Citation Nr: 21076597 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-63 691 DATE: December 27, 2021 ORDER Entitlement to an initial rating greater than 30 percent for migraine headaches is denied. Entitlement to an initial 40 percent rating from January 31, 2014, to January 31, 2016, for epilepsy, partial seizures, is granted. Entitlement to an initial compensable rating for diplopia due to convergence insufficiency is denied. FINDINGS OF FACT 1. The record evidence shows that, during the appeal period, the Veteran had characteristic prostrating attacks of migraines more frequently than once per month, even with management by medication. 2. The record evidence shows that, during the appeal period, the Veteran's migraines have not caused economic inadaptability severe enough to disrupt his schoolwork or significantly interfere with his employment activities. 3. The record evidence shows that, from January 31, 2014, to January 31, 2016, the Veteran had minor seizures as frequently as 7 times a week on average. 4. The record evidence shows that effective January 31, 2016, the Veteran has not had any minor seizures. 5. The record evidence shows that, during the entire appeal period, the Veteran's diplopia due to convergence insufficiency was correctible with prism spectacles. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for an initial 40 percent rating effective from January 31, 2014, to January 31, 2016, for epilepsy, partial seizures, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.121, 4.122, 4.124a, DC 8912. 3. The criteria for an initial compensable rating for diplopia due to convergence insufficiency have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.78-79, DC 6090. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2007 to January 2014, This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In his December 2016 Form 9, the Veteran requested a videoconference Board hearing which was scheduled for June 10, 2019. He failed to appear for this hearing without good cause and no motion for a new hearing has been submitted. Therefore, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). The Board previously remanded the issues for further development in April 2021. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria provide for consideration of visual impairment, which is evaluated based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75 (a). The amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldman chart is no longer required. There otherwise are no substantive changes to how those types of visual impairment are rated. Increased Rating 1. Migraine headaches A May 2012 C&P examination (pre-discharge) reflects a diagnosis of migraine headaches as secondary to a concussion after falling on an icy surface in December 2009. He had had significant headaches for several months after the injury. They were characterized with a dull throbbing pain and occurred with visual disturbance, which he called "blue comets" in his field of vision. He would have the aura of blue comets and halos around lights. The headaches would start the temple region and progress inferiorly across the skull, accompanied with posterior orbital pain. He denied nausea, vomiting, photophobia, and phonophobia. He was prescribed with Imitrex, one tablet every 2 hours as needed at the onset of headache. The medication helped reduce the duration and severity of the migraine headaches if he were able to take the medication at the first sign of the migraine. Combination of Depakote (prescribed for seizures) and Imitrex significantly improved the severity of headaches. He reported getting headaches 2-3 times a month and they would last for several hours. All of them were prostrate being in the sense that he would have to go to a quieter room until the headache subsided. A February 2014 VA physical medicine rehabilitation consult note indicates that the Veteran's migraines have been associated with his in-service traumatic brain injury (TBI), which worsened after his return to work about 7 months after the initial concussion. He was diagnosed with migraine headaches around the same time he was diagnosed with seizure disorder. He was started on Divalproex for both, which provided significant improvement. He was also given Sumatriptan, which was also effective if he was able to utilize it in time. Based on a review of a VA examination of record, the clinician determined that his headaches were not deemed to be interruptive of activities of daily living. Headaches caused mild disturbances in recreation activities. An April 2014 VA treatment record reflects the Veteran's report of having frontal occipital, bitemporal headaches associated with a prodrome of flashing lights, nausea, and vomiting. He had photophobia as well as difficulty with loud sounds during headache episodes. Depakote decreased the prodrome, but not the severity of the headaches and he had to change to Imitrex, injectable to get control of his headaches. He reported increasing frequency of headaches several times a month and over the last several months. Impression was post-concussion, increasing frequency headaches, migraine variant. As directed by the April 2021 Board remand, the Veteran underwent a VA examination in August 2021. He was diagnosed with migraine including migraine variants. He reported that the severity of head pain slowly progressed over time and the severity became significant in 2010 to a debilitating level, which had continued. Currently, he stated that he suffered migraines in most weeks and estimated that they occurred about once per week. He reported having a preceding aura followed by severe head pain. Each episode would last from 3 to 8 hours and then slowly taper away. He had had success using sumatriptan in order to lessen the severity. The Veteran's headaches consisted of pulsating or throbbing head pain, pain on both sides of the head, and pain that worsened with physical activity. Associated with headaches were nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. A typical head pain would last less than a day, on both sides of head. The Veteran had characteristic prostrating attacks of migraine more frequently than once per month. The examiner determined that his very prostrating and prolonged attacks of migraines were not productive of severe economic inadaptability. The Veteran