Citation Nr: 21007124 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 09-34 924 DATE: February 8, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for the service-connected cervical spine strain is denied. Entitlement to service connection for left upper extremity radiculopathy associated with service-connected cervical spine strain is granted. Entitlement to a disability rating in excess of 10 percent prior to October 7, 2014, and a disability rating in excess of 20 percent from that date, for the service-connected lumbar spine strain is denied. Entitlement to a disability rating in excess of 10 percent prior to October 23, 2008, for service-connected post-concussion syndrome, to include an alternative rating under other diagnostic codes, is denied. Entitlement to a disability rating of 30 percent is granted for service-connected tension/migraine headaches associated with post-concussion syndrome for the period from October 23, 2008, to August 20, 2019; entitlement to a disability rating in excess of 30 percent is denied throughout the entire appeal period. REMANDED Entitlement to service connection for an abnormal mass in the chest and shortness of breath, to include as due to an undiagnosed illness or other qualifying chronic disability, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as due to an undiagnosed illness or other qualifying chronic illness is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to September 1, 2010 is remanded. FINDINGS OF FACT 1. The Veteran’s cervical spine strain is manifest by limitation of motion permitting greater than 15 degrees of forward flexion and without ankylosis. 2. The Veteran’s left upper extremity radiculopathy is proximately due to her service-connected cervical spine strain. 3. Prior to October 7, 2014, the Veteran’s lumbar spine strain was manifested by a limitation of motion permitting forward flexion greater than 60 degrees and a combined range of motion greater than 120 degrees; from October 7, 2014, the Veteran’s lumbar spine strain was manifested by limitation of motion permitting greater than 30 degrees of forward flexion. 4. Prior to October 23, 2008, the most relevant diagnostic code governing the Veteran’s condition did not permit an additional or alternative rating for the Veteran’s headaches under an alternative code, and the Veteran did not demonstrate multi-infarct dementia. 5. From October 23, 2008, the Veteran experienced headaches with characteristic prostrating attacks occurring on average at least once a month over the last several months. Her migraines did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for service-connected cervical spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for service connection for left upper extremity radiculopathy as secondary to service-connected cervical spine strain are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to a disability rating in excess of 10 percent for the period prior to October 7, 2014, and a disability rating in excess of 20 percent from that date for service-connected lumbar spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 4237. 4. The criteria for entitlement to a disability rating in excess of 10 percent prior to October 23, 2008 for service-connected post-concussion syndrome with mood disorder and headaches, to include an alternative rating under other diagnostic codes, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, 4.130 Diagnostic Codes 8045, 9304 (2007, 2008). 5. From October 23, 2008, the criteria for a 30 percent disability rating have been met, but the criteria for a disability rating in excess of 30 percent at any time during the appeal period for tension/migraine headaches associated with post-concussion syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had periods of active service from September 1988 to March 1989, September 1990 to May 1991, October 2001 to October 2002, and January 2003 to December 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in March 2006, July 2008, February 2018, and December 2019. During this appeal, the Veteran testified at a hearing before the Decision Review Officer (DRO) in July 2007 and at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2013. These matters were previously before the Board in February 2014, June 2016, September 2018, and March 2020. The increased rating matters were previously appealed to the United States Court of Appeals for Veterans Claims (Veterans Court) in December 2017. Increased Ratings Entitlement to a disability rating in excess of 20 percent for a cervical spine strain The Veteran contends that she is entitled to a higher rating for her service-connected cervical spine strain. This disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for cervical spine strain. The Board acknowledges the Veteran’s lay reports of symptoms and notes that there was functional loss due to pain and limited motion, particularly after repetitive use. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. Repeated VA examination has demonstrated a range of motion that has consistently been nearly complete, especially forward flexion. At the VA examination reported in May 2005, the Veteran’s cervical spine was capable of 30 degrees of forward flexion. At the examination reported in March 2006, the Veteran demonstrated 25 degrees of forward flexion. At the October 2014, VA examination, the Veteran demonstrated 45 degrees of forward flexion and no change after observed repetitive use. At the August 2019 VA examination, the Veteran demonstrated 35 degrees of forward flexion with 30 degrees of forward flexion after observed repetitive use, and an addendum opinion estimated that an additional ten percent of the range of motion would be lost after repeated use over time. Consequently, the evidence of record is clear that the Veteran has consistently been able to move her cervical spine, precluding a finding of ankylosis and to flex her cervical spine forward nearly twice as far as is required for the next higher disability rating. