Citation Nr: 21007607 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-37 712 DATE: February 10, 2021 ORDER Entitlement to a rating of 50 percent, but not higher, for migraine headaches from September 28, 2012, to October 16, 2018, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating of 50 percent, but not higher, for migraine headaches since October 17, 2018, is granted, subject to the law and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for ptosis, claimed as eye droop is remanded. Entitlement to a rating in excess of 10 percent for status post right knee arthroscopic surgery is remanded. FINDING OF FACT 1. From September28, 2012, to October 16, 2018, the Veteran experienced very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 2. Since October 17, 2018, the Veteran experienced very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability CONCLUSION OF LAW The criteria for entitlement a rating of 50 percent, but not higher, for migraine headaches from September 28, 2012, to October 16, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.25, 4.124a, Diagnostic Code 8100. The criteria for entitlement to a rating of 50 percent, but not higher, for migraine headaches since October 17, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.25, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2001 to September 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2019, the RO issued a rating decision that increased the Veteran’s migraine headache disability to 30 percent disabling effective from October 17, 2018. In July 2019, the Veteran testified at a Board hearing. The transcript of that hearing has been associated with the Veteran’s claims file. In October 2019, the case returned to the Board. The Board dismissed the Veteran’s claim for entitlement to service connection for bilateral hearing loss and a urinary tract infection. The Board also remanded the Veteran’s claims that are currently on appeal because although a compact disc was submitted by the Veteran, the records contained in the disc were not able to be uploaded into the Veteran’s claims file. Accordingly, the Board found that a remand was necessary in order for the Veteran to resubmit these records. Increased Rating The Veteran contends that her disability warrants increased ratings throughout the course of the appeal. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board observes that the words “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just.” 38 C.F.R. § 4.6 (2018). It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a compensable rating for migraine headaches prior to October 17, 2018 The Board notes that the Veteran is challenging her initial rating. The Board notes that the Veteran’s disability was awarded a noncompensable rating according to Diagnostic Code 8100 during this period of the appeal. Under diagnostic code 8100, a 10 percent disability rating is assigned, where the Veteran gets headaches with prostrating characteristics, on average, every two months over the course of several months. If the headaches with characteristics of prostrating attacks occur, on average, once a month, a 30 percent disability rating will be assigned. In order to receive 50 percent disability rating, which is the maximum provided under diagnostic code 8100, there must be very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124 (a), Diagnostic Code 8100. The Board acknowledges that the rating criteria do not define “prostrating”. Dorland’s Illustrated Medical Dictionary defines “prostration” as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). Similarly, the term “productive of severe economic inadaptability” is not defined by VA regulations. However, the Court has stated that this term is not synonymous with being completely unable to work, and 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, 446-47 (2004). As to a current diagnosis, the Board notes that the Veteran’s disability has been diagnosed as migraine headaches. As to the Veteran’s lay statements, the Board notes that the Veteran testified that when she gets a headache she has to go home, take her medication, and go to sleep until the headache passes. The Veteran testified that the migraines caused her to miss time from work. The Veteran testified that work stress will bring on the headaches and this forced her to find a less stressful job. The Veteran also testified that she is able to work remotely two days a week in order to help deal with the headaches. The Veteran stated that when the headaches are at the very worst, she would get three migraines per month. She also stated that when the headaches are at their very best, she would get seven to eight migraines per year. The Board acknowledges that the Veteran’s spouse testified that he observed that her headaches are debilitating. The Veteran’s husband stated that they are unable to go out of the house. The Veteran’s husband stated that medication makes the Veteran “very tired and kind of worthless for the next day or so, and she’s just so fatigued after the migraines.” The Board notes that the Veteran attended a VA examination in September 2012. Following the examination, the examiner opined that “she is in no apparent distress, and only interferes mildly with her routine activities approximately once a month.” The Board has also reviewed the Veteran’s VA treatment records during this period of the appeal. These records show that the Veteran has received consistent treatment for this disability. These records further show that the Veteran has reported pain behind her eyes and ears. These records reflect that the Veteran has consistently reported experiencing weekly headaches that will last 8 to 9 hours. Lastly, these records show that the Veteran has rated her headaches will range from a 3 to an 8 on a scale of 10. In sum, the Board finds that the Veteran’s disability has remained consistent during this period of the appeal and that a rating increase is warranted. After a review of the record, the Board finds that the Veteran’s disability is best characterized by a 50 percent rating because the evidence of record indicates that the Veteran experiences frequent prostrating headaches that cause severe economic inadaptability. Specifically, the record reflects that the Veteran has reported experiencing frequent headaches that are severe in nature. In addition, these severe headaches have required the Veteran to make career changes and have required her to seek special accommodations from her employer. Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that an award of 50 percent has been most nearly approximated, which is the maximum schedular rating available under this diagnostic code. As the applicable rating criteria fully contemplate the Veteran’s symptoms, entitlement to an extraschedular rating has neither been requested nor considered. 