Citation Nr: 21008794 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-39 686A DATE: February 18, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for migraine headaches is denied. REMANDED Entitlement to an initial compensable disability rating in excess of 10 percent for right knee degenerative arthritis is remanded. Entitlement to an initial disability rating in excess of 10 percent for left knee degenerative arthritis is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to September 26, 2017, and in excess of 20 percent thereafter, for degenerative arthritis of the lumbar spine is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to September 26, 2017, and in excess of 20 percent thereafter, for a cervical strain is remanded. Entitlement to service connection for a neurological disorder claimed as a stroke is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is remanded. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. FINDING OF FACT The Veteran’s headaches have not manifested with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2004 to August 2005. In October 2019, she testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. The appeal was most recently before the Board in December 2019 when it was remanded for further development. The Board finds there has been substantial compliance with the remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Subsequent to the December 2019 remand, the Agency of Original Jurisdiction (AOJ) granted earlier effective dates of November 3, 2014 for the grants of service connection for the right and left knee and cervical spine disabilities; a 10 percent ratings for each knee disability from November 3, 2014; a 20 percent rating for the back disability from September 26, 2017, and; a 20 percent rating for the cervical spine disability from September 26, 2017. See September 2020 rating decision. The issues before the Board are as noted on the title page. Entitlement to an initial disability rating in excess of 30 percent for migraine headaches The Veteran contends that she is entitled to a higher disability rating for her headache disability. The Board finds that a higher rating is not warranted. Under the Rating Schedule, Diagnostic Code (DC) 8100 provides that migraines: with less frequent attacks warrants a noncompensable rating. 38 C.F.R. § 4.124a. Under DC 8100, migraines with characteristic prostrating attacks averaging one in 2 months over last several months warrant a 10 percent rating. Migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months are rated as 30 percent. A maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks that produce severe economic inadaptability. The phrase “characteristic prostrating attacks” was defined as describing migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The distinction between the 10 and 30 percent disability levels is the frequency of the headaches. A 10 percent rating is warranted when the prostrating headaches occur once every 2 months; 30 percent when the prostrating headaches occur once a month. The 50 percent rating does not specify the frequency of prostrating headaches, but the phrase “very frequent” connotes a frequency greater than once a month. Johnson, 30 Vet. App. at 253. Thus, to assign a 50 percent rating, the headaches would have to be very frequent and produce severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Turning to the evidence, in April 2015, the Veteran underwent a VA headaches examination where she was diagnosed with migraine headaches including migraine variants for which she took medication. She was found to have pulsating or throbbing head pain on both sides of the head, as well as sensitivity to light and sound. She was found to have characteristic prostrating attacks of migraine headache pain once every month. The examiner found the Veteran did not have very frequent prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. The examiner found that the Veteran’s headaches did not impact her ability to work. In September 2017, the Veteran underwent a second VA examination for her headaches. She was found to have pulsating or throbbing head pain. The Veteran also was found to experience non-headache symptoms that included nausea, and sensitivity to both light and sound. She was found to have characteristic prostrating attacks of migraine headache pain once every month. The examiner found that the Veteran’s headache condition impacted her ability to work. In August 2020, the Veteran underwent another VA examination where she reported experiencing “pressure headaches” every day, difficulty with reading and vision problems. The Veteran was not taking medication for her headaches. The examiner found the Veteran experienced pulsating or throbbing head pain, as well as sensitivity to light and sound. She was found to have characteristic prostrating attacks of migraine headache pain once every month. The examiner found the Veteran did not have very frequent prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. Based on a review of the record, the Board finds that entitlement to an initial rating in excess of 30 percent is not warranted. At no point during the period on appeal has the Veteran’s headaches been manifested by very frequent completely prostrating attacks; that is, not more frequent that once a month. Viewed as a whole, the Board finds that the record does not support a finding that the service-connected headache disability is manifested very frequent completely prostrating and prolonged attacks that produce severe economic activity. In sum, an initial disability rating in excess of the currently assigned 30 percent rating is not warranted, and the claim is denied. REASONS FOR REMAND 1. Entitlement to an initial compensable disability rating in excess of 10 percent for right knee degenerative arthritis is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent for left knee degenerative arthritis is remanded. 3. Entitlement to an initial disability rating in excess of 10 percent prior to September 26, 2017, and in excess of 20 percent thereafter, for degenerative arthritis of the lumbar spine is remanded. 