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS. The Board notes that the VA examinations, including the VA examinations conducted in 2005 and 2019 document evidence of a left upper extremity radiculopathy associated with the Veteran’s cervical spine condition. Consequently, the Board finds that service connection for the left upper extremity radiculopathy is warranted. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for cervical spine strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a disability rating in excess of 10 percent prior to October 7, 2014 and a 20 percent disability rating from that date for the service-connected lumbosacral spine strain. The Veteran contends that she is entitled to a higher rating for her thoracolumbar spine strain. This disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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 rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a thoracolumbar spine disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and pain with being in certain positions. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. During the period preceding October 7, 2014, the Veteran’s low back condition is typified by the results of her VA examination reported in March 2006. There, he demonstrated forward flexion to 90 degrees, extension to 15 degrees, left lateral flexion to 25 degrees, right lateral flexion to 25 degrees. Right and left lateral rotation do not appear to have been tested. Nevertheless, the Board observes that this evidence is sufficient to preclude a finding in favor of the Veteran receiving the next highest disability rating. Her forward flexion was nearly normal, and even without known values for right and left lateral rotation, the Veteran’s total range of motion was more than 120 degrees. Painful motion was only observed with left lateral flexion and observed repetitive motion did not elicit further limitation of motion. The Veteran denied flareups or incapacitating episodes, and while a subsequent opinion from May 2020 indicated that it would be reasonable to expect that the Veteran would experience an additional loss of 5 to 10 degrees to her range of motion after repeated use over time, the Veteran’s forward flexion would remain well above the range required for a 20 percent rating during this period. Consequently, even if it were appropriate to provide a higher award based on these factors, the Board finds that the evidence does not warrant it. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS; there is no evidence that a physician has assigned bed rest, and the Veteran denied incapacitating episodes in any event. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran has received a separate rating for the associated left lower extremity neurological symptoms. That resulted in a recent grant that, as of yet, the Veteran has not appealed. The evidence does not currently support any additional neurological conditions associated with this disability during the period preceding October 7, 2014, and the Veteran does not appear to have complained of any. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for the service-connected lumbar spine strain during the period preceding October 7, 2014. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From October 7, 2014, the Veteran’s service-connected thoracolumbar spine strain is rated 20 percent disabling. The preponderance of the evidence is also against a rating in excess of 20 percent for the service-connected thoracolumbar spine condition during the period from October 7, 2014 under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to a sensation of pinching type pain with bending forward and morning stiffness. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The Veteran’s lumbar spine condition during the period from October 7, 2014, is typified by the results of the VA examinations that she underwent during this period. The October 7, 2014, VA examination demonstrated an initial forward flexion of 60 degrees that was unchanged after repetitive use. Similarly, at the August 2019 VA examination, the Veteran demonstrated forward flexion to 90 degrees that was reduced to 75 degrees upon observed repetitive use. The examiner estimated that during a flareup, the Veteran’s forward flexion would be reduced to 55 degrees, and, in a subsequent addendum opinion, that the Veteran’s forward flexion would be limited 10 degrees from baseline. These findings simply reflect a much higher range of motion than a limitation to 30 degrees range of motion or less for forward flexion (or ankylosis) required to award the next higher disability rating during this period. Regarding neurological impairment, the Veteran complains and the medical evidence, particularly the VA examinations, support the finding of a left lower extremity neurological condition related to the Veteran’s lumbar spine condition. This has resulted in a recent grant of benefits that the Veteran has not as yet appealed and is not currently before the Board. Based on the foregoing, the preponderance of the evidence is against of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for the thoracolumbar spine strain for the period from October 7, 2014. