Citation Nr: 21077491 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-35 991A DATE: December 29, 2021 ORDER Entitlement to a 50 percent rating for migraine headaches is granted. The reduction of the 40 percent rating for temporomandibular joint syndrome (TMJ) was not proper; restoration of the 40 percent rating effective July 16, 2013 is granted. Entitlement to an effective date earlier than April 30, 2012 for the grant of service connection for sinusitis is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for sinusitis is remanded. Entitlement to a compensable evaluation for allergic rhinitis is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his migraine headaches are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The TMJ reduction was based on an inadequate examination; there was no sustained improvement in the disability. 3. The Veteran first requested service connection for sinusitis on April 30, 2012. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating for migraine headaches have been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.124a, DC 8100. 2. The criteria for restoration of the 40 percent rating for TMJ effective July 16, 2013 have been met. 38 C.F.R. §§ 3.105(e), 3.344. 3. The criteria for an effective date earlier than April 30, 2012 for the grant of service connection for sinusitis have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105(a)(1), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to January 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2013, October 2015, and June 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2020. A transcript of the hearing is associated with the electronic claims file. I. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a 50 percent rating for migraine headaches. In April 2012 the Veteran requested an increased rating for his migraine headaches. In support of his claim, he provided a September 2011 letter from his physical therapist noting that over the past four to eight weeks, "he began to develop moderate headaches in the occipital, temporal, and frontal regions. He states that the headaches are nearly constant and fluctuate in their intensity. He finds prolonged posturing such as reaching or working on a computer can exacerbate his symptoms." He was given a VA examination for his headaches in July 2013. Here, the examiner diagnosed migraine including migraine variant and occipital neuralgia headaches. Within her report, the examiner provided neurology consult results noting "Headache: Pt with h/o migraines, presented with more frequent headaches, exam was remarkable for tender occipital region. Differentials include migraines, tension headache, occipital neuralgia. Pts pain appears likely 2/2 occipital neuralgia at this time. -will send pt to radiology for trigger point injections -will also start pt on Imitrex prn for migraines -INR ordered before the trigger point injection -pt adviced [sic] to lower his shoulder down while working. -will see pt in the clinic next month as needed if pt did not resolve." The VA examiner found that the Veteran experiences headache pain localized to one side of the head, and also suffered from nausea, sensitivity to light and sound, and changes in vision with a typical headache lasting less than one day. The examiner found the Veteran's migraines to be characteristic prostrating attacks occurring more frequently than once per month but did not find very frequent prostrating and prolonged attacks of migraine headache pain. With regard to functional impact, the examiner noted that the Veteran reported missing periodic days of work due to his headaches. Based on this examination, the RO issued an August 2013 rating decision increasing the evaluation of the Veteran's migraine headaches to 30 percent. The Veteran appealed this rating up to the Board. On his notice of disagreement the Veteran wrote "Have between 3-8 prostrating migraines per month. I use leave (sick, annual, comp time) when the migraines arrive." The Veteran was given another VA examination for his headaches in February 2016. Here, the examiner diagnosed migraine including migraine variants and wrote "The Veteran notes headaches with 4-8 severe headaches per month with headaches being left sided throbbing pain behind the eye with nausea, photophobia, and aura." The examiner listed the Veteran's symptoms as pulsating or throbbing head pain, pain localized to one side of the head, nausea, sensitivity to light and sound, and changes in vision with a typical headache lasting less than one day. The examiner found characteristic prostrating attacks of once every month and opined that the Veteran's attacks were not productive of severe economic inadaptability. The examiner also found the Veteran's headaches to have no functional impact on his ability to work. At his hearing, the Veteran testified that he suffered from multiple types of headaches including tension, sinusitis-type, and migraine headaches. He further testified that he suffers from four to eight migraine-specific headaches per month as well as rebound headaches which occur approximately 24 hours after his migraine. Finally, the Veteran testified that these headaches last anywhere from 12 to 24 hours during which he is only able to lay in bed, causing him to use up all his sick leave and vacation time when missing