4. Entitlement to an initial disability rating in excess of 10 percent prior to September 26, 2017, and in excess of 20 percent thereafter, for a cervical strain is remanded. In August 2020, the Veteran underwent VA examinations to evaluate the severity of the above-four disabilities. With respect to her cervical and lumbar spine disabilities, the examiner failed to estimate range-of-motion findings during periods of flare-ups, stating without explanation that doing so would amount to speculation. Remand is needed for new VA examinations with more thorough findings in compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). With respect to the Veteran’s bilateral knee disabilities, an August 2020 VA examination report failed to comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the examination report did not provide range of motion findings that were obtained on active versus passive motion nor range of motion findings in weight-bearing and nonweight-bearing. Rather, the examiner stated only that there was objective evidence of pain in both knees on passive range-of-motion and in nonweight-bearing positions. Remand is needed for a new VA examination with more thorough findings in compliance with Correia. 5. Entitlement to service connection for a neurological disorder is remanded. The Veteran has variously maintained that she suffered from either a stroke or some sort of neurological condition whose symptoms began to manifest during active duty service. Service treatment records show that in March 2004 the Veteran was struck in the forehead and suffered a laceration. In support of her claim, she provided a November 2013 private treatment record which shows she was hospitalized for relapsing-remitting vision changes. At the time of her hospitalization, she reported a history of possible neurologic symptoms that she stated dated back five to 10 years, which potentially places the onset of her condition during active duty service. Subsequent VA treatment records note the Veteran has a past medical history of right eye blindness. In April 2015, the Veteran underwent a VA examination to assess whether she suffered from residuals of a traumatic brain injury (TBI). However, the examination report does not address the Veteran’s right eye blindness, the contentions she made about her claimed stroke or the November 2013 hospitalization. Remand is needed to afford the Veteran a VA examination with opinion on this issue. 6. Entitlement to service connection for fibromyalgia is remanded. The Veteran maintains that she suffers from fibromyalgia that is related to her active duty service. Service treatment records show that she was diagnosed with compression arthralgia in May 2004. VA treatment records show she has a past medical history of fibromyalgia, and a January 2017 letter from a private doctor stated that the Veteran was under the doctor’s care for fibromyalgia. In September 2017, the Veteran underwent a VA examination on this issue. The examiner concluded that it was not likely that the Veteran’s fibromyalgia was incurred in service because there was no diagnosis. However, the examiner failed to address medical records supportive of her claim. Remand is needed for an addendum VA opinion on this issue. 7. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is remanded. 8. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. The Veteran testified at her Board hearing that following a dental root canal during service, she began experiencing numbness in her upper extremities that was later diagnosed as carpal tunnel syndrome. VA treatment records confirm she has a past medical history of carpal tunnel syndrome. Considering the Veteran’s credible testimony and the medical evidence of record, she should be afforded a VA examination with opinion on these issues. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected bilateral knee degenerative arthritis, lumbar spine degenerative arthritis, and cervical strain. The examiner should provide a full description of the respective disabilities and report all signs and symptoms necessary for evaluating the Veteran’s respective disabilities under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. With respect to the Veteran’s musculoskeletal disabilities, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a VA examination to determine the nature and etiology of her claimed neurological disorder. The claims folder must be made available to the examiner. The examiner should then answer the following questions: (a.) Please identify all diagnoses related to the Veteran’s variously claimed neurological disorder and stroke. (b.) Is it as likely as not (50 percent or greater probability) that any diagnosed condition identified above either had its onset in or is otherwise related to the Veteran’s active duty service? A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 3. Obtain an opinion from an appropriate VA clinician regarding the etiology of the Veteran’s diagnosed fibromyalgia. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Following review of the claims file, the clinician should answer the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed fibromyalgia had its onset in is otherwise related to active duty service? A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of her claimed neurological disorder. The claims folder must be made available to the examiner. The examiner should then answer the following questions: (a.) Please identify all diagnoses related to the Veteran’s claimed carpal tunnel syndrome of the bilateral upper extremities. (b.) Is it as likely as not (50 percent or greater probability) that any diagnosed condition identified above either had its onset in or is otherwise related to the Veteran’s active duty service, to include her reports of suffering from bilateral upper extremity numbness following an in-service dental procedure? A complete rationale should be provided for any opinion. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, evidence would permit such an opinion to be made. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.