Citation Nr: 21002572 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 19-22 356A DATE: January 14, 2021 ORDER Entitlement to a 30 percent rating, beginning September 30, 2016, for tension headaches is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran’s tension headaches manifested characteristic prostrating attacks occurring on an average once a month over last several months but were not completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for tension headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1991 to April 1999 and February 2003 to June 2003. Entitlement to a compensable rating for tension headaches The Veteran contends that he is entitled to a compensable rating for his service-connected tension headaches. Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s tension headache disability is evaluated by analogy to DC 8100, for migraine headaches. Under that DC, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months; and a 50 percent rating, the highest schedular rating under DC 8100, is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, 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 (2018). This renders 38 C.F.R. §§4.7 and 4.21 inapplicable. Id. at 252. The phrase characteristic prostrating attacks was defined as describing migraine attacks that typically produce powerlessness or a lack of vitality. The distinction between the 10 and 30 percent disability levels is the frequency of the headaches. A 10 percent rating is warranted when the prostrating headaches occur once every 2 months; 30 percent when the prostrating headaches occur once a month. The 50 percent rating does not specify the frequency of prostrating headaches, but the phrase very frequent connotes a frequency greater than once a month. Johnson, 30 Vet. App. at 253. However, the modifier “completely,” as used before “prostrating” in the 50 percent criteria, means that the Veteran must be rendered entirely powerless and that “productive of severe economic inadaptability” means either producing or capable of producing severe economic inadaptability. “Productive of severe economic inadaptability” should be construed as either “producing” or “capable of producing” severe economic inadaptability. Id. The Veteran was given a VA examination in February 2017. During the examination the Veteran reported to the examiner that he experienced prostrating attacks about once per week that last 30 minutes. The Veteran also reported a recent flare-up he had prostrating headaches that occurred daily for five weeks. The Veteran used over-the-counter pain medication to relive his headaches. The Veteran further reported that light bothers him 50 percent of the time. He has no nausea or vomiting during attacks. The Veteran reported he missed ten days of work over the past year. However, it is noted that the Veteran reported having a flexible work schedule which allowed for him to work around his headaches. In July 2017 and August 2019, the Veteran submitted written statements that he experiences headaches “at least twice per week” that prevent his ability to function. Affording the Veteran, the benefit of the doubt, the Board finds that a 30 percent rating is warranted. The Veteran’s statements and reports to the VA examiner that he experiences severe headaches at least once to twice a week that require him to miss work is equivalent to a prostrating attack are competent, credible, and probative. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds no reason to afford greater probative weight to the February 2017 examiner’s opinion that relied on the Veteran’s self-reporting over, the Veteran’s written, signed statements. A higher 50 percent rating is not warranted because neither the Veteran’s description of the headaches nor the medical evidence shows very frequent “completely prostrating” and “prolonged attacks” productive of severe economic inadaptability.” The Veteran’s headaches last approximately 30 minutes after he takes pain relief medication which is not characteristic of a “prolonged attack.” Despite, the Veteran’s report that he has missed ten days of work, over a one-year period, due his headaches and has often adjusted his work schedule due to his headaches, his headaches are not productive of severe economic inadaptability. The Board notes that the phrase “Productive of severe economic inadaptability” does not mean the Veteran is completely unable to work. However, the Board finds that the nature and frequency of the headaches described by the Veteran are not likely “capable” of producing ‘severe’ economic inadaptability” and thus would not approximate the definition of “productive of severe economic inadaptability” in DC 8100. Johnson, 30 Vet. App. at 253 Accordingly, the evidence is at least in relative equipoise for an assignment of 30 percent disability rating, but no higher. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for sleep apnea is remanded. The Board is unable to make an informed decision on the issues of service connection for a right knee disability and sleep apnea because the previous VA examinations were inadequate. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) The February 2017 and July 2015 VA examinations for the knees did not provide a medical opinion regarding service connection for the Veteran’s right knee disability on a direct basis or secondary basis due to his service-connected left knee disability. With the March 2015 formal finding that the Veteran’s active duty service treatment records are unavailable, there is a “heightened duty” to assist in the development of the case. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Additionally, there several, statements from fellow servicemembers the Veteran served with supporting his claim of knee problems during service. Thus, a VA examination is warranted to obtain a medical opinion regarding, the Veteran’s right knee disability. Regarding the Veteran’s sleep apnea claim, the only VA examination that focused on service connection was a July 2015, Persian Gulf War examination (PGW). The focus of the PGW examination focused on potential pulmonary irritants from burn pits and other air contamination. No medical opinion was obtained to address the Veteran and his spouse’s statements of his snoring during service and immediately after he returned from deployment to Iraq or the March 2019 private opinion that the Veteran was diagnosed with sleep apnea while on active duty. Thus, a VA examination is warranted to obtain a medical opinion regarding, the Veteran’s sleep apnea. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate examiner to determine the likely etiology of any diagnosed right knee disability. Copies of all pertinent records should be made available to the examiner for review. one should be scheduled. Based on the examination and review of the record, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed right knee disability was incurred in or is otherwise related to service? Why or why not? The examiner is advised that VA has made a formal finding that the Veteran’s complete service treatment records from his active duty service are unavailable. The examiner is asked to review and discuss, the Veteran’s buddy statements describing the Veteran’s complaints of knee pain during forced marches while on active duty. (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed right knee disability is (i) proximately due to (caused by) the service-connected left knee disability or (ii) aggravated by (defined as any increase in disability) the service-connected left knee disability? A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate examiner to determine the likely etiology of the sleep apnea. Copies of all pertinent records should be made available to the examiner for review. Based on the examination and review of the record, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed sleep apnea was incurred in or is otherwise related to service? The examiner is advised that VA has made a formal finding that the Veteran’s complete service treatment records from his active duty service are unavailable. The examiner is asked to review and discuss, the Veteran’s spouse’s November 2017 statement that the Veteran snored during service. (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed sleep apnea is (i) proximately due to (caused by) any service-connected disability or (ii) aggravated by (defined as any increase in disability) any service-connected left knee disability? A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.