Citation Nr: 21021254 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-24 983A DATE: April 12, 2021 ORDER Service connection for cervical spine degenerative joint disease (DJD), cervical muscle spasm, and cervical facet joint syndrome, with right and left upper extremity radiculopathy is granted. A 50 percent rating for tension type headaches since September 25, 2013, is granted. FINDINGS OF FACT 1. The Veteran’s cervical spine DJD, cervical muscle spasm, and cervical facet joint syndrome, with right and left upper extremity radiculopathy, began while the Veteran was on active duty and have continued since that time. 2. Since September 25, 2013, the Veteran’s tension type headaches have caused very frequent completely prostrating and prolonged attacks which are productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine DJD, cervical muscle spasm, and cervical facet joint syndrome, with right and left upper extremity radiculopathy, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(c), 3.159, 3.303, 3.326(a). 2. The criteria for a rating of 50 percent, since September 25, 2013, for tension type headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1997 to August 1997 and from October 2003 to July 2004. He also served in the Army National Guard and the Army Reserve. He served in Southwest Asia. 1. Entitlement to service connection for a cervical spine disorder. In August 2006, VA denied service connection for a cervical spine condition and the Veteran did not appeal. In October 2013, however, new service treatment records (STRs) were added to the file, including a June 2004 post-deployment assessment on which the Veteran reported swollen, stiff, or painful joints. This is a service department record that existed at the time of the August 2006 denial, but which had not been associated with the file and which is related to a claimed in service event, injury, or disease. Therefore, the Board will reconsider the Veteran’s claim of service connection, see 38 C.F.R. § 3.156(c), and new and material evidence is not required to reopen the claim. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA treatment records repeatedly state that the Veteran’s cervical spine pain and symptoms began in 2003 when he was on active duty. An April 2004 email message in the Veteran’s STRS from a Chief Mate to an on-call doctor, states that the Veteran had pain on the left side of the base of his skull and his neck area. It was noted that he had been taking ibuprofen but a request was made for stronger pain medication because his symptoms continued and “we are not going to be in port for at least two more days.” A June 2004 post deployment assessment states that the Veteran had swollen, stiff, or painful joints. Reserve and National Guard STRs indicate that the Veteran was referred to a private physician due to cervical complaints in January 2006. It was noted that he had cervical crepitus on movement. In April 2006, the Veteran was afforded VA examinations. He reported that he had cervical spine pain ever since he performed a physical training drill while on active duty. He was diagnosed with cervical and trapezius strains with myositis and with polyarthralgia. VA treatment records and STRs from 2014 to 2016 indicate on-going complaints of and treatment for cervical spine symptoms. He had a permanent physical profile due to a cervical spine injury and pain. In February 2018, he underwent an Integrated Disability Evaluation System Medical Evaluation Board (IDES MEB) for several disorders, including a cervical injury and pain. The examination conducted at that time states diagnoses of cervical degenerative changes, cervical muscle spasm, and right and left upper extremity radiculopathy. He was separated from service at that time due to his disorders. A January 2015 VA treatment record states diagnoses of cervical facet joint arthropathy, cervical facet joint syndrome, and neck pain. A June 2016 VA treatment record states diagnoses of chronic neck pain, facet joint syndrome, and DJD. A September 2018 rating decision granted service connection for cervical degenerative changes and cervical muscle spasm for Department of Defense (DoD) Disability Evaluation System (DES) purposes only and assigned a 20 percent rating. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s cervical spine disorders began in service and have continued since that time. He has consistently had complaints of and been treated for cervical spine pain and symptoms since he was on active duty, and VA clinicians and the Veteran have repeatedly stated that his disorders began in 2003, when he was on active duty. His symptoms progressed until he was medically separated from the National Guard, including for a cervical spine injury and pain. There is no evidence to contradict the Veteran’s assertion that the disorders began while he was on active duty. Therefore, the Board finds that service connection is warranted and the appeal is granted. 2. Entitlement to a compensable rating from September 25, 2013, to January 4, 2018, and a rating of more than 30 percent since January 5, 2018, for tension type headaches. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Migraine headaches are rated according to diagnostic code 8100. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over last several months. A noncompensable rating is warranted for migraines with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA received the Veteran’s claim for a compensable rating for tension type headaches on September 25, 2013. In a February 2018 rating decision, the RO increased the Veteran’s rating to 30 percent effective January 5, 2018. Since September 25, 2013, the Veteran has undergone three VA examinations and his IDES MEB examination. He reported headaches several times per week, and sometimes daily, which lasted up to multiple hours or days each time and caused pulsating or throbbing head pain, pain on both sides of the head, pain which worsened with physical activity, nausea, imbalances, dizziness, sensitivity to light, sensitivity to sound, and tingling on the scalp. If he was at home, he laid down to help relieve symptoms. The Veteran worked as a police officer and if he was at work when he developed a headache, he either took a break or took sick leave so he could rest. He sometimes had to lie down for several hours at a time. He was taking several medications which did not fully alleviate his symptoms. He was recommended for Botox injections, but recent VA treatment records do not indicate that he has yet started this treatment. (Continued on next page) Since September 25, 2013, the Veteran’s tension type headaches caused very frequent completely prostrating and prolonged attacks which were productive of severe economic inadaptability. The Veteran needed to take breaks or leave work when he had a headache so that he could lie down. The headaches occurred several times per week and sometimes daily, and lasted up to multiple hours or days. A frequent need to lie down, take breaks, and leave work would impair his ability to work as a police officer and, therefore, these headaches are productive of severe economic inadaptability. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Miller, 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.