Citation Nr: 21003436 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-08 068 DATE: January 21, 2021 ORDER Service connection for cervical spine disability is denied. A compensable rating for tension headaches is denied. A total disability based on individual unemployability (TDIU) rating is granted, subject to the laws and regulations governing the awards of monetary benefits. FINDINGS OF FACT 1. The weight of the evidence of record fails to show that it is at least as likely as not that the Veteran’s cervical spine disability diagnosed many years after service is etiologically related to his service or any existing service-connected disability. 2. The weight of the evidence of record fails to show that the Veteran’s headaches have resulted in characteristic prostrating attacks at any time during the pendency of his appeal. 3. The weight of the evidence shows that it is at least as likely as not that the Veteran had become unable to secure and/or maintain gainful employment on account of his service-connected disabilities, to include headaches, as of the date his claim was received on May 18, 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for rating headaches as compensable have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8100. 3. The criteria for a TDIU rating have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from June 1968 to June 1970. In a July 2015 rating decision, the Regional Office (RO) denied service connection for his cervical spine disability and granted service connection for tension headaches, evaluated as noncompensable and effectuated from the date of claim filed on May 18, 2015. The Veteran appealed the denial of service connection for cervical spine disability and the assigned rating for headaches. In July 2019, the Veteran testified via the Board’s video conference hearing, a transcript of which is of record. In September 2019, the Board remanded both claims for further development. In August 2020, the RO issued a supplemental statement of the case affirming its prior decisions and returned the appeal to the Board. Upon considering all evidence of record viewed as a whole and in light of pertinent laws, the Board has found that service connection for the Veteran’s cervical spine disability and compensable rating for his service-connected headaches must be denied, while a TDIU rating is warranted. Cervical spine Service connection generally may be granted for a disability shown to had been incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In cases, where the evidence of record fails to show an onset (or in some cases the symptomatology manifestations) of the claimed disability during service, service connection still may be granted, but only when the evidence of record shows that it is at least as likely as not (meaning probability of 50 percent or greater) that the disability is etiologically related to service. See 38 C.F.R. §§ 3.303(b), (d), 3.307(a), 3.309(a). To that end, establishing an entitlement to direct service connection requires the evidence of record to show: (1) the existence of claimed disability; (2) a relevant traumatic event in service, such as an injury or disease, and (3) a causal link between the claimed disability and the etiologically relevant in-service traumatic event. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In the alternative, service connection may be granted on a so-called secondary basis for a disability shown to have been proximately caused or aggravated by an existing service-connected disability. See 38 C.F.R. § 3.310. In either scenario, a causal link generally must be shown by the medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). This is particular true in cases involving medically complex musculoskeletal disabilities, such as of cervical spine, attenuated from service by many years. Further absent a suggestion that the Veteran has specialized knowledge, training, or experience in rendering medical opinions, he is said not to possess the requisite expertise to establish the etiological basis for service connection. Id. By implication, the Board has to rely on medical experts’ opinions of record. In such cases, where the medical opinions are required but fail to show with a probability of at least 50 percent that the claimed disability either on a direct or secondary basis is etiologically related to service, the claim must be denied. In seeking service connection for his cervical spine disability, namely, cervical stenosis and cervical spine degenerative disk disease diagnosed in 2014, the Veteran is contending that he injured his neck concurrently with incurring his service-connected traumatic brain injury (TBI) sustained in service in February 1969. More specifically, at the hearing, the Veteran stated under oath that he had struck the back of his head on a metal and sustained a TBI in service, when he was a passenger in a military truck. The Veteran indicated that the driver popped the clutch, instead of getting it to off, and the truck jerked, causing him to hit his head on a bolt on the wooden plank of the truck, which cut his skull and caused him to bleed. He had lost consciousness for unknown duration and woke up in the hospital tied to the bed. Of note, while his service treatment records (STRs) do not describe a truck accident, the STRs do refer to a head injury, in which the Veteran was struck in the head by a wrench or tire iron and required sutures. His private treatment records also describe him as being struck by a wrench. The Veteran believes that his current cervical spine disability may have been incurred in