Citation Nr: A20007358 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190501-7494 DATE: April 30, 2020 ORDER Entitlement to an effective date prior to November 20, 2018 for the 100 percent disability rating for posttraumatic stress disorder (PTSD) with cannabis use disorder, having been rendered moot, is dismissed. Entitlement to a disability rating in excess of 0 percent for headaches, prior to August 30, 2016, is denied. Entitlement to a 50 percent disability rating for headaches, effective August 30, 2016, is granted. FINDINGS OF FACT 1. The issue of entitlement to an effective date prior to November 20, 2018 for the 100 percent disability rating for PTSD with cannabis use disorder was encompassed in the Veteran’s claim for an increased initial rating and was adjudicated by the Board in a June 2019 decision. 2. Prior to August 30, 2016, the Veteran’s service-connected headaches were manifested by accompanying symptoms of nausea, but were not manifested by characteristic, prostrating attacks averaging one in two months over the last several months. 3. Since August 30, 2016, the Veteran’s service-connected headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The issue of entitlement to an effective date prior to November 20, 2018 for the 100 percent disability rating for PTSD with cannabis use disorder is moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. 2. Prior to August 30, 2016, the criteria for a disability rating in excess of 0 percent for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.124a, Diagnostic Code 8100. 3. Since August 30, 2016, the criteria for a 50 percent disability rating for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1971 to July 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2019 rating decision by the Department of Veterans Affairs (VA) regional office (RO). In April 2019, the Veteran filed a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and elected the Evidence lane. When the Evidence lane is selected, the Board reviews the claims based on the evidence of record at the time of the prior rating, and evidence received within 90 days following receipt of the notice of disagreement. 38 C.F.R. § 20.303. In this case, additional evidence was received within the appropriate window for evidence lane review; therefore, the Board will consider the newly submitted evidence. 1. Entitlement to an effective date prior to November 20, 2018 for the 100 percent disability rating for PTSD with cannabis use disorder is dismissed. The Veteran seeks an effective date prior to November 20, 2018 for the 100 percent disability rating awarded for his service-connected PTSD with cannabis use disorder. Pertinent to this appeal, the Veteran was awarded service connection for his acquired psychiatric disability in a March 2015 rating decision. At that time, he was awarded a 30 percent rating. The Veteran timely appealed the initial disability rating. Over the course of the appellate period, a March 2019 rating decision was issued which increased the Veteran’s disability rating to 100 percent, effective November 20, 2018. The Veteran appealed this decision as well, arguing that an earlier effective date was warranted for the 100 percent disability rating. The Board observes that the Veteran’s claim for an earlier effective date for his 100 percent disability rating was encompassed within the initial increased rating claim. The Board issued a decision regarding the increased rating claim in June 2019. As such, the claim for an earlier effective date for the grant of a 100 percent rating for the Veteran’s acquired psychiatric disability is moot and is dismissed. See Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (noting that dismissal is the proper remedy to employ when an appeal has become moot). 2. Entitlement to a disability rating in excess of 0 percent for headaches, prior to August 30, 2016, is denied. 3. Entitlement to a 50 percent disability rating for headaches, effective August 30, 2016, is granted. The Veteran seeks an effective date earlier than November 13, 2018 for the assignment of a 50 percent rating for his service-connected headaches. The Veteran was granted service connection for headaches in March 2019 rating decision. At that time, the RO awarded the Veteran a 0 percent disability rating, effective February 5, 2014, and an increased 50 percent rating effective November 13, 2018. The Veteran appealed the effective date of the 50 percent disability rating. As such, the issue of entitlement to an earlier effective date for the assignment of the 50 percent rating prior to November 13, 2018 has been recharacterized as an increased rating claim as indicated on the title page. Such recharacterization encompasses the earlier effective date claim and better reflects the scope of the appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Pt. 4. The percentage ratings are based on the average earning capacity impairment as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present disability level. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citing 38 U.S.C. § 1110; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Veteran’s service-connected headache disability has been evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent rating is warranted when there is migraine with characteristic, prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned when there is migraine with characteristic, prostrating attacks occurring on an average of once a month over the last several months. 38 C.F.R. § 4.124a, DC 8100. A maximum 50 percent rating is assigned when there is migraine with very frequent, completely prostrating, and prolonged attacks that are “productive of severe economic inadaptability.” Id. The Court of Appeals for Veterans Claims (CAVC) interpreted the phrase “productive of severe economic inadaptability” as follows: “nothing in [Diagnostic Code] 8100 requires that the claimant be completely unable to work in order to qualify for a 50 [percent] rating” because “[i]f ‘economic inadaptability’ were read to import unemployability,” a claimant meeting economic inadaptability “would then be eligible for a rating of total disability based on individual unemployability [(TDIU)]... rather than just a 50 [percent] rating.