Citation Nr: 21009775 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 09-32 290A DATE: February 23, 2021 ORDER Entitlement to a rating in excess of 20 percent for impingement syndrome of the left shoulder (left shoulder disability) is denied. Entitlement to a rating in excess of 10 percent prior to June 22, 2016 and in excess of 60 percent, thereafter, for eczema, is denied. Entitlement to an increased rating of 50 percent for migraine headaches is granted, effective April 1, 2009, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 50 percent from December 3, 2019, for migraine headaches, is denied. Entitlement to a rating in excess of 10 percent prior to December 3, 2019 and in excess of 40 percent, thereafter, for traumatic brain injury (TBI), is denied. REMANDED Entitlement to a rating in excess of 10 percent, effective April 1, 2009 to January 19, 2018; and in excess of 20 percent, effective May 1, 2018 (with a temporary total rating for convalescence from surgery, effective January 19, 2018 to May 1, 2018), for degenerative joint disease of the cervical spine, status post cervical fusion, C5 to C7 (cervical spine disability), is remanded. FINDINGS OF FACT 1. The Veteran’s left shoulder is manifested by limitation of motion, most severely limited to 70 degrees of abduction and 105 degrees of flexion with complaints of pain and weakness. 2. Effective prior to June 22, 2016, the Veteran’s eczema involved 5 percent to less than 20 percent of the total body area and no exposed area and was not treated with systemic therapy. 3. Effective June 22, 2016, the Veteran’s eczema is rated as 60 percent disabling, which is the maximum schedular rating permitted for eczema. 4. Effective April 1, 2009, the Veteran’s migraine headache symptoms (continuing complaints of very frequent prostrating attacks occurring about three to four times per month with constant head pain, pulsating or throbbing head pain, nausea, vomiting, sensitivity to light and sound, vision changes and blurred vision) have more nearly approximated very frequent completely prostrating and prolonged attacks that are capable of producing severe economic inadaptability. 5. Effective December 3, 2019, the Veteran’s migraine headaches are rated as 50 percent disabling, which is the maximum schedular rating permitted for migraine headaches. 6. Effective prior to December 3, 2019, at most the Veteran’s TBI is associated with level 1 impairment in memory, attention, concentration, and executive functions; social interaction; visual spatial orientation; subjective symptoms; and neurobehavioral effects. 7. Effective December 3, 2019, at most the Veteran’s TBI is associated with level 2 impairment in visual spatial orientation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a left shoulder disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for a rating in excess of 10 percent, effective prior to June 22, 2016; and in excess of 60 percent, thereafter, for eczema are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. 3. The criteria for a disability rating of 50 percent for migraines, effective April 1, 2009, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 4. The criteria for a disability rating in excess of 50 percent for migraines, effective December 3, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 5. The criteria for a disability rating in excess of 10 percent, prior to December 3, 2019; and 40 percent, thereafter, for TBI are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from April 1977 to June 1995. These matters are before the Board of Veterans’ Appeals (Board) on appeal from Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decisions. See AOJ Rating Decisions dated in July 2008; November 2008; March 2010; and July 2013. As noted in the Board’s prior remand, the Veteran has provided sworn testimony at Board hearings before two of the three undersigned Veterans Law Judges (VLJs) and waived his right to appear before the third. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The transcripts of those hearings are of record and have been reviewed and considered by all three VLJs in this decision. The Board remanded the case to the AOJ for additional development in May 2015 and most recently in May 2018. Following the last remand, the AOJ granted an increased rating of 50 percent for migraine headaches, effective December 3, 2019; granted an increased rating of 40 percent for TBI, effective December 3, 2019; and granted an increased rating for the cervical spine to a 20 percent rating, effective May 1, 2018; and a 40 percent rating, effective December 2019 (with a temporary total rating based on convalescence due to surgery, effective January 19, 2018 to May 1, 2018). See September 2020 rating decision. As the Veteran has not indicated that he is satisfied with the increased ratings, these matters are still before the Board. AB v. Brown, 6 Vet. App. 35, 