Citation Nr: 21003923 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 18-42 092 DATE: January 25, 2021 ORDER An initial compensable rating for tension headaches, from March 7, 2014 to January 3, 2020, and a rating in excess 30 percent, from January 4, 2020 to the present, is denied. FINDINGS OF FACT 1. For the period from March 7, 2014 to January 3, 2020, the Veteran’s disability manifested as headaches with less frequent attacks. 2. For the period from January 4, 2020 to the present, the Veteran’s disability manifested as headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. CONCLUSIONS OF LAW 1. For the period from March 7, 2014 to January 3, 2020, the criteria for an initial compensable rating for tension headaches are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124(a), Diagnostic Code (DC) 8100. 2. For the period from January 4, 2020 to the present, the criteria for an initial rating in excess of 30 percent for tension headaches are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124(a), DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 2010 to March 2014. Increased Ratings Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7; see 38 C.F.R. § 4.21. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An initial compensable rating for tension headaches, from March 7, 2014 to January 3, 2020, and a rating in excess of 30 percent, from January 4, 2020 to the present, is denied. The Veteran’s tension headaches are currently rated as noncompensable, from March 7, 2014 to January 3, 2020, and 30 percent disabling, from January 4, 2020 to the present. The Veteran contends that the severity of his tension headaches warrants a 30 percent rating for the entire period on appeal. Under DC 8100, a 50 percent rating is warranted for headaches with very frequently completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable rating is warranted for headaches with less frequent attacks. See 38 C.F.R. § 4.124a, DC 8100. The Veteran was afforded a VA examination in September 2014. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA claims file was completed in conjunction with the examination. A diagnosis of tension headache was noted. The examiner noted that the Veteran experiences pain with anger and “tense thoughts.” Constant pain was noted in the frontal area, which occurs with angry thoughts and concentration. No non-headache symptoms associated with headaches were noted. The examiner noted that typical head pain is located in the frontal area with a typical duration of head pain as less than one day. The examiner noted that the Veteran does not have characteristic prostrating attacks of migraine or non-migraine headache pain. No other pertinent findings were noted. The examiner noted that the Veteran’s headache condition does not impact his ability to work. In a June 2015 VA medical note, the Veteran reported experiencing a headache with a severity of two out of ten. The Veteran reported that when he experiences a headache, he experiences blurry vision and dizziness. The Veteran was afforded a VA examination in July 2017. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder and CPRS file were completed in conjunction with the examination. Headaches were reported to occur when the Veteran is stressed and angry with a duration of up to one day. Frequency of headache was noted as two to three times per week. The Veteran reported his status as a full-time student. The examiner noted that the Veteran treats his condition with amitriptyline and Tylenol. The examiner noted that the Veteran experiences constant head pain localized to the frontal aspect/forehead with a typical duration of less than one day. Non-headache symptoms associated with headache were noted as sensitivity to light and sound. The examiner noted that the Veteran does not have characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner noted that the Veteran’s headache condition impacts his ability to work. In particular, the examiner noted that the Veteran reported that when a headache occurs, he must stop what he is doing and rest or go home. In an April 2018 VA medical record, the Veteran reported that when he has a headache, he cannot do anything and that he tries to relax. He stated that he works part-time as a truck driver, and that his employer works with him when he has a headache. The Veteran stated that he avoids video games but denied other impacts on recreational activities. He also stated that his headaches get better when exercising. The Veteran was afforded a VA examination in February 2020. The examiner noted that an in-person examination was conducted and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The Veteran reported his occupation as a truck driver. The Veteran reported that the pain and frequency of his headaches have worsened since onset. The examiner noted that the Veteran treats his condition with propranolol, TID, and ibuprofen as needed. The Veteran reported a feeling of pressure across his forehead. Non-headache symptoms associated with headache were noted as sensitivity to light and sound, nausea, and dizziness. The typical location of head pain was noted as across the forehead with a typical duration of less than one day. The examiner noted that the Veteran has characteristic prostrating attacks of migraine or non-migraine headache pain once every month. The examiner noted that the Veteran does not have very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. No other pertinent findings were noted. The examiner noted that the Veteran’s headache condition impacts his ability to work. In particular, the examiner noted that the Veteran reported one to two weeks of work time lost in the previous 12 months. The Veteran reported that when a headache occurs, he must stop what he is doing and rest. An evaluation in excess of a noncompensable rating is not warranted for the period from March 7, 2014 to January 3, 2020. Under DC 8100, a higher evaluation is available for tension headaches with characteristic prostrating attacks averaging one in two months over the last several months. The evidence reflects that the Veteran experienced headaches a few times per week. The record also indicates that the Veteran treated his headache with amitriptyline and Tylenol. During the period, the evidence does not indicate that the Veteran experienced prostrating headaches, to include the VA examinations during the period, which did not note prostration as a result of his headaches in his medical records. For the period from March 7, 2014 to January 3, 2020, the record does not reflect tension headache symptoms of the type and degree contemplated by a 10 percent or higher schedular rating. Therefore, for the period from March 7, 2014 to January 3, 2020, a compensable rating for tension headache is not warranted. An evaluation in excess of 30 percent is not warranted for the period from January 4, 2020 to the present. During the period, the evidence reflects that the Veteran has characteristic prostrating attacks occurring on an average once a month, over the last several months. A higher evaluation of 50 percent is not warranted for tension headaches unless the evidence shows very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Although the Veteran reported missing work, for the most part, he is able to work. He reported that his headache pain can necessitate the need for rest. He also reported that when severe, he has had to stop driving and pull-over and rest. However, he did not report that his headaches left him completely prostrated and unable to function in daily life. For the period from January 4, 2020 to the present, the record does not reflect tension headache symptoms of the type and degree contemplated by a 50 percent scheduler rating. Therefore, for the period from January 4, 2020 to the present, a higher, 50 rating for tension headache is not warranted. The preponderance of the evidence is against the claim. An initial compensable rating for tension headaches, from March 7, 2014 to January 3, 2020, and a rating in excess of 30 percent, from January 4, 2020 to the present, is not warranted, and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.