Citation Nr: 21001798 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 12-00 300A DATE: January 11, 2021 ORDER For the entire rating period on appeal, entitlement to a disability rating of 50 percent for tension headaches is granted. FINDING OF FACT During the appeal period, the Veteran experienced tension headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a disability rating of 50 percent for tension headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Board denied the Veteran’s increased rating claim for tension headaches. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (the Court). In a September 2017 Memorandum Decision, the Court vacated the Board’s decision and remanded the case for two reasons: the Board failed to consider (1) whether the Veteran’s short-term memory loss is contemplated by the rating criteria and (2) whether referral for an extraschedular rating was warranted. The Veteran timely filed a motion for panel review. In October 2017, the Court granted the motion but concluded that the single-judge memorandum decision remained the decision of the Court. In November 2018, the Board again denied the Veteran’s increased rating claim for tension headaches. This time, the Board conceded that the Veteran’s short-term memory loss is not expressly contemplated by the rating criteria for headaches but declined to refer the claim for extraschedular consideration. The Veteran appealed once more. In an October 2019 Memorandum Decision, the Court vacated the Board’s decision and remanded the case for the second time. Relying on Morgan v. Wilkie, 31 Vet. App. 162, the Court ordered the Board to provide a fully reasoned explanation why the Veteran’s short-term memory loss is not ratable under the rating schedule. In July 2020, the Board remanded the Veteran’s claim for additional development. The case is once again before the Board. Entitlement to a disability rating of 50 percent for tension headaches is granted. The Veteran’s tension headaches are rated by analogy to migraine headaches under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, the Board must consider all the symptoms the Veteran experiences during a headache attack and then rate those symptoms based on the frequency, duration, severity, and economic impact of the attacks. See 38 C.F.R. § 4.124a, DC 8100; Holmes v. Wilkie, No. 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131, at *13-14 (Nov. 25, 2020). The rating criteria of DC 8100 are successive, meaning that the Veteran cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). Because of this, 38 C.F.R. §§ 4.7 and 4.21 do not apply. Id. The Veteran is currently in receipt of a 30 percent disability rating for his tension headaches with characteristic prostrating attacks occurring on an average once a month over last several months. For a 50 percent rating to be warranted, the Veteran must suffer from very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In other words, a 50 percent rating is appropriate with very frequent, prolonged attacks that render the Veteran entirely powerless and either cause or can cause severe economic inadaptability. Holmes, 2020 U.S. App. Vet. Claims LEXIS 2131, at *7. Economic inadaptability, in turn, does not require that the Veteran be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Veteran’s VA treatment records, lay statements, and both VA examinations show that the Veteran’s tension headaches are manifested by constant head pain, pain on both sides of the head, changes in vision, dizziness, fatigue, and photo and phonophobia. The Veteran also reported short-term memory loss, facial spasms, and paralysis associated with his headaches. While the Veteran is competent to report his experienced symptoms, he is not competent to determine his symptoms’ etiology because the issue is medically complex and requires specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). This is especially true here where the Veteran is also in receipt of a total disability rating for posttraumatic stress disorder (PTSD), which can be manifested by memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130. Likewise, the Veteran has a history of Bell’s palsy, which is well-known for causing facial paralysis. Recognizing this, the Board remanded the Veteran’s claim in July 2020 to obtain a medical opinion on the question. After surveying the medical literature, the examiner, a board-certified neurologist, opined that the Veteran’s short-term memory loss, facial spasms, and paralysis are not related to his headaches. She explained that blood vessels touching the facial nerve, injury to the facial nerve, and facial nerve tumors cause facial spasms. In her medical opinion, these conditions are not medically known to be caused by tension headaches, and therefore, the Veteran’s facial spams and headaches are unrelated. The examiner arrived at the same conclusion for the Veteran’s paralysis. She noted that Bell’s palsy is linked with certain viruses and bacteria but that there are no known risk factors for it in the presence of headaches. Additionally, no medical evidence suggests an increased likelihood of developing Bell’s palsy in patients with tension headaches. As a result, that, too, is unrelated to the Veteran’s headaches. Finally, like the Veteran’s facial spasms and paralysis, the examiner found that his short-term memory loss is not related to his headaches. Recall, however, that the Board conceded at an earlier stage of the appeal that the Veteran’s headaches caused his short-term memory loss. Indeed, the Court relied on that factual finding when it vacated and remanded the Veteran’s claim to explain why the Veteran’s short-term memory loss is not ratable under the rating schedule. Since then, the Court held that the rating criteria for headaches contemplate all headache symptoms. See Holmes, 