38- 39 (1993). The AOJ substantially complied with the directives of the Board’s May 2018 remand and thus, the case has been returned to the Board for appellate review. The Veteran’s former representative notified VA in January 2020 (prior to the case being recertified to the Board) that he no longer represents the Veteran. Pursuant to 38 C.F.R. § 14.631 (c), an attorney may withdraw from representation provided before VA, before certification of the appeal, if such withdrawal would not adversely impact the claimant’s interest. Given that the withdrawal was before certification of the appeal and that the attorney has no monetary interest in the outcome of the matters, the Board finds that the Veteran is not adversely impacted by the attorney’s withdrawal and the representative’s motion is granted. Increased Rating 1. Entitlement to an increased rating higher than 20 percent for a left shoulder disability The Veteran contends that he is entitled to a higher rating because his left shoulder is weak and aches. See, e.g., August 2017 Board hearing transcript, p. 17. He noted that he is right-handed and that he cannot carry anything with his left arm, put his arm behind his back or lift it without pain. Id. at 16-18. He testified at the October 2014 Board hearing that he can raise his left arm to shoulder level and above shoulder level, but it is painful. See October 2014 Board hearing transcript, pp. 35-36. The Veteran’s left shoulder disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5010 for arthritis. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The amendment to Diagnostic Code 5010, effective February 7, 2021, for post-traumatic arthritis was clarified that it can be rated as limitation of motion, dislocation, or instability. 38 C.F.R. § 4.71a, 85 Fed. Reg. 76453 (Nov. 30, 2020). Under the amendment, Diagnostic Code 5002 also was renamed from rheumatoid arthritis to multi-joint arthritis to take into account all systemic arthritis (except post-traumatic and gout). Id. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. As the Veteran testified that he was right-handed, his left shoulder is considered his minor side. As applicable to the Veteran’s shoulder disability, the amendments to the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, clarify that Diagnostic Code 5201 addressing limitation of motion of arm includes either flexion or abduction. 38 C.F.R. § 4.71a, 85 Fed. Reg. 76453 (Nov. 30, 2020). The amendments further clarify that Diagnostic Codes 5201 and 5202 provide that shoulder level is 90 degrees and midway is 45 degrees. 38 C.F.R. § 4.71a, 85 Fed. Reg. 76453 (Nov. 30, 2020). Id. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). 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 factors listed in section 4.40 or section 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 United States Court of Appeals for Veterans Claims (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.” 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 the left shoulder disability. As noted, the evidence of record shows that the Veteran is right-handed. See, e.g., August 2017 Board hearing transcript, p.17. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and weakened movement. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he cannot carry anything with his left arm or put his arm behind his back or lift it without pain would not result in symptoms more nearly approximating limitation of motion of the arm to 25 degrees from the side of the minor extremity. A May 2003 VA treatment record notes normal range of motion of the shoulder and normal motor examination of the left upper extremity. A February 2006 VA treatment record notes that the Veteran’s left shoulder hurts when he lifts his arm. It was noted that he had been in a rear-end vehicle collision the prior day. An October 2007 VA examination report notes that the Veteran’s left shoulder could abduct and flex to 145 degrees. The end-of-range motion was painful indicating impingement. Range of motion was not additionally limited following repetitive use. Supraspinatus strength was normal, but testing caused pain in the posterior left shoulder when testing left supraspinatus strength. In November 2010, an urgent care record notes that the Veteran had complaints of severe shoulder pain. A November 2012 VA primary care note shows the Veteran had complaints of left deltoid pain and swelling. It was noted that the range of motion of the shoulder was “ok.” X-ray examination showed mild arthritis where the collarbone attached to the front of the shoulder. A September 2013 VA primary care note shows the Veteran wanted to upgrade his TENS unit to help with the pain he had every day with his shoulder. A June 2016 VA examination report shows that the Veteran’s left shoulder had 0 to 140 degrees of flexion and 0 to 100 degrees of abduction. Range of motion did not contribute to