Citation Nr: 21013544 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-27 591 DATE: March 9, 2021 ORDER Entitlement to an increased 30 percent rating for the Veteran’s service-connected headaches disability, for the period prior to April 20, 2020, is granted. REMANDED The issue of entitlement to a rating in excess of 30 percent for the Veteran’s service-connected headaches disability, for all periods on appeal, is remanded. FINDING OF FACT For the period prior to April 20, 2020, the Veteran’s service-connected headaches disability has been productive of disability featuring at least characteristic prostrating attacks occurring on an average of once a month. CONCLUSION OF LAW The criteria for a 30 percent rating for the Veteran’s service-connected headaches disability have been met for the period prior to April 20, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1995 to May 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded this claim on appeal to the Agency of Original Jurisdiction (AOJ) for additional development of the evidentiary record. The case has now returned to the Board for further appellate review. In February 2017, the Veteran testified at a Videoconference Board hearing before a Veterans Law Judge (VLJ) sitting in Washington, DC. A transcript of the hearing is associated with the record. The VLJ who held the February 2017 hearing is no longer available to participate in this appeal. In November 2020, the Board sent a letter to the Veteran notifying him of the unavailability of the VLJ who held the February 2017 Board hearing; this letter presented the Veteran with options and instructions for proceeding according to his preference. The November 2020 letter instructed the Veteran that if he did not reply within 30 days the Board would assume that he does not want a new hearing and the Board would proceed with adjudication of the appeal. The Veteran has not replied to the November 2020 letter; therefore, the Board may proceed in this case. The case has now been reassigned to the undersigned VLJ for further appellate review. The Board notes that, during the pendency of this appeal, the Veteran has initiated and perfected a separate and distinct appeal seeking to establish entitlement to service connection for sleep apnea. The Veteran’s April 2020 VA Form 9 perfecting that appeal expressly requested a Board hearing for that matter. That separate appeal is currently at the Board, but fulfillment of the Veteran’s request for a Board hearing in that matter remains pending in processing. Accordingly, the Board shall not address the claim of entitlement to service connection for sleep apnea at this time. As discussed in greater detail below, the Board’s decision at this time grants a portion of the Veteran’s claim on appeal, and remands the remainder of the claim for needed evidentiary development. The AOJ shall now have the opportunity to consider new evidence added to the claims-file after the most recent Supplemental Statement of the Case (SSOC) issued in June 2020. The AOJ will readjudicate this claim with consideration of the complete evidentiary record as part of the processing of this remand. Increased Ratings Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive, as in this case. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all contents of the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if the history supports a higher rating during the rating period on appeal. Additional references to the Veteran’s service-connected disabilities are presented in evidence of record beyond that discussed below, including in VA medical reports associated with the Veteran’s treatment. The additional evidence of record does not present findings that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. 1. Entitlement to an increased 30 percent rating for the Veteran’s service-connected headaches disability, for the period prior to April 20, 2020, is granted. The Veteran contends that he is entitled to a higher rating for his service-connected headache pathology. The Veteran argues that the level of impairment is more severe than the assigned disability ratings reflect. This claim arises on appeal from the initial rating determination accompanying the original grant of service connection for the headache disability at issue. Accordingly, the rating period for consideration in this matter begins with the June 17, 2010, effective date of the award of service connection for the headache disability. The Veteran’s headache disability has been rated under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent disability rating is warranted for characteristic prostrating attacks, averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is assigned for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. VA regulations, including the rating criteria, do not define “prostrating” as used in Diagnostic Code 8100. The Board notes that according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, Third College Edition (1986), p. 1080, prostration is defined as utter physical exhaustion or helplessness. A similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th ed. 1994) in which 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 Court of Appeals for Veterans Claims has found that the phrase characteristic prostrating attacks means attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). In other words, the term “prostrating” takes on its plain meaning of lacking in vitality or will; powerless to rise; laid low. Id. The rating criteria of Diagnostic Code 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. Significantly, when considering a disability rating, the Board must not consider the ameliorative effects of medication unless those effects are explicitly contemplated by the relevant rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). In this case, the Veteran’s headache pathology is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, which