Citation Nr: 21007179 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 08-12 904 DATE: February 8, 2021 ORDER Entitlement to an initial 50 percent rating for headaches is granted from July 22, 2010. FINDING OF FACT The record evidence shows that the Veteran’s headaches resulted in very frequent completely prostrating and prolonged attacks of headaches capable of producing economic inadaptability throughout the current appeal period. CONCLUSION OF LAW The criteria for entitlement to an initial 50 percent rating for headaches have been met from July 22, 2010. 38 U.S.C. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8045-8100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1987 to June 1991, May 1994 to August 1994, January 2003 to October 2003, and from June 2004 to May 2005, including in combat in Iraq in support of Operation Iraqi Freedom. He also had additional unverified service. This appeal has a long and complicated procedural history. Most recently, in August 2017, the Board remanded this appeal to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ request information from the Veteran regarding the economic impact of his service-connected headaches, obtain updated treatment records for the Veteran, and schedule him for an updated examination. The AOJ requested information from the Veteran in April 2018 correspondence, obtained updated treatment records, and the requested examination occurred in February 2019. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). In a July 2020 rating decision, the AOJ assigned a higher initial 50 percent rating effective June 14, 2017, for the Veteran’s service-connected headaches. Having reviewed the record evidence, the Board finds that the issue on appeal should be characterized as stated above. The Veteran was advised in December 2020 correspondence that the Veterans Law Judge who conducted the hearing in this appeal was no longer available. There is no record of a response to this letter so the Board may proceed to adjudicate this appeal. Entitlement to an initial 50 percent rating for headaches The Board finds that the evidence supports assigning an initial 50 percent rating for headaches. The Veteran essentially contends that his service-connected headaches have been productive of severe economic inadaptability throughout the appeal period, entitling him to an initial 50 percent rating for this disability. The Board agrees. The record evidence shows that the Veteran’s headaches resulted in very frequent completely prostrating and prolonged attacks of headaches capable of producing economic inadaptability throughout the appeal period, although his symptoms occasionally waxed and waned with medication which never resolved his headaches. For example, the Veteran’s available service treatment records show that he was diagnosed as having a mild concussion in December 2004 after a grenade exploded about 8 feet away from his position while he was deployed to Iraq. At that time, he complained of headaches and ear pain following this grenade explosion. These records also show that the Veteran reported experiencing multiple in-service concussions following deployment to Iraq. The post-service evidence also supports assigning an initial 50 percent rating for the Veteran’s service-connected headaches. For example, the Veteran’s voluminous VA outpatient treatment records and examination reports show ongoing complaints of and treatment for headaches. On VA traumatic brain injury (TBI) Disability Benefits Questionnaire (DBQ) in July 2010, the Veteran’s complaints included increased forgetfulness and difficulty remembering things. He reported a history of multiple in-service head traumas while deployed to Iraq. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran experienced headaches 4 times a week “usually in the evening” characterized by a dull ache in the back of the neck and head and lasting 2 hours. The VA examiner stated that these headaches were cervicogenic and related to neck pain/injury. The Veteran also reported stumbling when his ankle gave way but denied any dizziness or vertigo. He experienced right leg numbness, difficulty sleeping due to back pain, fatigue “at times due to sleep problem[s],” mild memory impairment, difficulty concentrating, and “sensitivity to light only during headaches.” Physical examination in July 2010 showed normal grip strength, muscle strength, no muscle atrophy, reflexes within normal limits, normal sensation except for the great toe, a mildly antalgic gait due to ankle pain, and intact cranial nerves. The VA examiner stated: [The Veteran] was administered a battery of neuropsychological/psychological tests. The results of neuropsychological testing are consistent with a conscious and deliberate attempt to exaggerate symptoms and appear very cognitively impaired. His performance on memory testing was well below that of persons with moderate Alzheimer’s dementia. If [the Veteran] actually were as impaired as he is attempting to portray, he would likely require institutionalization and assistance with even the simplest tasks including [activities of daily living]…This is entirely inconsistent with his presentation, his ability to provide personal historical information, maintain gainful employment as a corrections officer, and to drive/navigate to his appointments on time. He is endorsing 1) bizarre/unusual psychotic symptoms not typically present in actual psychiatric patients, 2) illogical/highly atypical neurological symptoms, 3) symptoms of memory impairment that are inconsistent with patterns of impairment seen in brain dysfunction or injury, 4) fabricating/exaggerating intellectual deficits by failing simple general fund of knowledge items, and 5) reporting atypical symptoms