Citation Nr: 21014792 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 13-32 411 DATE: March 15, 2021 ORDER Entitlement to an initial compensable rating for headaches is denied. REMANDED Entitlement to an initial compensable rating for service-connected scars, status post cholecystectomy and Nissen fundoplication is remanded. FINDING OF FACT During the appeal period, the Veteran experienced headaches with less frequent attacks. His headaches did not manifest in characteristic prostrating attacks averaging one in 2 months over the last several months. CONCLUSION OF LAW The criteria for a compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1986 to October 2006. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in which the Veteran was granted service connection for headaches and service connection for scars, status post cholecystectomy and Nissen fundoplication with both being assigned a noncompensable rating. In the June 2013 Notice of Disagreement (NOD), the Veteran sought an increased rating for his service-connected headaches and service-connected scars, status post cholecystectomy and Nissen fundoplication. The Board notes the Veteran filed an informal substantive appeal in November 2013. In March 2014, the Veteran filed his Form 9, Substantive Appeal, and elected an optional Board hearing. The Veteran and his wife provided testimony at an October 2015 hearing before a Veteran Law Judge who has since retired. A transcript of the hearing is associated with the claims file. The Veteran was notified that the Veteran Law Judge who had heard his testimony had retired, and was given an opportunity to request a new hearing by way of a January 2021 letter. However, the Veteran has not requested a new hearing. This matter was previously before the Board in June 2015, January 2016, and November 2019 in which the case was remanded for further development. In the November 2019 decision, the Board remanded the claims to determine whether the Veteran’s umbilical hernia was related to the Veteran’s service-connected scars or may be separately service connected. The Board acknowledges that the Veteran was separately granted service connection for periumbilical hernia. Board decisions shall be based on the entire record and consideration of all evidence, lay and medical, that is material. 38 U.S.C. § 7104(a); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). While the Board must review the entire record, it does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. See Timberlake, supra. In evaluating the evidence in any given appeal, it is the responsibility of the Board to make appropriate determinations of (a) competence; (b) credibility; and (c) weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Medical opinions are deemed competent since they are from medical professionals. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Rating Disability ratings are determined by comparing the symptomatology manifested by a particular service-connected disability at issue with the criteria set forth in the Rating Schedule found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered due to or incident to military service. The ratings are intended to compensate, as far as can be practicably determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. Where, as here, entitlement to service connection has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Entitlement to an initial compensable rating for headaches The Veteran contends that he is entitled to a compensable rating because he is experiencing prostrating attacks on average of three to four times a month. October 2015 Hearing Transcript at 5. 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. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. 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. Here, the Veteran is in receipt of a noncompensable rating for headaches secondary to service-connected sleep apnea under DC 8199-8100. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the DC will be constructed via the first two digits selected from that part of the rating schedule most closely identifying the part or system of the body involved, and the last two digits will be “99” for all unlisted conditions. Then, the disability is rated by analogy under a DC to a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. § 4.20, 4.27. The most closely related disability to the Veteran’s headaches would be migraines under DC 8100. In March 2013 and June 2016, the Veteran underwent a VA examination for his headaches. At the March 2013 VA examination, the Veteran reported experiencing headaches once or twice a month if he did not use his CPAP. The examiner found the Veteran did not have characteristic prostrating attacks of headache pain. At the June 2016 VA examination, the examiner diagnosed the Veteran as having cervicogenic headache that resolved and headache condition associated with sleep apnea that resolved. The examiner noted that the Veteran received chiropractic care for headaches related to neck pain between October 2014 and February 2015. He also noted the Veteran went to the emergency room in December 2015 because of significant headache pain. The examiner notes the emergency room providers found the Veteran has having hypertension and a headache, in which the Veteran was prescribed medication