2020 U.S. App. Vet. Claims LEXIS 2131, at *13. As such, the Board’s factual finding that the Veteran’s headaches caused his short-term memory loss is the law of this individual case, and the Board will assume it is a symptom of his headaches. Chisem v. Gober, 10 Vet. App. 526, 527-28 (1997) (“Under the ‘law of the case’ doctrine, appellate court generally will not review or reconsider issues that have been decided in a previous appeal of the same case.”). To summarize, the Veteran’s headaches are manifested by constant head pain, pain on both sides of the head, changes in vision, dizziness, fatigue, sensitivity to light and sound, and short-term memory loss but not facial spasms, paralysis, or vomiting. Moving on to the frequency, duration, severity, and economic impact of those symptoms, VA scheduled the Veteran for his first headache examination during the appeal period in June 2008. There, he reported suffering from headaches five times a day on average, lasting for up to 3 hours. When that happens, he can take care of some household chores but is unable to work. He added that his headache symptoms occur intermittently as often as once a day, lasting for 2 hours. Next, in July 2014, the Veteran reported chronic daily headaches with an average pain level of 8 out of 10. Around the same time, he asked for a traumatic brain injury (TBI) evaluation. At an October 2014 follow-up appointment, he endorsed experiencing headaches 3 to 5 times a day, lasting 3 to 4 minutes. Then, two-and-a-half months later, at a January 2015 VA examination, the Veteran reiterated experiencing headaches 3 to 5 times a day lasting anywhere from 3 to 4 minutes to an hour. The examiner found that the Veteran suffered from characteristic prostrating attacks once a month on average over the last several months. While she determined that the Veteran did not have very prostrating and prolonged attacks productive of severe economic inadaptability, she did find that the Veteran’s attacks impact his ability to work. Specifically, she noted the Veteran’s report that he cannot do anything during an attack except hold his head and rest. Considering all the relevant evidence of record, the Board finds the evidence at least in equipoise on whether the Veteran suffers from tension headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran consistently endorsed experiencing 3 to 5 headaches a day lasting anywhere from a few minutes to a few hours. See Johnson, 30 Vet. App. at 253 (“[T]he phrase ‘very frequent’ connotes a frequency greater than once a month.”). When experiencing an attack, he reported he could not work at his first VA examination and could only hold his head and rest at his second VA examination. See id. (“[T]he headaches must render the veteran entirely powerless.”). As such, the Board concludes the severity, frequency, and duration of the Veteran’s headache symptoms correspond to the criteria for a 50 percent rating—the highest schedular rating for headaches. That is not the end of the matter. The Board must discuss a theory of entitlement raised by the Veteran or by the evidence of record. Robinson v. Peake, 21 Vet. App. 545, 553 (2008). Here, the Board finds that the Veteran’s entitlement to an extraschedular rating was raised by the Court’s September 2017 Memorandum Decision, which directed the Board to consider whether referral for an extraschedular rating for the Veteran’s headaches was warranted. In exceptional cases, the rating schedule may be inadequate to compensate a veteran’s unique set of symptoms, and the Director of Compensation Service may approve an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The threshold question is whether the schedular evaluation adequately contemplates the Veteran’s disability picture. If the criteria reasonably describe the Veteran’s disability level and symptoms, then the Veteran’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the Veteran’s symptoms and associated functional impairment do not show that the rating criteria are inadequate to describe his disability picture. Much like the analysis relevant to evaluating a mental disorder under 38 C.F.R. § 4.130, the rating criteria for headaches contemplate all headache symptoms. See Holmes, 2020 U.S. App. Vet. Claims LEXIS 2131, at *13-14. As a result, the Veteran’s headache symptoms—constant head pain, pain on both sides of the head, changes in vision, dizziness, fatigue, sensitivity to light and sound, and short-term memory loss—are all contemplated by the rating criteria. That said, the Court in Holmes carefully noted that its reading of the regulation did not foreclose the possibility that the Veteran’s symptoms may raise extraschedular considerations if they present an exceptional case with symptoms more severe, frequent or long-lasting than what is contemplated in the rating criteria—very frequent, completely prostrating and prolonged attacks, leading to economic inadaptability. Holmes, 2020 U.S. App. Vet. Claims LEXIS 2131, at *15. For instance, the Veteran’s headaches could be continuous instead of very frequent or go beyond economic inadaptability to unemployability. See id. Suffice to say that is not the disability picture before the Board. The Veteran suffers from 3 to 5 headaches a day (“very frequent”) lasting anywhere from a few minutes to a few hours (“prolonged”). And while suffering from an attack, the Veteran is unable to do anything but hold his head and rest (“completely prostrating”) and cannot work (“productive of severe economic inadaptability”). Because the Veteran’s tension headache manifestations are reasonably contemplated by DC 8100, the threshold issue under Thun is not met, and further consideration of an extraschedular rating is not warranted. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, 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.