Citation Nr: 21004430 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 20-26 607 DATE: January 27, 2021 ORDER Entitlement to an initial compensable disability rating for tension and posttraumatic headaches is denied. REMANDED Entitlement to a compensable disability rating for shell fragment wound scars, including scars on the middle lower back (sacrum), left buttock, left inguinal area, and right posterior thigh, is remanded. Entitlement to a separate disability rating for residuals of a shell fragment wound to the middle lower back (sacrum), including injury to muscle group XX, is remanded. FINDING OF FACT During the pendency of the appeal, the preponderance of the evidence does not show that the Veteran’s tension and posttraumatic headaches manifest as characteristic prostrating attacks of migraine or non-migraine headache pain. CONCLUSION OF LAW The criteria for entitlement an initial compensable disability rating for tension and posttraumatic headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1950 to May 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). As a preliminary matter, the Board notes that the Veteran’s claim for a compensable disability rating for scars to his lower back included contentions regarding damage to the underlying muscles in his lower back. As such, the Board has recharacterized his claims as reflected in the title page of this decision. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to an initial compensable disability rating for tension and posttraumatic headaches. The Veteran’s service-connected tension and posttraumatic headache condition is currently rated as 0 percent disabling under DC 8100 (migraine). 38 C.F.R. § 4.124a. The record indicates that DC 8100 for migraines was applied as analogous to the Veteran’s diagnosis for tension and posttraumatic headaches. See 38 C.F.R. § 4.20. DC 8100 provides a noncompensable rating for migraines with less frequent attacks, a 10 percent rating with characteristic prostrating attacks averaging once in two months over the previous several months, a 30 percent rating for characteristic prostrating attacks occurring on average once a month over the previous several months, and a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The Board notes that the ameliorating effects of medication must not be considered when evaluating a disability unless the diagnostic code specifically contemplates medication. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012). As DC 8100 does not contemplate the use of medication, the Board is precluded from considering the relief afforded by the Veteran's medication in evaluating the severity of his disability. The Veteran contends that his symptoms are productive of a higher rating. The Veteran was provided a VA examination for headaches (including migraine headaches) in November 2018. The Veteran was diagnosed with tension and post-traumatic headaches. The Veteran reported that his headache condition has gotten worse as he has gotten older. The examiner noted that the Veteran experienced headache pain with pulsating or throbbing head pain; pain localised to one side of the head; pain worsening with physical activity; and pain originating in the back, moving up to the shoulders, and increasing in pain when walking more than 100 yards. The examiner found that the Veteran does not experience non-headache symptoms associated with headaches, such as nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, or sensory changes. The examiner noted that the Veteran’s duration of typical head pain was less than 1 day. The examiner noted that the Veteran’s headache pain was typically on the left side of his head. The examiner did not find that the Veteran had characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner did not find that the Veteran had very prostrating and prolonged attack of migraines or non-migraine pain productive of severe economic inadaptability. The examiner did not find any other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran’s now service-connected tension and post-traumatic headaches. The examiner found that the Veteran’s headache condition does not impact his ability to work. The Board notes that the Veteran has since reported that his symptoms have worsened, such that he is experiencing headaches 4 or 5 days per week. However, the record and the Veteran’s statements do not suggest that his headaches are prostrating or approximate to prostrating in nature. The record and the Veteran’s statements do not indicate that the Veteran’s headaches cause extreme exhaustion, powerlessness, debilitation, or incapacitation with substantial inability to engage in ordinary activities. Indeed, during and approximate to the Veteran’s claim, the record does not show treatment for or complaints of headache pain. Reviews of the Veteran’s systems performed during this period found no dizziness, headaches, or neurological weakness. While the Veteran believes that higher disability ratings is warranted for his service-connected headache condition, the evidence of record, including VA examination, does not support a compensable disability rating at any point during the pendency of the claim. While the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nothing above suggests that the Veteran is not having problems with this disability. The only question is the degree of the problem based on the evidence and the law. It is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. The medical findings outweigh the Veteran's belief that his disability warrants a higher disability rating and provide a highly clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claim. Accordingly, the Board finds that the preponderance of the evidence does not show that the Veteran’s tension and post-traumatic headaches manifest as characteristic prostrating attacks of migraine or non-migraine headache pain. Therefore, the Board finds that the criteria for a compensable disability rating are not met. 38 C.F.R. § 4.124a; Fenderson, supra. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, where the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). REASONS FOR REMAND Entitlement to a compensable disability rating for shell fragment wound scars and to a separate disability rating for residuals of a shell fragment wound to the middle lower back, including injury to muscle group XX. Regrettably, the Board finds that additional development is necessary before these matters can be adjudicated. The Veteran’s service treatment records show that he was struck by an enemy hand grenade during combat in the Korean War and received three months of surgical treatments aboard a hospital ship for his shell fragment wounds. As to this injury, the Veteran is currently service connected for the residuals of shell fragment wounds of the right buttock and right thigh under DC 5317 (Group XVII); residuals of shell fragment wounds of the left lower extremity and buttock under DC 5315 (Group XV); shell fragment wound scar of the scalp under DC 7800 (scars to the head, face, or neck); and shell fragment wound scars of the lower back (sacrum), left buttock, left inguinal area, and right posterior thigh under DC 7805 (scars, other). The Veteran contends that he is entitled to a compensable disability rating for painful scars associated with his shell fragment wounds and a separate disability rating for muscle damage underlying his lower back scars. The Veteran has associated his lower back pain and scar pain with shell fragments remaining in his body. The Veteran was provided a VA examination for muscle injuries in April 2018. The examiner identified muscle injury to muscle group XIII, XVII, and XX. As it pertains to this appeal, muscle group XX includes spinal muscles responsible for postural support of the body, extension, and lateral movement of the spine. The examiner also identified scars on the lower back (sacrum), left buttock, left inguinal area, and right posterior thigh. The examiner indicated that the scars were not painful or unstable. In an addendum opinion obtained in February 2019, the examiner stated that the injury to muscle group XX is not part of his service-connected disability, but rather a separate non-service-connected disability. The examiner did not provide a rationale or any additional statements regarding this finding. The examiner did not provide any additional statements regarding the nature and etiology of the Veterans injury to muscle group XX. The Veteran’s treatment records also show remaining shell fragments in the Veteran’s lower back (sacrum), as confirmed by x-ray in 1980 and 1981. As to the Veteran’s lower back muscle damage and claimed lower back scar pain, the April 2019 examination and the February 2019 addendum opinion did not address these shell fragments. The Veteran also contends that, while the examiner found his scars to be stable and painless on the day of his examination, the examiner did not note or address any of his statements regarding pain and discomfort caused by his scars. Given the deficiencies discussed above, the Board finds that the April 2018 VA examination and February 2019 addendum opinion were not adequate and that a remand is required to obtain an addendum medical opinion. See 38 U.S.C. § 5103(a); Barr v. Nicholson, 21 Vet. App. 31 (once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one). The matters are REMANDED for the following action: 1. Obtain the Veteran's updated VA treatment records and associate them with the evidence of record. If possible, the Veteran himself should submit these records (if any), and any other new treatment for this problem, himself, to expedite the case. Any assistance on this issue would be appreciated. 2. Schedule the Veteran for an examination by an appropriate clinician to assess the severity of his service-connected shell fragment wound scars of the lower back (sacrum), left buttock, left inguinal area, and right posterior thigh. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of residuals of a shell fragment wound to the middle lower back, including injury to muscle group XX. The examiner(s) should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. A complete rationale for any opinions expressed should be provided. The report should set forth all complaints, findings, and diagnoses relating to the Veteran's scars and shell fragment wounds and provide a rationale for all conclusions reached. If the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 3. After completion of the aforementioned, the AOJ should readjudicate the issues on appeal. If the benefit sought on appeal is not granted, then the AOJ should provide the Veteran with a supplemental statement of the case and afford him the appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.