Citation Nr: 21068440 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-07 870 DATE: November 10, 2021 ORDER For the period prior to September 10, 2020, an initial rating greater than 30 percent for migraines is denied. For the period from September 10, 2020, a rating greater than 50 percent for migraines is denied. For the period prior to September 10, 2020, entitlement to an initial rating of 30 percent, but no higher, for a right gastrocnemius muscle injury is granted. From September 10, 2020, entitlement to a rating greater than 30 percent for a right gastrocnemius muscle injury is denied. REMANDED Entitlement to service connection for a left upper arm disability is remanded. Entitlement to an initial compensable rating for rhinitis is remanded. FINDINGS OF FACT 1. For the period prior to September 10, 2020, the Veteran's headaches have been manifested by characteristic prostrating attacks occurring more than once a month, but not productive of severe economic inadaptability. 2. From September 10, 2020, the Veteran's migraines have been assigned the maximum schedular evaluation. 3. For the period prior to September 10, 2020, the Veteran's right gastrocnemius muscle injury is productive of severe impairment of Muscle Group XI. 4. From September 10, 2020, the Veteran's right gastrocnemius muscle injury has been assigned the maximum schedular evaluation. CONCLUSIONS OF LAW 1. For the period prior to September 10, 2020, the criteria for an initial disability rating greater than 30 percent for migraines have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124, Diagnostic Code (DC) 8100. 2. From September 10, 2020, the criteria for a disability rating greater than 50 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124, DC 8100. 3. For the period prior to September 10, 2020, the criteria for a disability rating of 30 percent for a right gastrocnemius muscle injury have been met. 38 U.S.C. §§ 1155, 5103A; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.56, 4.71a, DC 5311. 4. From September 10, 2020, the criteria for a disability rating greater than 30 percent for a right gastrocnemius muscle injury have not been met. 38 U.S.C. §§ 1155, 5103A; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.56, 4.71a, DC 5311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2007 to May 2013. He appealed an August 2014 rating decision by the Agency of Original Jurisdiction (AOJ). These matters were remanded for additional development in November 2018 and May 2021. In an August 2021 rating decision, the AOJ granted service connection for inflammatory bowel syndrome with gastroesophageal reflux disease. In a September 2021 rating decision, the AOJ granted service connection for temporomandibular joint dysfunction. Those claims have been granted in full and are no longer on appeal. Lastly, the Board's May 2021 remand directed the AOJ to request the Veteran authorize the release of private medical records she identified during VA treatment in April 2016. In response, the AOJ sent the Veteran a letter requesting the same. To date the Veteran has not responded to that request. Further remand is therefore not warranted. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1993) (noting that the duty to assist is a two-way street and that if the appellant wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the relevant evidence). Increased Ratings Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. 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," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 1. Migraines The Veteran's migraines are rated 30 percent disabling prior to September 10, 2020, and 50 percent disabling thereafter. Migraines are evaluated under DC 8100, 38 C.F.R. § 4.124a, which provides for a 10 percent disability rating for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for characteristic prostrating attacks occurring on an average once a month over the last several months. Finally, a 50 percent disability rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. VA regulations do not define "prostrating." By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p.1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." The Board notes the rating criteria for headaches under DC 8100, 38 C.F.R. § 4.124a, have not been revised since the Veteran has been granted service-connection for headaches. During a February 2014 VA migraines examination, the Veteran reported symptoms of pulsating or throbbing head pain that worsened with physical activity. She reported non-headache symptoms including nausea, vomiting, sensitivity to light and sound, and changes in vision. Her headache pain typically lasted less than a day. The examiner stated that the Veteran's prostrating attacks occurred once every two months and advised the Veteran did not have very frequent prostrating and prolonged attacks of migraine pain. The examiner also found the Veteran sustained no functional impact from her migraines. In a July 2015 Notice of Disagreement, the Veteran reported experiencing migraines one to two times per week. VA medical records reflect the Veteran received treatment for migraines. In April 2016, the Veteran reported her headaches had increased in intensity and frequency over the last few months. In June 2019, the Veteran reported her headaches had not changed in character and remained infrequent. In December 2019, she reported an increase in headaches over the previous two months. During a February 2020 examination, the Veteran reported she continued to experience headaches in the middle of the night, accompanied by nausea and vomiting. The headaches occurred two to three times per week, and required the Veteran to place herself in dark, quiet surroundings. The examiner noted the Veteran experienced constant pulsating or throbbing head pain, with symptoms of nausea, vomiting, sensitivity to light, and blurred vision. The examiner stated the Veteran had characteristic prostrating attacks of pain