Citation Nr: 20041069 Decision Date: 06/16/20 Archive Date: 06/16/20 DOCKET NO. 18-29 592 DATE: June 16, 2020 ORDER The appeal as to whether the Veteran filed a timely substantive appeal (VA Form 9) to a January 2017 Statement of the Case (SOC) is granted. Entitlement to an increased rating of 20 percent for cervical strain is granted, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a 50 percent rating for migraine headaches is granted, subject to the criteria applicable to the payment of monetary benefits. REMANDED Service connection for a low back disorder is remanded. FINDINGS OF FACT 1. On January 30, 2017, the Department of Veterans Affairs (VA) mailed a copy of a Statement of the Case (SOC) to the Veteran, but the Veteran’s address is incorrect. 2. The January 30, 2017 SOC was not provided to the Veteran’s representative until April 28, 2017. 3. On April 28, 2017, VA received a VA Form 9 to the January 2017 SOC. 4. During his September 2019 VA examination, the Veteran demonstrated forward flexion of the cervical spine to 20 degrees and an overall range of motion of 155 degrees. 5. Resolving all the reasonable doubt in the Veteran’s favor, his headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. A timely VA Form 9 was filed as to the January 2017 SOC. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.303. 2. Resolving reasonable doubt in favor of the Veteran, for the increased rating period on appeal, the criteria for a 20 percent rating, and no higher, for cervical spine strain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for a rating of 50 percent for headaches is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to August 1982 and from February 2003 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2014 and January 2017 rating decisions by VA. As an initial matter, the Board notes that the Veteran appeal initially included claims for service connection for an acquired psychiatric disorder and a positive purified protein derivative (PPD) test (claimed as tuberculosis). Soon after he perfected an appeal to the Board for these issues (via a VA Form 9), but prior to these claims being certified for appellate review, the Veteran submitted a Supplemental Claim for these issues on July 23, 2019, thereby requesting that the claims be adjudicated under VA’s new modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). As the Veteran has opted-in to the Appeals Modernization Act (AMA) review system by submitting a Supplemental Claim, these issues are no longer on appeal under the Legacy system. Notably, the psychiatric disability and tuberculosis claims were addressed in a January 2020 AMA rating decision, which the Veteran has not yet appealed. The Board further notes that the evidence of record raised the issue of whether the Veteran is entitlement to a total disability rating (TDIU) due to the service-connected disabilities addressed herein. Notably, a claim of TDIU is inferred with the claim of an increased rating, and with evidence that the veteran is unemployed. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, however, the Veteran filed a formal claim for TDIU in August 2019, which was addressed in a May 2020 AMA rating decision. Thus, the issue of entitlement to a TDIU is not addressed herein. 1. Whether a VA Form 9 received on April 28, 2017, was timely. Once a veteran files a proper Notice of Disagreement (NOD), VA must prepare an SOC, copies of which “will be submitted to the [Veteran] and to the [Veteran’s] representative, if there is one.” 38 U.S.C. § 7105(d)(3). A substantive appeal must be filed within 60 days from the date that VA mails the SOC, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. Id.; 38 C.F.R. § 20.302(b). VA’s failure to mail the SOC to both the veteran and the veteran’s representative tolls the filing period until such error is cured. See Chadwick v. Derwinski, 1 Vet. App. 74, 76 (1990) (holding that the time to file an appeal was tolled because the statute requiring the Board to mail a decision to both the Veteran and the Veteran’s representative was “written in the conjunctive, and a mailing made only to the claimant’s authorized representative violates this statutory requirement.”) There is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). The presumption of regularity may be rebutted by submission of clear evidence to the contrary. Evidence of nonreceipt by either the veteran or the veteran’s representative, standing alone, is not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. This is because such evidence goes to the question of receipt, rather than the question of mailing. When the presumption of regularity has been rebutted, the burden shifts to VA to establish that it was compliant with statute. See id. at 64-66 (discussing the presumption of regularity in the context of the Board’s duty to mail copies of a Board decision to a Veteran’s representative). Here, VA issued an SOC on January 30, 2017, adjudicating the issue of entitlement to service connection for lumbar paravertebral muscle spasm. However, the SOC did not list the correct address for the Veteran. On April 28, 2017, VA received the Veteran’s form 9 as faxed by the Veteran’s representative. The Veteran’s representative noted that this was the first time she received the SOC via telephone conference with VA and that she returned the Form 9 as soon as she was aware that it existed. Because the evidence is irrefutable that the January 2017 SOC was not mailed to the Veteran’s correct address of record, the presumption of regularity is rebutted and the period to file a VA Form 9 did not begin on January 30, 2017. There is no contradictory evidence to show VA mailed the SOC to the correct address prior to April 28, 2017. Thus, the time to file a VA Form 9 was tolled. Because the April 28, 2017 Form 9 was received within 60 days of that date, the VA Form 9 is timely and the appeal is granted. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. 2. Entitlement to an increased rating for cervical strain For the rating period on appeal, the Veteran is in receipt of a 10 percent disability rating for the neck disability under Diagnostic Code 5242. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees; extension is 0 to 45 degrees; left and right lateral flexion are 0 to 45 degrees; and left and right lateral rotation are 0 to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. After a review of all the evidence, lay and medical, the Board finds that, for the increased rating period on appeal, the criteria under Diagnostic Code 5242 for a 20 percent for the cervical spine disability have been more nearly approximated. Throughout the increased rating on appeal, considering all functional limitations including due to pain, the cervical spine disability has more nearly approximated forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. The Veteran was provided VA examination in December 2016. During that examination the Veteran demonstrated forward flexion to 40 degrees, extension to 35 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 60 degrees, and left lateral rotation to 60 degrees. The examiner declined to provide measurements for range of motion during a flare up, stating that the “exam must be performed during a flare-up to say”. The examiner is required to ask the Veteran to describe the flare-ups they experience (if the examination was not conducted during a flare-up), including the frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Examination did not account for the Veteran’s flair-ups, is inadequate and is to be afforded little probative weight. The September 2019 VA examination report reflects forward flexion to 35 degrees, extension to 25 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 60 degrees, and left lateral rotation to 60 degrees. The examination further noted that the Veteran’s pain significantly limited functional ability with flare-ups. The Veteran’s range of motion during in a flare up was approximated as forward flexion to 20 degrees, extension to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 40 degrees. Such symptoms and findings more nearly approximate the criteria for a 20 percent disability rating under Diagnostic Code 5242. 38 C.F.R. §§ 4.3, 4.7, 4.71a. The criteria for a disability rating in excess of 20 percent for service-connected neck disability have not been more or more nearly approximated for any period. No examiner has assessed that the neck disability has more nearly approximated forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine. See September 2019 VA examination report. Even considering any functional limitation due to such factors as pain and the Veteran’s subjective symptomatology, the evidence does not support a rating higher than the 20 percent evaluation assigned herein for the Veteran’s cervical spine disability. 3. Entitlement to an increased rating for migraine headaches. The Veteran is in receipt of a 30 percent disability rating for headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable (0 percent) rating is warranted with less frequent attacks. A 30 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once per month over the last several months. A 50 percent rating is assigned for migraine headaches when a veteran has very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Although prostrating attacks are not defined in the rating criteria, medical guidance used by the VA Compensation Service suggests that such an attack causes one a lack of strength to the point of exhaustion. See VA Compensation Service’s Medical Electronic Performance Support System. The Veteran was provided VA examination in September 2019. The examiner noted that the Veteran experienced pulsating or throbbing head pain, nausea, vomiting, sensitivity to light & sound, and changes in vision. These symptoms were typically less than one day in duration. The examiner also noted that the Veteran had characteristic prostrating attacks of migraines once a month and went on to categorize them as very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. In a statement from February 2020, the Veteran’s representative relayed that the Veteran experienced prostrating headaches on a weekly basis, requiring him to lie down for six hours at a time. The Board will resolve reasonable doubt in the Veteran's favor and finds that he meets the criteria for a 50 percent rating for completely prostrating and prolonged attacks productive of severe economic instability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claim is thus granted to this extent. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder. Having found that the April 2017 VA Form 9 was timely, additional development is needed with respect to the appealed claim seeking service connection for a low back disorder. Specifically, the June 2006 VA examination report shows a diagnosis of lumbar strain but does not include an opinion as to whether the Veteran’s low back disorder is related to his military service. Thus, the Board cannot make a fully-informed decision on whether the condition is related to service. Thus, a remand is needed to obtain an opinion as to the onset and etiology of the Veteran’s low back disorder. The matters are REMANDED for the following action: 1. Obtain all outstanding medical records pertinent to the claim remaining on appeal. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed low back disorder. The examiner must address the following: (a) Identify all low back diagnoses. (b) For all low back disorders diagnosed, opine whether the disorder is at least as likely as not related to an in-service injury, event, or disease. In providing the requested opinion, the examiner must consider and discuss the Veteran’s competent lay statements regarding the onset and progression of the claimed disorder. The examination report must include reasons for any opinion expressed. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 3. The Agency of Original Jurisdiction should review the claims file and ensure that all Spanish language documents are clearly translated into English and that the translations are associated with the claims file. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph Montanye, 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.