the same accident, but that his post-accident headaches were too overpowering to notice the discrete pain originating in his neck. As further reflected in his Notice of Disagreement (NOD) received in September 2015, the Veteran states that his PCP, Dr. P., MD, at the VAMC has attributed his headaches to his cervical spine disability and told him that it was possible that he had experienced “whiplash” injury to his neck at the same time he had incurred his TBI. Further, the Veteran explains, he has experienced headaches for the past forty-six years and, if his headaches as suggested by Dr. P. did in fact originate from his neck disability, he reasoned that he must have acquired his neck disability at the same time. Upon considering the Veteran’s testimony in context of all evidence of record, the Board remanded the claim for an etiological opinion which turned out negative. An October 2020 VA examination report reflects an opinion that it is less likely as not (meaning probability of less than 50 percent) that the Veteran’s current cervical spine disability was either incurred in service or otherwise etiologically related to his service, to include his TBI. In reaching this conclusion, the examiner examined the Veteran in-person and then reviewed the Veteran’s entire claims file, to include his service treatment records (STRs), post-service treatment records, as well as the Board’s remand order inclusive of the Veteran’s statements and contentions. The VA examiner explains that the Veteran’s current diagnosis of chronic cervical spinal stenosis and degenerative disc disease of the cervical spine were first noticed in the 2006 imaging studies taken when he was evaluated for left arm pain. He continued to be seen and treated for this condition in 2015 at the Beckley VAMC and in 2016 at the Richmond VAMC. His STRs are silent for any neck condition that was incurred in or caused by an in-service event, such as injury or illness. His May 1970 separation examination is negative for any cervical condition, and there is no mentioning of a cervical problem connected to his TBI sustained in February 1969. Likewise, there is no mentioning of any neck condition in his July 1970 VA claim for the residuals of his in-service head injury. The examiner then reiterates that the first notation of a suspected cervical condition is the cervical spine degenerative changes shown on January 2006 x-ray. By patient history, the examiner continues, the Veteran had no problems with his neck until 2014 when the doctor poked his posterior neck producing pain. A further work-up resulted in his current diagnosis. However, there is no evidence that the trauma to his head caused his neck problems, as the type of injury that he suffered in service would not be expected to result in a cervical injury. Otherwise, there is no evidence of an accident involving a truck in his service records and he does not actually remember this injury, as he relates that he woke up in a hospital and was told this story which he has continued to tell as he did to the examiner. As such, the examiner concludes that the Veteran’s current cervical spine disability is unlikely etiologically related to his service, to include his head injury resulting in his TBI. The Veteran has not challenged this medical opinion or submitted any competent evidence to the contrary. Of note, the examiner’s opinion is not at all inconsistent with the Dr. P.’s opinion (reported by the Veteran) that the Veteran’s cervical spine disability may have been incurred contemporaneously with his TBI, which is conceivable. Dr. P.’s opinion, however, at most is speculative, as a mere possibility does not reach the requisite evidentiary standard of 50-percent probability or greater. Of further note, the Veteran’s treatment records are also silent as to any signs, symptoms, complaints, treatments, or diagnosis of headaches at any time prior to 2014. As such, it is also conceivable that the Veteran’s headaches may stem from the discrete etiologies, namely, his TBI and his cervical spine disability, especially since his reports of headaches exacerbation is contemporaneous with the onset of neck pain in 2014. This is why the Board remanded the claim so as to understand whether, from the medical perspective, a pathophysiological mechanism that may have caused the Veteran’s cervical spine disability many years after his service actually exists with the requisite probability of at least 50 percent. The examiner unequivocally opines that this is not the case here, particularly given no objective or subjective evidence of any neck issues for over 40 years after the alleged accident, in which the Veteran believes he might have sustained a neck injury. However, the Veteran has been found not to possess the requisite expertise to render medical opinions. Otherwise, the record is devoid of any competent opinion that may place into doubt the VA examiner’s medical opinion or its rationale. The Board acknowledges the Veteran’s contention that his headaches were too overpowering to notice pain in his neck. However, for example, a September 2007 treatment progress note reflects that the Veteran affirmatively denies headaches, or the August and October 2012 progress notes reflecting negative assessment for headaches. Further, a May 2014 note reflects the Veteran’s report of having had intermittent headaches since head injury in service with increased intensity over the past few years. A September 2015 note further reflects that the Veteran does have headaches which, however, are not constant. As such, it cannot be said that the Veteran’s headaches