Citation Nr: 21005820 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-03 167 DATE: February 2, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for migraine headaches is denied. Entitlement to an initial rating of 10 percent, but no higher, for painful, tender scar, status post removal of ganglion cyst of the left wrist, prior to April 16, 2019, is granted. Entitlement to an initial staged rating in excess of 10 percent for painful, tender scar, status post removal of ganglion cyst of the left wrist and, from April 16, 2019, is denied. Entitlement to a compensable initial rating for linear scar of the left wrist is denied. FINDINGS OF FACT 1. During the entire appeal period, the Veteran’s migraine headaches have been rated 50 percent, the maximum schedular rating available. 2. During the entire appeal period, the Veteran’s painful, tender scar status post removal of ganglion cyst of the left wrist has been manifested by one painful scar. 3. The Veteran’s linear scar of the left wrist has been manifested by a linear scar not covering an area of at least 6 square inches (39 sq.cm). CONCLUSIONS OF LAW 1. The Veteran is at the maximum schedular rating of 50 percent for migraine headaches. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124, Diagnostic Code 8100. 2. The criteria for an initial rating of 10 percent, but no higher, for painful, tender scar status post removal of ganglion cyst, left wrist, prior to April 16, 2019, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code 7804. 3. The criteria for an initial staged rating in excess of 10 percent for painful, tender scar status post removal of ganglion cyst, left wrist, from April 16, 2019, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code 7804. 4. The criteria for a compensable initial rating for linear scar, left wrist have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Codes 7801, 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to October 1985 and from November 1986 to November 1988. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. REFERRED ISSUE During his July 2020 Board hearing, the Veteran testified that he should have been awarded the maximum 50 percent schedular rating for his service-connected migraine headaches since the initial grant of service connection effective November 17, 1988, because he has been experiencing the same severe symptoms that he is now since that time. As a procedural background, service connection for migraine headaches was granted by a June 1989 rating decision that assigned a 10 percent initial rating from November 17, 1988. Subsequently, in a February 1998 rating decision, the initial rating for migraine headaches was increased to 30 percent effective November 17, 1988. Ultimately, on November 13, 2000, the Board issued a final decision that denied an initial rating greater than 30 percent. The Veteran filed a claim for entitlement to a total disability rating based on individual unemployability (TDIU) on June 28, 2012, and the present claim for an increased rating for migraine headaches was a part and parcel of the TDIU claim. During the course of this appeal, a February 2019 rating decision increased the disability rating for migraine headaches to 50 percent effective June 28, 2012. Subsequently, an April 2019 rating decision granted entitlement to a TDIU effective June 28, 2012, the date the Veteran filed his TDIU claim. To the extent the Veteran raises a claim of entitlement to an effective date prior to June 28, 2012 for the assignment of a 50 percent rating for migraine headaches, such claim has not yet been considered by the agency of original jurisdiction (AOJ) and there is no adverse determination on this issue. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). Should the Veteran and his representative wish to motion for clear and unmistakable error (CUE) in a prior Board decision, which would be the sole avenue for collaterally attacking the November 2000 denial of an initial rating in excess of 30 percent for migraine headaches, they are referred to the regulations at 38 C.F.R. § 20.1400, for the procedures for filing such a motion. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating 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. § 4.21. Evaluation of a service-connected disability requires a review of a veteran’s medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 1. Entitlement to a disability rating in excess of 50 percent for migraine headaches. The Veteran is currently rated at 50 percent disabling for migraine headaches. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks; 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 appropriate in cases of characteristic prostrating attacks occurring on an average of once a month over the last several months; and, a 50 percent rating is appropriate with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Significantly, the use of the conjunctive “and” in a statutory provision means that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). Here, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria in the 50 percent rating must be met in order to warrant such a rating. The Board notes that § 4.7 is not applicable to Diagnostic Codes that apply successive rating criteria, such as Diagnostic Code 8100. It is successive because the criteria of each lower disability rating are included in the higher disability rating. Though the Diagnostic Code does not provide a definition for “prostrating,” prostration is defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). Additionally, the term “productive of severe economic inadaptability” is also not defined in veterans’ law. However, the Court has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 44647 (2004) (stating that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating”). The Veteran