Citation Nr: 21071004 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-51 538 DATE: November 29, 2021 ORDER Entitlement to an initial rating of 50 percent from September 1, 2014 to July 27, 2020 for mixed headache syndrome is granted. FINDING OF FACT For the appeal period from September 1, 2014 to July 27, 2020, the Veteran's mixed headache syndrome manifested to a severity of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent rating for the appeal period from September 1, 2014 to July 28, 2020 for mixed headache syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.124a, Diagnostic Code 8199-8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2008 to August 2014, to include service in Southwest Asia. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veterans Law Judge who conducted the previous hearing with the Veteran is no longer employed by the Board. In August 2021, the Veteran was notified of this information and afforded the opportunity for another hearing, pursuant to 38 C.F.R. § 20.707 (noting that a Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal). The August 2021 letter also informed the Veteran that if he did not respond within 30 days of receipt of the correspondence, the Board would assume that he did not want a hearing and proceed accordingly. The Veteran did not respond. In an April 2020 rating decision, the Board remanded the issue of increased rating for mixed headache syndrome as well as service connection for low back disability, right knee disability, neuropathy of the fingers of the bilateral hands, bilateral wrist disabilities, and the xeroderma of the neck for VA examinations. In October 2020, the RO provided VA examinations for all of the remanded issues. In a November 2020 rating decision, the RO granted service connection for a lumbosacral strain, a chronic left and right wrist sprain, left and right hand neuropathy of the fingers, a right knee strain, right knee instability, neck xeroderma and right and left lower extremity radiculopathy. An initial rating was assigned for each disability. As this decision represents a full grant of the benefits sought with respect to the claims for service connection, such issues are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The RO also increased the disability rating for mixed headache syndrome to 30 percent rating effective September 1, 2014 and to the maximum 50 percent rating effective July 28, 2020. As the Veteran and his representative are seeking a higher rating for the period effective September 1, 2014 to July 27, 2020, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating 1. Entitlement to an initial rating of 50 percent from September 1, 2014 to July 27, 2020 for mixed headache syndrome is granted. The Veteran seeks rating in excess of 30 percent for the period of September 1, 2014 to July 27, 2020 for his mixed headache syndrome. As of July 27, 2020, the Veteran is in receipt of a 50 percent rating for the mixed headache syndrome and that is the maximum schedular rating available. 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). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Where 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). The Veteran's mixed headache syndrome are currently rated by analogy under 38 C.F.R. § 4.124a, Diagnostic Codes 8199-8100 as 30 percent from September 1, 2014 to July 27, 2020, and as 50 percent from July 28, 2020 to the present. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. See 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that an unlisted headache disability, under Diagnostic Code 8199, was the service-connected disorder, while the residual condition (to which the Veteran's service-connected headache disability is rated by analogy) is migraines, which is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Notably, the rating criteria do not define "prostrating". According to Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007), "prostration" is defined as "extreme exhaustion or powerlessness." 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). Moreover, 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). Turning to the evidence, the Veteran submitted medical treatment records from May 2014, showing that the Veteran has headaches about four times a week. These headaches were noted to occur upon waking up in the morning, lasting a couple of hours, with pain ranging from severity of 5 to 7 or 10. The pain experienced is aching and radiating from occipital to the temples, with the Veteran feeling tired most of the time although he did not experience nausea or vomiting. He was sensitive to lights but not noises, and experienced slight dizziness, which also felt like lightheadedness. In an October 2014 VA examination, the Veteran's headaches were noted as current, and the examiner also indicated that the Veteran experienced headaches around three to four times a week, lasting about five to six hours each time. The headaches were described as sharp and throbbing, with photophobia, phonophobia, and light headedness. The headaches were noted to indicate on both sides of the head, although the examiner reported that the Veteran did not have headache characteristic prostrating attacks of migraine or non-migraine headache pain. The Veteran was not observed to have any other symptoms, and the examiner opined that the condition did not impact his or her ability to work. In a December 2019 private medical treatment record, the Veteran sought treatment, where the Veteran reported to getting headaches two to three times per week, with nausea, photophobia and prostration. Given the evidence to include both VA examination and private treatment records, the Board finds that the severity of the Veteran's mixed headache syndrome during the appeal period is severe enough to warrant a 50 percent rating. Notably, the Veteran consistently reported to having prostrating headaches for extended periods of time between two to four times a week, the shortest time reported being two hours. The Veteran also reported to experiencing weakness and some nausea, which are more in frequency and severity than as provided in the current 30 percent rating for that specific appeal period. Specifically, the Board notes the May 2014 private medical treatment record where the Veteran explained that the headaches left him tired most of the time. During the October 2019 Board hearing, the Veteran testified that he experienced prostrating headaches four times per week that last an entire day in which he could not leave the couch. He also testified that he missed a few days of work each month due to these prostrating attacks. In making its determination in this case, the Board acknowledges the Veteran's belief that his mixed headache syndrome is more severe than reflected by the currently assigned rating. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such condition. The Board has also considered whether a staged rating under Hart v. Mansfield, supra, is appropriate for the Veteran's service connected mixed headache syndrome; however, the Board finds that the Veteran's symptomatology has been stable throughout the appeal period. Therefore, assigning a staged rating for such disability is not warranted. Furthermore, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the higher rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative allege that he is unable to secure and maintain substantially gainful employment. The Veteran reported that he worked as a postman. The issue of a TDIU does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (finding that where there was no evidence indicating unemployability, and with the record suggesting the opposite, i.e., that the Veteran was employed, a TDIU claim was not raised.) As such, a TDIU claim under Rice is not raised. (Continued on the next page) Accordingly, the Board finds that the evidence supports the assignment of a 50 percent rating for mixed headache syndrome throughout the appeal period of September 1, 2014 to July 27, 2020, and the Veteran's claim for a higher rating is granted to that extent. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.