Citation Nr: 21020779 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 15-35 733 DATE: April 8, 2021 ORDER A compensable rating is denied for post concussive headaches prior to August 13, 2020. A 30 percent rating is granted for post concussive headaches from August 13, 2020 to October 20, 2020. A rating in excess of 30 percent is denied for post concussive headaches from August 13, 2020. Service connection for a back disability is denied. FINDINGS OF FACT 1. For the period on appeal up until August 13, 2020, the Veteran’s post concussive headaches were manifested by migraines with less frequent attacks. His migraines did not manifest in characteristic prostrating attacks averaging one in 2 months over the last several months. 2. For the period on appeal beginning August 13, 2020, the Veteran's post concussive headaches are manifested by characteristic prostrating attacks occurring on an average once a month over the last several months. 3. For the period on appeal beginning August 13, 2020, the Veteran’s post concussive headaches are not manifested or more nearly approximated by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 4. A back disability, to include the diagnosed lumbar strain, did not manifest in service nor did arthritis of the spine manifest within one year of separation; a back disability is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for post concussive headaches were not met or approximated up until August 13, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a Diagnostic Code 8100. 2. The criteria for a disability rating of 30 percent for post concussive headaches have been met from August 13, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. 3. The criteria for a disability rating in excess of 30 percent for post concussive headaches have not been met from August 13, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. 4. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2004 to February 2006, including service in Iraq. His decorations included the Combat Infantry Badge. He had additional service in the Army National Guard. These matters are on appeal from an October 2013 rating decision. The Board remanded the claims to the Agency of Original Jurisdiction (AOJ) in October 2020 to obtain medical examinations, one to determine the presence and etiology of any current back disorder and one to ascertain the current manifestations and severity of headaches. In November 2020, the AOJ increased the rating for headaches to 30 percent effective October 20, 2020. The matters have been returned to the Board for appellate review. 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 higher initial ratings for service-connected post concussive headaches. The Veteran seeks higher ratings for this disability, rated 30 percent disabling from October 20, 2020 and noncompensable prior to that date, 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 noncompensable rating is warranted for migraines with less frequent attacks, whereas a 10 percent evaluation is warranted for characteristic prostrating attacks averaging one in two months over the last several months. 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 and the noncompensable rating were granted in the October 2013 rating decision on appeal. The noncompensable rating was based on a finding of a diagnosed disability with no compensable symptoms. The questions for the Board in rating this disability include the severity and frequency of the Veteran’s headaches. VA examination in October 2013 reflects that the diagnosis of post-concussive headaches 2008 currently twice a month which be associated with nausea and photophobia. Symptoms were pain on both sides of head and included nausea, sensitivity to light and changes in vision. The duration was less than 1 day and there were no prostrating attacks nor was there functional impact. It was reported that he took no chronic medication for the headaches. He was afforded an additional VA headache examination in September 2015 which reflects migraines from 2005 with symptoms of pain on both sides of head, nausea, and sensitivity to light/sound. Again, duration was less than 1 day. Prostrating attacks were noted as “less frequent”. The functional impact was reported as less frequent than in the past, now having a mild effect on work when they occur. Motrin was now listed as a medication. Treatment records are consistent with these findings through the date of this September 2015 examination. The Veteran in August 2020 reported that his headaches have become more frequent and severe than reflected in the September 2015 examination. See August 13, 2020 statement. The October 2020 BVA remand ordered examination to ascertain the current degree of severity. Here, we note that VA treatment records dated in 2019 and 2020 contain contrary reports as to increased severity of headaches, with it being noted in October 2019 that his headaches had been present for 12 years but had subsided. An August 5, 2020 treatment note reflects he had no new onset of headaches. He reported he was working in a prison. He was afforded an additional VA headache examination in October 2020 which reflects post-concussive headache from 2005 with symptoms of constant pain on both sides of the head, worse with physical activity. There was also nausea and sensitivity to light and sound, as well as changes in vision. Again, duration was less than 1 day. Prostrating attacks were noted once a month. But there were no very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The functional impact was that he misses work 2-3 times per month due to severe prostrating headache pain. Naproxen was now listed as a medication. Thus, from the date of the October 2020 examination, a 30 percent rating is outwardly supported. Noting his assertions as to increased severity date from August 13, 2020, we reasonably conclude that he was as likely as not suffering from the manifestations documented in the October 2020 examination from August 13, 2020. However, as the treatment record is replete with reference to de minimus or no headache symptoms into early August 2020, we find that the preponderance of the evidence is against a compensable rating prior to the August 13, 2020 statement. Here, we note again that the treatment records are consistent with the