functional loss. There was no pain with weight-bearing. There was tenderness to palpation in the subacromial area. After repetitive use studies the range of motion was to 135 degrees of flexion. Abduction stayed at 100 degrees after repetitive use. It was noted that for employment the Veteran could not engage in work activities that required lifting the left arm overhead or carrying/ lifting heavy loads with the left arm. In December 2019, a VA examination report noted the Veteran’s complaints of worsening pain. He also described popping movements of the shoulder and decreased range of motion. For functional impairment, he noted that if he tried to lift something for a long period of time, he had to relax it. Range of motion studies showed that flexion was to 105 degrees and abduction was to 70 degrees. He also had a reduced capacity to perform overhead tasks. He had moderate to severe tenderness or pain on palpation at the anterior shoulder. There was no evidence of pain with weight-bearing. While the left shoulder was not examined during repetitive use over time or during a flare-up, the examiner estimated based on the Veteran’s statements describing functional loss that his range of motion in the left shoulder would remain at 105 degrees of flexion and 70 degrees of abduction. Functional impairment included that the Veteran had reduced capacity to perform overhead tasks. It was noted that passive range of motion of the left shoulder was the same as active range of motion. It also was noted that pain on passive range of motion was the same as that on active range of motion. The examiner noted that while there was a worsening of the Veteran’s symptoms there was no change to the diagnosis. The December 2019 VA examiner complied with Sharp v. Shulkin, 29 Vet. App. 26 (2017) in that the VA examiner considered the extent of functional impairment of flares from the Veterans himself, when a flare-up is not observable at the time of examination. Specifically, the examiner noted that while the left shoulder was not examined during repetitive use over time or during a flare-up, the examiner estimated based on the Veteran’s statements describing functional loss that his range of motion in the left shoulder would remain at 105 degrees of flexion and 70 degrees of abduction. Functional impairment included that the Veteran had reduced capacity to perform overhead tasks. Reviewing the medical evidence of record, the Veteran’s left shoulder is manifested by limitation of motion, most severely limited to 70 degrees of abduction and 105 degrees of flexion with complaints of pain and weakness. The Veteran’s functional impairment in the left shoulder does not include limitation of motion in the left arm to 25 degrees from his side, which is needed for the next higher 30 percent rating for the minor side under 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Board has considered the amendments to the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, Diagnostic Code 5002 being renamed from rheumatoid arthritis to multi-joint arthritis to take into account all systemic arthritis (except post-traumatic and gout) does not impact the Veteran’s claim. Id. The amendment to Diagnostic Code 5010 clarifying that post-traumatic arthritis can be rated as limitation of motion, dislocation, or instability is not applicable as the type of impairment in the left shoulder is limitation of motion. Id. The amendments to Diagnostic Code 5201 clarifying that limitation of motion of arm includes either flexion or abduction does not impact the Veteran’s claim; as, effective February 7, 2021, there is no evidence of any limitation of flexion or abduction to 25 degrees. Id. Finally, the clarification that Diagnostic Codes 5201 and 5202 provide that shoulder level is 90 degrees and midway is 45 degrees does not impact the Veteran’s claim as he is already rated on the basis of limitation to motion of the arm at shoulder level, which warrants a 20 percent rating for both the major and minor extremity under Diagnostic Code 5201. Id. The Board has considered whether any other diagnostic codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Specifically, there is no evidence of ankylosis of the left scapulohumeral articulation under Diagnostic Code 5200. There is no evidence of other impairment of the humerus under Diagnostic Code 5202. Finally, under Diagnostic Code 5203, 20 percent is the highest schedular rating available; there also is no evidence of impairment of the clavicle or scapula. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 20 percent for the left shoulder disability. 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. 