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a disability rating in excess of 10 percent for post-concussion syndrome with headaches, for the period prior to October 23, 2008, to include an alternative rating under. The Veteran seeks a higher disability rating for her post-concussion syndrome for the period preceding October 23, 2008. Some procedural history is required in order to permit a logical and coherent adjudication of the claim. This matter was originally service connected as post-concussion syndrome with mood disorder and headaches with an effective date of January 1, 2004 under 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9304. At the time, Diagnostic Code 9304 referred to Dementia due to Head Trauma, and ratings were assigned under the General Rating Formula for Mental Disorders. Id. Effective August 4, 2014, Diagnostic Code 9304 referred to Major or Mild Neurocognitive Disorder due to Traumatic Brain Injury, reflecting updated nomenclature. Id. Ratings under this diagnostic code continued to be made under the General Rating Formula for Mental Disorders. Id. To readers familiar with the current regulatory code regarding the residuals of head trauma and traumatic brain injury, this will seem a strange rating. However, it accurately reflects the rating facially intended by the rating code at that time. The version of the code governing head trauma or TBI in effect until October 23, 2008, read as follows: “Purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code. Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.” 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2007) (and all relevant versions until the versions effective October 23, 2008) (emphasis added). Thus, Diagnostic Code 9304 was not an idiosyncratic choice made by the rater in 2006 when this claim was first decided in the Veteran’s favor. Instead, it was a straightforward application of the rating code, specifically Diagnostic Code 8045, dealing with Brain Disease due to Trauma. The evidence regarding the Veteran’s condition during this period is typified by the VA examinations reported in March 2006 and March 2008. At the examination reported in March 2006, the Veteran reported that she experienced chronic headaches daily that she described as throbbing on the right side of the head. She described them as present when she awakened but not when she went to bed. She explained that when she got her headaches, she would lie down, drink hot tea, and then keep going. She described additional symptoms of dizziness that recurs, but she could not describe how long that symptom had been present. The examiner diagnosed post-concussion syndrome with residual headaches, recurrent, daily, that did not appear to be prostrating or incapacitating in nature. At the examination reported in March 2008, the Veteran reported throbbing headaches across the front of her head, without photophobia, nausea, or vomiting. When the headaches occur, she reported having to stay in bed and being unable to do anything. She experienced the headaches on average once per day, lasting 3 hours. She reported confusion, problems with memories, slowness of thought, problems with attention and concentration, blurred vision, tinnitus, anxiety, depression, sensitivity to light (in that exposure to light triggered headaches), irritability, difficulty falling asleep, occasional dizziness, and occasional vertigo. The examiner found evidence of anxiety, mild memory loss, difficulty concentrating, irritability, decreased attention, and difficulty remembering recent events. The examiner diagnosed a traumatic brain injury with subjective factors including, headaches, irritability, difficulty sleeping, mood changes, trouble with memory and concentration. Neither of these examinations, nor any other evidence of record demonstrated multi-infarct dementia. Consequently, the Board finds that the Veteran does not meet the criteria for a higher disability rating under the version of Diagnostic Code 8045 in effect prior to October 23, 2008. In compliance with the December 2017 Veterans Court Decision, the Board has also considered the propriety of rating the Veteran’s condition under other diagnostic codes, including Diagnostic Code 8100 which both then and now covered migraine conditions. However, the Board finds that rating under a different diagnostic code would not be appropriate under the regulatory scheme in place prior to October 23, 2008. First, as detailed above, the evidence of record is not consistent with a finding that the Veteran had a migraine or headache condition that was separate from her TBI. Her headaches, along with a slew of other reported symptoms, including psychiatric symptoms and insomnia, were sequelae of her TBI. Thus, the most relevant rating code for her condition was Diagnostic Code 8045, which clearly directs that subjective residuals of TBI such as psychiatric symptoms, insomnia, and headaches are to be given a 10 percent rating under Diagnostic Code 9304. Second, the rating schedule clearly intended the 10 percent under Diagnostic Code 9304 to be the extent of the compensation for subjective residuals of brain disease due to trauma, because Diagnostic Code 8045 clearly states that the 10 percent disability rating under 9304 was not to be combined with any other rating for disability due to brain trauma. If the Board were to compensate the Veteran’s post-concussion syndrome under Diagnostic Code 8100, such a rating would attend only to the Veteran’s headache symptoms and, possibly, the Veteran’s dizziness or light sensitivity, to the extent that these were symptoms related to the Veteran’s headaches. That would leave uncompensated the Veteran’s insomnia and psychiatric disabilities during the period that preceded October 23, 2008. The rating code prior to October 23, 2008, would not permit the Board to continue to compensate these symptoms under Diagnostic Code 9304 as directed by the previous version of Diagnostic Code 8045, because that would be to unlawfully combine the 8045 directed 10 percent rating under 9304 with a rating under Diagnostic Code 8100. Similarly, compensating the Veteran separately for her psychiatric