of depression and anxiety. The VA examiner concluded that the Veteran’s neuropsychological testing results were “invalid.” This examiner also concluded that the Veteran’s “cognitive difficulties are relatively mild and have minimal impact on his ability to maintain competitive employment.” The Veteran reported that he was employed full-time as a corrections officer at a state prison. The Axis I diagnoses included very mild cognitive disorder due to multiple head traumas. On VA neurological disorders examination in March 2012, the Veteran’s complaints included “severe headaches which are limiting his activities.” The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran “describes a 5- to 6-year history of headaches which have gotten somewhat better but are still quite disabling.” He denied any history of headaches prior to 2002. He reported an in-service history of multiple head traumas. His current headaches were “associated with photophobia and phonophobia, “sometimes with nausea, at least 12 days per month, and at least 25 days per month he has some kind of headache which may not be disabling. He describes that these headaches get worse when he is standing for a long time, but sometimes he can wake up with a headache.” His headaches affected his relationships because he became more irritable and isolated. He also had blurry vision, “sometimes gets dizzy” with headaches, and experienced scalp tenderness with headaches. The assessment was that the Veteran’s chronic migraines were more likely than not associated with his history of TBI while on active service. On VA headaches DBQ in July 2013, the Veteran’s complaints included a daily headache involving his head and/or neck. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. An in-service history of multiple TBIs was reported. A 2-hour fronto-temporal throbbing headache, left greater than right, was superimposed on a chronic persistent left fronto-temporal headache and was associated with nausea, dizziness, and an “aversion to light & sound.” The VA examiner concluded that the Veteran’s current headaches were related to his in-service TBIs and could not determine what percentage of his headaches were due to any post-service head injuries. On VA TBI DBQ in July 2013, the Veteran reported multiple in-service TBIs. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. There was objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions. Three or more subjective symptoms were reported which mildly interfered with work, instrumental activities of daily living, or work, family, or other close relationships. The Veteran experienced headaches as a residual of his in-service TBIs. The Axis I diagnoses included cognitive disorder, not otherwise specified. On VA headaches DBQ in May 2017, the Veteran’s complaints included more frequent headaches. He experienced headaches 5 times a week lasting from 2 hours to all day at a time. He was unable to go to work due to headaches twice a month. His headaches were associated with nausea, photophobia, and phonophobia. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. He received Botox injections and took continuous medication for his headaches. His headache symptoms were pulsating or throbbing head pain on both sides of the head, nausea, sensitivity to light and sound, typical head pain lasting less than 1 day. He experienced characteristic prostrating attacks of migraine/non-migraine headache pain once a month. The VA examiner stated that the Veteran’s headaches did not impact his ability to work. The diagnoses were migraine headaches and post-traumatic headaches. On VA headaches DBQ in July 2017, the Veteran’s complaints included headaches which “are mostly left-sided and occipital and can radiate temporally. Headaches are dull and steady, occasionally throbbing, can be associated with nausea, photophobia, phonophobia, [and] blurred vision. Headaches occur several days per week, usually lasting an hour to all day.” The Veteran used nasal spray at the start of his headaches, daily medication, and Botox scalp injections to treat his headaches. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. His headache symptoms were constant head pain, nausea, sensitivity to light and sound, changes in vision, and typical head pain lasting less than 1 day. He experienced characteristic prostrating attacks of migraine/non-migraine headache pain once a month. The Veteran’s headaches did not impact his ability to work. The diagnosis was chronic post-traumatic headaches. On VA TBI DBQ in July 2017, in addition to his reported complaints of headaches (as noted above), the Veteran also complained of problems with short-term memory, forgetfulness, and “sometimes” losing track of what he is saying. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. The Veteran’s social interaction occasionally was inappropriate. Three or more subjective symptoms were reported which mildly interfered with work, instrumental activities of daily living, or work, family, or other close relationships. One or more neurobehavioral effects were reported which occasionally interfered with workplace or social interaction or both but do not preclude them. The VA examiner concluded that the Veteran’s TBI did not impact his ability to work. The diagnoses were TBI and chronic post-traumatic headaches. On VA headaches DBQ in February 2019, the Veteran’s complaints included daily headaches which varied in intensity with a baseline of 7/10 on a pain scale and less intense and throbbing daily headaches lasting 6-7 hours at a time. His less intense headaches were associated with nausea, photophobia, and phonophobia and bilateral head pain, right greater than left. He had severe headaches which occurred 1-2 times a week treated