Citation Nr: 21005949 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-43 970 DATE: February 2, 2021 ORDER Entitlement to a rating in excess of 30 percent for migraine headaches prior to August 5, 2020 is denied. The application to reopen a claim for entitlement to service connection for neurological symptoms, to include memory loss and forgetfulness is denied. The application to reopen a claim for entitlement to service connection for head injury is denied. FINDINGS OF FACT 1. Prior to August 5, 2020, the Veteran’s migraine headaches were not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. A final February 2000 rating decision denied entitlement to service connection for neurological symptoms, to include memory loss and forgetfulness; new and material evidence was not received after this decision. 3. A final March 2013 rating decision denied entitlement to service connection for head injury; new and material evidence was not received after this decision. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for migraine headaches prior to August 5, 2020 have not been met. 38 U.S.C. § 1155, 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. The claim for entitlement to service connection for neurological symptoms, to include memory loss and forgetfulness is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The claim for entitlement to service connection for head injury is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to January 1996, to include service in Southwest Asia from November 1990 to April 1991. This appeal comes to the Board of Veterans’ Appeals (Board) from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2019 Board hearing, and the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) in February 2020 for additional development. Specifically, the Board sought a new VA examination to assess the current severity of the Veteran’s migraines, with interest both in the evaluation of the migraines as well as any potential evidence that may be produced in connection to the Veteran’s claims for service connection for neurological symptoms and head injury. The matter has returned to the Board once more and the Board finds that there has been substantial compliance with its directives and may now proceed with a decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that its February 2020 decision remanded the additional claims of entitlement to service connection for a chronic acquired psychiatric disorder, to include depression, memory loss, and loss of concentration, and entitlement to service connection for a skin disease of the pubic and peri-rectal area. These claims were granted by the RO in a September 2020 rating decision. As such, these matters are no longer before the Board. Additionally, the Board recognizes the Veteran’s service-connected migraines were given the increased rating of 50 percent from August 5, 2020. As 50 percent is the maximum benefit allowed for migraine headaches, the Board’s review will focus on the Veteran’s entitlement to a rating in excess of 30 percent prior to August 5, 2020. 1. Entitlement to a rating in excess of 30 percent for migraine headaches prior to August 5, 2020. Disability evaluations (ratings) 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3.  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).  A 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent rating is assigned for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A noncompensable rating is assigned for migraine headaches with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) have defined the term “prostrating.” According to Webster’s New World Dictionary of American English, Third College Edition 1080 (1986), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1367 (28th ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” The rating criteria also do not define “severe economic inadaptability.” However, nothing in Diagnostic Code 8100 requires that the Veteran be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440 (2004). Upon full review of the evidence, the Board finds that the Veteran’s migraine headaches prior to August 5, 2020 does not warrant a rating in excess of 30 percent. In October 2014, the Veteran was contacted by the VA and a report of general information was created. The Veteran reported headaches but offered no details as to any potential prostrating and prolonged attacks productive of severe economic inadaptability. In March 2015, the Veteran was afforded a VA examination in evaluating mental disorders other than post-traumatic stress disorder (PTSD) and eating disorders. The clinician acknowledged the Veteran as having migraine headaches but no further details or opinion as to the headaches were provided. As mentioned above, the Veteran testified in a September 2019 Board hearing. The Veteran stated that his migraines were severe, taking over his vision and forcing him to stop moving until they receded. The Veteran also testified that his migraines had not been evaluated since approximately 2015. The Board recognizes the Veteran is competent to report his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Pursuant to the rating criteria, however, a 50 percent rating requires migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. It is unclear how often such attacks occur, how long they persist, or their impact. On review, the Veteran’s disability picture does not more nearly approximate migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 4.3. The claim is denied. 2. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for neurological symptoms, to include memory loss and forgetfulness. An unappealed RO denial is generally final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been disallowed, however, VA must reopen the claim and review the former disposition. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. Id. The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) “as creating a low threshold.” Shade v. Shinseki, 24 Vet. App. 110 (2010). A February 2000 rating decision denied entitlement to service connection for neurological symptoms, to include memory loss and forgetfulness. The Veteran was notified of the February 2000 rating decision, and new and material evidence was not received within one year of the denial; therefore, it became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. New and material evidence has not been received after this decision. A report of general information received in October 2014 offered new statements regarding the Veteran’s neurological symptoms but were of such a general nature as to not raise a reasonable possibility of substantiating the Veteran’s claim. A VA examination as to the Veteran’s mental health disorder other than PTSD and eating disorders was afforded to the Veteran in March 2015 but the examination did not offer a mental health diagnosis, symptoms, treatments, or any evidence with a reasonable possibility of substantiating the claim. An April 2015 Gulf War VA medical examination was conducted but documented memory loss, a factor already considered in the February 2000 rating decision, and thus provided nothing with a reasonable possibility of substantiating the claim. In July 2020, the Veteran was afforded new VA examinations where he was diagnosed with chronic acquired psychiatric disorder with symptoms of memory loss and forgetfulness. Memory loss and forgetfulness is therefore not considered an undiagnosed illness for purposes of 38 U.S.C. § 117 and 38 C.F.R. § 3.317 because such has been attributed to a known clinical diagnosis. In consideration of the above, there is no basis to reopen the previously denied claim, even when considering the Gulf War Presumption. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for head injury. A March 2013 rating decision denied entitlement to service connection for head injury. The Veteran was notified of the March 2013 rating decision, and new and material evidence was not received within one year of the denial; therefore, it became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. New and material evidence has not been received after this decision. A report of general information received in October 2014 offered new statements regarding the Veteran’s head injury but were of such a general nature as to not raise a reasonable possibility of substantiating the Veteran’s claim. A VA examination as to the Veteran’s mental health disorder other than PTSD and eating disorders was afforded to the Veteran in March 2015 where Traumatic Brain Injury (TBI) was rejected. In July 2020, the Veteran was afforded new VA examinations where TBI was marked as “not shown in records reviewed.” None of the evidence received offered a reasonable possibility of substantiating the claim. As new material evidence has not been received, the Board concludes that the claim for entitlement for service connection for head injury is not reopened and, in this regard, the Veteran’s claim is therefore denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Lee Feldman, Attorney Advisor 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.