Citation Nr: 21076608 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-44 127 DATE: December 27, 2021 ORDER Entitlement to a compensable evaluation for a migraine disorder prior to March 22, 2019, and in excess of 30 percent thereafter, is denied. Entitlement to an evaluation in excess of 40 percent for lumbosacral strain with degenerative arthritis (excluding a period of temporary total rating from March 21, 2016 to July 31, 2016) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to March 22, 2019, the Veteran's headaches were not productive of characteristic prostrating attacks. 2. From March 22, 2019, the Veteran's migraine headaches are not characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran's lumbosacral strain with degenerative arthritis has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to March 22, 2019, the criteria for a compensable rating for headaches are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.124a, Diagnostic Code 8100 (2020). 2. From March 22, 2019, the criteria for an evaluation in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.124a, Diagnostic Code 8100 (2020). 3. The criteria for a rating in excess of 40 percent for lumbosacral strain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from April 2005 to March 2010. This matter comes to the Board of Veterans Appeals (Board) from an appeal of an October 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board previously remanded this case for additional development in June 2020. The matter has now returned to the Board for appellate review. In August 2019, the Agency of Original Jurisdiction (AOJ) issued a rating decision granting an increase of the evaluation of migraine disorder from a noncompensable evaluation to 30 percent disabling from March 22, 2019. Likewise, the AOJ issued a July 2020 rating decision increasing the evaluation of a lumbar spine disability from 20 percent disabling to 40 percent disabling from May 2, 2019. These issues remain in appellate status as the maximum schedular rating has not been assigned from the date of claim. See AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the Board observes that while in remand status, separate compensable ratings were assigned for neurological impairment of both lower extremities, as secondary to the lumbar spine disability. There has been no disagreement with that action and that matter is not before the Board. The discussion concerning the lumbar spine herein centers on orthopedic impairment. Increased Rating 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 (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two disability evaluations are potentially applicable, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating. That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). 1. Entitlement to a compensable evaluation for a migraine disorder prior to March 22, 2019, and in excess of 30 percent thereafter The Veteran is currently rated as noncompensable for the period prior to March 22, 2019, and as 30 percent disabling thereafter pursuant to Diagnostic Code 8100. The Veteran contends that he is entitled to a higher evaluation for the entire period on appeal. Diagnostic Code 8100 provides for a 10 percent rating for characteristic prostrating attacks occurring an average of once every two months over the several months. A noncompensable rating is assigned for less frequent attacks. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating." The phrase "characteristic prostrating attacks" means attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, No. 16-3808, slip op. at 9 (Vet. App. Sept. 19, 2018). In other words, the term "prostrating" takes on its plain meaning of "lacking in vitality or will: powerless to rise: laid low." Id. Dorland's Illustrated Medical Dictionary defines "prostration" as "extreme exhaustion or powerlessness." See Dorland's Illustrated Medical Dictionary, 1531 (32nd ed. 2012). In Johnson v. Wilkie, the Court held that the criteria of DC 8100 are successive, and 38 C.F.R. §§ 4.7 and 4.21 are therefore not for application. Turning to the record, the Veteran was afforded a VA examination in October 2015 in connection with his claim. The examiner noted symptoms of headache pain as pulsating or throbbing head pain, pain on both sides of the head; pain worsens with physical activity; worsened by light, sound, and smells. The typical duration of headache pain was reported as 1 to 2 days. The examiner determined that the Veteran did not have characteristic prostrating attacks of migraine headache pain. In a May 2016 VA treatment record, it was noted that the Veteran failed several meds in the past and his symptoms were relieved by a cold towel on the neck and sitting in a room with low light. In August 2016, the Veteran stated he had migraines lasting one week. He had photophobia, sensitivity to noise, and nausea. He indicated that he would have to be in a dark area nad put a cold pack on his head. In November 2017, the Veteran stated he would get a headache once a week. In October 2016, another VA examination was conducted to determine the severity of the Veteran's migraine disability. The examiner noted symptoms of headache pain as constant head pain, pulsating or throbbing head pain, pain localized to one side of the head, and pain that worsened with physical activity. The typical head pain was reported as 1 to 2 days on the right side. The examiner found that the Veteran did not have any characteristic prostrating attacks of migraine headache pain. Likewise, the examiner