2. Entitlement to a rating in excess of 30 percent for migraine headaches since October 17, 2018 The Veteran’s disability was rated as 30 percent disabling according to Diagnostic Code 8100 during this period of the appeal. As to a current diagnosis, the Board notes that the Veteran’s disability was diagnosed as migraine headaches. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for this issue in October 2018, at which time the Veteran reported constant head pain, pulsating or throbbing head pain, pain localized to one side of the head, pain on both sides of the head, and pain worsened with physical activity. The Veteran also reported experiencing “nausea, vomiting, sensitivity to light and sound, changes in vision, and sensory changes.” The Veteran stated that the head pain will last for 1-2 days. The examiner indicated that the Veteran experiences prostrating headaches once every month. Lastly, the examiner indicated that the Veteran did not experience very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. In June 2020, the Veteran attended an additional VA examination. The Veteran reported experiencing pulsating or throbbing head pain, pain on both sides of the head, pain around the temple and pain behind the eye. The Veteran additionally reported that she experienced “nausea, vomiting, and sensitivity to light and sound.” The Veteran stated that the head pain will last 1 to 2 days. The examiner indicated that the Veteran has prostrating attacks once every month. The examiner indicated that the Veteran did not experience very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The Board has also reviewed the Veteran’s VA treatment records during this period of the appeal. The Veteran’s records show that she continues to receive treatment for frequent headaches. In sum, the Board finds that the Veteran’s disability has remained consistent during this period of the appeal and that a rating increase is warranted. The Board acknowledges that the examiner indicated that the Veteran only experienced prostrating headaches; however, the Board finds that the evidence of record demonstrates that the Veteran experiences very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Accordingly, the Board finds that the Veteran’s condition is best characterized by a 50 percent rating. After a review of the record, the Board finds that the evidence, both positive and negative as to the issue of a rating in excess of 30 percent for a headache condition is at least in equipoise. Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that a rating of 50 percent is most nearly approximated, which is the maximum schedular rating available for migraine headaches. As the applicable rating criteria fully contemplate the Veteran’s symptoms, entitlement to an extraschedular rating has neither been requested nor considered. Extra Considerations Lastly, the Board has considered the Court’s holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds that Rice is not applicable to the current appeal because the Veteran does not claim, and the record does not show that her disabilities prevent the Veteran from securing or following a substantially gainful occupation at this time. REASONS FOR REMAND 1. Entitlement to service connection for ptosis, claimed as eye droop, is remanded. The Board notes that the Veteran attended a VA examination for this issue in August 2012. Following the examination, the examiner did not provide a medical opinion whether the Veteran’s reported eye symptoms were related to her military service and simply found that it was resolved. The record reflects that the Veteran has reported that she still experiences issues with her eye and that the onset of her claimed disability occurred while on active duty. Accordingly, the Board finds that this examination is inadequate to decide this case because it is not a thorough and well-reasoned analysis of the Veteran’s disability. Thus, for the above stated reasons, a remand is required to obtain a more complete medical opinion as to the nature and etiology of the Veteran’s disability. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion without supporting clinical data or other rationale does not provide the required degree of medical certainty). 2. Entitlement to a rating in excess of 10 percent for status post right knee arthroscopic surgery is remanded. The Veteran was afforded a VA examination in October 2018 for her right knee disability, wherein she complained of having flare-ups associated with this disability. The Board acknowledges that the examiner noted the Veteran’s symptoms were medically consistent with the Veteran’s statements describing functional loss during flare-ups; however, the examiner was unable to provide any estimates for the Veteran’s lost range of motion during a flareup. Accordingly, the Board finds this examination to be insufficient because the examiner did not provide range of motion estimates based on the Veteran’s lay statements. In the case of Sharp v. Shulkin, the Court noted that for a joint examination to be adequate, the VA examiner “must express an opinion on whether pain could significantly limit” a Veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.” The Court further stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10. Thus, a remand is necessary in order to provide the Veteran with an additional examination. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from September 28, 2020, to the present. 2. Schedule the Veteran for an appropriate VA examination in order to determine the nature and etiology of the Veteran’s eye disorder. The electronic claims file must be reviewed by the examiner. All indicated testing and studies must be conducted, and all pertinent symptomatology must be reported in detail. After a review of the claims file, the examiner should provide answers to the following questions: (A) Please state the diagnosis for all of the Veteran’s eye disorders, to include ptosis. (B). For each identified disorder, is it at least as likely as not (50 percent probability or greater) that the Veteran’s eye disorder, to include ptosis, had its onset in service or is caused by or related at least in part to her active service? 3. Schedule the Veteran for a VA examination to determine the severity of her right knee disability. The examiner must address the severity, frequency, and duration of the Veteran’s flare-ups. The examiner must also identify the degree of functional loss that the Veteran has experienced during a flareup throughout the course of the appeal. The VA examination reports must include a complete rationale for all opinions expressed. In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay claims regarding the observable symptoms he has experienced. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.