Citation Nr: 21074319 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-53 255 DATE: December 14, 2021 ORDER Entitlement to a compensable disability rating for service-connected tension headaches prior to December 31, 2017 is denied. Entitlement to a higher 30 percent disability rating for service-connected tension headaches from December 31, 2017 to June 10, 2020 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a higher 50 percent disability rating for service-connected tension headaches from June 10, 2020 is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), including as secondary to service-connected tension headaches, is remanded. FINDINGS OF FACT 1. Prior to December 31, 2017, the Veteran experienced tension headaches with less frequent attacks that that required for the next higher rating. His migraines did not manifest in characteristic prostrating attacks averaging one in 2 months over the last several months. 2. From December 31, 2017 to June 10, 2020, the Veteran experienced migraines with characteristic prostrating attacks occurring on average once a month over the last several months. His migraines did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. From June 10, 2020, the Veteran's migraines are productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. During the period prior to December 31, 2017, the criteria for a compensable rating for tension headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. During the period from December 31, 2017 to June 10, 2020, the criteria for a 30 percent rating, and no higher, for tension headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 3. During the period from June 10, 2020, the criteria for a 50 percent rating, and no higher, for tension headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1979 to March 1982. This case comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Agency of Original Jurisdiction (AOJ) dated in June 2015 and October 2018. In a June 2020 rating decision, the AOJ granted a higher 30 percent rating for service-connected tension headaches, effective June 10, 2020. The Veteran testified before the undersigned Veterans Law Judge at a March 2021 hearing; a transcript of the hearing is of record. With regard to the claim for service connection for an acquired psychiatric disorder, the evidence shows that the Veteran has been diagnosed with more than one psychiatric disorder, and his claim therefore encompasses all of these diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to a higher compensable disability rating for tension headaches prior to June 10, 2020 2. Entitlement to a disability rating in excess of 30 percent for tension headaches from June 10, 2020 The Veteran contends that his service-connected tension headaches are more disabling than currently evaluated. He contends that the disability should be rated as 10 percent or 30 percent disabling prior to June 10, 2020. See November 2018 notice of disagreement, and March 2021 Board hearing transcript. At the March 2021 Board hearing, the Veteran testified that at the time of the October 2018 VA examination, his headaches occurred twice per week, but after new medication was prescribed, his severe headaches now occurred two or three times per month. In the last six months he had to go to the hospital for it. He stated that his headaches occurred an average of twice per week, and sometimes more. He testified that he missed 10 days of work per year due to severe headaches, but had not lost a job because of headaches, and in the past two years he worked through the headaches. The AOJ has rated service-connected tension headaches as noncompensable from May 13, 2014 (the date of service connection), and as 30 percent disabling from June 10, 2020. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks than required for the next higher rating. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In Holmes v. Wilkie, __ Vet. App. __, No. 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131, at *13-14 (Nov. 25, 2020), the United States Court of Appeals for Veterans Claims (Court or CAVC) held that DC 8100 contemplates all migraine symptoms. Therefore, to evaluate migraines under DC 8100, VA must consider all symptoms experienced due to migraine attacks and then rate the symptoms based on the frequency, duration, and economic impact of those attacks. The CAVC commented that this analysis is similar to that used to assign ratings for psychiatric disabilities under 38 C.F.R. § 4.130. Prior to December 31, 2017 During the rating period prior to December 31, 2017, the Board concludes that the Veteran's migraines have occurred with less frequent attacks during the appeal period, corresponding to the criteria for a noncompensable rating under DC 8100. Although the Veteran has recently testified that the severity and duration of his headaches have been consistent over the years (see hearing transcript, page 9), and that he was having headaches twice per week at the time of the October 2018 VA examination, the weight of the evidence relating to the period prior to December 31, 2017 does not reflect that he had migraines with characteristic prostrating attacks averaging one in 2 months over a previous several months. VA outpatient treatment records dated during the pendency of the appeal are negative for complaints or treatment of headaches until November 2018. Records reflect that the Veteran was incarcerated from June 2008 until late April 2016, and from December 2017 to July 2018. See the Veteran's May 2016 statement, May 2016 VA outpatient treatment records, and December 2019 deferred rating decision. He did not complain of headaches when establishing care with VA in May 2016, and he denied headaches in November 2016. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the Veteran's credibility is reduced with regard to the rating period prior to December 31, 2017, as his testimony regarding the frequency of prostrating attacks conflicts with the contemporaneous statements he made to treatment providers. Considering all relevant evidence of record, the Board finds that the evidence does not show that the Veteran had characteristic prostrating attacks averaging one in 2 months over the last several months during the period prior to December 31, 2017. Accordingly, the Board concludes that the Veteran's migraine headaches occurred with less frequent attacks throughout the appeal period, corresponding to the criteria for a noncompensable rating under DC 8100. A compensable rating under DC 8100 is not warranted unless there are migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. During this period, he did not seek treatment for headaches and denied headaches during medical treatment, and he has not submitted headache logs or lay statements showing prostrating attacks during this period. Thus, the Board concludes that the Veteran's tension headaches did not occur with characteristic prostrating attacks averaging one in 2 months over the last several months at any time during the appeal period prior to December 31, 2017. A compensable rating under DC 8100 is not warranted. From December 31, 2017 to June 10, 2020 Resolving reasonable doubt in the Veteran's favor, throughout the rating period from December 31, 2017 to June 10, 2020, the Board concludes that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month over the last several months, corresponding to the criteria for a 30 percent rating under DC 8100. At the October 15, 2018 VA examination, the Veteran reported that after service, his headaches were better, and currently, his headaches occurred about twice a week and did not last that long. He reported headache pain localized to one side of the head, nausea, and said the pain and non-headache symptoms lasted less than one day. He stated that stress brought on his headaches, and they were now only in the right temporal region. He reported some nausea associated with the headaches and used antacid for relief. He denied taking any medications for the headaches and denied missing work due to the headaches. The examiner opined that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine pain. The examiner opined that the Veteran had atypical headaches, and noted that he reported "acid problems." The examiner opined that the headaches did not seem to be associated with nausea per se and did not appear to be migrainous in etiology. The examiner opined that the nausea was most likely due to his gastrointestinal problems and seemed to co-exist with the headaches. The examiner stated that the Veteran's headaches seemed to have their etiology predominantly in stress, and as he now had "less stress" his headaches were less intense and less frequent. The Veteran has submitted a headache log covering the period from December 31, 2017 through October 2018 showing that he had an average of two headaches per week, sometimes severe and causing him to lie down, frequently with nausea, and rarely with vomiting. See December 2018 correspondence. In a November 2018 statement, the Veteran's friend V.W. stated that during the period from April to October 2018 when they lived together, the Veteran's headaches occurred two or three times per week, his symptoms included pain, nausea, and vomiting, he had to lie down for two to three hours to recover from a headache, and he was tired afterward. She said his headaches also impaired his sleep at night due to pain. A November 2018 VA mental health note reflects that the Veteran was irritable due to not sleeping well, and he only slept about three to five hours per night. He reported having headaches a couple of times a week and stated that over-the-counter (OTC) pain reliever did not help, so he no longer took it. VA outpatient treatment records during this period reflect a diagnosis of migraines. A January 2019 VA primary care note reflects a diagnosis of migraine; Amitriptyline was prescribed for sleep impairment. The Veteran reported that he had been using OTC migraine medication, and he had headaches every couple of days. A February 2019 mental health note reflects that the Veteran reported that he was sleeping better since he started taking Amitriptyline two weeks ago, and his migraines were less severe. In February 2020 he was hospitalized for low oxygen saturations with exertion; and treatment providers opined that his headaches and low oxygen numbers were related to obstructive sleep apnea (OSA). The diagnosis was acute hypoxic respiratory insufficiency headaches and fever. VA outpatient treatment records reflect that in April 2020, the Veteran complained of morning headaches that were improved with use of a C-PAP machine. The assessment was acute hypoxic respiratory failure, thought to be due to OHS/OSA. It was noted that it was very plausible that he may have had a COVID infection in February 2020. His symptoms had resolved, and he felt good as long as he used C-PAP consistently. The Veteran is competent to report his readily observable symptoms. Jandreau, supra. During the period from December 31, 2017 to June 10, 2020, and considering all relevant evidence of record, the Board finds that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month over the last several months, corresponding to the criteria for a 30 percent rating under DC 8100. Governing law and regulations provide that the effective date for an increased rating, to include a staged rating, is predicated on when the increase in severity can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o). Considering all relevant evidence of record, including the lay statements by the Veteran and his friend, and the medical records, the Board finds that a higher 30 percent rating is warranted from December 31, 2017, as it is factually ascertainable that the tension headaches had worsened and the criteria for a higher rating were met on that date. A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The evidence during this period does not show completely prostrating and prolonged attacks and the attacks are not productive of severe economic inadaptability. In this regard, the Board notes that the Veteran testified that although he missed days from work due to headaches, he was sometimes able to work during headaches, and had not lost a job due to headaches. Thus, the Board concludes that the Veteran did not have migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during this part of the appeal period. A higher 50 percent rating is not warranted under DC 8100. From June 10, 2020 During the rating period from June 10, 2020, the Board concludes that the Veteran had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, corresponding to the criteria for an increased 50 percent rating under DC 8100. On VA examination on June 10, 2020, the examiner diagnosed tension headaches. The Veteran reported that condition started some years ago, and the