determined that the Veteran did not have any prostrating attacks of non-headache pain. Further, the Veteran reported that he was able to ride a large motorcycle every day for commuting without any difficulty. In May 2019, an additional VA examination was performed in connection with the Veteran's claim. At the time of the examination, the Veteran's symptoms were described as pulsating or throbbing head pain and pain on both sides of the head. The typical headache pain was noted to be less than 1 day on both sides of the head. The examiner found that the Veteran had migraine headaches characteristic of prostrating attacks once every month. The examiner noted that the Veteran's migraine disorder impacted his ability to work due to limited periods of concentration during headaches. Based on the above evidence, the Board first finds that the Veteran is not entitled to a compensable rating prior to March 22, 2019 under DC 8100. There is no evidence that the Veteran's headaches rise to the level of characteristic prostrating attacks averaging one in 2 months over the last several months to warrant a 10 percent rating during this time period. Rather, the lay and medical evidence, including two VA examinations, reflect that the Veteran did not have characteristic prostrating attacks until the May 2019 VA examination. Moreover, the Veteran has not endorsed any degree of debilitation that would reflect extreme exhaustion, powerlessness, debilitation, or incapacitation indicated by the dictionary definition and Johnson. While the Veteran has indicated that he had frequent headaches and would have to put a cold pack to the head and neck as well as be in dark spaces to relieve pain, the Veteran has not indicated that the headaches prevented him from performing activities. Indeed, the Veteran reported that he was able to ride a motorcycle on a daily basis at the time of the October 2016 VA examination. As such, a compensable rating prior to March 22, 2019 for headaches under DC 8100 is not warranted. Equally, for the period from March 22, 2019, the Board finds that the Veteran is not entitled to an evaluation in excess of 30 percent. Specifically, there is no evidence that the Veteran's headaches rise to the level of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability to warrant a 50 percent rating during this time period. Rather, the lay and medical evidence, including the VA examinations of record, reflect that the Veteran did not have characteristic prostrating attacks occurring on an average of once a month over the last several months until the May 2019 VA examination. Moreover, the degree of debilitation indicated by the Veteran during any VA examination, including from May 2019, did not reflect extreme exhaustion, powerlessness, debilitation, or incapacitation indicated by the dictionary definition and Johnson. Instead, while the Veteran's headaches have been characterized as prostrating after March 22, 2019, they were not described as prolonged or indicative of any severe economic inadaptability. Indeed, the May 2019 VA examiner noted only that the Veteran experienced limited concentration during headaches. Therefore, the Veteran's symptomatology is more nearly approximated by the criteria for 30 percent. As such, a rating in excess of 30 percent from March 22, 2019, for migraine headaches under DC 8100 is not warranted. The Board acknowledges the Veteran's contentions that his service-connected migraine disability warrants an increased evaluation for the entire period on appeal. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to headache disorders, to include migraines, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.124a with respect to determining the severity of his service-connected migraine disability. See Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Board finds examinations conducted by trained medical professionals are more probative in determining the severity of the Veteran's service-connected migraine disability. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. 2. Entitlement to an evaluation in excess of 40 percent for lumbosacral strain with degenerative arthritis The Veteran's lumbosacral strain with degenerative arthritis is currently rated as 40 percent disabling pursuant to Diagnostic Code 5237 for the entire period on appeal. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. The Board also notes that the Veteran was assigned a temporary total rating from March 21, 2016 to July 31, 2016, due to surgical or other treatment necessitating convalescence for his lumbar spine disability. See 38 C.F.R. § 4.30. As a 100 percent rating is the maximum benefit allowable for his service-connected back disability, this period is not on appeal. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 10 percent rating is 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 or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Because the evidence shows no intervertebral disc syndrome (IVDS) for the entire initial rating period on appeal, the Board finds that the lumbar spine disability is appropriately rated under the General Rating Formula rather than the Formula for Rating IVDS Based on Incapacitating Episodes. See, e.g., VA Examination Reports September 2015, October 2016, and May 2019. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (a musculoskeletal disability must be rated based on the overall functional loss caused by factors under 38 C.F.R. §§ 4.40 and 4.45, to include pain and pain on movement). Painful motion is considered limited motion at the point that pain actually sets in. VAOPGCPREC 9-98. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Turning to the evidence, in September 2015, the Veteran was afforded a VA examination to determine the severity of his service-connected lumbar spine disability. At the time of the examination, the Veteran described flare-ups as spasms, pain on the feet, and no feeling or movement in affected areas. Range of motion testing revealed forward flexion limited to 20 degrees and combined range of motion of the thoracolumbar spine limited to 150 degrees. There was no pain noted upon examination. Muscle strength testing was normal. There was no evidence of muscle atrophy. Deep tendon reflexes were normal. There were no signs of radicular symptoms. There was no evidence of ankylosis. Diagnostic testing revealed a normal thoracic spine, but the lumbar spine showed degenerative joint disease. VA treatment records from August 2016 note that the Veteran had residual numbness and gait issues following surgery. Next, another VA examination was conducted in October 2016 in connection with the Veteran's claim. At the time of the examination, the Veteran described flare ups of the back as extreme pain, stiffness, and decreased range of motion. Range of motion testing revealed forward flexion limited to 40 degrees and combined thoracolumbar range of motion limited to 130 degrees. There was no pain noted on examination. Muscle strength testing was normal. There was no evidence of muscle atrophy. Deep tendon reflexes were normal. There was no evidence of radicular symptoms. There was no evidence of ankylosis. The Veteran reported the regular use of a cane. The examiner remarked that the Veteran provided submaximal effort and exaggerated verbal pain response with physical examination of his lower back. Further, the examiner noted that the Veteran was observed being able to drive away on a large motorcycle without any difficulty. Also, the examiner noted that the Veteran was able to sit, stand, walk, lay supine, and sit up from supine position without any pain or difficulty. In November 2017 VA treatment records, it was indicated that the Veteran noticed more lower back pain at work. In June 2018 VA treatment records, it was noted that the Veteran had lower back shooting pain. In May 2019, an additional VA examination was performed. Range of motion testing revealed forward flexion limited 45 degrees and combined range of motion of the thoracolumbar spine limited to 120 degrees. Pain noted on examination that was noted to cause functional loss. Muscle strength testing was normal. There was no evidence of muscle atrophy. Deep tendon reflexes were normal. There was no evidence of radicular symptoms. There was no ankylosis. The Veteran reported regular use of a cane. Diagnostic testing was negative for arthritis. Although VA treatment records from August 2021 indicate that the Veteran complained of chronic low back pain after his surgery in 2016, the records do not note any additional limitation in the Veteran's range of motion. Neither do the VA treatment records after May 2019 indicate that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine. In light of the evidence as discussed above the Board finds that a schedular rating in excess of 40 percent is not warranted. Specifically, the Veteran's symptomatology did not manifest by unfavorable ankylosis of the entire thoracolumbar spine, required by the rating criteria for 50 percent. Indeed, the Veteran had motion in his lumbar spine up to 45 degrees, which is greater that the required findings for a 50 percent rating based on limitation of motion. As such, the Board finds that the level of functional impairment of the Veteran's lumbosacral strain with degenerative arthritis is contemplated by the 40 percent rating. The Board has carefully considered the Veteran's assertions regarding the severity of his lumbar spine disability. He is competent to state how he experiences symptoms, such as pain, that require only personal knowledge as it comes to him through his senses. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, he is not competent to identify the specific level of disability according to the relevant diagnostic codes. See Jandreau, 492 F.3d at 1372. Thus, his opinions are outweighed by the medical evidence of record, which shows that he is not entitled to a rating in excess of 40 percent for his lumbosacral strain with degenerative arthritis. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to a TDIU In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for TDIU is part and parcel of an increased rating claim when such claim is raised by the record. As a result of the grant of increased evaluations in the Veteran's service-connected disabilities as discussed above, the Veteran has a combined disability evaluation equal to 70 percent as of July 26, 2021, with at least one disability rated at 40 percent. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim. The AOJ has not developed or adjudicated the matter of whether the Veteran's service-connected disabilities render him unemployable. Therefore, the TDIU claim must be remanded to the AOJ for development and adjudication. See Rice, 22 Vet. App. 447. The matters are REMANDED for the following action: The Veteran should be provided with a notice letter pertaining to the TDIU claim. The Veteran should also be sent and asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, with instructions to return the form to the AOJ. Bonnie Yoon Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.