overpowered his neck pain for over 45 years until 2014. The Board also acknowledges a Veteran’s representative’s contention that because he is a Vietnam Era Veteran, the Board must accept as true his statements that he sustained an injury to his cervical spine in service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). But the representative’s reliance on the cited authority is misplaced. These legal provisions permit a limited presumption of credibility of the Veteran’s statements and only when the record is devoid of any affirmative evidence to the contrary. In this case, the evidence of record affirmatively shows the first signs of degenerative changes in 2006 and the first manifestations in 2014, rather than at any during service or within one year of discharge. Moreover, the Veteran himself stated under oath that he had lost consciousness and does not actually know what exactly has had happened, which is also wholly consistent with the VA examiner’s report. Also, the Veteran has not even alleged that he has experienced any symptomatology that may be associated with his neck at any time prior to 2014. Furthermore, the cited legal provisions apply only to the circumstances in which records keeping under combat conditions is impractical. In this case, as discussed, the STRs well document the Veteran’s head injury, hospitalization, and treatment, which renders it highly unlikely that he had also sustained an undocumented neck injury in the same accident. While the Veteran reported that his PCP expressed an opinion that the Veteran might have sustained a “whiplash” injury to his neck in the same accident, this particular opinion is also undocumented and does not address the unfavorable fact that the Veteran has not made a single complain associated with his neck for decades following the accident. Although it is conceivable that the Veteran may have sustained a “whiplash” injury to his neck, the evidence of record ultimately fails to show that it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disability resulted from the accident. The Board also has carefully considered the Veteran’s October 2020 Appellate Brief, in which his representative argues that service connection for cervical spine disability should be warranted because the Veteran has a diagnosis from the doctor stating that he indeed has a cervical spine disability. However, the existence of his claimed disability is not in dispute in this appeal and the existence of the claimed disability is only one of the multiple legal criteria required for establishing an entitlement to service connection. Establishing service connection requires the evidence to show with probability of 50 percent or greater that the Veteran’s claimed disability is etiologically related to his service. As such, the issue before the Board is whether the Veteran had sustained a neck injury in service and, if so, whether such an injury resulted in his current cervical spine stenosis and degenerative disk disease. On the one hand, the Dr. P.’s opinion that the Veteran might have sustained a “whiplash” injury to his neck in the same accident he had sustained his head injury resulting in TBI is undocumented and no rationale for this opinion has been rendered or reported. Of note, Dr. P.’s progress notes do reflect several references to the Veteran’s current headaches being associated with a contemporaneous onset of nerve entrapment at his cervical spine in 2014. However, Dr. P.’s progress notes do not mention the Veteran’s service and ultimately the reported opinion that the Veteran may have sustained a neck injury in service is not of record. On the other hand, the VA examiner elaborately addressed all unestablished facts, opining that it is less than 50 percent probability that the Veteran had sustained a neck injury in service or that otherwise his current diagnoses attenuated from service by many years are etiologically related to his service or to his service-connected TBI. Given that the examiner’s report reflects the most comprehensive review of the Veteran’s records, to include his own statements and contentions, as well as the Veteran’s report of the Dr. P’s verbal opinion, the Board finds that the examiner’s opinion carries a greater probative weight. The representative also asserts that when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been in sound health upon entry into service. In such a situation, the representative continues, VA holds the burden of proving by clear and unmistakable evidence that both (1) a veteran’s disorder pre-existed service and (2) that such disorder was not aggravated by service. Of note, this particular regulatory provision applies only to cases where the claimed disability has preexisted service and may have been aggravated therein. Here, the Board concedes that the Veteran had entered service in sound health but, given no evidence at least suggesting that the Veteran had any neck pathology preexisting service, this regulatory provision does not apply in this case and thus this particular argument is moot. Ultimately, in order to grant service connection in this case, the Board must presume that the Veteran had sustained a neck injury in service and further presume that his current cervical spine disability is etiologically related to that injury, while disregarding all evidence of record affirmatively showing no signs of a neck injury in service and for approximately 45 years thereafter, which is legally impermissible. The Board is not aware of any legal provisions providing for such presumptions, while otherwise the Board may not simply assume