work. The Veteran's migraine headaches are evaluated under DC 8100, under which a 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board finds that the evidence in support of the Veteran's claim that his migraine headaches are productive of severe economic inadaptability is in at least equipoise with the evidence against the claim. Accordingly, entitlement to a 50 percent rating for migraine headaches is granted. II. Reductions Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, 38 C.F.R. § 3.105 requires (1) a rating proposing the reduction or discontinuation setting forth all material facts and reasons for the reduction; and (2) notification to the Veteran of the contemplated action providing 60 days for the Veteran to present additional evidence to show that compensation should continue at the current level. Moreover, pursuant to 38 C.F.R. § 3.344(a) and (b), disability ratings which have continued for long periods of time at the same level (5 years or more) may not be reduced without (1) a review of the entire record of examinations and medical-industrial history to ensure that the current examination is full and complete, (2) a review to ensure that the current examination is as full and complete as the examination upon which the original award was based, and (3) where material improvement is shown, consideration must be given to whether the evidence makes it reasonably certain that improvement will be maintained under ordinary conditions of life. 2. The propriety of the reduction of the 40 percent rating for TMJ. The Veteran was first granted service connection for TMJ in a February 1996 rating decision, evaluated at 10 percent, effective January 11, 1993. In an August 2006 rating decision, the Veteran's TMJ evaluation was increased to 40 percent effective October 18, 2005. The Veteran's TMJ is evaluated under DC 9905 for temporomandibular articulation, limited motion. Under DC 9905, a 30 percent rating is warranted for inter-incisal range of 11-20mm, and a 40 percent rating is warranted for inter-incisal range of 0-10mm. The Veteran was given a VA examination for his TMJ in July 2013, wherein the examiner found that his range of motion for opening mouth measured by inter-incisal distance was 11 to 20mm. Based on this examination, the RO issued an August 2013 rating decision decreasing the evaluation of the Veteran's TMJ from 40 percent to 30 percent effective July 16, 2013. The Veteran appealed this reduction to the Board. The Veteran was given another VA examination for his TMJ in February 2016. Here, the examiner found that after repetitive use testing, the Veteran's inter-incisal range was only to 9mm. Based on this examination, the RO issued a June 2016 rating decision increasing the Veteran's TMJ back to 40 percent, effective February 24, 2016, the date of his VA examination. On his Form 9 appeal to the Board, the Veteran argued that VA should have discounted his flawed July 2013 VA examination wherein only one measurement was taken, and the examiner reportedly yelled at him. The Veteran also noted that his 40 percent rating for TMJ has been in place since 2005, more than five years, thus the five-year rule should have applied to his reduction. At his hearing, the Veteran reiterated these contentions, testifying that while his rating has gone back up to 40 percent, it should have been effective back to 2005, rather than 2016. The Board agrees. The reduction in the Veteran's TMJ evaluation was improper. Pursuant to 38 C.F.R. § 3.344(a), examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. The Veteran's 40 percent evaluation had been in effect for more than five years at the time of his reduction but the RO did not provide a review of the entire record of examination and medical-industrial history to ensure that the July 2013 examination was full and complete. Pertinent post-reduction evidence favorable to restoring the rating must also be considered. See Dofflemeyer v. Derwinski, 1 Vet. App. 589, 594 (1991). The findings from the February 2016 VA examination show that there was no sustained improvement in the disability. As the Board has found that the reduction of the Veteran's TMJ benefits was improper, restoration of the 40 percent rating effective July 16, 2013 is granted. III. Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase 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. With respect to claims of entitlement to service connection, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. See 38 C.F.R. § 3.400(b)(2). 3. Entitlement to an effective date earlier than April 30, 2012 for the grant of service connection for sinusitis. The Veteran has consistently contended that the effective date of his sinusitis claim should go back to February 1996. Specifically, the Veteran has argued a clear and unmistakable error and a missed inferred claim, pointing to a February 1996 C&P evaluation wherein the impression noted: 1. non-pneumatization of the frontal bone, 2. marked bilateral ethmoid sinusitis, 3. marked chronic right maxillary sinusitis, 4. no chronic left maxillary sinusitis with retention cyst seen within the floor of the left maxillary sinus, and 5. marked mucosal thickening involving the nasal turbinates compatible with allergic rhinitis. Through his representative, the Veteran contends "Entitlement to earlier effective date