condition, insomnia, other symptoms, and headaches under various rating codes would simply be the Board ignoring the regulatory and schedular scheme imposed and combining disability ratings for various disabilities due to brain trauma in a manner forbidden by the previous version of Diagnostic Code 8045. The Board finds that it cannot simply subvert the regulatory and schedular scheme in such a manner. Third, the structure of the Veterans Court’s decision compels and supports the decision not to rate this disability under other diagnostic codes. Despite requiring the Board to reconsider evaluating the Veteran’s post-concussion syndrome under other diagnostic codes, the Veterans Court affirmed the Board’s decision not to begin compensating the Veteran’s psychiatric condition separately until October 23, 2008, the effective date of the current version of Diagnostic Code 8045. As the effective date and amount of the psychiatric award has already been affirmed by the Veterans Court, the Board does not have jurisdiction to alter the effective date affirmed by the Court above for that award – which means that if the Board did choose to compensate the Veteran’s post-concussion syndrome under the headache code, the Board would be prevented from fully compensating the Veteran’s other symptoms based on a combination of the directives codified in the previous version of Diagnostic Code 8045 and the structure of the Veterans Court’s decision. Thus, the Board finds that the regulatory and schedular scheme does not permit the Board to provide the Veteran with a rating under an alternative rating code or codes. The Board also finds that the evidence of record does not meet the criteria for a higher rating under the previous version of Diagnostic Code 9304 as directed by the previous version of Diagnostic Code 8045. A rating in excess of 10 percent for post-concussion syndrome for the period prior to October 23, 2008, is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a compensable disability rating prior to August 21, 2019, and a disability rating in excess of 30 percent from that date for the service-connected headache condition The Veteran seeks entitlement to an increased rating for her service-connected headache condition. On October 23, 2008, the rating code governing traumatic brain injuries was changed to the version that is currently in effect. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008) (and all relevant versions post-dating 2008). The current version Diagnostic Code 8045 provides for the rating of individual residuals for various symptoms under appropriate diagnostic codes. Id. This body was previously called on to determine the propriety of the assigned ratings for the symptoms of a post-concussion syndrome in this case in a June 2016 decision. At that time, the Board declined to increase the Veteran’s compensation under Diagnostic Code 9304 as directed by Diagnostic Code 8045 prior to October 23, 2008. However, from the effective date of the new 8045, October 23, 2008, the Board compensated the Veteran for residuals of her TBI under three Diagnostic Codes. The Board granted a 30 percent disability rating for the mood disorder, granted a non-compensable evaluation for a headache condition, and continued a 10 percent disability rating for post-concussion syndrome for other symptoms of post-concussion syndrome for the period following October 23, 2008. The Veterans Court affirmed the Board’s grant regarding the psychiatric condition, set aside the Board’s determination regarding the headache condition, and made no mention of the continued ten percent disability rating from October 23, 2008, for the other symptoms of post-concussion syndrome. The Board’s jurisdiction post-October 23, 2008, is therefore limited to the portion of its previous decision that was set aside by the Veteran’s Court, namely whether the Veteran is entitled to an increased disability rating for her headache condition for those periods that follow October 23, 2008. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 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 warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Board concludes that, while the Veteran may have prostrating attacks more frequently than once per month, the evidence is not sufficient to show that these attacks are “prolonged” or “productive of severe economic inadaptability,” and that the overall disability picture of the Veteran’s headache condition is more consistent with a 30 percent disability rating under DC 8100 throughout the appeal period. Although it predates the effective date of the separate award for headaches on October 23, 2008, the VA examination reported in March 2008 remains somewhat reflective of the Veteran’s headache condition near the beginning of the relevant period. At that examination, the Veteran reported throbbing headaches across the front of her head, without photophobia, nausea, or vomiting. When the headaches occur, she reported having to stay in bed and being unable to do anything. She experienced the headaches on average once per day, lasting 3 hours. At the October 2014 VA examination, the Veteran was unable to report how often she got headaches. She described them as debilitating, rending her unable to move and compared the pain to a toothache. She described being sensitive to light, stated that “everything bother[ed]” her when she had a headache and that when she had a headache she would lay in one position until the headache passed. The headache usually lasted less than one day. The examiner characterized the Veteran’s headaches as having no prostrating attacks. In a June 2015 VA treatment note, the Veteran described having headaches daily that hurt so much that she did not even want to go to the doctor. In a March 2016 VA treatment