any purported fact as true, particularly absent any factual circumstances from which the pertinent factual inferences could be reasonably made and further given abundance of the affirmative evidence to the contrary. Upon considering the favorable evidence of record suggesting that the Veteran may have had sustained a neck injury in service, the Board requested a medical opinion which ultimately turned out negative. Upon considering the VA examiner’s expertise and the most comprehensive review of the Veteran’s records, the Board has found that the VA medical opinion that it is less likely as not that the Veteran’s current cervical spine disability is etiologically related to service to be the most probative in this case. This tips the scales against the claims. As such, the legal criteria for service connection for a cervical spine disability have not been met and the claim is denied. Headaches In seeking a compensable rating, as reflected in the September 2015 Veteran’s NOD, he states that 2 times per week he has to take aspirin and lie down for 3-4 hours until his headaches go away. As further reflected in his substantive appeal (VA Form 9 received in February 2016), the Veteran states that he has been getting headaches even since incurring his TBI but he did not go to a doctor every time he had a headache, while more recently he has been seeing a doctor for his headaches every six months. As then reflected in the July 2019 Board’s hearing transcript, the Veteran indicates that his headaches have intensified in the last few years. He explains that twice his headaches got so bad at work that he could not drive home, so he had to lie down and sleep in his truck. Upon considering the Veteran’s contentions in context of all evidence of record viewed as a whole and in light of pertinent laws, the Board has found that a separate compensable rating for headaches is not warranted, while the functional limitations of the Veteran’s headaches coupled with the multiple work-related limitations due to aggregate impact of his service-connected disabilities on his ability to obtain and/or maintain a gainful employment warrant a TDIU rating. The Veteran’s tension headaches are currently rated as noncompensable under Diagnostic Code (DC) 8100 providing for rating migraines. 38 C.F.R. § 4.124a. Under DC 8100, a 10 percent is assigned for headaches with characteristic prostrating attacks averaging one in two months over the last several months. Id. A 30 percent is assigned for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 50 percent is assigned for headaches with very frequently completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. Otherwise, a noncompensable rating is assigned. See 38 C.F.R. § 4.31. Of particular note, a compensable rating requires the evidence of characteristic prostrating attacks and is largely based on the successive frequency of such attacks. For rating purposes under DC 8100, the phrase “characteristic prostrating attacks” plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245, 246 (2018). Further given that the regulations are silent as to the relief that may be provided by effects of medications for headaches, the Board must disregard such ameliorative effects in consideration of assigning a higher percentage. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). By implication, the phrase “productive of economic inadaptability” means either “actually producing” or “capable of producing” severe economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). The phrase “severe economic inadaptability” has been interpreted as a requirement for a complete inability to work on the sole account of headaches with very frequently, completely prostrating, and prolonged attacks. Id. Given the use of conjunctions “with” as well as “and,” all of the listed criteria must be met before a rating at 50 percent may be assigned. In this case, the evidence of record simply fails to show the requisite characteristic prostrating attacks at any time. A July 2015 VA examination report reflects that the Veteran has mild to moderate tension type of headaches which may cause some light sensitivity but no sickness. The examiner further notes that the Veteran is prescribed hydrocodone, an opioid narcotic, for neck and back pain which helps with his headaches, but he has not been prescribed any specific medications by his PCP for headaches and does not see any neurologist for headaches. The examiner acknowledges the Veteran’s report that due to his headaches he has to lie down on and off during work. However, after an in-person examination and considering the Veteran’s statements and claims file, the examiner ultimately opined that the Veteran did not have any characteristic prostrating migraine or non-migraine attacks. Aligned with the July 2015 report, an August 2016 VA examination report reflects that the Veteran has ongoing moderate tension and migraine headaches. The examiner noted that a May 2014 MRI of the brain was normal. The examiner opined that the Veteran’s headaches could cause discomfort and concentration problems, which could negatively affect his work, but he did not have any characteristic prostrating migraine or non-migraine attacks. A March 2020 VA examination report reflects that that the Veteran report of having constant headaches, but the report found that they did not interfere with work except with exacerbation when he has to lie down for approximately two hours until the headaches resolved, allowing him to return to work. This usually occurs once a week. The examiner then opined that the Veteran does not have