further reported that severity of pain was such that he was sick in bed and could not function during migraine episodes and that they usually occurred at night, which had required him to miss work the next day frequently. The medical evidence of record indicates that the severity of the Veteran's migraine headaches have progressed over the years during the appeal period to the point where he has an episode of migraine headaches once a week in most weeks and he had characteristic prostrating attacks of migraine more frequently than once per month, even with management by medication. These consistent physical examination findings certainly meet the criteria for a 30 percent rating under DC 8100. In order to warrant an evaluation of 50 percent, however, the evidence must show that he has migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As for the level of economic inadaptability caused by the Veteran's migraines, he reported at the most recent August 2021 examination that the severity of pain was such that he was sick in bed and could not function during migraine episodes and that they usually occurred at night which required him to miss work the next day frequently. In light of the reported frequency of episodes of migraine headaches, he would miss work, at most, 1 day per week due to headaches. Additionally, during the appeal period, the Veteran successfully completed his second bachelor's degree in English with concentration in technical writing and secured employment that utilizes his writing skill in 2018. Thus, the evidence shows that the Veteran's very frequent prostrating and occasionally prolonged headaches have not caused economic inadaptability severe enough to disrupt his schoolwork or significantly interfere with his employment activities. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 30 percent for his service-connected migraine headaches. In summary, the Board finds that the criteria for an initial rating greater than 30 percent for migraine headaches have not been met. 2. Epilepsy, partial seizures The Veteran's epilepsy, partial seizures are rated 10 percent disabling under DC 8912. A May 2012 C&P examination (pre-discharge) reflects the finding that the 2009 in-service concussion resulted in a possible focal seizure activity. About 7 months after the incident, the Veteran started to experience intermittent spells where he would have gaps in his memory and exhibited different behaviors, sometime during conversations. He would stare into the space with a frozen look on his face. If he had an object in his hand, he might drop it. These episodes lasted for several second up to 15 seconds and then he returned to relatively normal consciousness with transient twitching on the left face mainly at the corner of his mouth and in his left eye. He also would have transient confusion with some amnesia of events prior to the focal seizure activity. Eventually, he was diagnosed with partial seizures and placed on Depakote, 500 mg, twice a day. Prior to going on the Depakote, he was having focal seizure-like activity 3-5 times a week. He had only had one to 2 episodes of focal seizure activity since starting the medication. He reported that he had approximately 22 seizure episodes in the last 4 months and that the frequency of his seizure episodes had significantly reduced to 1 or 2 per month after he started to take Depakote since April 2012. At this examination, the Veteran was diagnosed with epilepsy, partial seizures secondary to TBI. The examiner noted that the Veteran could not drive at the present time and would have his driver's license returned when he was seizure free for 6 consecutive months. A February 2014 VA caregiver clinician eligibility assessment indicates that the Veteran had mild seizures 2 to 3 times per day and he could not drive for safety reasons. After seizures, he became confused and disoriented. More debilitating seizures occurred 1 to 2 times per month. A February 2014 VA physical medicine rehabilitation note indicates that the clinician did not see report of increased seizure activity after starting Depakote and that there had been no report of falls or injury due to seizures. The clinician noted that it would be beneficial to understand how often the Veteran had those seizure episodes and the only pertinent report was by a social worker who noted that the Veteran was still not driving. Based on that, the clinician indicated he probably had had at least one episode in the last 6 months. An April 2014 VA social work risk assessment screening note documents the Veteran's report that he was having focal seizures on a daily basis and major seizures about twice per month. His spouse indicated that she was concerned with the risk of falling in the shower due to seizure. He was not able to drive a car due to his seizures. An April 2014 VA follow up visit note reflects the Veteran's report that he continued to have episodes of petit mal seizures with eye twitching and decreased response to questions from his spouse, which occurred approximately once a week. He had been noted to have unsteady trips frequently and have fallen frequently. No other focal neurologic changes noted, and he had not had grand mal seizure. The problem seemed to be worse during weather changes as well as in the wintertime. The assessment was partial complex seizure, petit mal type, partially controlled with Depakote. As directed by the April 2021 Board remand, the Veteran underwent a VA examination in August 2021. He was diagnosed with epilepsy, partial seizures. The Veteran reported that he started on Depakote in about 2014 and this significantly improved the frequency of seizure episodes. Subsequently, dose adjustments were required and he had been on this new dose since then. He reported that he had not had any of the seizure episodes since 2016. He reported that he might have some side effects from the Depakote such as weight gain and drowsiness. A seizure was described as episodes of staring blankly into space without speech but with facial twitches. The examiner determined that the Veteran's seizure consisted of brief interruption in consciousness or conscious control, episodes of staring, episodes of memory loss, with some facial twitching noted by others. The onset was approximately March 2009 and the most recent seizure activity occurred in January 2016. The