Citation Nr: 21062149 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-53 981 DATE: October 6, 2021 ORDER Entitlement to a rating of 30 percent, but not higher, for headaches is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to a compensable rating for a traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran headaches exhibit characteristics of prostrating attacks that occur, on average, once a month. CONCLUSION OF LAW The criteria for entitlement to a rating of 30 percent, but not higher, for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.25, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA). In April 2021, the Veteran testified at a Board hearing. The transcript of that hearing has been associated with the Veteran's claims file. In June 2021, the case came before the Board. The Board remanded the Veteran's claims for additional examinations because the Veteran was last examined in 2016 and the available medical evidence was inadequate to properly evaluate the Veteran's disabilities. 1. Entitlement to a rating of 30 percent, but not higher, for headaches The Veteran contends that his disability warrants an increased rating throughout the course of the appeal. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In considering 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); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 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); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the Veteran is challenging his initial rating. The Veteran was awarded a noncompensable rating according to Diagnostic Code 8100. Under diagnostic code 8100, a 10 percent disability rating is assigned, where the Veteran gets headaches with prostrating characteristics, on average, every two months over the course of several months. If the headaches with characteristics of prostrating attacks occur, on average, once a month, a 30 percent disability rating will be assigned. In order to receive 50 percent disability rating, which is the maximum provided under diagnostic code 8100, there must be very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124 (a), Diagnostic Code 8100. The Board acknowledges that the rating criteria do not define "prostrating". Dorland's Illustrated Medical Dictionary defines "prostration" as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). Similarly, the term "productive of severe economic inadaptability" is not defined by VA regulations. However, the Court has stated that this term is not synonymous with being completely unable to work, and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as migraine headaches including migraine variants. As to the Veteran's lay statements, the Board notes that the Veteran testified that he was experiencing constant headaches before his doctor prescribed him a medication to treat this disability. The Veteran testified that he now experiences headaches once a week and his headaches are not as severe as they once were. The Veteran stated that his headaches would make him feel confused and disoriented. The Veteran further testified that he also missed work because of his headaches. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination in October 2013. The examiner indicated that the Veteran experiences pulsating, or throbbing head pain and pain localized to one side of the head. The examiner also indicated that the Veteran also experiences changes in vision. The Veteran reported that the headaches last for less than 1 day and are located on the top of his head. The examiner opined that the Veteran does not exhibit prostrating attacks. The Veteran also reported symptoms of disorientation. The Veteran stated that this occurs intermittently. The VA examiner opined that the Veteran's "fugue" states are due to the Veteran's mental disorders and not his headache disability. In September 2016, the Veteran attended a VA examination. The Veteran reported that his headaches do not occur often. The Veteran rated them a 4 of 10 on a scale of 1-10 with 10 being severe and states that they are not crippling. The examiner indicated that the Veteran exhibits headache pain with pulsating or throbbing head pain. The Veteran indicated that the headaches last less than 1 day and are located in the front of his head. Lastly, the examiner opined that the Veteran does not experience prostrating headaches. In June 2021, the Veteran attended a VA examination. The Veteran reported his headaches are not as frequent since being prescribed new medication. The Veteran also stated that his headaches occur three times per week. The Veteran stated that his headaches are located on the left side of head. The Veteran stated that his headaches are brought on by stress. The Veteran stated that his headaches are alleviated when resting in a quiet room. The Veteran stated that his headache frequency varies. On examination, the examiner indicated that the Veteran exhibited constant head pain and pain localized to one side of the head. The examiner indicated that the Veteran experiences changes in vision. Lastly, the examiner indicated that the Veteran does not exhibit prostrating attacks of migraine pain. The Board has also reviewed the Veteran's medical treatment records. The Board acknowledges that the Veteran's records show that the Veteran receives treatment and his prescribed medication for this disability. The Board has considered the Veteran's reports that his disability made his "confused and disoriented." However, the medical evidence in this case has attributed the Veteran's "fugue" states to his nonservice-connected psychiatric disorder and not his headaches; thus, these symptoms will not be considered in the present evaluation. In sum, the Board finds that the Veteran's disability has remained consistent throughout the course of the appeal and that an increased rating is warranted. After a review of the medical evidence of record and the Veteran's lay statements, the Board finds that the frequency and severity of the Veteran's disability is best represented by a 30 percent rating. The Board has considered a rating of 50 percent; however, the evidence of record does not show that the Veteran exhibits completely prostrating and prolonged attacks productive of severe economic inadaptability. Specifically, the Board notes that the evidence of record is silent for a medical opinion that has found that the Veteran exhibits completely prostrating and prolonged attacks productive of severe economic inadaptability. Moreover, the record does not show evidence of frequent hospitalizations or absence from work that demonstrated that the Veteran's disability resulted in economic inadaptability. Furthermore, the Board has also considered the severity of the Veteran's disability prior to his receipt of medication and the alleviating effects of the Veteran's medications; however, the medical evidence of record prior to this change in medication did not demonstrate that the Veteran's disability met the criteria for a 50 percent rating. After weighing all of the evidence, both positive and negative, the Board concludes that this issue is in equipoise as to entitlement to a 30 percent, but not greater, rating. Accordingly, based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a 30 percent rating, but not higher, for migraine headaches is warranted. REASONS FOR REMAND 1. Entitlement to a compensable rating for a Traumatic Brain Injury (TBI) is remanded. The Board notes that the record contains conflicting evidence as to whether the Veteran has a seizure disorder. The Board further notes that the Veteran attended a VA examination for this issue in June 2021. Following the examination, the June 2021 VA examiner stated that there is a possibility of ongoing absence seizures that would require a more detailed work-up by a physician. Accordingly, the Board finds the June 2021 VA examination to be inadequate and that a remand is necessary in order for a VA examiner to determine whether the Veteran has a seizure disorder that is related to his TBI. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion without supporting clinical data or other rationale does not provide the required degree of medical certainty). 2. TDIU is remanded. The Board acknowledges that the Veteran's claims for increased ratings include a claim for TDIU when it is expressly raised by the Veteran or reasonably raised by the record. After a review of the record, the Board finds that the claim for TDIU has been raised by the record. Thus, this issue must be remanded for further development and then adjudication by the RO. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from June 22, 2021, to the present. 2. Schedule the Veteran for an additional VA examination to determine the severity of the Veteran's TBI. The VA examiner must specifically address the issue of seizures and determine if the Veteran meets the criteria for a diagnosis of a seizure disorder. If the Veteran has a seizure disorder, then the examiner must also determine whether the Veteran's seizures are a symptom related to his TBI. If the Veteran does not have a seizure disorder, then the examiner must provide an explanation regarding the nature and etiology of this reported symptom. In providing all of the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. 3. Take all steps necessary in order to properly adjudicate the Veteran's claim for TDIU. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.