Citation Nr: 21064069 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-30 176 DATE: October 19, 2021 ORDER Subject to controlling regulations governing the payment of monetary awards, an increased rating of 50 percent both prior to, and since, November 6, 2020 for service-connected headaches is granted. REMANDED Service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability, is remanded. Service connection for left-side carpal tunnel syndrome is remanded. FINDINGS OF FACT 1. Prior to November 6, 2020, resolving reasonable doubt in the Veteran's favor, his headache symptoms more nearly approximated very frequent, completely prostrating, and prolonged attacks that are productive of severe economic inadaptability. 2. Since November 6, 2020, resolving reasonable doubt in the Veteran's favor, his headache symptoms more nearly approximate very frequent, completely prostrating, and prolonged attacks that are productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for the maximum schedular 50 percent rating for service-connected headaches are met for the entire appeal period, to include prior to, and since, November 6, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 2002 to February 2010. In October 2019, he testified at a travel Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In February 2020, the Board denied service connection for OSA. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating the Board's February 2020 decision as it pertained to the issue of entitlement to service connection for OSA, and remanded the appeal to the Board for readjudication consistent with the JMPR. Also, in February 2020, the Board remanded the issues of entitlement to service connection for left-side carpal tunnel syndrome and a left hip disability, and entitlement to a compensable rating for headaches. In a November 2020 rating decision, the evaluation for headaches was increased from zero to 30 percent disabling, effective November 6, 2020. A claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher rating for headaches remains on appeal. The November 2020 rating decision also granted the Veteran service connection for a left hip condition. As this represents a full grant of the benefits sought on appeal, the issue of entitlement to service connection for a left hip disability is no longer before the Board. However, for reasons discussed herein, another remand is necessary for the issue of entitlement to service connection for left-side carpal tunnel syndrome. Increased RatingHeadaches Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Here, as explained below, the uniform 50 percent rating is proper. Pursuant to Diagnostic Code (DC) 8100, the Veteran is in receipt of a 30 percent rating for headaches since November 6, 2020. His rating is noncompensable prior to November 6, 2020. He contends the severity of his service-connected headaches warrants higher ratings. Specifically, he asserts that he is entitled to a compensable rating prior to November 6, 2020, and a rating in excess of 30 percent since November 6, 2020. Under DC 8100, a 10 percent evaluation is warranted for characteristic prostrating attacks occurring on an average one in two months over the last several months. A 30 percent evaluation is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation is warranted for very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 50 percent evaluation is the maximum available schedular evaluation for headaches. These criteria are successive; thus, each criterion for a higher rating must be met in order to warrant such a rating. Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). In Pierce v. Principi, 19 Vet. App. 400, 445 (2004), the Court noted that VA conceded that the phrase "productive of severe economic inadaptability" in DC 8100 should be construed as either "producing" or being "capable of producing" severe economic inadaptability. Neither the rating criteria nor the Court has defined the term "prostrating." According to Webster's New World Dictionary of American English, Third College Edition 1080 (1986), "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1367 (28th ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." "Inadaptability" is not defined in DC 8100 either, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. See Pierce, 18 Vet. App. at 446 (2004). Further, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. The Veteran has constantly and continuously indicated that his headaches have worsened and have become more frequent. At a December 2015 VA examination, he reported having chronic headaches. The examiner noted that the Veteran has headache pains that can be described as pulsating or throbbing and occur at the back of the Veteran's head, lasting anywhere from minutes to an hour. The examiner also noted that the Veteran has non-headache symptoms associated with his headaches, including sensitivity to light and sound. The examiner indicated that the Veteran experiences characteristic prostrating attacks of migraine headache pain, which occur more frequently than once per month. However, it was noted that the Veteran did not have very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain. The examiner indicated that the Veteran's headache condition may impact his ability to work when he is suffering from a severe bout of headaches. At the October 2019 Board hearing, the Veteran described experiencing headaches that are constant for days, which can be incapacitating when they flare