Veteran had had minor seizures none or once over the past 6 months. He had never had major seizures characterized by the generalized tonic-clonic convulsion with unconsciousness. He had had minor psychomotor seizures none or once over the past 6 months. He had never had major psychomotor seizures. The Board finds that the evidence does not support finding that the Veteran had major seizures or major psychomotor seizures as defined by the rating criteria at any time during the appeal period which runs from January 31, 2014. The evidence indicates that the Veteran's seizure symptoms consisted of staring into the space with some confusion, amnesia, and twitching in the face, without any signs of generalized tonic-clonic convulsion with unconsciousness or without automatic state and/or generalized convulsions with unconsciousness. This is adequately described by the symptoms for a minor seizure in the rating criteria. As for the frequency of his seizures, the evidence indicates that, after starting on Depakote in 2012, the Veteran had less frequent episodes of seizures. In fact, he reported that he had the last episode of seizure in January 2016. Prior to that, during the period from January 31, 2014 to January 2016, it is documented in the evidence that, at worst, he had had a mild seizure daily and more debilitating mild seizures 1 to 2 times a month, on the average. Thus, during the period from January 31, 2014 to January 31, 2016, the evidence supports finding that the Veteran had minor seizures as frequently as 7 times a week on average. This is more nearly approximated by the rating criteria for 40 percent, which requires the occurrence of a minor seizure at least 5 to 8 times weekly on average. The Veteran or his spouse are competent to report severity and frequency of the seizures experienced by him and observed by her. Moreover, the severity and symptoms described by the lay statements are consistent which enhances the credibility of these statements. Thus, the Board finds the lay statements concerning the severity and frequency of the seizures to be highly persuasive. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In summary and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an initial 40 percent rating from January 31, 2014, to January 31, 2016, for the Veteran's seizures have been met. 3. Diplopia due to convergence insufficiency The Veteran's diplopia due to convergence insufficiency currently is rated as zero percent disabling (noncompensable) from January 31, 2014 under DC 6090. The Veteran has been diagnosed with diplopia due to convergence insufficiency as a result of his in-service TBI during the entire appeal period. Prior to separation from service, he reported seeing double after the TBI and glasses with prims for near tasks were prescribed. He reported that glasses with prism helped but also caused headaches just from trying to get used to them. He was seeing double with objects at 12 cm from nose and now only at about 6 cm after the vision therapy. He never saw double at distance. He saw double at near occasionally and more frequently if eyes were tired. A September 2013 diplopic field test showed no diplopia centrally, but it was noted beyond the central 20 degrees in all directions. A June 2016 VA examination reflects a diagnosis of convergence insufficiency. The Veteran reported his eyes continued to hurt and fatigue with extended computer work and he continued to do the vision exercises regularly. The reported symptoms consisted of diplopia at near, trouble tracking and eye strain at near. Both corrected distance and near visual acuity was 20/40 or better in each eye. No visual field defect was found. No information on the severity of diplopia was reported on this examination, though a Goldman visual field test result was associated with the examination report. VA sought clarification from a physician in August 2016 regarding the Veteran's eye disability. In his response, the physician stated that the Veteran's visual field was essentially within normal limits in each eye. As for the Veteran's diplopia condition, the physician explained that the Veteran had diplopia only when he tried to converge excessively and at other times, he did not have diplopia. Thus, the physician concluded that the Veteran's diplopia was considered intermittent in the sense that it was only when he tried to converge too much, but it was constant in the sense that whenever he tried to converge too much, he had diplopia. The physician also recommended obtaining a Goldman diplopia field test. Pursuant to the April 2021 Board remand, the Veteran underwent a VA examination in July 2021. The current symptoms consisted of diplopia when he looked at anything close to his nose, from 4 to 6 inches from the nose. The examiner noted that the normal reading range is 12 to 16 inches from nose. There was no diplopia at distant vision. Both corrected distance and near visual acuity was 20/20 or better in each eye. No visual field defect was found. As for diplopia, the Veteran's diplopia was present in the central 20 degrees with occasional frequency in that it was only at the near range of 4 to 6 inches from the nose. His diplopia was correctable with standard spectacle correction that included a special prismatic correction. The examiner noted that the Veteran's convergence insufficiency resulting in diplopia could be alleviated with prism and continued vision therapy/exercise with the Brock's string. The Board finds that the Veteran's diplopia has been stable during the entire appeal period, consisting of symptoms of occurrence of double image in the central 20 degrees of the field whenever he tries to focus at near within the range of 4 to 6 inches from the nose. This is correctable with prism spectacles and not impacting his reading range. Since the Veteran's diplopia at near is correctible with spectacles for the entire appeal period, the Board finds that his symptomatology warrants a zero percent (noncompensable) rating under DC 6090 and 38 C.F.R. § 4.31. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial compensable rating for his service-connected diplopia due to convergence insufficiency. In summary, the Board finds that the criteria for an initial compensable rating for diplopia due to convergence insufficiency have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.