with Botox injections every 3-4 months. With severe headaches, his “pain is more intense and lasts for the entire day. He reports Botox injections help for the first 4-6 weeks. He reports after the Botox wears off, he has 2-3 severe headaches a week.” His severe headaches were associated with vomiting, dizziness, irritability, and light and sound sensitivity. He had retired from his former job as a corrections officer because he taking too much time off to deal with his headaches and was not currently working. He was unable to socialize or exercise due to his headaches. The Veteran’s headache symptoms were constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain worsened with physical activity. He also experienced nausea, vomiting, sensitivity to light and sound, and vision changes. He had near daily headaches which he rated as 4-5/10 on a pain scale “at baseline with more severe migrainous headaches several days of the month lasting [several] hours at a time.” He experienced characteristic prostrating attacks of migraine/non-migraine headache pain once a month and very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The VA examiner concluded that the Veteran’s headaches impacted his ability to work. He stated: The Veteran has documentation of daily headaches with more severe migrainous headaches occurring a few days a month. The Veteran reports he is no longer working due to multiple different factors with headache as one of the factors that contributed to the loss of work because of time loss and “irritability.” Although the Veteran reports more frequent severe headaches on this examination than what is documented consistently in record, he would likely still have a few days of the month with a more severe headache that may impact his abilities to work those days. Given the frequency of time loss, he would have difficulty maintaining a usual 40 hour work week. To maintain work, he would have to have a more flexible work schedule with accommodations for frequently missed days from the standpoint of his headache condition and accommodations for frequent medical appointments. The diagnoses were migraines and traumatic headaches. Consistent with the Veteran’s lay statements and hearing testimony, the record evidence shows that his service-connected headaches resulted in very frequent completely prostrating and prolonged attacks of headaches capable of producing economic inadaptability throughout the appeal period, although his symptoms occasionally waxed and waned with medication which never resolved his headaches. The physical examination findings obtained during the appeal period support the assignment of an initial 50 percent rating for service-connected headaches under DC 8100 throughout the appeal period. See 38 C.F.R. § 4.124a, DC 8045-8100 (2019). It is undisputed that the Veteran experienced head trauma while in combat in Iraq. Although several VA clinicians found inconsistencies in the number of in-service TBIs reported by the Veteran, his report of experiencing in-service head trauma nevertheless is consistent with the facts and circumstances of his combat service in Iraq. The Board recognizes that, since his service separation, the Veteran consistently has complained of and sought treatment for headaches. These headaches have been attributed to his in-service head trauma while in combat in Iraq. Although multiple medications have been prescribed to treat this disability, it has not reduced the frequency of headaches significantly since his service separation. More importantly, the record evidence shows that this disability interfered with his former job as a corrections officer and forced him to stop working because he was taking too much time off from his job to deal with his debilitating (and daily or nearly daily) headaches. The Veteran reported experiencing headaches 25 out of 30 days a month as early as March 2012. The Board acknowledges that several VA examiners checked boxes on examination reports completed in 2017 that the Veteran’s headaches did not interfere with his ability to work although the Veteran reported consistently at these examinations that he was unable to go to work at least several times a month due to the intensity of his headaches. None of these VA examiners attempted to reconcile this apparent conflict in the medical evidence. Thus, the Board finds that the act of checking a box on an examination report, without additional explanation, is entitled to less probative value than the Veteran’s consistent reports of the economic impact of his service-connected headaches while he was employed as a corrections officer in a state prison. More importantly, the February 2019 VA examiner concluded that the Veteran’s service-connected headaches interfered with his ability to work. This examiner noted that, although the Veteran only experienced severe headaches a few days a month, he would be prevented from working consistently as a result of these more severe headaches. Taken together, the record evidence as a whole supports the assignment of an initial 50 percent rating for the Veteran’s service-connected headaches throughout the appeal period. In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for an initial 50 percent rating for headaches have been met throughout the appeal period. In the October 2016 Joint Motion for Remand filed by the Veteran’s attorney and VA’s Office of General Counsel, the Veteran indicated that he was not appealing the rating for his headaches prior to July 22, 2010 and was abandoning any appeal of that time period. As such, the Board finds that the 50 percent rating granted herein should be effective July 22, 2020. See also 38 C.F.R. § 3.102 (2019). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.