to migraines. See Board Hearing Transcript at 3-4. He testified that his incapacitating headaches occur two to three times per week, lasting for two to three hours. Id. He further stated that his most recent incapacitating episode occurred two days prior to the October 2019 hearing. See Board Hearing Transcript at 5. At a November 2020 VA examination, the examiner diagnosed the Veteran with migraine and other headaches. The Veteran reported having a continuous headache that had gotten worse, described as a pulsatile headache that is aggravated by light, stress, and depression. He reported treating his migraine with Topamax. The examiner noted that the Veteran has constant headache pains that can be described as pulsating or throbbing and occur on both sides of the Veteran's head, lasting anywhere from one to two days. The examiner also noted that the Veteran has non-headache symptoms associated with his headaches, including nausea, vomiting, sensitivity to light and sound, and slight dizziness a few minutes prior to the onset of a migraine. The Veteran reported the mild headache to be contained in the occipital lobe, but that it radiates to the bilateral temporal lobes when he experiences the flare up of migraine. The examiner indicated that the Veteran experiences characteristic prostrating attacks of migraine and non-migraine headache pains, which occur once every month. It was noted that the Veteran did not have very prostrating and prolonged attacks of migraines and non-migraine pain productive of severe economic inadaptability. The Veteran reported that he often vomits during his flare up of migraine. He also reported having vertigo when attempting to stand, and that it is very challenging for him to perform any form of physical activities during the period of his flare up of migraine. The Veteran reported that he medically retired from his position as a customer service representative in September 2017 due to difficulty concentrating and focusing. He also reported missing work due to the migraines which made him weak, with difficulty getting out of bed. The examiner remarked that a migraine can cause severe throbbing pain or a pulsating sensation, usually on one side of the head. She stated that it is often accompanied by nausea, vomiting, and extreme sensitivity to light and sound. She further noted that migraine attacks can last for hours to days, and the pain can be so severe that it interferes with one's daily activities. Regarding the Veteran's condition, the examiner noted that the Veteran was admitted to the hospital in June 2017, where he was diagnosed with, and treated for, severe migraines and was placed on Topamax, 25mg daily. She explained that the Veteran's service-connected headaches are also a symptom of migraine. She further explained that, since the Veteran is now exhibiting other migraine symptoms such as sensitivity to light and sound, nausea, vomiting, and dizziness, the new diagnosis of migraines is related to the service-connected condition of headaches. In support of the claim, the Veteran has provided several self-written statements that describe his condition and the effects it has had on him. He also expressed his disagreements with previous rating decisions. Based on the evidence above, and in resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran experiences very frequent, completely prostrating, and prolonged migraine headache attacks productive of severe economic inadaptability, to warrant a 50 percent disability rating both prior to, and since, November 6, 2020. The Veteran's medical records reflect consistent and frequent reporting of severe headache pains that are completely prostrating, occurring on an average of two to three times per month. The Veteran has also given credible reports of missing some days of work due to the prostrating headache attacks. In addition, the evidence suggests that his headache pains have continued to increase in severity over the years. This corroborates the Veteran's reports of a worsening headache disability. Significantly, the November 2020 VA examiner remarked that the Veteran's headaches could be so severe that it restricts his ability to engage in normal activities, including working, whenever he experienced prostrating headaches, which can last from hours to days at a time. The December 2015 examiner noted that the Veteran's headaches occur for more than once per month. The November 2020 examiner also emphasized the severity of the Veteran's headaches, noting, for instance, that he was hospitalized in June 2017, and was diagnosed with severe migraines. As such, with the resolution of reasonable doubt in the Veteran's favor, the Board finds that the maximum schedular rating of 50 percent is warranted for his headaches. Although the November 2020 examiner stated that the Veteran's headache attacks did not reach the level of severe economic inadaptability, the Board notes that determining whether the Veteran's symptoms meet the criteria is a legal question and not a medical one. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"). Thus, VA adjudicators, including the Board, are responsible for making this ultimate determination. VA examiners and medical professionals have noted that the Veteran takes medicine that helps, in part, to alleviate his headaches and related symptoms. However, DC 8100 does not mention medication for migraines. "The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Board cannot consider the ameliorative effects of the Veteran's headache medicine in this decision. As previously stated, the Veteran has described very frequent, long-lasting, and severe headaches. His headaches have resulted in nausea, vomiting, extreme sensitivity to sound, and dizziness. He has been prescribed various medications since service, but it appears that those medications do very little to prevent the headache pains. The record also shows the Veteran's headache episodes to be prolonged and productive of severe economic inadaptability as that term has been defined by the Court. As noted, the criteria for a 50 percent rating does not require migraine headaches that actually produce severe economic inadaptability, but rather migraine headaches that are capable of producing severe economic inadaptability. See Pierce, 18 Vet. App. at 446 ("severe economic inadaptability" is not equivalent to unemployability and can be shown if headaches are capable of producing severe economic inadaptability). Here, the Veteran's headaches have shown to be significant impediments to his employment, considering that he has reported missing days from work due to prostrating headaches. Further, both the December 2015 and November 2020 examiners noted that the Veteran's prostrating and prolonged attacks significantly impact the ability to work. Thus, the Board finds that the Veteran's headache symptoms are capable of producing severe economic inadaptability. Accordingly, for the foregoing reasons, the Board concludes that the Veteran's headache disability picture and symptomatology, as shown by the medical and lay evidence, meet the criteria for a 50 percent disability rating both prior to, and since, November 6, 2020. Therefore, a 50 percent rating is warranted for the Veteran's headaches throughout the entirety of the appeal periodboth prior to, and since, November 6, 2020. Other Considerations Extraschedular consideration is not warranted in this case. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's headaches are manifested by signs and symptoms of pain, nausea, and "prostrating attacks" which impair his day-to-day functioning. These signs and symptoms, and their resulting functional impairments, are contemplated by the rating schedule. DC 8100 provides disability ratings contemplated along a broad and non-exclusive continuum expressed with generalized terms, such as "prostrating attacks" and "severe economic inadaptability." The impairments in day-to-day functioning experienced by the Veteran are manifestations of the symptoms listed in the rating criteria and not separate symptoms. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017). Finally, although the VA examiners indicated that headaches impact the Veteran's ability to work, the evidence does not indicate that the Veteran was unable to work due to his headaches. His June 2017 hospital records note a diagnosis of headaches, but the reason given for his hospitalization is issues with his psychiatric conditions. He has been 100 percent service-connected for posttraumatic stress disorder (PTSD) with a recurrent major depressive disorder since June 13, 2017. He is also in receipt of a special monthly compensation due to his disabilities. [The Board notes that a December 2017 rating decision informed the Veteran that entitlement to individual unemployability is moot because his service-connected disabilities are evaluated as 100 percent disabling and because no potential entitlement to an earlier effective date for a total disability evaluation based on a grant of individual unemployability is warranted by the evidence of record. The Veteran has not appealed that decision.] Consequently, the Board concludes that the Veteran meets the criteria for a 50 percent rating for headaches prior to, and since, November 6, 2020 and that extraschedular consideration is not warranted. Thus, his claim of entitlement to the maximum schedular 50 percent rating under DC 8100 prior to, and since, November 6, 2020 for headaches is granted. REASONS FOR REMAND Service Connection OSA The Veteran contends that his OSA his related to his active service. Alternatively, he states that his OSA is secondary to his service-connected conditions. See July 2021 Attorney Brief. The Veteran's service treatment records (STRs) are negative for signs or symptoms related to OSA. An October 2017 VA examination report reflects a diagnosis of OSA. However, the examiner remarked that a 2010 sleep study was negative for sleep apnea, with the primary diagnosis being snoring. A February 2016 VA polysomnography consult notes a diagnosis of OSA. A remand is required to obtain a medical opinion regarding the nature and etiology of the Veteran's OSA. The October 2017 examination is inadequate because the examiner remarked that the Veteran does not have OSA, which is contrary to other evidence of record. The examiner also seemed to use the lack of in-service complaints from the Veteran as a basis for forming a negative opinion. This cannot be used as a reason for denying the Veteran's claim. The examiner did not address the Veteran's post-service complaints of snoring, breathing difficulties, and other symptoms of OSA. In addition, the January 2021 JMPR notes the need to address whether obesity was an intermediate step between the Veteran's OSA and his service-connected disabilities, which raises the issue of secondary service connection. In his July 2021 Brief, the Veteran's attorney states that the Veteran's OSA is associated with obesity, which was caused or