2. Entitlement to an increased rating for eczema rated as 10 percent disabling prior to June 22, 2016; and 60 percent, thereafter The Veteran contends that he is entitled to a higher rating because he has itching and dryness and breakouts. See, e.g., October 2014 Board hearing transcript, p. 37. He noted that the dryness was all over his body; the peeling of the skin was on the legs and hands; the bumps were on his face, chest, back, and lower leg; and he had itching on the buttocks. Id. at 38. He estimated that his skin condition affected 60 percent of his body including his face, legs, back, chest, hands, feet, and head. See February 2009 statement. He testified at the August 2017 Board hearing that his eczema involved dryness and itching on his chest, back, buttocks, and legs. See August 2017 Board hearing transcript, p. 21. He also noted that his face breaks out and his hands and upper arm peel. Id. The Veteran’s eczema is rated under Diagnostic Code 7806 for dermatitis or eczema. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Here, the evidence of record demonstrates that the predominant disability is eczema. See, e.g., May 2008, May 2009, November 2011 and June 2016 VA examination reports. The Board finds that prior to June 22, 2016, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations because the Veteran’s eczema does not more nearly approximate 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A May 2008 VA examination report shows that the Veteran had hyperpigmented papules along with some erythematous areas on the back. The percentage of exposed skin involved 0 percent. The percentage of the entire body involved 5.4 percent. There was no scarring or disfigurement. The diagnostic tests in the Veteran’s dermatology records reflected atopic dermatitis with folliculitis. The Veteran stated that he used Clobetasol Propionate 0.05% topically, Hydroxyzine Pamoate 25 mg as needed for itching, and Triamcinolone 0.1% cream. It was noted that he had used corticosteroids. A May 2009 VA examination report shows that the Veteran had been diagnosed with eczema. The skin disease involved areas that were exposed to the sun, including the head, face, hands, and neck and back, legs, and chest. The Veteran reported that the location of the itching was on the back; small bumps were on the face, neck, chest, and back; and cracking was on both legs. Due to his skin condition, he had ulcer formation on the chest, neck, and buttocks. He also had itching on the back; shedding on the hands; and crusting on the legs. He had no exudation. The symptoms described occurred constantly. The Veteran stated that treatment within the last 12 months included Clotrimazole 1% twice a day, which is a topical corticosteroid; and Chlorhexidine Gluconate 4% two times per day, which is a topical corticosteroid. On physical examination there were no signs of skin disease, including acne, chloracne, scarring alopecia, alopecia areata, or hyperhidrosis. His skin was without lesions, ulcers, or crusting. His eczema appeared well-controlled on medication. A November 2011 VA examination report shows the Veteran had eczema. It was noted that the eczema involved 5 percent to less than 20 percent of the total body area and no exposed area. Treatment for the eczema was not noted. In June 2016, a VA examination report notes the Veteran’s complaints on a May 2009 VA examination report that he had dry itchy skin on the legs, back, anterior chest, buttocks, arms, and face. He stated that the condition was constant, and he used prescribed ointment from VA. The Veteran had been treated for eczema with constant/ near-constant topical medication (Aquaphor hydrophilic ointment) in the past 12 months. The Veteran’s eczema involved greater than 40 percent of the total body area and none of the exposed area. The eczema was described as widespread, fine macular lesions with fine scaling and dryness noted on the anterior trunk, posterior trunk, bilateral arms, and bilateral legs. There were no lesions noted on the head or neck. A December 2019 VA examination report notes that the Veteran’s eczema had not changed substantially in severity since his last examination. He experienced recurrent patches of dry and flaky skin in different areas of his body. He was not presently taking any medications for this condition. Physical examination showed the Veteran’s eczema involved 5 percent to less than 20 percent of the total body area and 5 percent to less than 20 percent of the exposed area. His eczema involved dry, flaky patches of skin on the hands, arms, and legs. The Board finds that effective prior to June 22, 2016, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the August 13, 2018, because the Veteran’s eczema does not more nearly approximate characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. At most, the Veteran’s eczema involved 5 percent to less than 20 percent of the total body area and no exposed area, as reported in November 2011. As for treatment, the Veteran used mostly topical ointments for his eczema, as well as, Hydroxyzine Pamoate 25 mg as needed for itching. It was noted that one of the topical creams