Citation Nr: 21064935 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-40 317 DATE: October 22, 2021 ORDER For the entire appeal period, an initial rating of 30 percent, but no higher, for the service-connected headaches is granted. REMANDED The issue of entitlement to an initial rating in excess of 10 percent for the service-connected left lower trapezius strain is remanded. FINDING OF FACT For the entire appeal period, and in resolving any reasonable doubt in favor of the Veteran, his service-connected headaches have been characteristic of prostrating attacks occurring on an average of once a month over the last several months, but have not resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to an initial 30 percent rating, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2008 to November 2015 In June 2020, the Board of Veteran's Appeals (Board) remanded this appeal for further evidentiary development. In March 2021, the Agency of Original Jurisdiction (AOJ) awarded a 30 percent rating for the Veteran's headaches from December 16, 2020. Because the maximum benefit was not granted, the issue of entitlement to a higher evaluation for the entirety of the appeal period remains before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to an initial compensable rating prior to December 16, 2020 and an initial rating greater than 30 percent from December 16, 2020 for the service-connected headaches Under Diagnostic Code 8100, a 10 percent rating is warranted for characteristic prostrating attacks averaging 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. Neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined the term "prostrating." "Prostration" is defined as extreme exhaustion or powerlessness. See Dorland's Illustrated Medical dictionary (30th ed. 2003). Also, the term "productive of severe economic adaptability" has not been clearly defined by the rating criteria or the Court. The Court has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as that would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; see also 38 C.F.R. § 4.16. Rather, the term "severe economic inadaptability" refers to a great degree of inability in adjusting to the environment of an economic marketplace. See Merriam-Webster definitions of "inadaptability;" "adaptation;" "severe;" and "economic." Turning now to the evidence of the record, the Board notes that, at the January 2016 VA Examination, the Veteran reported having headaches during his active duty. He noted that he experienced left-sided headaches two to three times a week. The pain was constant but not pounding, and he denied any other associated symptoms. He thought that his headaches may be triggered by certain foods. The duration of his headaches was less than one day. He did not describe any prostrating headaches or non-migraine pain. On the April 2016 Notice of Disagreement (NOD), he explained that he actually had six to seven headaches a week and that they were severe. On the December 2020 VA Examination, he reported that, since his last examination, his headaches have lasted longerand approximately four to five days. He experienced throbbing pain behind the eyes, sometimes with nausea. He was sensitive to light and had to lie down. His headache pain was pulsating or throbbing head pain, located on both sides. Non-headache symptoms included nausea, sensitivity to light, and changes in vision. The Veteran did experience prostrating attacks of headache pain, with less frequent attacks. After a thorough consideration of the evidence, the Board finds that reasonable doubt has arisen regarding the frequency of the Veteran's headaches prior to December 16, 2020. Although the January 2016 examiner noted that the Veteran did not experiencing frequent headaches or prostrating attacks, the Veteran described severe headaches more frequently. Taking into the account the medical definition for "prostration," his headaches would have to cause some level of extreme exhaustion, powerlessness, or some impairment or incapacitation. With his description of severe headaches that he experienced "6 to 7 times a week," it is reasonable that his headaches would cause some impairment or incapacitation. In resolving reasonable doubt in favor of the Veteran, the Board finds that for the entire initial rating period, his headache symptoms more nearly approximate the frequency and severity contemplated by the 30 percent rating criteria. However, at no time during the appeal period have the Veteran's symptoms risen to the level of severity encompassed by the 50 percent evaluation. Although frequent, his attacks have not been completely prostrating or prolonged. Additionally, the examination showed that his headaches were not productive of severe economic inadaptability, and there is no evidence of record, nor does he assert, that the headaches impact his ability to work. Although he has to lie down due to his headaches, the frequency of that incapacitation (sometimes) is not contemplative of the 50 percent rating criteria (very frequent). The resulting limitations from his headaches is adequately contemplated and compensated by the 30 percent rating now assigned. In sum, the Board determines that a rating of 30 percent, but no higher, for the Veteran's headaches is warranted for the entire appeal period. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for left lower trapezius strain After a thorough consideration of the evidence of the record, the Board finds that a remand is necessary prior to the adjudication of the issue of entitlement to a higher rating for the Veteran's service-connected left lower trapezius strain. This disability is currently evaluated at 10 percent disabling by analogy under Diagnostic Code 5299 5237. Diagnostic Code 5237 (lumbosacral strain) is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran's left lower trapezius strain was originally evaluated by analogy under Diagnostic Code 5399-5301. Diagnostic Code 5310 evaluates injuries to Muscle Group I (extrinsic muscles of the shoulder girdle: (1) trapezius; (2) levator scapulae; and (3) serratus magnus). In July 2017, the AOJ assigned a 10 percent rating for left lower trapezius strain under Diagnostic Code 5237, finding that this code "most closely approximates not only the functions affected, but the anatomical localization and symptomatology" of the Veteran's condition. See July 2017 Rating Decision Narrative. The Board remanded this claim to obtain another examination to ascertain the current nature and severity of this disability. The December 2020 examination provided to him focused on Muscle Injuries. As stated previously, the Veteran is currently being evaluated under the General Rating Formula for Disease and Injuries of the Spine. Thus, he should have been afforded an examination for Back (Thoracolumbar Spine) conditions. The current medical evidence on file is insufficient for the Board to make an informed determination as to the severity of this disability. On remand, the AOJ should provide the Veteran with the appropriate examination to adequately determine the nature and severity of this condition. Accordingly, this matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with the Veteran's claims folder. If the records are unavailable, inform the Veteran of such and of the efforts made to obtain them. The Veteran should also be notified that he may submit any such records himself. All efforts should be recorded in the claims folder. 2. Then, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected left lower trapezius strain. His claims file should be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be conducted. The examiner is specifically requested to: (a.) record the results of range of motion testing of the Veteran's back in both active and passive motion and in weight-bearing and non-weight-bearing. (b.) opine as to whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. (c.) note whether the disability results in incapacitating episodes, and indicate the total duration of any such episodes. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate this issue remaining on appeal. If this issue remains denied, furnish to the Veteran a supplemental statement of the case (SSOC) and afford him appropriate time to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 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 S. Middleton, 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.