aggravated by the Veteran's service-connected disabilities, to include both physical and psychiatric disabilities. The Veteran's attorney also submitted journal articles that discuss the relationship between PTSD and sleep apnea, and between obesity and sleep apnea. As such, it is necessary to obtain a medical opinion regarding secondary service connection. Service Connection Left-side Carpal Tunnel Syndrome The Veteran contends that he has left-side carpal tunnel syndrome that is related to his active service. At a December 2015 VA examination for peripheral nerves conditions, the examiner diagnosed the Veteran with bilateral cubital tunnel syndrome of the upper extremities and bilateral carpal tunnel syndrome of the upper extremities. Thus, there is evidence that the Veteran has current left-side carpal tunnel syndrome. An August 2020 examiner opined that the Veteran does not have a left carpal tunnel syndrome diagnosis documented in the records. He explained that the Veteran has left cubital tunnel syndrome involving the ulnar nerve at the elbow. He further stated that this is confirmed by the electromyography (EMG) that was done in July 2012, on which the Veteran showed no evidence of carpal tunnel syndrome on either side. However, he explained that a 2009 EMG did show evidence of right carpal tunnel syndrome. The examiner noted that none of these records support a diagnosis for left carpal tunnel syndrome. He further noted that if carpal tunnel syndrome is conceded, there is no evidence of the condition arising in service. He explained that there are no references to left carpal tunnel syndrome on either of the DBQs and that it is, more likely than not, a new complaint and/or diagnosis. The Board finds that the examiner's opinion is problematic because it is based on facts that are not entirely accurate. Notably, the examiner based his conclusion that the Veteran does not have left-side carpal tunnel syndrome on an EMG that was done in July 2012. However, a more recent December 2015 VA examination report shows a diagnosis of left-side carpal tunnel syndrome. The examiner also did not consider the Veteran's reports that he has had left-side carpal tunnel syndrome since service, by noting that it is likely a new complaint. As such, a remand is necessary to obtain a clarifying medical opinion regarding the Veteran's December 2015 diagnosis of left-side carpal tunnel syndrome and to determine the nature and etiology of the Veteran's left-side carpal tunnel syndrome. Accordingly, these matters are REMANDED for the following action: 1. Schedule an appropriate VA examination to determine the nature and etiology of the Veteran's obstructive sleep apnea. The claims folder should be made available to the examiner in conjunction with the examination. Any necessary testing should be completed. Following a review of the record, as well as an examination of, and interview with, the Veteran, the examiner should opine: a. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's obstructive sleep apnea is related to his active service, to include his lay statements of experiencing loud and frequent snoring in service. The Veteran is competent to report that he experienced symptoms of sleep apnea in service, including snoring and breathing difficulties. b. Whether the Veteran's sleep apnea is at least as likely as not proximately due to, the result of, or aggravated (i.e., made worse) by his service-connected disabilities. The Veteran is service-connected for the following disabilities: PTSD with a recurrent major depressive disorder, headaches, bilateral tinnitus, right side carpal tunnel syndrome, right wrist strain, impairment of the left leg, degenerative disc disease of the lumbar spine, left ankle medial osteochondral defect of the talar dome, epididymitis, and limitation of flexion of the left thigh. In answering this question, the examiner should consider and address the following: 1) Whether obesity was an intermediate step between the Veteran's sleep apnea and his service-connected disabilitiesSee July 2021 Brief arguments from the Veteran's attorney that the Veteran's sleep apnea is associated with obesity, which was caused or aggravated by the Veteran's service-connected disabilities, to include both physical and psychiatric disabilities. 2) Journal articles submitted in July 2021, which discuss i) the relationship between PTSD and sleep apnea, and ii) the relationship between obesity and sleep apnea. A complete rationale for all opinions expressed must be provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Also, schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his left-side carpal tunnel syndrome. Specifically, the examiner's report should reflect that the Veteran has been granted service connection for right-side carpal tunnel syndrome. The examiner should explain whether the Veteran does, in fact, have carpal tunnel syndrome on his left side, and whether it as likely as not (50% or more likely) began concurrently (during service), with his right side, or is otherwise related to his active service, to include as secondary to a service-connected disability. In answering this question, the examiner is asked to consider and address a December 2015 VA examination report showing a diagnosis of left-side carpal tunnel syndrome. A complete rationale is required for all opinions expressed. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA (CONTINUED ON NEXT PAGE) medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.