Citation Nr: 21071620 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-21 913 DATE: November 30, 2021 ORDER An effective date of May 17, 2012, but not before, for the assignment of a 30 percent disability rating for tension headaches is granted. An effective date of June 14, 2012, but not before, for the assignment of a 20 percent disability rating for cervical strain with degenerative disc disease (DDD) is granted. An effective date of June 14, 2012, but not before, for the assignment of a 20 percent disability rating for lumbar DDD is granted. An effective date of June 14, 2012, but not before, for the assignment of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. In an August 2013 rating decision, the Veteran was awarded service connection for tension headaches, with a noncompensable disability rating effective May 17, 2012 (the date of the Veteran's claim for this disability), and was also awarded service connection for cervical spine and lumbar spine disabilities, with separate 10 percent disability ratings effective June 14, 2012 (the date of the Veteran's claims for these disabilities). 2. In November 26, 2013 correspondence, the Veteran raised the issue of entitlement to a TDIU and the wording suggests disagreement with the ratings assigned for his headache, cervical spine, and lumbar spine disabilities. 3. A January 2015 rating decision granted increased ratings for the headache, cervical spine, and lumbar spine disabilities, effective November 26, 2013, the date of the Veteran's "claim for increased rating." 4. The evidence demonstrates that symptoms of the headache, cervical spine, and lumbar spine disabilities were consistent from May 17, 2012 (headaches) and June 14, 2012 (cervical and lumbar spine) to November 26, 2013. 5. Beginning June 14, 2012, the Veteran has met the schedular criteria for a TDIU and the evidence has shown that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date of May 17, 2012, but not before, for the original assignment of a 30 percent disability rating for tension headaches, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for an effective date of June 14, 2012, but not before, for the original assignment of a 20 percent disability rating for cervical strain with DDD, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for an effective date of June 14, 2012, but not before, for the original assignment of a 20 percent disability rating for lumbar DDD, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. Beginning June 14, 2012, the Veteran has met the schedular criteria for a TDIU and the evidence has shown that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to April 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in part, increased the Veteran's disability rating for tension headaches from noncompensable to 30 percent; increased the Veteran's disability ratings for the cervical and lumbar spine disabilities, each from 10 to 20 percent disabling; and granted a TDIU, each effective November 26, 2013. The Veteran testified before the undersigned Veterans Law Judge at a Board virtual hearing in June 2021. A transcript of this proceeding has been associated with the claims file. Legal Criteria Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110 (a). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. U.S.C. §5110(b)(2); Harper, 10 Vet. App. at 125 ; 38 C.F.R. § 3.400 (o); VAOPGCPREC 12-98 (1998). Disability evaluations are determined by the application of the facts presented in VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Factual Background By way of history, it appears that the Veteran submitted an initial claim for service connection for headaches on May 17, 2012 and submitted an initial claim for service connection for cervical and lumbar spine disabilities on June 14, 2012. In connection with these claims, the Veteran was afforded VA headache, cervical spine, and lumbar spine examinations in December 2012. By rating decision dated in August 2013 the RO granted service connection for tension headaches, assigning a noncompensable disability rating effective May 17, 2012, and also granted service connection for cervical spine and lumbar spine disabilities, with separate 10 percent disability ratings effective June 14, 2012. On November 26, 2013, within one year of the August 2013 rating decision, the Veteran requested that his claim for a TDIU be reconsidered, even though a TDIU claim had not been previously raised and/or addressed. In connection with this claim, the Veteran was afforded VA headache, cervical spine, and lumbar spine examination in December 2014 which showed increased symptomatology of the Veteran's disabilities. As such, by rating decision dated in January 2015, the RO increased the Veteran's disability rating for tension headaches from noncompensable to 30 percent; increased the Veteran's disability ratings for the cervical and lumbar spine disabilities, each from 10 to 20 percent disabling; and granted a TDIU, each effective November 26, 2013. The Veteran contends that he is entitled effective dates earlier than November 26, 2013 for these assigned ratings. Specifically, in the Veteran's April 2015 notice of disagreement, he wrote that the "start date" for the increased compensation should be July 1, 2012, i.e., the first day of the month following the June 14, 2012 effective date of the grant of service connection for lumbar and cervical spine disabilities. During the June 2021 Board hearing, the Veteran testified that the December 2012 VA examinations regarding his headaches, cervical spine, and lumbar spine were rushed and that the symptoms he reported in his December 2014 VA examinations were the same as the symptoms he experienced in December 2012. Analysis Initially, the Board finds that, due to the Veteran's continuous prosecution of his claims regarding his headache, cervical spine, and lumbar spine disabilities, the August 2013 rating decision remains on appeal and a decision on the proper effective date for the original award of the noncompensable disability rating for the tension headaches, the 10 percent disability rating for the cervical spine disability, and the 10 percent disability rating for the lumbar spine disability, will be rendered accordingly. 