018 rating decision, the RO increased the initial rating for the Veteran's headaches disability to a 50 percent disability rating, effective December 2, 2015. Diagnostic Code 8100 provides ratings for migraine headaches. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2018). The rating criteria do not define "prostrating," and the Board observes that the Court has not undertaken to define "prostrating." Cf. Fenderson, supra, in which the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what is a prostrating attack. According to Webster's New World Dictionary of American English, Third College Edition (1986), p.1080, "prostration" is defined as "utter physical exhaustion or helplessness." The rating criteria also do not define "severe economic inadaptability." However, the Court noted that nothing in Diagnostic Code 8100 required the claimant to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). The Veteran’s claim for an increased rating for migraine headaches (VA Form 21-526) was received in June 2015. Submitted in support of the claim were private treatment reports dated November 2012 through November 2014, which show that the Veteran reported a history of frequent headaches and blurry vision. Among these records is a statement from Dr. William L Bennett, dated in February 2014, indicating that the Veteran reported having had several episodes of double vision, where he would see lines and shadows, followed by a headache; he reported a history of migraines. It was noted that he had been seen in the emergency room on a couple of occasions for his symptoms. Dr. Bennett indicated that the Veteran’s symptoms were due to his migraines. In conjunction with his claim for an increased rating, the Veteran underwent a DBQ examination in October 2015. At that time, the Veteran indicated that his headaches were the same as before; that is, he gets one twice a month; he noted that they last a day maybe a day-and-a-half. He was not currently using any medication because nothing really seems to work; he indicated that he uses Excedrin migraine. That helps but he has to go in a dark room and try to sleep." It was noted that the Veteran experiences nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision; it was also noted that the symptoms lasts between 1 to 2 days and the pain is on either side of the head. The examiner noted that the Veteran experiences characteristic prostrating attacks of migraine once every month. The examiner indicated that the Veteran does not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. In his notice of disagreement (VA Form 21-0958), dated in June 2016, the Veteran reported that he gets very frequent completely prostrating and prolonged migraine attacks which result in severe economic inadaptability. On August 31, 2018, the Veteran underwent another DBQ examination in conjunction with this claim. At that time, it was noted that the Veteran had a history of headaches for many years associated with photophobia and incapacitating episodes. The Veteran reported headaches with pain located on one side of the head. It was noted that the Veteran experienced headaches with nausea, vomiting, sensitivity to light, sensitivity to sound and changes in vision. This typically lasted one to 2 days and occurred on both sides of his head. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine headache pain more than once per month. He also noted that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. He also reportedly had prostrating attacks of non-migraine headache pain. The examiner stated that the headache condition impacted the Veteran ability to work in that the headaches can be incapacitating with photophobia. After careful consideration of the claims file, the Board finds that the evidence of record does not support the assignment of a disability rating in excess of 30 percent prior to August 31, 2018. In order to meet the requirements of the 50 percent evaluation under Diagnostic Code 8100, there must be evidence of migraine headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. Here, the Board finds nothing to indicate that the Veteran's service-connected headaches resulted in this level of disability before August 31, 2018. In this regard, the Board notes that while private treatment reports in February, August and October 2014 reported a history of frequent headaches, the private medical providers did not describe the headaches as being “very frequent,” nor did they describe the headaches being completely prostrating with prolonged attacks productive of severe economic inadaptability. The Board acknowledges the Veteran's subjective complaints (made in both statements in support of his claim and in the medical evidence) involving his service-connected migraine headache disability; specifically, in his June 2016 notice of disagreement, the Veteran claimed that his headaches became very frequent completely prostrating and prolonged migraine attacks which resulted in severe economic inadaptability. However, none of the examiners opined that the Veteran's headaches caused severe economic inadaptability or are very frequently completely prostrating, nor does a review of the Veteran's VA treatment records support such finding. As such, the Board finds that the preponderance of the evidence of record does not reflect that, prior to August 31, 2018, the Veteran's migraine headaches were manifested by impairment that more nearly approximates completely prostrating and prolonged attacks productive of severe economic inadaptability. Thus, the preponderance of the probative evidence is against a rating in excess of 30 percent for the period prior to August 31, 2018. To the extent the Veteran contends that, prior to August 31, 2018, he experienced migraine symptoms more consistent with the 50 percent rating criteria under Diagnostic Code 8100, the Board finds that his assertions are outweighed by the contemporaneous medical evidence of record, which does not show completely prostrating and prolonged attacks productive of severe economic inadaptability. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Accordingly, the Board finds that the record does not show that the Veteran was entitled to a disability rating in excess of 30 percent for his service-connected migraine headaches during the period prior to August 31, 2018. REASONS FOR REMAND After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A. The specific bases for remand are set forth below. 1. Entitlement to a rating in excess of 20 percent for status post arthroplasty and fusion, hallux valgus, right great toe, with degenerative joint disease (DJD) and status post-surgery of the right second toe is remanded. The Parties' November 2019 Joint Motion for Partial Remand agreed that that the Board relied on an inadequate October 2015 VA foot examination. Specifically, the parties noted that the examiner diagnosed amputation right great toe at phalangeal joint; however, the record shows that the amputation of the right great toe occurred in June 1995, and the surgical report noted that there was an “amputation at the level of the metatarsal phalangeal joint of the right great toe.” Consequently, the parties agreed that the October 2015 VA examination is inadequate because it apparently misidentifies where the amputation of the right great toe was amputated; therefore, a remand for a new VA examination that clarifies the findings of the VA examination of record is necessary. The matters are REMANDED for the following action: 1. Ensure that the Veteran is scheduled for an examination to determine the current severity of his status post arthroplasty and fusion, hallux valgus, right great toe, with degenerative joint disease (DJD), status post-surgery of the right second toe. The claims file, including a copy of this Remand, must be made available to and reviewed by the examiner in conjunction with the examination. The VA examiner should report the extent of all right great toe symptoms in accordance with VA rating criteria. The examiner is reminded of the record reflects probative evidence showing that the Veteran underwent amputation at the level of the metatarsal phalangeal joint, as supported by the findings on the June 1995 hospital report. (Continued on the next page)   As part of the examination, the VA examiner should opine as to any additional functional loss that would be present during flare ups of pain in the right great toe. If the examination is not being performed during a flare up, the VA examiner should elicit relevant information as to the flare ups or ask the Veteran to describe the additional functional loss. Once the relevant information has been obtained from the Veteran, the VA examiner should either 1) estimate the functional loss due to flare ups based upon all the evidence of record, including lay information, or The examiner is asked to request the Veteran to identify the extent of his functional loss during flare-ups and pain on use and, if possible, offer range of motion estimates based on the information; 2) If the examiner is unable to render such an opinion without resorting to mere speculation, the VA examiner should explain whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. A detailed explanation (rationale) is requested for all opinions provided. 2. Then, readjudicate the claim that is the subject of this remand. If the benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.