for hypertension. During the examination, the Veteran reported he was not experiencing headache pain. The examiner found the Veteran did not have characteristic prostrating attacks of headache pain and that the Veteran’s headaches had resolved. In the February 2014 VA treatment record, the Veteran reported daily headaches. In August 2014 VA treatment record, the clinician found upon examination that the Veteran experienced mid-scapular pain spreading to the neck that was associated with headaches. In the November 2014, the Veteran was diagnosed as having “headache/neck pain.” In the December 2015 VA treatment record, the Veteran reported intermittent headaches. During a neurologist consultation in January 2016, the Veteran reported not experiencing any headaches. The Veteran’s 2016 physical therapy treatment records show the Veteran was diagnosed as having cervicalgia headache and that the Veteran did not complain of headache pain. The Board finds that there is not adequate evidence in this case to distinguish the effects of service-connected and nonservice-connected disabilities. The Board may compensate the Veteran only for service-connected disability. However, the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Neither the March 2013 nor the June 2016 VA examiners found the Veteran experienced characteristic prostrating attacks of headache pain. The VA treatment records and the physical therapy treatment records do not show that the Veteran experienced characteristic prostrating attacks of headache pain. The Veteran most recently complained about intermittent headache pain in 2015, but subsequently reported experiencing no headache pain. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the Veteran stated at the October 2015 Board hearing that he experienced prostrating attacks on average of three to four times a month, the Veteran’s statements are not supported by the medical evidence of record. Statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment. White v. Illinois, 502 U.S. 346 (1992). Thus, the Veteran’s credibility is diminished. Accordingly, the Board finds the Veteran’s October 2015 statements less probative. Considering all relevant evidence of record, the Board finds the Veteran’s lay statements to his medical providers and the medical evidence most probative. The Veteran contends he experienced prostrating attacks on average of three to four times a month, but the medical evidence and the Veteran’s lay statements to his medical providers contradict that contention. Accordingly, the Board concludes that the Veteran’s headaches did not occur with characteristic prostrating attacks averaging one in two months over the last several months at any time during the appeal period. Therefore, a compensable rating under DC 8100 is not warranted. REASONS FOR REMAND Entitlement to an initial compensable rating for service-connected scars, status post cholecystectomy and Nissen fundoplication is remanded. The Veteran contends he is entitled to an initial compensable rating for his service-connected scars, status post cholecystectomy and Nissen fundoplication. The Veteran underwent a VA examination in June 2016 in which the examiner determined six of the Veteran’s 11 scars were related to his service-connected status post cholecystectomy and Nissen fundoplication. On closer look, the examiner did make sufficient findings for each of the six scars to allow the Board to adjudicate the claim. Accordingly, while the Board regrets the delay, the claim must be remanded for an addendum opinion to make the appropriate findings. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with the June 2016 examiner if available for an addendum opinion. If the June 2016 examiner is unavailable, then schedule an examination with an appropriate examiner to provide an addendum opinion. 2. Provide the examiner the Veteran’s complete claims file, including the June 2015 Remand, January 2016 Remand, November 2019 Remand, and this Remand for review. The examination report should reflect that such review was accomplished. 3. Based on review of the record and examination of the Veteran, the examiner is requested, as to each scar of the six scars that were determined to be at least as likely as not due to the in-service cholecystectomy and/or Nissen fundoplication by the June 2016 examiner, to render the following appropriate findings under the diagnostic code criteria for each such scar to include: (a) the size of the scar (length and width); (b) size of the total affected area of each scar (in inches or centimeters); (c) whether the scar is deep or superficial; (d) whether the scar is linear or non-linear; (e) whether the scar is unstable or painful; (f) whether the scar otherwise limits function of an affected part; and (g) the combined total affected areas of all scars (in inches or centimeters). 4. All examination findings and testing results should be reported in detail. The examiner must provide complete and clearly stated rationale for the conclusions. 5. After completing the foregoing and any other development necessary, readjudicate the Veteran’s claims. 6. If any benefit sought on appeal remains denied, a Supplemental Summary of the Case (SSOC) should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, Associate 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.