Citation Nr: 21020766 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-34 037 DATE: April 8, 2021 ORDER Service connection for seizure disorder as secondary to tension headaches is granted. Entitlement to an initial rating higher than 30 percent for service-connected tension headaches is denied. REMANDED Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his seizure disorder is related to his service-connected tension headaches. 2. During the appeal period, the Veteran experienced tension headaches with characteristic prostrating attacks occurring on average once a month over the last several months. His migraines did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The Veteran’s seizure disorder is proximately due to or the result of service-connected tension headaches. 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for a disability rating in excess of 30 percent for tension headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1978 to February 1981. He appeals an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matters in November 2018, and they have been returned to the Board for appellate review. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In general, to establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection is also warranted for disability that is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant, when rendering a decision on appeal. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); also see Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Service connection for seizure disorder as secondary to tension headaches is granted. For consideration is whether there is current seizure disorder that is proximately due to, aggravated by or the result of a service-connected headache disorder. The Board finds the evidence is at least in equipoise for and against the claim, as explained below. This claim is before the Board based on the directives of the prior remand, which were tailored to the unique facts of this case, as well as the principles set forth in Bailey v. Wilkie, No. 19-2661, a precedential decision issued by the United States Court of Appeals for Veterans Claims in January 2021. The Court found that the Board is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for an increased rating for the primary service-connected disability. In the November 2018 remand, the Board observed the following: Here, the Veteran seeks increased compensation for his service-connected headaches, which he alleges manifest in symptoms that include seizures. The Veteran has asserted that his seizures originate from the same area of his head as his headaches, which result from an injury that he incurred in-service. See October 2015 Lay Statement. He also stipulates that his headaches occur at least weekly, not monthly as is stated on the Statement of the Case (SOC). See VA Form 9. He claims to experience “spells of sharp tingling pain from right posterior head region then blurring vision then [loss of consciousness], eyes open, [and] head movements”. See July 2018 VA Treatment Records. A review of the record reflects that the Veteran was afforded a Compensation and Pension Examination in September 2013; however, that examination report did not include an opinion on the etiology of the Veteran’s seizures. Further, the Veteran asserts that his seizures “are happening more frequently”. See April 2015 Lay Statement. As part of the remand to ascertain the degree of impairment due to headaches, the Board in 2018 ordered a VA examination in which the examiner was to consider seizure manifestations, pain on the right side of his head, tingling, blurring vision and head movements. The Board noted that the Veteran had presented a separate claim for the possibility of his seizures being service-connected, which was currently at the RO. However, the Board found a new VA examination necessary to address both the headaches and seizures. It indicated that, “Only then can the Board determine whether the Veteran is entitled to a separate rating for the seizure symptoms that may stem from his service-connected headaches.” If a seizure disorder was found, the examiner was directed to clarify whether it was caused or aggravated by the service-connected headache disorder. VA examination was conducted in November 2020 in which the examiner opined that the Veteran’s diagnosis was unspecified seizure disorder. The examiner opined positively and negatively in two different opinion reports as to whether the condition was related to Veteran’s headaches. The negative opinion was: The Claimed condition seizure disorder less likely than not (less than 50 percent or greater probability) proximately due to or the result of the veteran’s headache condition…Causes of seizure disorder include head injury, trauma, stroke, and or infection. Tension headache is not a cause of seizure disorders. Therefore, a nexus has not been established. The positive opinion was: The Claimed condition seizure disorder is more likely than not not (more than 50 percent or greater probability) aggravated by the claimants headache condition… NEUROLOGY CONSULT- CHIEF COMPLAINT: seizure - He is a 62 y/o right-handed man here following for seizures/spells of sharp tingling pain from right posterior head region then blurring vision then LOC, eyes open, head movements, no tongue bite/incontinence. LOC for a minute then wakes up w/o confusion. Can happen even when lying on bed, resting. Claimant noted to have seizures with sharp pain in head. Therefore, a nexus has been established. [Emphasis added] In light of the essentially evenly-balanced medical opinion evidence, the Board is unable to be rationally disassociate the Veteran’s seizure disorder from his headache disorders. The positive opinion is reasonably construed as meaning that the headaches are the proximate cause of the seizures. As such, the Board concludes that the current seizure disorder is proximately due to service-connected headache disorder. 38 C.F.R. § 3.310. Entitlement to service connection is therefore warranted as secondary to headache disorder, and the claim is granted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating higher than 30 percent for service-connected tension headaches is denied. The Veteran seeks a higher rating for this disability, rated 30 percent disabling, under Diagnostic Code (DC) 8100 for Migraine, using the Schedule of Ratings – neurological conditions and convulsive disorders. 