Citation Nr: 21001861 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-17 199 DATE: January 12, 2021 ORDER Entitlement to a disability rating of 50 percent for service-connected headaches is granted. Entitlement to a disability rating in excess of 10 percent for service-connected kidney stones is denied. Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s service-connected headaches manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The weight of the evidence is against finding that the Veteran’s kidney stones manifest as occasional attack of colic, not infected, and not requiring catheter drainage. 3. The weight of the evidence is against finding the Veteran has been unable to secure or follow substantially gainful employment due to his service-connected disabilities since April 26, 2011. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for a disability rating in excess of 10 percent for kidney stones have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.115B, Diagnostic Code 7508 and 7509. 3. The criteria for entitlement to total disability rating based on TDIU due to service- connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from February 1988 to July 1988January 1989 to December 1994, July 2006 to May 2007, and March 2010 to April 2011. This case is before the Board of Veterans’ Appeals (Board) from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans’ Law Judge at a February 2018 hearing. In October 2018, the Board remanded the Veteran’s claims for increase in disability rating for kidney stones and TDIU for additional development. Finding there has been substantial compliance with the Board’s remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. In the October 2018 decision, the Board also denied the Veteran’s claims for increase in disability rating for headaches and vertigo. The Veteran appealed the denial of a compensable disability rating for headaches to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2020 memorandum decision, the Court set aside the part of the decision regarding headaches finding the Board provided an inadequate statement of reasons or bases for denying a higher rating for the appellant's headaches, because it considered the ameliorative effects of the appellant's medications in reaching its decision. The matter was remanded by the Court and is again before the Board for reconsideration consistent with the Court’s remand. Increased Rating 1. A compensable disability rating for service-connected headaches. The Veteran contends he is entitled to a compensable rating of 30 percent for his service-connected headaches because he has headaches that have become prostrating multiple times since his last deployment. (3/12/2014 NOD). He asserts that he is prescribed over the counter medications by his VA doctor, and he has had headaches since a box fell on his head during his service in Afghanistan (5/14/2015 Form 9). The Veteran is currently assigned a noncompensable rating for his headaches, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant 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). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant 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 Board notes that the ameliorative effects of medication may not be considered in assessing the severity of the Veteran’s headaches. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). A February 2013 VA examination for headaches noted the Veteran’s report that his headaches consisted of pressure behind the eyes. The headaches were severe and dull pain on the right side of the head is always present. The Veteran reported that 2-3 times a week the pain worsened to a point requiring medication. Although prostrating attacks were not noted by the examiner, the examiner indicated the functional impact of the Veteran’s headache pain may result in slight increase in absenteeism from work (2/07/2013 VA Examination pgs. 49 and 53). The Board has considered the contradictory February 2019 VA examination for headaches. The examiner noted the Veteran’s description of constant headache with exacerbations lasting 3-4 hours 2-3 times per week. The examiner found, however, that the medical records reveal posttraumatic unilateral headache focused at the site of head trauma (at or near the right temple), which is not consistent with primary headache disorder such as migraine or tension-type headache. Post-traumatic headaches often present atypically in a manner that does not meet diagnostic criteria for primary headache disorders. The examiner opined that Ibuprofen overuse is likely propagating his headaches. As between the February 2013 and February 2019 opinions, the Board finds the February 2013 more probative, as the February 2013 examiner appears to have more closely considered the Veteran’s lay statements regarding his symptoms and his medical history. Moreover, the February 2019 examiner did not squarely address the severity of the Veteran’s symptoms but rather was preoccupied with whether the current symptoms are consistent with a primary headache disorder; as service connection is in effect for migraines, this question is not for consideration. Indeed, the 2019 examination failed to provide sufficient evidence from which to discount some symptomatology as being outside the scope of the service-connected disability, particularly since the examiner found that Ibuprofen use was likely propagating the headaches and such medication was being used to treat the headaches in the first place. Accordingly, the Board assigns more probative weight to the February 2013 VA opinion. During his hearing, the Veteran described headaches occurring 2-3 times per week that require him to take ibuprofen, on top of headache medicine that he takes daily. The