was a corticosteroid in May 2008. There is no indication that the Veteran’s treatment for eczema affected the body as a whole in treating his eczema. Thus, it is not considered systemic therapy. See Burton v. Wilkie, 30 Vet. App. 286 (2018). The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include itchiness and dryness, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, while the Veteran asserted on a February 2009 statement that his eczema involved more than 60 percent of his body, this is inconsistent with the objective findings on examination in May 2008, May 2009, and November 2011. On physical examination in May 2009, in fact, there were no signs of skin disease, and his eczema appeared well-controlled on medication. There were also no findings showing that the eczema involved his face. In addition, there was no evidence of past findings of eczema such as scarring. It also is worth noting that the December 2019 VA examination showed the Veteran’s eczema involved 5 percent to less than 20 percent of the total body area and 5 percent to less than 20 percent of the exposed area, which warrants a 10 percent rating under Diagnostic Code 7806. Thus, the medical treatment records do not show that the Veteran’s disability more nearly approximates the criteria set forth in the next higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. Effective June 22, 2016, the Veteran’s eczema is rated as 60 percent disabling under Diagnostic Code 7806. As the Veteran is in receipt of the highest schedular rating under Diagnostic Code 7806, there is no basis to award a higher rating. In conclusion, the Board finds that the evidence is against the Veteran’s claim of a rating in excess of 10 percent for eczema prior to June 22, 2016; and in excess of 60 percent, thereafter. 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. 3. Entitlement to an increased rating for migraine headaches, rated as 30 percent disabling prior to December 3, 2019; and 50 percent, thereafter The Veteran contends that he is entitled to a higher rating because he has tension-type headaches every day, and migraine headaches with sensitivity to light and mood swings and smells that occurred once or twice a week. See August 2017 Board hearing transcript, p. 5. He further testified that he had prostrating type headaches where he could not do anything about three to four times per month and would have to take leave without pay. Id. He stated that he worked for VA in compensation and pension and requested to switch to a less stressful position in 2016 to help his headaches improve but had not seen any improvement since. Id. at 10-12. 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 than the next higher rating. 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. Thus, these will be defined for the purposes of this decision in accordance with Porter v. Wilkie, No. 19-1521, 2020 U.S. Vet. App. Claims (June 3, 2020). The descriptive phrase “very frequent” connotes a frequency of 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 Veteran’s migraine headaches have been rated as 30 percent disabling since July 1, 1995. See October 1997 rating decision. The Veteran submitted his increased rating claim on appeal on April 1, 2009. While the Veteran was granted an increased rating of 50 percent for his migraines, effective December 3, 2019, the Board concludes that the Veteran’s comprehensive symptoms for the entire appeal period more nearly approximate those contemplated by a 50 percent rating. The 30 percent rating only contemplates a frequency of prostrating attacks up to an average of once per month, a frequency which the Veteran’s headaches exceed. Further, a 30 percent rating does not consider the duration of the Veteran’s attacks, which the Board finds to be prolonged. Lastly, the Board finds the Veteran’s symptoms capable of producing severe economic inadaptability, as someone with the frequency and severity of such symptoms would likely need to use sick leave or unpaid absences beyond what is typically allowed to maintain a substantially gainful occupation. A January 2008 VA treatment record notes that the Veteran reported tension headaches, which he attributed to new medication from the neurology department. He noted on an August 2008 VA treatment record that he had about six migraines per month; and tension headaches on a daily basis. A September 2009 VA neurological examination report shows that the Veteran reported headaches that also included symptoms of his stomach being upset, blurred vision, and problems with noise. When the headaches occurred, he was able to go to work but required medication. He experienced headaches on average once a week and they lasted for three days. The symptoms of upset stomach, problems with sounds, vision, lights, and pain reportedly occurred constantly. He treated his symptoms with Midrin and Imitrex. There were times that he could