for the sinusitis claim as this exam clearly gives diagnosis of the issue which constitutes an inferred claim for this issue. This evidence clearly states that this exam was meant for C&P purposes, but the claim was never adjudicated which constitutes a clear and unmistakable error on the VA's part." The Board disagrees. In January 1994 the Veteran first filed a claim for service connection for benefits. On his application he listed "left shoulder injury, lower back pain, hearing loss, tinnitus, headaches, memory loss, bleeding gums, dizziness." In October 1995 the Veteran filed another application for service connection, this time he listed "bleeding gums, memory loss, fatigue, headaches and dizzy spells since service in desert storm." The Board notes that neither of these applications listed any sinus or allergy conditions. However, in conjunction with his claims x-rays of his sinuses were taken in February 1996. The form indicated "Vet c/o chronic sinus problems please eval and advise for C&P purposes." The Board notes that the Veteran's chest, shoulder, and back were also x-rayed at this time. Although the Veteran reported to the VA examiner that he thought his sinus and allergy conditions were related to his service, he never requested service connection for either condition. Instead, a review of the Veteran's electronic file shows that the first time he requested service connection for these conditions was on April 30, 2012. A veteran's formal claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality. Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). The effective date of a claim for service connection 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 (emphasis added). Here, even though the Veteran was diagnosed with sinusitis by VA back in 1996, he did not request service connection for such until April 30, 2012. Thus, the effective date is correctly the date of receipt of the claim, even though it is much later than the date of his diagnosis. Neither the Veteran nor his representative has provided any evidence that the Veteran requested service connection for sinusitis back in 1996. Accordingly, entitlement to an effective date earlier than April 30, 2012 for the grant of service connection for sinusitis is denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for sinusitis is remanded. 2. Entitlement to a compensable evaluation for allergic rhinitis is remanded. The Veteran was granted service connection for sinusitis (to include allergic rhinitis and allergic reaction to dust) in an August 2013 rating decision, evaluated at 30 percent, effective April 30, 2012. The Veteran appealed this evaluation up to the Board, as well as claimed that his sinusitis and rhinitis should be granted separate ratings. See July 2014 notice of disagreement. The Board notes that in a June 2016 rating decision the RO separately granted service connection for rhinitis, evaluated at 0 percent, effective April 30, 2012. The noncompensable evaluation was based on "[a] diagnosed disability with no compensable symptoms." The Veteran did not specifically appeal the June 2016 rating decision, and his arguments in the August 2016 VA Form 9 only referenced the rating for the sinusitis. Given the Veteran's continued argument for separate compensable ratings for his sinusitis and rhinitis set forth at the Board hearing, and his prior contention that he was entitled to a 30 percent rating for rhinitis in his July 2014 notice of disagreement, the Board will consider the evaluation of the rhinitis as part and parcel of the sinusitis claim. The Veteran was given a VA examination for his sinusitis in July 2013. Here, the examiner diagnosed chronic sinusitis and allergic rhinitis and noted episodes of sinusitis with pain and tenderness of affected area resulting in seven or more non-incapacitating episodes over the past 12 months. The examiner also noted that the Veteran has undergone two sinus surgeries in 1995 and 2006 but noted no radical (or open sinus) surgery, and no incapacitating episodes. A VA environmental exam completed in September 2012 noted that the Veteran gets anywhere from three to four sinusitis episodes per year with two to three of those requiring antibiotics and the rest treated with over-the-counter medication. The Veteran was given another examination for his sinusitis in February 2016. Here, the examiner again diagnosed chronic sinusitis and allergic rhinitis. Episodes of sinusitis with pain and tenderness of affected sinus were noted, however the examiner only noted one non-incapacitating episode within the last 12 months. No incapacitating episodes were found, nor was any radial open sinus surgery noted. The Board notes that nearly six years have passed since the Veteran's last VA examination. Accordingly, the Board finds that remand is warranted for another VA examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining that Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Updated VA treatment records should be obtained as well. The matters are REMANDED for the following action: 1. Update the electronic file with any VA treatment records since February 2016. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected sinusitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected allergic rhinitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.