1. An effective date of May 17, 2012, but not before, for the assignment of a 30 percent disability rating for tension headaches is granted. As above, due to the Veteran's continuous prosecution of his claim, the August 2013 rating decision remains on appeal. As such, the Veteran's most recent claim of entitlement to an increased rating for his tension headaches was received by the RO on May 17, 2012 and May 17, 2012 serves as the date of claim. Thus, under 38 C.F.R. § 3.400(0)(2), it is necessary to determine whether, at any time beginning May 17, 2011 (one year prior to the claim), an increase in the Veteran's tension headaches became factually ascertainable. To do so, the rating criteria for the disability at issue must be examined. The Veteran's tension headaches are rated under 38 C.F.R. § 4.12a, Diagnostic Code (DC) 8100. Under DC 8100, migraines are evaluated as follows: a noncompensable rating is assigned with less frequent attacks; a 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months; and a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months. 38 C.F.R. § 4.124a, DC 8100. VA regulations do not define "prostrating," nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). However, the Board notes that according to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "prostration" is defined as "complete physical or mental exhaustion." A similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." VA regulations also do not define "economic inadaptability." However, the Court has noted that nothing in DC 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Medical evidence relevant to the level of severity of the Veteran's tension headaches during the appeal period includes December 2012 and December 2014 VA headache examinations. Significantly, the December 2012 VA examination is negative for characteristic prostrating attacks of headache pain while the December 2014 VA examination shows characteristic prostrating attacks of headache pain occurring more frequently than once per month. However, as above, during the June 2021 Board hearing, the Veteran testified that the December 2012 VA examination regarding his headaches was rushed and that the symptoms he reported in his December 2014 VA examinations were the same as the symptoms he experienced in December 2012. A review of the above medical evidence demonstrates that the evidence is at least in equipoise that symptoms of the Veteran's tension headaches were consistent from the date of the claim, May 17, 2012 through the present. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (b). With the benefit of the doubt resolved in the Veteran's favor, a grant of an effective date of May 17, 2012, for the original assignment of a 30 percent disability rating for tension headaches, is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. An effective date of June 14, 2012, but not before, for the assignment of a 20 percent disability rating for cervical strain with DDD is granted. As above, due to the Veteran's continuous prosecution of his claim, the August 2013 rating decision remains on appeal. As such, the Veteran's most recent claim of entitlement to an increased rating for his cervical strain was received by the RO on June 14, 2012 and June 14, 2012 serves as the date of claim. Thus, under 38 C.F.R. § 3.400(0)(2), it is necessary to determine whether, at any time beginning June 14, 2011 (one year prior to the claim), an increase in the Veteran's cervical strain became factually ascertainable. To do so, the rating criteria for the disability at issue must be examined. The Veteran's cervical strain with DDD is rated under 38 C.F.R. § 4.71a, DC 5004-5237. DC 5004 pertains to arthritis and is, generally, rated based on limitation of motion. DC 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine. Under this Formula, a 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a , DC 5237. Medical evidence relevant to the level of severity of the Veteran's cervical strain during the appeal period includes December 2012 and December 2014 VA cervical spine examinations. Significantly, the December 2012 VA examination shows that the Veteran had cervical flexion to 35 degrees while the December 2014 VA examination shows that the Veteran only had cervical flexion to 5 degrees. However, as above, during the June 2021 Board hearing, the Veteran testified that the December 2012 VA examination regarding his cervical spine was rushed and that the symptoms he reported in his December 2014 VA examinations were the same as the symptoms he experienced in December 2012. A review of the above medical evidence demonstrates that the evidence is at least in equipoise that symptoms of the Veteran's cervical strain with DDD were consistent from the date of the claim, June 14, 2012 through the present. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (b). With the benefit of the doubt resolved in the Veteran's favor, a grant of an effective date of June 14, 2012, for the original assignment of a 20 percent disability rating for cervical strain with DDD, is warranted. See Gilbert, 1 Vet. App. at 55. 3. An effective date of June 14, 2012, but not before, for the assignment of a 20 percent disability rating for lumbar DDD is granted. As above, due to the Veteran's continuous prosecution of his claim, the August 2013 rating decision remains on appeal. As such, the Veteran's most recent claim of entitlement to an increased rating for his lumbar DDD was received by the RO on June 14, 2012 and June 14, 2012 serves as the date of claim. Thus, under 38 C.F.R. § 3.400(0)(2), it is necessary to determine whether, at any time beginning June 14, 2011 (one year prior to the claim), an increase in the Veteran's cervical strain became factually ascertainable. To do so, the rating criteria for the disability at issue must be examined. The Veteran's lumbar DDD is rated under 38 C.F.R. § 4.71a, DC 5237. As above, DC 5237 is rated under the General Rating Formula for Diseases and Injuries of the Spine and, pursuant to this rating formular, a 10 percent rating will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a , DC 5237. Medical evidence relevant to the level of severity of the Veteran's lumbar DDD during the appeal period includes December 2012 and December 2014 VA lumbar spine examinations. Significantly, the December 2012 VA examination shows that the Veteran had lumbar flexion to 80 degrees (60 degrees with pain) while the December 2014 VA examination shows that the Veteran was unable to perform range of motion testing at all. However, as above, during the June 2021 Board hearing, the Veteran testified that the December 2012 VA examination regarding his lumbar spine was rushed and that the symptoms he reported in his December 2014 VA examinations were the same as the symptoms he experienced in December 2012. A review of the above medical evidence demonstrates that the evidence is at least in equipoise that symptoms of the Veteran's lumbar DDD were consistent from the date of the claim, June 14, 2012 through the present. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (b). With the benefit of the doubt resolved in the Veteran's favor, a grant of an effective date of June 14, 2012, for the original assignment of a 20 percent disability rating for lumbar DDD, is warranted. See Gilbert, 1 Vet. App. at 55. 4. An effective date of June 14, 2012, but not before, for the assignment of a TDIU is granted. As above, the Veteran did not submit a claim (informal) for a TDIU until November 26, 2013. Furthermore, the TDIU issue was not even included in the April 2016 statement of the case pertaining to this appeal. However, the Board took jurisdiction of this issue during the June 2021 Board hearing pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) which held that a TDIU claim, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Board finds that the Veteran's November 26, 2013 TDIU claim stems from the Veteran's claims discussed above regarding tension headaches (May 17, 2012) and cervical/lumbar spine disabilities (June 14, 2012). Thus, May 17, 2012 serves as the date of claim. Thus, under 38 C.F.R. § 3.400(0)(2), it is necessary to determine whether, at any time beginning May 17, 2011 (one year prior to the claim), the Veteran met the criteria for a TDIU. TDIU ratings for compensation may be assigned, where the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In this case, the Veteran is service-connected for the following disabilities: tension headaches, evaluated at 30 percent disabling; adjustment disorder with anxious features, evaluated at 30 percent disabling; cervical strain with DDD, evaluated at 20 percent disabling; lumbar DDD, evaluated at 20 percent disabling; and bilateral lower extremity radiculopathy, evaluated at 10 percent disabling, each. Significantly, a TDIU has been assigned as of November 26, 2013, the date the Veteran met the schedular criteria for a TDIU pursuant to under 38 C.F.R. § 4.16 (a). However, based on the awards above, the Veteran now meets the schedular criteria for a TDIU pursuant to under 38 C.F.R. § 4.16 (a) beginning June 14, 2012. Furthermore, a review of the record shows that the Veteran last worked in 2010 due, at least in part, to his service-connected disabilities. Significantly, in the Veteran's September 2014 formal claim for a TDIU, he wrote that he last worked full-time in 2010 due to his psychiatric and medical problems and, during the June 2021 Board hearing, the Veteran reiterated that he last worked full-time in 2010. Upon review of all lay and medical evidence, and after affording the Veteran the benefit of the doubt, the Board finds that, as of June 14, 2012, the Veteran's service-connected disabilities, collectively, rendered him unable to work. As for the potential for an even earlier effective date, prior to June 14, 2012, the Veteran's only service connected disability was his tension headaches. Significantly, the Veteran does not contend, and the record does not show that he is unemployable solely due to his tension headaches. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. § 5107 (b). With the benefit of the doubt resolved in the Veteran's favor, a grant of an effective date of June 14, 2012, for the original assignment of a TDIU is warranted. See Gilbert, 1 Vet. App. at 55. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.