any characteristic prostrating migraine or non-migraine pain attacks, which is wholly consistent with the July 2015 and August 2016 medical opinions. The Board has carefully considered the Veteran’s statements in support of his claim. For example, the Veteran states that he takes aspirin for his headaches. However, he also has states that he stopped taking aspirin in 1981, which falls outside the rating period on appeal. The Veteran then states to the VA examiner that he has constant headaches, while in May 2014 the Veteran reported to his PCP having intermittent rather than constant headaches since head injury in service with increased intensity over the past few years and only when he was diagnosed with non-service-connected cervical spine disability in 2014. Further, the Veteran has been prescribed Topamax for headaches, but the April 2015 mental health progress notes reflect that by self-admission the Veteran has not been honest and has stopped taking all his medications about six months earlier. Another example is the Veteran’s statement at his hearing that he is taking hydrocodone for headaches, but his VA treatment progress notes reflect that the Veteran was specifically told that hydrocodone is not prescribed for his headaches. Of further note is the Veteran’s reports of having to lie down during work, but by the time of the July 2015 VA examination he had been retired for several years and since has been unemployed. Given these inconsistencies in the Veteran’s statements, while he lacks the expertise to render medical opinions, the Board ultimately accords the medical opinions that the Veteran does not have characteristic prostrating attacks, as rendered by the three medical professionals, a greater probative weight. As such, the legal criteria for a compensable rating under DC 8100 have not been met. Of note, the rating schedule is intended, insofar as practicable, to assign particular percentages based on the average impairment in earning capacity resulting from service-connected disabilities and their residual conditions. See 38 C.F.R. § 4.1. To that end, headaches themselves do not constitute functional impairment for rating purposes under DC 8100, unless headaches result in characteristic prostrating attacks not shown in this case. Nonetheless, although the Veteran’s subjective reports that he has to lie down do not automatically equate to powerlessness or a lack of vitality, as required to constitute prostrating attacks for a compensable rating under DC 8100, these reports do indicate at least some degree of functional loss. The Board has considered a representative’s contention that, pursuant to 38 C.F.R. § 3.321(b)(1), an increased evaluation can be established on an extra-schedular basis for exceptional cases or unusual disability picture in cases where the evidence shows a marked interference with employment or frequent periods of hospitalization, so as to render the application of the regular schedular criteria impractical. Of note, the Board does not have jurisdiction to consider such claims that in the first instance may be decided only by VA’s Director of Compensation Service and thus the Board only may assess whether the claim should be referred for such a consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). Given that the Veteran reported missing work due to his headaches on average two hours per week, which adds up to 104 hours or less than three work weeks per year, the Board finds that such an interference with employment is consistent with an average person’s absence from work for medical reasons approximately 2-3 weeks per year and thus is not marked, that is, so exceptional or unusual case so as to render the application of the schedular criteria impractical. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Neither the Veteran nor his representative has advanced any specific contention as to why the Veteran’s disability picture may render the application of the rating schedule impractical. Otherwise, the evidence of record fails to reasonably suggest that this might be the case here. It follows that a referral for an extra-schedular consideration for headaches is not warranted. Every increased rating claim implies that the Veteran is seeking the maximum possible rating, to include TDIU which is a part and parcel of every such claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Upon considering the evidence of record viewed as a whole, to include the Veteran’s statements and multiple medical opinions that his headaches do interfere with his employment, coupled with the considerations given to the medical evidence persuasively showing the multiple functional impairments of his other service-connected disabilities with a combined rating at 90 percent, to include post-traumatic stress disorder, bilateral hearing loss and tinnitus, TBI, headaches, and varicose veins, the Board has found that it is at least as likely as not that the Veteran’s service-connected disabilities collectively have rendered him incapable of performing the essential work-related tasks and thus he had become mentally and physically incapable of maintaining a gainful employment. See 38 C.F.R. §§ 3.340(a), 4.16(a). As such, a TDIU rating based on the aggregate effects of the Veteran’s service-connected disabilities is warranted from the earliest possible date, that is, the date of his original claim for service connection for headaches VA received on May 18, 2015. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Accordingly, a TDIU rating effective May 18, 2015, is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.