once every month, that were not productive of severe economic inadaptability. In a March 2020 statement, the Veteran reported experiencing frequent migraine attacks two to three times per week, which lasted a minimum of 12 hours. According to an April 2020 VA telephone note, the Veteran reported her migraines had not changed in character. At a September 2020 examination, the Veteran reported headaches every other day for several hours to all day. She reported experiencing prostrating attacks once a week for up to eight hours. The examiner noted the Veteran had symptoms of pulsating or throbbing head pain that worsened with physical activity, as well as nausea, vomiting, sensitivity to light and sound, changes in vision, and unspecified sensory changes. The examiner noted the Veteran had characteristic prostrating attacks that were productive of severe economic inadaptability and that with the Veteran experiencing prostrating migraines once a week, "no work." For the period prior to September 10, 2020, the evidence does not support a rating greater than 30 percent. Prior to this date the Veteran's headaches were not shown to be productive of severe economic inadaptability. Although the Veteran continued to experience headache symptoms described during the February 2014 and February 2020 examinations, she reported that her headaches were tolerable and infrequent. See December 2016 and June 2019 VA neurology notes. Moreover, the Veteran continued to work full time at her job throughout this period and since, suggesting she did not experience severe impairment of her job duties or any other form of severe economic inadaptability due to her migraines. See May 2020 VA physical therapy consult. Given these facts, the evidence does not support a finding that the Veteran's migraines resulted in severe economic inadaptability during this period. Thus, a rating greater than 30 percent is not warranted prior to September 10, 2020. From September 10, 2020, the Veteran is in receipt of the maximum schedular rating available for migraines, and there is no legal basis upon which to award a higher schedular evaluation for her service-connected migraines. Thus, the claim for a higher rating from September 10, 2020 must be denied. 2. Right Gastrocnemius Muscle Injury The Veteran's right gastrocnemius muscle injury is rated noncompensable prior to September 10, 2020, and 30 percent disabling thereafter, under DC 5311. Although portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the provisions of DC 5311 remain unchanged. Generally, DC 5311 addresses injuries to Muscle Group XI. Muscle Group XI includes the posterior and lateral crural muscles, and muscles of the calf. Muscle Group damage is categorized as slight, moderate, moderately severe, or severe. See 38 C.F.R. §§ 4.55, 4.56, 4.73. Section 4.56(c) describes the cardinal signs and symptoms of muscle disability as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. Under DC 5311, a slight impairment is assigned a non-compensable evaluation, a moderate impairment is assigned a 10 percent evaluation, a moderately severe impairment is assigned a 20 percent evaluation, and a severe impairment is assigned a maximum 30 percent evaluation. Id. § 4.73, DC 5311. A "slight disability" of the muscles involves a simple wound of the muscle without debridement or infection. Id. § 4.56(d)(1). A "moderate disability" of the muscles involves a through-and-through or deep penetrating wound of a relatively short track by a single bullet or small shell or a shrapnel fragment, and the absence of explosive effect of high-velocity missile and of residuals of debridement or of prolonged infection. There must be evidence of in-service treatment of the wound. There must be a record in the file of consistent complaint of one or more of the cardinal symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. The objective findings include entrance and, if present, exit scars which are linear or relatively small, and so situated as to indicate a relatively short track of the missile through the muscle tissue, and signs of some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. Id. § 4.56(d)(2). A "moderately severe" disability of the muscles involves a through-and-through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There must be evidence in the file showing hospitalization for a prolonged period for treatment of the wound. There must be a record of consistent complaint of cardinal signs and symptoms of muscle disability, and if present, evidence of inability to keep up with work requirements. The objective findings include entrance and, if present, exit scars indicating the track of missile through one or more Muscle Groups, indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side, and tests of strength and endurance compared with sound side must demonstrate positive evidence of impairment. Id. § 4.56(d)(3). Finally, a "severe disability" of the muscles involves a through-and-through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. There must be evidence showing hospitalization for a prolonged period for treatment of the wound. There must also be a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and if present, evidence of inability to keep up with work requirements. The objective findings include ragged, depressed and adherent scars indicating wide damage to Muscle Groups in missile track, palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in wound area, muscles swelling and hardening abnormally in contraction, and tests of strength, endurance, or coordinated movements compared with the corresponding muscles of uninjured side indicating severe impairment of function. Id. § 4.56(d)(4). Evaluation of muscle injuries is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56 (d). Section 4.56 is a totality of the circumstances test; no single factor is per se controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006) (citing Robertson v. Brown, 5 Vet. App. 