not work or do anything. Neurological examination of the cranial nerves showed normal findings. On examination the Veteran was well-nourished and in no acute distress. It was noted that the Veteran did not have a stroke and spoke normally. He had no residual vision problems. There was no change in the migraine diagnosis. It was noted that rarely the Veteran was unable to work due to severe migraines. In November 2011, a VA examination report notes that the Veteran’s headaches had remained unchanged in their pattern. The Veteran described constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain that worsened with physical activity. Non-headache symptoms included nausea, sensitivity to light, sensitivity to sound, and changes in vision. The Veteran described characteristic prostrating attacks of migraine headache pain occurring more frequently than once per month. He reported that he tried to stay at work through the headaches and would find a quiet place to sit and rest while waiting for his headache medication to work. He was sometimes sent home by his supervisor and estimated missing less than one week of work in the last year due to headaches. A June 2013 VA examination report shows the Veteran reported pulsating or throbbing head pain on both sides of head. Non-headache symptoms included sensitivity to light and sound. The duration of typical head pain was less than one day. The Veteran had characteristic prostrating attacks of migraine headache pain that occurred more frequently than once per month. The Veteran’s headaches did not impact his ability to work. The Veteran testified at the October 2014 Board hearing, however, that he was sent home from work on several occasions due to unbearable headaches. See October 2014 Board hearing transcript, p. 6. A June 2016 VA examination report shows that the Veteran reported migraine headaches about twice a week and almost daily tension headaches. He had tried different medications for headaches in the past such as Topamax, Imitrex (which caused racing heart rate), Midrin, and Nortriptyline with no success. He had tried Depakote also, which did not help. He complained of memory problems like recalling names or losing train of thoughts. He currently was not taking medication for headaches. The report noted that the headache symptoms involved constant pain on both sides of the head that worsened with physical activity. He also experienced non-headache symptoms associated with the headaches including nausea, sensitivity to light and sound, and changes in vision. The duration in symptoms was less than one day. It was noted that the Veteran had characteristic prostrating attacks of migraine headache pain once every month. The prostrating attacks were not productive of severe economic inadaptability. The Veteran’s headache condition did not impact his ability to work. As noted above, the Veteran testified at the August 2017 Board hearing that he had prostrating type headaches where he could not do anything about three to four times per month and would have to take leave without pay. See August 2017 Board hearing transcript, p. 5. He further testified that he worked for VA in compensation and pension and requested to switch to a less stressful position in 2016 to help his headaches improve but had not seen any improvement since. Id. at 10-12. Upon review of the evidence, the Board finds that effective April 1, 2009, the Veteran’s migraine headache symptoms (continuing complaints of very frequent prostrating attacks occurring about three to four times per month with constant head pain, pulsating or throbbing head pain, nausea, vomiting, sensitivity to light and sound, vision changes and blurred vision) have more nearly approximated very frequent completely prostrating and prolonged attacks that are capable of producing severe economic inadaptability. While there is at least one finding by a VA examiner in 2016 that the Veteran’s migraines did not impact his ability to work, and the Veteran continued to work, the Veteran also noted that he required a quiet place when he had prostrating attacks of head pain at work where he could sit and rest. Occasionally he was sent home and could not work at all. He also reported that he was losing his train of thought. It appears that although his employer accommodated him by allowing him to find a quiet place to rest during the workday, when they were completely prostrating, his headaches were capable of causing severe economic inadaptability in that the Veteran was not able to work. Furthermore, the prostrating attacks occurred on average more than once a month. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has no reason to doubt the Veteran’s credibility. In making this determination, the Board has considered that Diagnostic Code 8100 contemplates all migraine symptoms and has thus considered all symptoms experienced due to migraine attacks, and has rated the symptoms based on the frequency, duration, severity, and economic impact of those attacks. See Holmes v. Wilkie, No. 19-2495, 2020 U.S. Vet. App. Claims (November 25, 2020). Considering all relevant evidence of record, the Board finds a 50 percent rating is warranted for the Veteran’s migraine headaches, effective April 1, 2009. While there is an August 2008 VA treatment record mentioning six migraine headaches per month, there is insufficient information in this treatment record to support a 50 percent rating. Specifically, there is no indication as to whether these migraines result in prostrating attacks of the requisite frequency. Thus, based on this treatment record, it was not factually ascertainable within one year prior to the Veteran’s April 1, 2009 increased rating claim that his migraine headaches warranted the next higher rating of 50 percent. See 38 C.F.R. § 3.400(o)(2). With respect to the 50 percent rating assigned December 3, 2019, this is the highest schedular evaluation available for migraine headaches. All potentially applicable codes have been considered and staged ratings are not warranted, as the Veteran has had a relatively stable level of symptomatology throughout the appeal. 4. Entitlement to an increased rating for traumatic brain injury (TBI), rated as 10 percent disabling prior to December 3, 2019; and 40 percent, thereafter The Veteran contends that his TBI symptoms are more severe than warranted for the ratings assigned. He testified at the August 2017 Board hearing that he was having mood swings and memory problems, in addition to concentration problems at work. See August 2017 Board hearing transcript, pp. 26-28. The protocol for traumatic brain injuries was revised on Sept. 23, 2008, and the effective date for these revisions is October 23, 2008. The Veteran was granted a 10 percent disability rating for TBI effective April 1, 2009, pursuant to Diagnostic Code 8045. As the effective date for these revisions is October 23, 2008, the effective date of the rating on appeal, the revised criteria apply. See 38 C.F.R. § 4.124, Note (5). The Veteran has been assigned a 10 percent rating for his service-connected traumatic brain injury (TBI) under 38 C.F.R. § 4.124a, Diagnostic Code 8045 prior to December 3, 2019 and a 40 percent rating since this date. Under this diagnostic code, there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: emotional/behavioral, cognitive (which is common in varying degrees after a traumatic brain injury), and physical. Each of these areas of dysfunction may require evaluation. However, Diagnostic Code 8045 specifies that this diagnostic code applies, to a substantial degree, only to TBI symptoms that could not otherwise be evaluated under another diagnostic code. In this case, for example, the Veteran is service connected for PTSD with dysthymia and depression, which has been assigned separate ratings of 10 percent, from July 1, 1995; 30 percent from August 15, 2011; and 70 percent from June 11, 2013 under 38 C.F.R. § 4.130, Diagnostic Codes 9433-9411. This rating was assigned based on a showing of psychiatric symptoms resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Notably, the Veteran’s reported emotional/behavioral symptoms including irritability and mood swings are contemplated in this rating. The rating for this disability is not on appeal, and therefore, his psychological complaints need not be discussed here. Similarly, the Veteran is also service-connected for a migraine headache disorder, which is currently rated as 50 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran has appealed this rating, and it is discussed above. However, these physical symptoms are also not for consideration under Diagnostic Code 8045, as they are already addressed in a separate diagnostic code. Therefore, any further discussion of his physical complaints need not be addressed. Cognitive impairment is defined as "decreased memory, concentration, attention, and executive functions of the brain." The term "executive functions" includes factors such as goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. The extent of cognitive impairment is evaluated under the table contained in 38 C.F.R. § 4.124a, which addresses "Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." The table for evaluating cognitive impairment addresses 10 facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. The table also provides criteria for levels of impairment for each facet, as appropriate, ranging from zero to three, as well as a fifth level, the highest level of impairment, labeled "total." These facets include memory, attention, concentration and executive functions, judgment, social interaction, orientation, motor activity (with intact motor and sensory system), visual and spatial orientation, neurobehavioral effects, communication, consciousness, and other "subjective symptoms." If no facet is