underwent a VA examination in April 2013. He reported headaches, 3 days a week on average, usually lasting a few hours. His treatment included taking medication. His symptoms included pulsating or throbbing head pain, on the right side of the head, with nausea, sensitivity to light and sound, blurry vision and dizziness, that typically lasted less than one day. He would have to lie down in a dark room and try to sleep the headache off or wait for it to go away. He reported being unable to work during headaches. During his July 2020 Board hearing, the Veteran testified that he could only work for 10 hours a week in a protected environment due to his service-connected disabilities, specifically including his migraine headaches. Concerning this, a TDIU was granted effective June 28, 2012, the date of this claim. In this matter, the Board finds that the Veteran’s migraine headaches are rated at the maximum schedular level. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.124, Diagnostic Code 8100. The Board notes that Diagnostic Code 8100 contemplates “severe economic inadaptability.” Also, the 50 percent rating contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The term “completely prostrating,” as used in the rating schedule contemplates the complete scope of all symptoms to the extent they result in extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. Therefore, the severity of the symptoms associated with his headaches is contemplated by the rating schedule’s use of a broad and non-exclusive continuum. 2. Entitlement to a compensable initial rating for painful, tender scar, status post removal of ganglion cyst, of the left wrist prior to April 16, 2019 and an initial staged rating in excess of 10 percent from April 16, 2019. 3. Entitlement to a compensable rating for linear scar of the left wrist. In a June 1989 rating decision, service connection was granted for post-operative residuals of ganglion cyst of the left wrist and a noncompensable initial rating was assigned from November 17, 1988. The April 2013 rating decision on appeal granted service connection for scar, status post removal of ganglion cyst, left wrist, and assigned a noncompensable initial rating. That rating decision also continued the noncompensable rating for post-operative residual of ganglion cysts of the left wrist. In a May 2019 rating decision, the RO increased the rating for post-operative residual of ganglion cyst of the left wrist to 10 percent based on painful motion from March 1, 2012, the date of the claim. That rating decision also increased the rating for scar status post removal of ganglion cyst of the left wrist to 10 percent based on painful, tender scar, effective from April 16, 2019. Additionally, separate service connection was granted for linear scar of the left wrist secondary to the service-connected disability of scar status post removal of ganglion cyst of the left wrist, with a noncompensable rating from April 16, 2019. The Veteran was provided a VA examination in April 2013. After reviewing the claims file, the examiner noted a history of two cystectomies performed in 1984 within two months of each other. The Veteran complained of subjective weakness in the left wrist and superficial numbness on the dorsum of his left hand extending distal from the cystectomy scar to just short of his metacarpal (MCP) joints, following the 2nd and 3rd metacarpals. He stated that he would occasionally have pain, but it was random. He would occasionally have limitations with lifting/carrying on the job but denied activities of daily living limitations to his left wrist. On examination, the Veteran had localized tenderness or pain on palpation of joints/soft tissue of the left wrist. However, the examiner also indicated that the Veteran’s scar was neither painful nor unstable. It was noted that the total area of the scar was not greater than 39 square cm. The examiner found no functional impact on ability to work caused by the left wrist. An April 16, 2019 VA Scars/Disfigurement Disability Benefits Questionnaire (DBQ) reflects the Veteran’s history of surgeries to remove ganglion cyst from his left wrist. He stated he had residual pain to the wrist. The examiner indicated that the Veteran had one painful scar, with tenderness. However, he did not have any unstable scar with frequent loss of covering of the skin over the scar. On physical examination, the scar was located to the dorsal wrist and measured 3.75 x 0.1 cm. It was tender and had underlying tissue damage. Total area of the scar with underlying tissue damage was 0.375 square cm. The examiner noted that the scar did not result in limitation of function, to include limitation of motion. Painful, Tender Scar, Status Post Removal, Ganglion Cyst, Left Wrist The Veteran’s painful, tender scar, status post removal of ganglion cyst, of the left wrist is currently evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7804 on the basis of painful or unstable scars. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. If one or more scars are both unstable and painful, 10 percent is to be added to the rating that is based on the total number of unstable or painful scars. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more such scars warrant a 30 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7804. Effective August 13, 2018, changes were made to the rating criteria for skin disabilities (38 C.F.R. § 4.118). See 83 Fed. Reg. 32,592 (July 13, 2018). However, the changes did not change the criteria for compensable ratings under Diagnostic Codes 7801, 7802, 7804, or 7805. Based on the foregoing evidence, the Board finds that an initial rating of 10 percent, but no higher, for painful, tender scar, status post removal of ganglion cyst of the left wrist scar is warranted for the entire appeal period. The Veteran’s scar was painful in that it was tender to palpation. Based on this finding, the Board finds that a 10 percent rating is appropriate under Diagnostic Code 7804 for one painful scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Findings from the April 2013 VA wrist examination is somewhat ambiguous. To that effect, the examiner initially noted that the Veteran had localized tenderness or pain on palpation of joints/soft tissue of the left wrist. However, the examiner also stated that the Veteran’s scar was neither painful nor unstable. As the same examiner identified no painful joint, the Board will assume that there was pain on palpation of the soft tissue of the left wrist because subsequent VA Scars DBQ in April 2019 reveals the Veteran’s scar indeed had underlying soft tissue damage. Therefore, resolving any doubt in the Veteran’s favor, a 10 percent rating is granted based on painful, tender scar for the entire rating period on appeal. However, an initial rating in excess of 10 percent is not warranted. A higher rating would only be available under Diagnostic Code 7804, if the Veteran’s scar disability involved three or more scars, or at least one scar is considered both painful and unstable. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). However, the evidence of record clearly demonstrates that the Veteran’s scar is only manifested by one scar that is painful but not unstable as shown by VA examinations in April 2013 and April 2019. The Board has considered the other diagnostic criteria related to scars to determine whether a higher initial rating is assignable for the service-connected scar, status post removal of ganglion cyst, under other provisions. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diagnostic Code 7800 is not for application because the scar is are not located on the head, face or neck. The remaining diagnostic codes specifically contemplate scars not of the head, face or neck. Diagnostic Code 7801 provides for a 20 percent rating when deep and nonlinear scars cover an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm), a 30 percent rating when deep and nonlinear scars cover an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.), and a 40 percent rating when deep and nonlinear scars cover an area or areas of 144 square inches (929 sq. cm.) or greater. Note (1) stipulates that a deep scar is one associated with underlying soft tissue damage. A rating higher than 10 percent under Diagnostic Code 7801 is not for application because the Veteran’s scar has been described as deep but nonlinear covering an area or areas less than 12 square inches (77 sq. cm.). The Board has also considered whether a higher rating would be available for based on any other disabling effects under Diagnostic Code 7805, but the evidence shows no other disabling effects associated with the scar. See 38 C.F.R. § 4.118. To that effect, the April 2019 VA examiner clearly indicated that there was no scar or disfigurement of the head, face, or neck resulting in limitation of function or any impact on ability to work. See 38 C.F.R. § 4.118. In this regard, during the April 2013 VA examination, the Veteran reported weakness in the left wrist, numbness on the dorsum of the hand, and pain in the random and occasional pain in the wrist. He also stated that he had limitation on lifting or carrying on the job. During his July 2020 Board hearing, he testified that he experienced tenderness, limitation of motion with flare-ups about once a month, and intermittent extreme pain in the left. However, in light of the April 2019 VA examination finding, the functional limitation reported by the Veteran (weakness, numbness, pain, and limitation of motion) are due not to the scar, but to the separately service-connected painful motion as post-operative residual ganglion cyst of the left wrist, which contemplates the functional limitations reported by the Veteran. See 38 C.F.R. § 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). In sum, the preponderance of the evidence supports an initial rating of 10 percent for painful, tender scar status post removal of ganglion cyst of the left wrist. Linear Scar, Left Wrist During the July 2020 Board hearing, the Veteran testified that he underwent two surgeries to remove ganglion cyst and two linear scars close to each other that they look like one, big dent in the middle of the left wrist. As noted above, the May 2019 rating decision granted separate service connection for linear scar of the left wrist secondary to the service-connected disability of scar status post removal of ganglion cyst of the left wrist, with a noncompensable rating from April 16, 2019. Diagnostic Code 7802 provides for a 10 percent rating for scars that are superficial and nonlinear and cover an area or areas of 144 square inches (929 sq. cm.) or greater. Note (1) stipulates that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7801 provides for a 10 percent rating when deep and nonlinear scars cover an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm). The April 16, 2019 VA Scars/Disfigurement DBQ indicates that on physical examination, the scar was located to the dorsal wrist and measured 3.75 x 0.1 cm. It was tender and had underlying tissue damage. Total area of the scar with underlying tissue damage was 0.375 square cm. While the Veteran’s linear scar might not be a superficial scar as it is associated with underlying soft tissue damage, it does not cover an area of at least 144 square inch., or even at least 6 square inches (39 sq. cm)., which required for a compensable rating under either Diagnostic Code 7801 or 7802, respectively. Consequently, the Board concludes that a compensable initial rating for linear scar of the left wrist is not in order in this case. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.