70 (1993)). According to a March 2014 examination report, the Veteran stated that she experienced tightness in her right calf two to three times per month, which she treated with ice and Ace wrap. The Veteran's symptoms did not interfere with activities of daily living, standing, or walking. She did not report specific flare-ups, aside from flares that occurred with running, but those did not interfere with activities or prevent her from running. On evaluation, the Veteran had a normal gait without limp. Her calves were of equal circumference. There were no palpable muscle defects. The examiner diagnosed the Veteran with a right gastrocnemius muscle injury, which caused some degree of symptoms with no abnormal objective physical findings and no limitation of function. During a September 2020 muscle injuries examination, the Veteran reported her condition had remained the same, with some pain in the right calf muscle towards the end of the day. On evaluation, the examiner identified the affected muscle group as Group XI. The Veteran had occasional, moderate loss of power on a weekly basis; consistent, moderate weakness; consistent, severely lowered threshold of fatigue; and consistent moderate impairment of coordination. Muscle strength was normal. No assistive devices were required. The examiner noted the presence of mild tenderness to palpation at the lateral aspect of the right lower leg with pain in the same area while heel / toe walking. The Veteran's injury had "some impact" on walking, walking on steps or stairs, carrying, climbing, pushing, and pulling. Based on the above findings, the Board concludes that a 30 percent rating is warranted for the entire period on appeal. Crucial to the Board's decision is the examiner's notation that the Veteran's condition had remained the same since onset. Notably the March 2014 VA examination report was considerably less detailed as to the impact of the Veteran's muscle injury than the September 2020 report. The latter report offered granular analysis of the loss of power, weakness, lowered threshold of fatigue, and impairment of coordination caused by the muscle injury. As the Veteran's reported symptoms and self-care for them remained consistent throughout the appeal period, it seems unlikely that her muscle injury changed materially during that same time. Affording the Veteran the benefit of the doubt, a 30 percent rating is warranted prior to September 10, 2020. As the Veteran's disability has been assigned the maximum schedular rating available for the entire rating period, there is no legal basis upon which to award a higher schedular evaluation for her service-connected muscle injury. Accordingly, the claim for a higher rating must be denied. REASONS FOR REMAND 1. Left Upper Arm Disability The Veteran seeks service connection for a left upper arm disability, originally claimed as a left side collarbone condition. See April 2013 VA Form 21-4138. She was afforded a VA examination in March 2014. Although the Veteran reported pain in the left collarbone area, the examiner found there was no pathology in that anatomical area. Pursuant to the Board's May 2021 remand, the Veteran was afforded another examination. At the July 2021 examination, the examiner advised the Veteran had a diagnosis of left shoulder strain and did not indicate the presence of a clavicle condition. The examiner opined that the Veteran's left shoulder strain was not related to service, as service treatment records (STRs) contained no reference to a shoulder condition. Despite the examiner's finding regarding the Veteran's STRs, a February 2012 record noted that she reported intermittent collarbone pain along the left side and lumbar pain, due to chronically wearing body armor for 10-12 hours per day on deployment. Given the proximity of the collarbone and shoulder and the Veteran's reports of pain in that area during service, a new opinion regarding the possible relationship between the Veteran's in-service reports and current disability is warranted. 2. Rhinitis The Veteran seeks a compensable rating for rhinitis. She was last afforded a rhinitis examination in March 2014. Since that time, the Veteran reported constant nosebleeds, a condition not noted during the March 2014 examination. See July 2015 Notice of Disagreement. Moreover, the available medical evidence contains few references to this condition, though a December 2019 VA neurology note indicated the Veteran had nasal congestion and upper respiratory infection symptoms. Given that the Veteran's condition may have materially changed since the March 2014 examination and in the absence of probative medical evidence sufficient to evaluate the current severity of the Veteran's rhinitis, remand for a new examination is warranted. The matters are REMANDED for the following actions: 1. Refer the claims file to an appropriately qualified clinician for preparation of a medical opinion. The entire claims file, including a copy of this remand, must be made available to the reviewing clinician, and the clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary unless the reviewing clinician determines otherwise. The reviewing clinician is asked to opine whether it is at least as likely as not that the Veteran's claimed disability, to include the diagnosed left shoulder strain and reported left collarbone pain, had its onset during service or is otherwise related to service, to include the February 2012 record noting the Veteran's report of intermittent collarbone pain along the left side, due to chronically wearing body armor for 10-12 hours per day on deployment. In rendering any opinion, the reviewing clinician is advised that the Veteran is competent to report her symptoms and history. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of her rhinitis. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. The examiner should report all findings in detail. 3. After the above has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.