does not mention the effects of medication. Thus, the ameliorative effects of the Veteran’s medications are not for consideration in rating his headache pathology. The AOJ’s June 2020 rating decision partially granted the Veteran’s claim on appeal by awarding an increased 30 percent rating for the service-connected headache pathology effective from April 20, 2020. The effective date of the 30 percent rating was the date of the April 2020 VA headache rating examination report that the AOJ determined first showed that the criteria for a 30 percent rating have been met. However, the Board must consider whether the current severity of the Veteran’s headache pathology (meeting the criteria for a 30 percent rating) is shown to have been present during the rating period prior to the date upon which the VA examination report records it. The Board notes that the April 2020 VA examiner asked the Veteran to describe the “Course of the condition since onset (Has the condition progressed? Stayed the same?),” and the Veteran answered that the headache pathology had “Stayed the same.” The Veteran noted that the headaches have been causing him to throw up since worsening around or after 2004, many years prior to the rating period for consideration in this case. A June 2011 VA examination report shows that the Veteran at that time reported that “When he has headache he has to wear shade otherwise he will throw up,” due to hypersensitivity to light. The June 2011 VA examination report also shows that the Veteran at that time was “taking some medication ie tramadol for pain. At times he takes tylenol and aleve.” At the time of the June 2011 VA examination, the Veteran described his symptoms as follows: “he claims to have headache episodes that occur at least two to three times a week lasting for a couple of hours to four days. The headaches are described as throbbing and pressure like pain that gets worse with light. He may also get nausea....” At the time of the April 2020 VA examination report, the Veteran described his symptoms as: “Headaches could last 3-4 days usually.... Headaches make him irritable.... He has vomiting in the past.” The April 2020 VA examiner noted that the Veteran was using medications such as “Ibuprofen; Excedrin; Aleve; Aspirin” to manage his headache symptoms. Notably, the April 2020 VA examiner noted that the Veteran had previously used “Imitrex in the past” to ameliorate headache symptoms. A June 2020 private medical report (received by VA in July 2020) indicates that the Veteran “has been taking over-the-counter medication [and] it is definitely helping him for the headache.” A September 2010 private medical report (received by VA in September 2020) describes that the Veteran’s “headache is described as a pressure like feeling associated with throbbing blurry vision and seeing spots in front of his eyes.” Significantly, the September 2010 medical report shows that “He says first day of headache, he may have to miss work and he may do it once a month.” Additionally, the September 2010 medical report indicates that “He takes Tylenol or ibuprofen and the headache can still last for a few hours to days.” The Board has made efforts to determine the severity of the Veteran’s headache pathology throughout the rating period on appeal while discounting the ameliorative effects of the various medications the Veteran has used at various times. The Board finds that it is clear that the Veteran’s use of medications has been consistently described by medical professionals as having ameliorative effects, such that the actual manifestations of the headaches have been less severe than the degree of impairment the Board must consider and apply to the rating criteria to determine the appropriate rating. The evidence is of course not unequivocally clear with regard to the underlying severity of the headache pathology that is obscured by the ameliorative effects of medication. However, the Board has considered that the April 2020 VA examination report does unequivocally indicate that the Veteran’s headaches manifest in characteristic prostrating attacks occurring on an average of once a month, and this has already been accepted as the basis for the award of a 30 percent rating effective from the date of that examination. The April 2020 VA examiner’s assessment was based upon acceptance of the Veteran’s credible testimony describing his symptom experience, and part of the credible testimony at that time indicated that there has been no significant worsening in the severity of his impairment throughout the period for consideration in this appeal. The Board finds that the contemporaneous evidence of record is reasonably consistent with the Veteran’s testimony in this regard, especially when considering that the Veteran has been on and off of various medications, including prescription medications, with significant ameliorative effects over the course of the rating period. The Board finds that the Veteran’s descriptions of headache impairment documented in 2010 and 2011 are reasonably compatible with the description of impairment the April 2020 VA examiner accepted as the basis for characterizing the pathology as meeting the criteria for a 30 percent rating. The Board again notes that the Veteran’s credible testimony to his medical provider in September 2010 indicated that, even with the benefit of ameliorative effects of medication, the Veteran’s headaches forced him to miss a day of work approximately every month. The Board finds no significantly persuasive evidence contradicting the indications that support the Veteran’s claim. Resolving reasonable doubt in the Veteran’s favor, the Board find that the severity of the Veteran’s headache pathology throughout the rating period on appeal has been roughly consistent with the severity associated with the already-established 30 percent rating presented in April 2020. The Board finds that the severity