Veteran indicated that his headaches happen at least a dozen time a week. He testified ibuprofen takes the edge off of the pain but does not cure the headaches. He testified his chronic headaches impacted his previous employment (6/12/2018 Hearing Transcript, pgs. 11-14). The Veteran has also stated that if he did not take the headache medication daily he would not be able to function (11/05/2020 Correspondence). The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, there is no reason to question the credibility of the Veteran’s statements as to his symptoms. A review of the record reveals the Veteran has consistently described his headache symptoms over time, and under different circumstances, individual statements, statements to medical professionals while seeking treatment, and during his hearing testimony. Accordingly, the Veteran’s lay statements are assigned significant probative weight. Considering the most probative evidence of record, the Board finds the Veteran’s lay statements in conjunction with the February 2013 VA examination support a disability rating in excess of 10 percent. As noted above, a 50 percent disability rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The probative evidence of record suggests the Veteran’s headaches are nearly constant, requiring prescription headache medication and additional over the counter medication 2-3 times a week. This frequency and severity of attacks, combined with the Veteran’s description that without medication, he would not be able to function, most closely approximates the symptoms contemplated by the 50 percent rating for headaches. The Board finds the frequency, severity, and duration of the Veterans headaches as competently and credibly described consistently since service are capable of producing severe economic inadaptability. The Veteran has stated his headaches interfere with his work and the February 2013 VA examiner also acknowledged this functional impact, due to absenteeism. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. In light of the forgoing and resolving doubt in favor of the Veteran, the Board concludes the Veteran’s headaches manifest with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability and a higher disability rating of 50 percent rating is warranted under DC 8100, the highest rating allowed under that section. 2. A disability rating in excess of 10 percent for service-connected kidney stones The Veteran contends he is entitled to a 30 percent disability rating for service-connected kidney stones because he has recurrences that have required treatment at the VA and during deployment. He asserts he has been on drug therapy for pain and at one point was nearly placed on dialysis for potential kidney failure. (3/12/2014 NOD). The Veteran has explained that he has frequent kidney stones, is on a restricted diet with no dairy or beef and cannot drink a lot of water because of aggravation of the stones (5/14/2015 Form 9). During his hearing he specified that he suffers kidney stones every 3-4 months and cannot drink non-distilled water because of the minerals (6/12/2018 Hearing Transcript, pg. 15). The Veteran is currently assigned a 10 percent disability rating for kidney stones pursuant to 38 C.F.R. § 4.115B, Diagnostic Code 7508. Diagnostic Code 7508 for Nephrolithiasis states to rate as hydronephrosis, except for recurrent stone formation requiring one or more of the following: 1. diet therapy, 2. drug therapy, 3. invasive or non-invasive procedures more than two times/year, is assigned a 30 percent disability rating. Hydronephrosis, Severe; Rate as renal dysfunction, Diagnostic Code 7509, is assigned a 10 percent disability rating for an occasional attack of colic, not infected and not requiring catheter drainage; a 20 percent disability rating for frequent attacks of colic, requiring catheter drainage; a 30 percent disability rating for frequent attacks of colic with infection (pyonephrosis), kidney function impaired. Renal calculus is consistently noted in the Veteran’s medical history and was initially noted in July 2011, characterized as nonobstructive with otherwise normal kidneys and ureters (8/19/2020 CAPRI, pg. 136). A December 2011 note references renal stones and few symptoms (8/19/2020 CAPRI, pg. 647). The February 2013 VA examination for the Veteran’s kidney described the Veteran’s history as involving episodes at least once per year and as often as every six weeks. The Veteran indicated he does not seek medical care but urinates them out. At that time neither renal dysfunction nor treatment for recurrent stone formation was noted. The Veteran’s symptoms were described as occasional attacks of colic with no functional impact on work. Catheter drainage was not required. The examiner provided the Veteran does not have a history of recurrent symptomatic urinary tract or kidney infections, did not indicate diet therapy, drug therapy, or invasive or non-invasive procedures (2/07/2013 VA Examination, pg. 54). The Veteran was also afforded a February 2019 VA examination. His acute onset of renal stone disease during service in 1992 required hospitalization. No hospitalization has been required since. The examiner noted that his service treatment record and annual physical health assessments do not include complaints of further problems with renal stones. CT imaging in 2011 revealed small bilateral renal calculi, non-obstructing. The examiner noted the Veteran is not on any medications for renal stones. No urology referrals have been indicated. A CT scan for unrelated in 2018 did not suggest renal stones. The examiner explained the Veteran’s labs show well preserved renal function and normal urinalysis. At the time of the examination, the Veteran had not felt need to seek care for renal