note, the Veteran reported dizziness and insomnia related to her headaches. At an August 2019 VA examination, the Veteran reported that her headaches had become worse in the last 2 years. She described her headaches as being 10/10 on a pain scale and lasting about an hour. She described the pain as pulsating or throbbing, on both sides of the head, and worse with physical activity. She described her headache as being accompanied by sensitivity to light and sound. The examiner documented prostrating attacks approximately once every month but found no very prostrating and prolonged attacks of headache pain that were productive of severe economic inadaptability. The functional impact of the Veteran’s headaches was described as the inability to complete tasks during headache symptoms estimated at approximately 1 week of lost work time in a 12-month period due to headache symptoms. At the July 2020 VA examination, the Veteran reported that she had been having headaches since 2001 which had been becoming worse over the years, with headaches no occurring at least 2 to 3 times a week. She reported that when the headaches occurred, she would lay in one position to decrease the intensity of the headaches. Her headaches were made worse with loud noise or light. When the headaches occurred, the Veteran reported that the pain lasted less than one day. The examiner assessed the Veteran as having prostrating attacks once per month. Considering all relevant evidence of record, the Board finds that the evidence demonstrates that the Veteran has experienced prostrating attacks of headache pain at least once per month throughout the appeal period. The Board notes that the Veteran described nearly every headache she had as debilitating, rendering her unable to do anything except lay in a single position during headache pain. If the Board were to find that this described prostrating attacks, then the evidence would describe daily prostrating attacks during the early part of the appeal period and decreasing frequency of prostrating attacks from daily to attacks only 2 to 3 times per week. However, the Board finds that this is not the most reasonable reading of the evidence. First, it is not consistent with the Veteran’s perception of her own headache condition and symptoms, which she describes as having increased in severity. The Veteran is competent to report an observable increase in symptoms beginning with her initial head injury and increasing throughout the appeal period. Second, though the Veteran sometimes used words such as “debilitating” to describe all of her headaches, the Board notes that the Veteran’s reports to the examiners also at times indicated that she “kept going” during her headaches and the functional impact was compared to approximately one week of lost work time. Third, the Board observes that all the medical professionals, though taking a history and description of the Veteran’s headache symptoms as occurring either daily or 2-3 times per week, distinguished between the Veteran’s very frequent daily pain and the less frequent prostrating attacks in the examination reports. Consequently, the Board finds that the evidence of record is most consistent with the Veteran experiencing prostrating attacks on average once a month over the last several months throughout the appeal period, corresponding to the criteria for a 30 percent rating under DC 8100. A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. To the extent that the evidence may indicate that the Veteran experiences prostrating attacks more frequently than once per month, the Board finds that those more frequent prostrating attacks do not meet the criteria for a 50 percent disability rating because they were neither “prolonged” nor “productive of severe economic inadaptability.” The Veteran described her headache pains as lasting either 3 hours or approximately 1 hour depending on the examination, and the examiners consistently selected the shortest duration when selecting how long the Veteran’s pains lasted. In the context of the way durations are measured for this condition, such short duration of “less than a day,” a few hours, or a single hour simply does not meet the criteria of being prolonged. Similarly, the attacks do not appear to have resulted in “severe economic inadaptability.” For instance, at the earliest examination, the Veteran appears to describe morning headaches, for which the Veteran could adapt simply by adjusting her work hours or finding a job that does not require beginning work immediately after awakening. Also, at the August 2019 examination, the examiner the functional impact of the Veteran’s headache was limited to the equivalent of missing approximately between 0 and 1 week of work time. While noticeable, such lost time would hardly result in severe economic inadaptability. Thus, the Board concludes that the evidence of record warrants a 30 percent disability rating from October 23, 2008, for this condition, and that the Veteran did not have migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time from that date. A higher 50 percent rating is not warranted under DC 8100. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for an abnormal mass in the chest, to include as an undiagnosed illness or other qualifying chronic illness An additional VA opinion is required in order to properly adjudicate this condition. The Veteran has claimed this condition as related either directly to her service or as the result of her service in Southwest Asia. Based on an October 2014 examination and opinion, the Board understood that the Veteran’s condition had been diagnosed (with a known diagnosis, etiology, and pathophysiology). Subsequent development had focused on trying to determine whether her chest mass had been somehow directly caused by her periods of service that preceded the observation of this condition or aggravated beyond its normal course by the periods post-dating the initial observation of this condition. The subsequent opinion, received in September 2020, adequately answers the question of whether the condition was caused or aggravated by the preceding and post-dating service periods respectively. However, the opinion also casts doubt on what the Board previously believed was a confirmed diagnosis. Consequently, an additional opinion is required. Entitlement to service connection for OSA, to include as due to an undiagnosed illness or other qualifying chronic disability Based on an October 2014 opinion describing the etiology and pathophysiology of the Veteran’s OSA, the Board had been given to understand that the etiology of the Veteran’s OSA was known to be obesity. As a result, the Board requested additional clarification as to whether the Veteran’s obesity was in turn caused by her service-connected disabilities or the effects of medication taken for those disabilities or a combination of the two. The resulting opinion takes the position, with a credible rationale, that the Veteran’s OSA was less likely than not due to her obesity at all. Essentially, it has cast doubt on the Board’s previous understanding of the etiology of the Veteran’s OSA, requiring an additional opinion. Entitlement to TDIU prior to September 1, 2010 The Board’s decision regarding the issue of entitlement to an increased rating for a cervical spine condition has resulted in an additional grant of service connection for a left upper extremity radiculopathy. This grant needs to be effectuated, and the effectuation of this grant is likely to have a significant impact on the Veteran’s claim for TDIU during the period preceding September 1, 2010. Consequently, the two issues are intertwined, and the matter of entitlement to TDIU during the earlier period is remanded. Accordingly, these matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s abnormal chest mass that is responsive to the subparagraphs below. The clinician should provide a complete rationale as to all the opinions requested in the subparagraphs below. If a requested opinion cannot be provided without an additional examination, the Veteran should be scheduled for an appropriate examination. (a.) The clinician should, to the extent that the medical record permits, provide a diagnosis of the Veteran’s condition, or state whether her abnormal chest mass is an undiagnosed illness or medically unexplained chronic multi-symptom illness (one for which the etiology or pathophysiology is partially unexplained). (b.) If the clinician is able to provide a diagnosis, and rule out the possibility that this condition is a manifestation of an undiagnosed illness or medically unexplained chronic multi-symptom illness, the examiner should provide an opinion as to whether this condition was at least as likely as not (1) caused by any event that preceded the detection of this abnormal chest mass during the Veteran’s periods of service that predated the detection of this condition or (2) aggravated beyond its natural course by any event that occurred during the periods of the Veteran’s service that post-date the detection of this condition. (c.) If the examiner is unable to provide a diagnosis, or determines that this condition is a manifestation of a medically unexplained chronic multi-symptom illness, the clinician should explain whether there is any affirmative evidence that the condition was caused by a supervening condition or event that occurred between the Veteran’s most recent service in Southwest Asia prior to the detection of this condition and the detection of this condition. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s OSA that conforms to the subparagraphs that follow. If an opinion requested in the subparagraphs that follow cannot be provided without an additional examination, the Veteran should be scheduled for an appropriate examination. (a.) The clinician should state whether the Veteran’s OSA is a manifestation of an undiagnosed illness or whether the Veteran’s OSA is, or is a manifestation of, a medically unexplained chronic multi-symptom illness, for which the etiology and pathophysiology cannot be conclusively determined. (b.) If the clinician determines that it is a manifestation of an undiagnosed illness or is a manifestation of or is itself a medically unexplained chronic multi-symptom illness, the clinician should explain if there is any affirmative evidence that the Veteran’s OSA was caused by a supervening condition or event that occurred between the Veteran’s most recent service in Southwest Asia prior to the manifestation of OSA and the manifestation of the Veteran’s OSA. (c.) If the clinician determines that the Veteran’s OSA is not a manifestation of an undiagnosed illness and is not a manifestation of a medically unexplained chronic multi-symptom illness and not itself such a medically unexplained chronic multi-symptom illness, the clinician should opine as to whether the condition is at least as likely as not caused or aggravated by any event during any period of the Veteran’s service or caused or aggravated by any of the Veteran’s service-connected conditions, to include any known effects or side effects of the medications taken for those service-connected conditions. 3. Effectuate the grant of service connection for a left upper extremity radiculopathy, and effectuate the increased rating granted for the Veteran’s service-connected headache condition during the period stated. Then, readjudicate the Veteran’s claim for a TDIU for the period prior to September 1, 2010, as appropriate. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven H. Johnston, 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.