Citation Nr: 20042043 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 07-37 703 DATE: June 19, 2020 ORDER For the rating period prior to March 17, 2011, entitlement to an increased rating of 50 percent disabling for service-connected tension headaches is granted. For the rating period as of March 17, 2011, entitlement to an increased rating in excess of 50 percent disabling for service-connected tension headaches is denied. FINDINGS OF FACT 1. For the rating period prior to March 17, 2011, service-connected tension headaches manifested as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. For the rating period as of March 17, 2011, the Veteran is in receipt of the maximum disability rating for service-connected tension headaches. CONCLUSIONS OF LAW 1. For the rating period prior to March 17, 2011, the criteria for entitlement to a 50 percent disability rating for service-connected tension headaches have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.124a, Diagnostic Code 8199-8100 (2017). 2. For the rating period as of March 17, 2011, the criteria for an increased rating in excess of 50 percent disabling for service-connected tension headaches have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.124a, Diagnostic Code 8199-8100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the U.S. Army from February 1974 to February 1976 and from May 1976 to November 1977. The appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In January 2011, the Veteran testified before the undersigned Veterans Law Judge in a Travel Board hearing. A copy of the hearing transcript has been associated with the record. In January 2011, the Board added the claim of entitlement to a TDIU to the appeal, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the claims for further development, to include obtaining treatment records and scheduling VA examinations. In an April 2013 rating decision, the RO increased service-connected tension headaches to 50 percent disabling effective March 17, 2011, and within a December 2013 rating decision, entitlement to a TDIU was granted effective March 17, 2011. The Board notes that these grants constitute partial grants of the full benefits sought on appeal, and therefore, these issues are still pending on appeal. A.B. v. Brown, 6 Vet. App. 35, 38 (1993). In June 2015, the appeal was returned to the Board and was again remanded for record development. The Board finds that substantial compliance was obtained with prior remand directives, and the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to an increased rating for service-connected tension headaches in excess of 10 percent disabling prior to March 17, 2011, and in excess of 50 percent disabling thereafter Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2019). The United States Court of Appeals for Veterans Claims (Court) has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board finds that the current staged rating is not appropriate for the evaluation of the Veteran’s service-connected tension headaches, as discussed below. The Veteran’s service-connected tension headaches are rated under Diagnostic Code 8999-8100. Under the Rating Schedule, Diagnostic Code (DC) 8100 provides that migraines: with less frequent attacks warrants a noncompensable rating. 38 C.F.R. § 4.124a. Migraines with characteristic prostrating attacks averaging one in 2 months over last several months warrants a 10 percent rating. Migraines with characteristic prostrating attacks occurring on an average once a month over last several months warrants a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent rating. “Severe economic inadaptability” is not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). The Court has noted that if “economic inadaptability” were read to import unemployability, the veteran, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating under Diagnostic Code 8100. The words “productive of” could be read to mean either “producing” or “capable of producing.” Id. at 445. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2019). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154 (a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2019). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an increased rating in excess of 10 percent disabling for the rating period prior to March 17, 2011 Upon review of all the evidence, lay and medical, the Board will resolve all doubt in favor of the Veteran, and finds that an increased rating of 50 percent disabling is warranted for service-connected tension headaches for the rating period prior to March 27, 2011. During an August 2006 VA examination, the Veteran reported having headaches since 1975 when he injured his head in service. He described the headaches as constant, sometimes dull in nature, and sometimes sharp in nature, with pain from 5-7 on a 1-10 scale. The Veteran was prescribed medication which was not improving his headaches, and he indicated he had not been working since 1996. The Veteran indicated that he did not have incapacitating episodes or hospitalizations for management of his headaches. The VA examiner diagnosed the Veteran with tension headaches per the Veteran’s history. Within a March 2007 statement, the Veteran indicated that his service-connected tension headaches was more severe than the 10 percent rating assigned. A May 2009 VA examination shows the Veteran reported having headaches since 1975, which are constant 9-10 pain. He takes Vicodin every day to manage the pain but believes he needed an increased dosage. He denied nausea, vomiting, blurred vision, photo phobia, auras and incapacitation from his headaches. He said that they were generally dull but would come on with stress. The VA examiner concluded that the Veteran had diagnosed tension headaches, with incurring severity since the last examination, per the Veteran. January 2011 Travel Board hearing shows the Veteran described his service-connected tension headaches as constant and severe. During a severe headache, the Veteran reported that he was prevented from doing any activity and needs to lay down, in a dark room and will use a cold compress to alleviate any pain. He indicated that such headaches occurred at least three to four times a week. Within a May 2017 private neurophysiological record review and evaluation, a private neuropsychologist had outlined all relevant lay and medical evidence of record, from service until present, in reference to the Veteran’s increased rating claim for service-connected tension headaches. The private neuropsychologist indicated that, upon review of all relevant lay and medical evidence, that the