stones. Moreover, the examiner included that the Veteran was puzzled by this visit, as his stone disease has not been a real issue for him. He recalled in past he would have renal colic more frequently, but now it occurs about every 6 months, minor in severity. No medications for renal stones were indicated and although the Veteran believes that bottled water vs. tap water alleviates his condition, Veteran’s diet was described as having no restrictions. The February 2019 examiner described the Veteran’s kidney stone condition with occasional attacks of colic and no treatment for recurrent stone formation in the kidney ureter or bladder. Additionally, it was noted that the Veteran’s condition was medically improved by his own account, less frequent and less severe with no functional or occupational effect (2/20/2019 C&P Exam, pg. 5). The Board acknowledges the Veteran’s belief that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include his report of being on a restricted diet of no dairy or beef and drinking only non-distilled water because of the minerals in the water. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). These statements about diet restrictions conflict with the February 2019 examination acknowledgement that the Veteran believed bottled water alleviates his condition but indicated he had no diet restrictions. In weighing the evidence, the Board finds the February 2013 and February 2019 medical examinations to be more probative and do not suggest the Veteran suffers frequent attacks of colic, requiring catheter drainage, diet therapy, drug therapy, or invasive or non-invasive procedures more than two times/year, 38 C.F.R. § 4.115B, Diagnostic Code 7508 and 7509. While the Veteran has stated a belief that bottled water alleviates his condition and stated he avoids dairy and beef, the more probative medical evidence does not suggest the Veteran has recurrent stone formation requiring diet therapy as contemplated by Diagnostic Code 7508. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent because the most probative evidence of record suggest the Veteran’s kidney stones manifest as occasional attack of colic, not infected and not requiring catheter drainage. In denying a higher rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to TDIU By its October 2018 decision, the Board found TDIU to be a component of the Veteran’s claims for increased ratings for headaches and vertigo, in light of the Veteran’s statement that he is unable to work due, at least in part, to his service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Additionally, the Veteran is service connected for posttraumatic stress disorder, at a disability rating of 70 percent since April 26, 2011; left wrist ganglion cyst at 10 percent since April 26, 2011; thoracic strain with lumbar degenerative joint disease at 10 percent since April 26, 2011; tinnitus at 10 percent since April 26, 2011; kidneys stones at 10 percent since April 26, 2011; scar as a residual of right ear cancer (outer part) at 10 percent since April 26, 2011; hyposmia at 10 percent since April 26, 2011. The Veteran is also service connected at a noncompensable rating for residuals of fracture of fourth metacarpal, traumatic brain injury with vertigo, hypertension. In light of this decision, the Veteran is service connected for headaches at a disability rating of 50 percent. Utilizing the combined rating table, the Veteran's combined disability rating of 90 percent since April 26, 2011. 38 C.F.R. § 4.25, Table I. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Veteran's service-connected disabilities yield a combined disability rating sufficient to meet the requirements for a schedular TDIU rating. The Board, however, must still determine whether the Veteran's service-connected disabilities result in impairment so severe that it is impossible to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. In February 2012 the Veteran reported having worked the same job for seven years, and in August 2012 was employed (8/19/2020 CAPRI, pgs. 581 and 633). In the summer of 2019, the Veteran was laid off when his shift was cut (8/19/2020 CAPRI, pg. 53). In September 2019, the Veteran indicated he had lost his position, presumably due to safety concerns, as his service-connected disabilities (hyposmia) resulted in an inability to smell gas or fumes (8/19/2020 CAPRI, pgs. 42-43). The Veteran has asserted he is unable to maintain a job (10/22/2020 VA 21-4138 Statement In Support of Claim) and has expressed concerns about fear of losing his job because of zoning out and has indicated work is difficult for him and he has trouble taking care of things at home or getting along with people (8/19/2020 CAPRI, pgs. 305 and 323). The Board has considered the Veteran’s assertions of underemployment due to his service-connected loss of sense of smell. Although the record suggests the Veteran’s employability has been impacted by aspects of his service connected disabilities, most notably his loss of sense of smell and PTSD symptoms, the preponderance of the probative evidence of record does not suggest that he is unable to secure or follow gainful employment as a result of his service-connected disabilities alone. As of the 2019 examinations, he was employed as a maintenance technician at a bottle packaging plant. It was noted that his pay was less than he had been earning at his prior job; however, there is no evidence to show that such employment was less than substantially gainful. To the extent that earning capacity has been limited, this has been accounted for in the combined rating presently in effect. Accordingly, the claim of entitlement to TDIU due to service-connected disabilities is denied. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.