prior examinations and reflect that the headaches do not even approximate the criteria for a 10 percent rating. Neither the severity nor frequency to support a compensable rating prior to August 13, 2020 is suggested. As to the period from August 13, 2020, he has not provided any supportive evidence for greater frequency than that consistent with a 30 percent rating. While acknowledging that he does not have to 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 or that it is productive of same. The Board does not find very frequent completely prostrating and prolonged attacks. Such were specifically not found by the October 2020 examiner and the treatment record does not suggest this level of severity. To the extent that the Veteran urges that the criteria for a 50 percent rating are met or approximated from August 13, 2020, 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. As to the period prior to August 13, 2020, his assertions as to a compensable rating are again outweighed by the treatment and examination record. The criteria for higher ratings are not met or approximated at any time throughout the appeal period, except as set forth above, 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. 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. §§ 1110 (wartime), 1131 (peacetime). 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 may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence 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 lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). 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). Entitlement to service connection for a back disability. The question for the Board is whether the Veteran has a current back disorder that manifested in service or within any applicable presumptive period, or whether the condition is otherwise related to service. The Veteran ascribes his back pain to a June 2005 vehicle accident in Baghdad. In a December 2005 post-deployment health assessment, the Veteran reported back pain. Post service, a December 2013 private treatment record reflects a complaint of back pain since the collision in 2005 with an assessment of chronic back pain. A March 2015 VA X-ray of the lumbosacral spine reflects the primary diagnosis of normal. The Veteran has also submitted a September 2015 statement by the platoon medic who treated him after the accident. A June 2017 thoracic spine MRI was normal. There is current low back disability demonstrated in an October 2020 VA examination, to include lumbosacral strain. However, arthritis is not present according to the examiner and the Veteran’s back disorder does not constitute a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a). In October 2020, the Board remanded this claim to obtain any outstanding medical records and a medical opinion on whether it is at least as likely as not (a probability of 50 percent or greater) that any current back disability began in service, or; was caused by service, or; if arthritis is diagnosed, had its onset within one year of the Veteran’s separation from active duty, or; is otherwise related to the Veteran’s active service. The Board called the clinician’s attention to the following: a. The Veteran’s report in a December 2005 post-deployment health assessment of current back pain. b. The Veteran’s report during a February 2008 VA treatment appointment of mid-back pain. c. The Veteran’s report during a September 2010 VA treatment appointment of a five-year history of chronic back pain after a back injury in service. d. The Veteran’s report during a December 2013 private treatment appointment of back pain since a 2005 accident, with a diagnosis of chronic back pain. e. A September 2015 statement by the platoon medic who treated the Veteran after the in-service accident, including his account of the initial injury and the Veteran’s symptoms since then. The VA examination in October 2020 yielded the aforementioned diagnosis of lumbosacral strain, while declining to find any other back disorder present. The examiner opined as follows: The veteran's current back condition is less likely than not (less than 50% probability) incurred in or caused by service. There is no evidence of chronic or recurrent back pain or disability noted by a provider in his STRs or within a year of discharge. He has had treatments for the back years after discharge from service, but there is no evidence noting a direct correlation between his current back complaints and military service. He noted back pain post deployment in 2005, but there is no diagnosis of a chronic back condition noted by a provider during service or within a year of discharge. Considering the evidence, his current back condition is less likely than not (less than 50% probability) incurred in or caused by service. The preponderance of the evidence is also against finding that a nexus exists between the Veteran’s current back disability and service. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Here, the weight of the evidence is against finding that the current lumbosacral strain, first noted in treatment years after service, is related to service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. There was no chronic back disorder or diagnosis in service, rather, as the examiner observed, there was only the aforementioned report of back pain. While we note the September 2015 buddy statement is informative as to the circumstances of the accident, we find the 2020 opinion of the VA examiner, which was made based upon a thorough review of the claims folder and is well-supported with references to the record, to be more probative as to the issue of whether any current back disability is due to service. The Board has carefully considered the Veteran’s assertions that the current disorder is due to the accident in Baghdad. Unfortunately, the Veteran’s contentions as to a relationship pale in comparison to the opinion of a trained medical professional. The VA examiner considered the Veteran’s theory as to a relationship and provided sound reasons for ultimately rejecting it. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert’s opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The opinion is adopted. The benefit sought on appeal is denied. H. N. SCHWARTZ 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.