of the Veteran’s headaches, discounting the ameliorative effects of mediation, has been consistent with characteristic prostrating attacks occurring on an average of once a month over several months essentially throughout the entire rating period on appeal. Accordingly, the Board finds that a 30 percent disability rating is warranted for the Veteran’s service-connected headaches pathology throughout the period prior to April 20, 2020. To this extent, the appeal is granted. REASONS FOR REMAND 1. The issue of entitlement to a rating in excess of 30 percent for the Veteran’s service-connected headaches disability, for all periods on appeal, is remanded. The AOJ’s June 2020 rating decision and the Board’s determination in this case, above, have the combined effect of establishing that the Veteran has met the criteria for at least a 30 percent rating for the service-connected headache pathology throughout all rating periods on appeal. To complete appellate review of the matter, however, the Board must be able to make an adequately informed determination as to whether the Veteran’s service-connected headache pathology has met the criteria for a rating in excess of 30 percent. As discussed above, a maximum 50 percent rating is assigned for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Furthermore, when considering a disability rating, the Board must not consider the ameliorative effects of medication unless those effects are explicitly contemplated by the relevant rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). As discussed above, however, it is clear that the shown severity of the Veteran’s experienced headache impairment has been reduced by the ameliorating effects of medications during the rating periods on appeal. A June 2020 private medical report (received by VA in July 2020) indicates that the Veteran “has been taking over-the-counter medication [and] it is definitely helping him for the headache.” Significantly, the evidence of record indicates that the Veteran has previously been medically treated with stronger prescription medications such as Imitrex and Tramadol that would reasonably be expected to have had an ameliorative effect upon the Veteran’s experience of headache symptoms. Consistent with other evidence of record, this information clearly indicates that the Veteran’s medical care for his headaches has featured ameliorating medications that have been characterized as successfully achieving an ameliorative benefit. This suggests that the frequency, duration, and/or severity of the Veteran’s headache impairments would be greater but for the ameliorating effects of various combinations of medications, including substantial prescription medications, used during the rating period. The Board finds no adequate basis in the evidence of record for making an informed determination as to the level of frequency, duration, and severity of the headache impairments underlying the ameliorating / masking effects of medication over the course of the rating period for consideration. There is no evidence that the VA examination reports in this case discounted the ameliorative effects of medication in assessing the severity of the Veteran’s headache disability. Accordingly, a remand is necessary to assess the severity of his headache pathology while discounting the ameliorative effects of medication, to support adequately informed appellate review regarding the Veteran’s potential entitlement to a further increased rating for the headache pathology. The matters are REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including any additional VA treatment records (such as those that may have been created since the last such update of the claims-file). 2. After the record is determined to be complete, obtain an addendum medical opinion from an appropriate clinician regarding the severity of the Veteran’s headache pathology when discounting the ameliorative effects of medication. A new direct examination of the Veteran should be scheduled only if deemed necessary to prepare the medical opinion (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). To prepare the addendum opinion regarding the severity of the headache pathology, the examiner should review the claims-file. The examiner is requested to answer the following: (a) The examiner is specifically requested to indicate what the severity of the headache pathology would be when discounting the ameliorative effects of medication. In particular, based upon review of the Veteran’s medical history and interview of the Veteran, please provide an estimation as to the frequency of characteristic prostrating attacks that the Veteran’s headache pathology would produce if the Veteran did not have the benefit of the ameliorative effects of medication. Discounting the ameliorative effects of medication, is it at least as likely as not (a 50 percent or greater degree of probability) that the Veteran’s headaches would be productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability? (b) The examiner is asked to consider whether the current severity of the Veteran’s headache pathology (discounting the ameliorative effects of medication) is significantly different than the level of severity of the Veteran’s headaches (discounting the ameliorative effects of medication) during any prior portion of the rating period from June 17, 2010, to the present. In other words, if the estimated severity of the Veteran’s headaches pathology has changed significantly for any portion of the rating period from June 17, 2010, to the present, please describe the different estimated levels of severity and identify the period(s) to which each estimate applies. The examiner must explain the rationale for all opinions and conclusions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report symptom experiences; other witnesses are competent to report observable symptoms. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.