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004) (citing 38 C.F.R. § 4.16 (b)). Thus, the CAVC rejected the notion that “severe economic inadaptability” is equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU benefits. In addition, the CAVC acknowledged VA’s concession that the phrase “productive of severe economic inadaptability” in Diagnostic Code 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Id. (citing Brown v. Gardner, 513 U.S. 115, 118 (1994); 38 C.F.R. § 3.102). The Veteran underwent a VA examination in March 2015. There, he indicated that experienced headaches “a couple times a week,” lasting less than one day, with some occasional nausea. He reported that during these episodes he experienced constant head pain in various areas of his head. He denied that these headaches and accompanying nausea impacted his ability to function. The Veteran also denied experiencing characteristic prostrating attacks of migraine/non-migraine pain. The Veteran was not diagnosed with a headache disorder at this examination. In August 2016, the Veteran underwent a private assessment for his headache disability. The private physician utilized the VA Headaches Disability Benefits Questionnaire (DBQ). He endorsed a review of the Veteran’s medical records and interviewed the Veteran. The Veteran stated that his headaches began to occur in service and since that time had increased in frequency and severity. He indicated that he took several medications for his headaches, including Advil, Naproxen, Tylenol, and Excedrin Migraine. He described constant head pain on both sides of his head, behind both ears in the temporal area, crown, and neck, that worsened with physical activity. The Veteran endorsed accompanying symptoms of nausea, sensitivity to light and sound, changes in vision, and sensory changes that lasted for one to two days. The Veteran stated that he experienced characteristic prostrating attacks of migraine headache pain that occurred more frequently than once a month. He also reported very frequent prostrating and prolonged attacks of migraine headache pain. The private physician diagnosed the Veteran with migraine, including migraine variants, and determined that the Veteran’s migraine disability was due to his service-connected tinnitus and acquired psychiatric disability. He further found that the Veteran’s headaches and symptoms of nausea, light and noise sensitivity, blurred vision, and reduced concentration would impact his ability to maintain substantially gainful employment due to the amount of work missed and the requirement of frequent, unscheduled breaks. The examiner also completed a Residual Functional Capacity Evaluation. He noted that that Veteran would miss work about three days a week due to his headaches and would have to leave early about two days a week. He also noted that the Veteran would have problems with concentration almost daily. The Veteran underwent another VA examination in November 2018. The Veteran reported that his headaches had “gotten worse” since service and that he used Ibuprofen, Tylenol, and other over-the-counter medication to counteract them. He endorsed pulsating or throbbing head pain on both sides of his head that worsened with physical activity. He further described experiencing nausea, sensitivity to light and sound, changes in his vision, and sensory changes. He stated that these headaches occurred four to five days a week and prohibited him from going outside. The Veteran stated that he experienced characteristic prostrating attacking of migraine/non-migraine pain. He also reported very frequent prostrating and prolonged attacks of migraines/non-migraine pain that was productive of severe economic inadaptability. The examiner elaborated, explaining that the frequency of the Veteran’s prostrating attacks was more than once per month and was productive of economic inadaptability. Prior to August 30, 2016, the Board finds that a 0 percent disability rating is appropriate for the Veteran’s service-connected headache disability. Prior to that date, the Veteran described occasional headaches with some nausea that did not impact his ability to function. He also denied experiencing any characteristic prostrating attacks of migraine/non-migraine pain, a symptom necessary for a higher, 10 percent evaluation. The Board finds that a 50 percent disability rating is appropriate for the Veteran’s service-connected headache disability, effective August 30, 2016, the earliest date at which competent, credible evidence of record demonstrated that the Veteran experienced very frequent, completely prostrating, and prolonged attacks that were “productive of severe economic inadaptability.” At that time, the Veteran endorsed frequent, severe headaches that were accompanied by symptoms of nausea, sensitivity to light and sound, changes in vision, and sensory changes. He further described very frequent prostrating and prolonged attacks of migraine headache pain. The Board finds that the frequency and severity of the Veteran’s headaches and accompanying symptoms would adversely impact the Veteran’s ability to concentrate in a work environment and would result in recurrent absences, resulting in difficulty maintaining an acceptable level of productivity. Thus, based on the totality of the evidence, it is the Board’s conclusion that the Veteran’s headaches are capable of producing severe economic inadaptability as of this date. Thus, the maximum available schedular rating for headaches (50 percent) is granted from August 30, 2016. In summation, a disability rating in excess of 0 percent prior to August 30, 2016 is denied. A 50 percent disability rating from August 30, 2016 is granted. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.