condition began with simple headaches and moved into severe debilitating headache. He said that during a headache, he needed to stop what he was doing and lie down, with vomiting coming from stress. The Veteran reported the following symptoms of headache pain: pulsating or throbbing head pain, and pain on both sides of the head. He reported the following non-headache symptoms associated with headaches: nausea, vomiting, sensitivity to light and sound, changes in vision, and sensory changes. He stated that the pain lasted less than one day. The examiner opined that the Veteran had characteristic prostrating attacks of migraine/ non-migraine headache pain once per month, and that he had very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner indicated that the headaches interfered with computer work and driving during an acute attack. During the period from June 10, 2020, the evidence of record does not support the assignment of a rating higher than 50 percent, since the Veteran is already in receipt of the maximum schedular rating provided under Diagnostic Code 8100 for migraine headaches. The Veteran has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder to include PTSD, including as secondary to service-connected headaches, is remanded. The Veteran contends that his current psychiatric disorder, including PTSD, was incurred or aggravated in service, or alternatively is secondary to his service-connected tension headaches. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disorder because no VA examiner has opined whether any current psychiatric disorder is secondary to service-connected tension headaches. An addendum opinion is required, along with an adequate opinion with regard to the theory of service incurrence of a psychiatric disorder. In this case, there is a question as to whether a psychiatric disorder existed prior to service, as the Veteran's treating medical provider and the October 2018 VA examiner opined that he has PTSD due to childhood trauma. However, since a psychiatric disorder was not noted on service entrance examination in April 1979, the Veteran is presumed to have been in sound condition at that time, unless the presumption of soundness is rebutted. On separation examination in March 1982, the examiner noted that he had problems sleeping, along with depression and was also suffering from a nervous condition with no treatment. The Board finds that the October 2018 VA medical opinion is inadequate, because the opinion does not express the correct degree of certainty. The examiner diagnosed PTSD, of childhood onset, not worsened by military service, due to witnessing murders as a child. The examiner opined that during service, the Veteran would have met the criteria for a diagnosis of adjustment disorder with depressed mood when he felt unfairly treated by his supervisors and learned of the death of his niece, but symptoms would have resolved (as they do in an adjustment disorder) after the stressors have passed. VA mental health treatment records dated from 2016 to 2019 reflect that his treating provider has diagnosed adjustment disorder following release from prison, childhood history of sexual and physical abuse, rule out PTSD, history of cocaine dependence, and PTSD. On remand, the examiner is asked to provide an opinion as to whether any psychiatric disorder diagnosed during the pendency of the appeal was incurred in or aggravated by service, or is secondary to service-connected tension headaches. Evidence indicates that there may be outstanding relevant VA treatment records. During the March 2021 Board hearing, the Veteran reported that he was treated for a psychiatric disorder at a VA clinic in Grand Rapids, Michigan in the late 1980s, and has continued to receive VA treatment for the disability on appeal. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The Board notes that in January 2015, the Battle Creek VA Medical Center (VAMC) in Michigan stated that it had no files regarding the Veteran and no evidence he was ever at that facility. However, the record does not reflect that the AOJ has attempted to obtain VA treatment records dated in the late 1980s from the Grand Rapids VA outpatient clinic. At the hearing, the Veteran also stated that he was treated at a navy hospital in the late 1990s, because he worked there at the time. A remand is required to allow VA to request these records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from 1985 to 1990 from the Grand Rapids VA outpatient clinic. 2. Obtain the Veteran's VA treatment records for the period from May 2020 to the present. 3. Ask the Veteran to identify the naval hospital where he was treated in the 1990s. If the requested information is received from him, attempt to obtain the Veteran's federal records from the identified facility. Document all requests for information as well as all responses in the claims file. 4. Obtain an addendum opinion from an appropriate clinician regarding whether any psychiatric disorder diagnosed during the pendency of the appeal, to include PTSD and adjustment disorder, is at least as likely as not related to an in-service injury, event, or disease, proximately due to service-connected disability, or aggravated by service-connected disability. The claims file must be reviewed. An examination need only be performed if deemed necessary by the examiner. The examiner is asked to respond to the following questions, and provide a rationale to support the opinions. (a) Did a psychiatric disorder clearly and unmistakably (undebatable) preexist the Veteran's service? (b) If the examiner finds a psychiatric disorder did clearly and unmistakably preexist service, was it clearly and unmistakably NOT aggravated by service? (c) If the examiner finds that a psychiatric disorder either did not clearly and unmistakably preexist service or was not clearly and unmistakably not aggravated by service, the examiner must opine whether it is at least as likely as not related to service, including work-related stress, and learning of the death of his niece. In providing the requested opinions, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (d) Is any current psychiatric disorder at least as likely as not proximately due to service-connected tension headaches? (e) Is any current psychiatric disorder at least as likely as not aggravated by service-connected tension headaches? S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.