38 C.F.R. §§ 4.124a, 4.27. Separate ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 8100, a 30 percent evaluation is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation, the maximum available schedular evaluation for headaches is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Neither the rating criteria, nor the Court has defined the term “prostrating”. According to Webster’s New World Dictionary of American English, Third College Edition 1080 (1986), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1367 (28th ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” “Inadaptability” is not defined in Diagnostic Code 8100, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). Further, it has been held that nothing in Diagnostic Code 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, 446 (2004). Service connection for tension headaches was granted by way of the October 2013 rating decision on appeal and a 30 percent rating was assigned. The Veteran’s diagnosis of headaches is not in dispute. The questions for the Board in rating this disability include the severity and frequency of the Veteran’s migraines. VA examination in September 2013 reflects that the Veteran’s headaches result in prostrating headaches once a month. The diagnosis was Migraine including migraine variants and tension headaches. He was on Topamax one a day for headache prophylaxis. When he would get a headache, he would take Naproxen 500 mg two every 4 hours if needed. He estimated that as 2-3 times per week. The examiner observed that he did not have very frequent prostrating and prolonged attacks of migraine headache pain. The examiner found that the headaches did not impact his ability to work. The Veteran thereafter reported his headaches became more frequent and severe. He claimed to experience “spells of sharp tingling pain from right posterior head region then blurring vision then [loss of consciousness], eyes open, [and] head movements.” See July 2018 VA Treatment Records. The 2018 BVA remand ordered examination to ascertain the current degree of severity. The Veteran was then afforded an additional VA headache examination in November 2019. The examiner determined that the Veteran’s headaches cause “less frequent attacks,” which is consistent with a 0% rating. The headaches had no impact his ability to work. Current medication was over-the-counter ibuprofen 1-3 times weekly for complaints of headache. However, it was also noted that the Veteran had worked for a number of years then stopped working in 2009 due to a seizure disorder and a back condition for which he received Social Security disability income until age 62. He was incarcerated for 7 months in 2017. He was in a substance abuse rehabilitation program for 6 months in 2017. He was again incarcerated for 14 months ending in January 2019. He has not been employed since that time. The examiner further stated that current x-rays demonstrate that the Veteran has a new etiology for his occipital headaches, severe cervical spondylosis. Prior to 2014 he complained of frontal headaches; since then, he has complained of occipital headaches. No prior cervical spine x-rays been taken until this examination. He demonstrates that he has advanced degenerative disc and joint disease with a grade 1 anterior listhesis of C7 on T1. The cervicalgia as a result of the cervical spondylosis is a new and separate condition from his in-service tension headaches. Given that he has 2 etiologies for headache, it would be speculative to try to determine which is the predominant etiology. The Veteran was afforded another VA examination in November 2020 for headaches. At this time, he was reported to have characteristic prostrating attacks of migraine/non-migraine headache pain once per month, which is the criteria for a 30 percent rating. He did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. Current medication was Ibuprofen 800 mg. The impact on his ability to work was described as him being limited in activities that require focus and concentration during migraine episodes, such as using a computer. The treatment records note some complaints of headaches throughout the appeal period, but do not suggest a higher rating in terms if severity or frequency. Considering the Veteran’s statements, the examination and treatment record, the Board finds the headaches continue to be manifested by not more than characteristic prostrating attacks occurring on average once a month. The Veteran has not provided any supportive evidence for greater frequency. While acknowledging that he does not have to be completely unable to work in order to qualify for a 50 percent rating, without substantive corroborating evidence, the Board does not find that the disability produces severe economic inadaptability. To the extent that the Veteran urges that the criteria for a 50 percent rating are met or approximated, his assertions as to frequency of completely prostrating and prolonged attacks, as well as economic inadaptability, are outweighed by the (1) treatment record which tends to not support this assertion, and (2) the VA examination record which is wholly against the assertion, as discussed above. The criteria for a higher rating are not met or approximated at any time throughout the appeal period when all the evidence is considered. See 38 C.F.R. § 4.7. There is no reasonable doubt regarding the degree of disability. See 38 C.F.R. § 4.3. REASONS FOR REMAND TDIU is remanded. The Veteran argues that TDIU is warranted due to his headaches and seizures. As the Veteran is now service-connected for seizure disorder, and his only other service-connected disability is headaches, the issue of TDIU may be dependent on the rating assigned for seizures. As such, the inextricably intertwined issue of TDIU is remanded for consideration in light of the grant of service connection. The matters are REMANDED for the following action: Readjudicate the issue of a TDIU in light of the grant of service connection in this decision, and any rating assigned by the AOJ for that disorder, to include performing any appropriate development pertinent to the Veteran's claim. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.