evaluated as "total," the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, if one facet is classified as a 3, then a 70 percent evaluation is assigned. Upon review of the evidence of record, prior to December 3, 2019, the Veteran is not entitled to a rating higher than 10 percent for TBI, as he does not have more than level 1 impairment in memory, attention, concentration, and executive functions; social interaction; visual spatial orientation; subjective symptoms; and neurobehavioral effects. Effective December 3, 2019, the Veteran is not entitled to a rating higher than 40 percent for TBI, as at most the Veteran’s TBI is associated with level 2 impairment in visual spatial orientation. A November 2011 VA examination report notes that the Veteran complained of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing; social interaction that was occasionally inappropriate; mild impairment in visual spatial orientation: occasionally got lost in unfamiliar surroundings, had difficulty reading maps or following directions, was able to use assistive devices such as global positioning system (GPS); three or more subjective symptoms that mildly interfered with work, instrumental activities of daily living, or work, family, or other close relationships; and one or more neurobehavioral effects that occasionally interfered with workplace, interaction, social interaction, or both but did not preclude them. These facets all represent level 1 impairment under Diagnostic Code 8045. The rest of the facets of impairment reported on examination in November 2011 are considered level 0, including normal judgment; always oriented to person, time place, and situation; normal motor activity; able to communicate by spoken and written language and to comprehend spoken and written language; and normal consciousness. A June 2013 VA examination report notes that the Veteran’s social interaction was inappropriate most of the time; but the examiner noted that this was a function of the Veteran’s (service-connected) PTSD, and not a function of his head injury. The remaining facets of impairment were reported by the examiner as being at level 0. A June 2016 VA examination report shows again a complaint of mild memory loss, attention, concentration, or executive functions, but without objective evidence on testing; and mildly impairment visual spatial orientation, which is level 1 impairment. The remaining facets of impairment were reported by the examiner as being at level 0. Based on the findings of the November 2011, June 2013, and June 2016 VA examinations, a level 1 is assigned for impairment in memory, attention, concentration, and executive functions; social interaction; visual spatial orientation; subjective symptoms; and neurobehavioral effects. As such, a rating higher than 10 percent for the Veteran’s TBI is not warranted prior to December 3, 2019. A December 3, 2019 VA examination report shows the Veteran had moderately impaired visual spatial orientation in that he would usually get lost in unfamiliar surroundings, had difficulty reading maps, following directions, and judging distance, and had difficulty using assistive devices such as GPS. This represents a level 2 level of impairment under visual spatial orientation, thus warranting a 40 percent rating under Diagnostic Code 8045. Level 1 impairment was shown for neurobehavioral effects; and the remaining facets of impairment were reported by the examiner as being at level 0. Based on the December 3, 2019 VA examination report, a rating higher than 40 percent for the Veteran’s TBI is not warranted under the criteria of Diagnostic Code 8045, effective December 3, 2019. Therefore, given the above, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s TBI prior to December 3, 2019; and a rating higher than 40 percent is not warranted, thereafter. REASONS FOR REMAND 1. Entitlement to an increased rating for a cervical spine disability rated as 10 percent, effective April 1, 2009 to January 19, 2018; and 20 percent, effective May 1, 2018 (with a temporary total rating for convalescence from surgery, effective January 19, 2018 to May 1, 2018) is remanded. The Veteran stated in February 2020 that he was being referred for another surgery for his neck because of bone spurs. As the evidence suggests that the Veteran’s cervical spine disability has worsened since it was last evaluated in December 2019, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his cervical spine disability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2020 to present including all records relating to any completed or anticipated neck surgery. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability 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. 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). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals John Z. Jones Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.