Veteran’s tensions manifested as constant, severe and disabling for the rest of the day, requiring daily use of prescribed medications, which has not been fully effective. The neuropsychologist indicated that the assigned rating fails to appreciate the chronic and severe nature of his headaches which are more accurately contemplated by the criteria listed for a 50 percent rating. The examiner believed that the Veteran’s headaches have been constant since service have only worsened. Given the above evidence, the Board finds that for the rating period prior to March 17, 2011, service-connected tension headaches manifested as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Lay and medical evidence of record shows that the Veteran experienced headaches three to four times a week, which lasted hours at a time, with pain up to 9-10 on the pain scale, requiring the Veteran to take three to four days of bed rest a week, and requiring pain medication. Further, the Veteran reported that he had been unemployed since 1996, with his headaches preventing much of his daily activities. The Board finds that in resolving all benefit of doubt in favor of the Veteran, the criteria for a 50 percent disability rating is warranted for the rating period prior to March 17, 2011. Entitlement to an increased rating in excess of 50 percent disabling for the rating period as of March 17, 2011 Upon review of all the evidence, lay and medical, the Board finds that an increased rating in excess of 50 percent disabling is not warranted for service-connected tension headaches for the rating period as of March 27, 2011. A March 2011 VA examination shows the Veteran reported having constant headaches since service, which were prostrating for 12 to 16 hours at a time. The Veteran was taking Vicodin as treatment. The Veteran described experiencing vertigo or dizziness with headaches. During the past 12 months, the Veteran experienced headaches weekly, with less than half of the headaches prostrating, which would last for hours at a time. An August 2017 VA examination, the Veteran reported that his headaches increased in severity since he went off his pain medication over a year prior. He reported his headaches were strong, constant and never leave. He said they are mostly optical but move around his head, which can be dull, achy and throbby at times. The Veteran stated that he gets bad headaches two to three times a week. He did not have any hospitalizations due to his tension headaches in the past 12 months, but his headaches would last for six to seven hours at a time, and sometimes all day. When the pain becomes a 10-10, he needs to lay down and rest. The VA examiner recorded symptoms of constant head pain; pulsating head pain; pain on both sides of the head; pain worsening with physical activity; sensitivity to light; sensitivity to sound and pain in his eyes. The VA examiner denoted the duration of the typical head pain to be less than a day. The Veteran had characteristic prostrating attacks of headache pain, which occurred once every month which did not produce severe economic inadaptability. Within the May 2017 private neurophysiological record review and evaluation, the private neuropsychologist opined, upon full review of the Veteran’s claims file, that the Veteran’s tension headaches, from 2006 until present, had occurred daily, with marked interference with productivity and required prolonged rest, which interfered with his occupational and social functioning. The Board agrees with the May 2017 private neuropsychologist and finds that service-connected tension headaches approximate the criteria of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, for a continued 50 percent disability rating as of March 17, 2011. The Board notes that this is the maximum disability rating under Diagnostic Code 8100 for tension headaches. The Board has considered whether there are other applicable diagnostic codes for service-connected tension headaches, however, the Board notes that the rule against pyramiding prevents consideration of Diagnostic Code 8910, for service-connected atonic seizures, or 8040, for service-connected closed head injury. Further, the Board finds that Diagnostic Code 8100 more nearly approximates the Veteran’s service-connected tension headache disability picture. Therefore, for the rating period as of March 17, 2011, a rating in excess of 50 percent disabling for service-connected tension headaches is denied. Because the preponderance of the evidence is against claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). REMAND Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran has been in receipt of a TDIU as of March 17, 2011. The question before the Board is whether the Veteran met the criteria for a TDIU prior to that award. Prior to March 17, 2011, the Veteran does not meet the schedular criteria for a TDIU based on service-connected tension headaches (rated 50 percent), PFB (rated 0 percent), and closed head injury (rated 0 percent). It is noted that the Veteran is already in receipt of a 100 percent schedular rating for seizures as of October 11, 2005, and related disability may not be contemplated in the TDIU analysis. As the Board does not have the authority to assign an extraschedular TDIU in the first instance, referral to the Director, Compensation Service, for consideration of entitlement to a TDIU is warranted. 38 C.F.R. § 4.16 (b). The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination regarding entitlement to TDIU. The electronic claims file must be made available to and reviewed by the examiner. The examiner must address, without regard to the Veteran’s age or nonservice-connected disabilities, the impact of his service-connected disabilities (headaches, closed head injury and PFB, alone), on his ability to secure or follow a substantially gainful occupation. Specifically, the examiner is asked to identify and address how the symptoms and functional effects of the Veteran’s service-connected disabilities headaches, closed head injury and PFB impact his ability to work. (Impairment from seizures should not be considered as the Veteran is already in receipt of a 100 percent rating from this disability.) A complete rationale for all opinions expressed and conclusions reached must be provided. 2. After completing any additional development that is deemed warranted, refer the issue of entitlement to a TDIU on an extraschedular basis to the Director, Compensation Service, for consideration. 3. If TDIU is granted, consideration should be made as to whether entitlement to SMC is warranted. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.