Citation Nr: 21022050 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-22 144 DATE: April 14, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to an initial 10 percent rating for migraine headaches prior to May 2, 2019 is granted. Entitlement to a rating higher than 30 percent for migraine headaches from May 2, 2019 is denied. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss has resulted in no worse than Level I hearing bilaterally. 2. Resolving reasonable doubt in the Veteran’s favor, for the period prior to May 2, 2019, his service-connected migraine headaches more nearly approximated characteristic prostrating attacks averaging one in 2 months over the last several months. 3. From May 2, 2019 the Veteran's migraine headaches have not been very frequently completely prostrating and manifested by prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, Diagnostic Code (Code) 6100. 2. The criteria for an initial 10 percent rating for migraine headaches prior to May 2, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Code 8100. 3. The criteria for entitlement to a rating higher than 30 percent for migraine headaches from May 2, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1986 to June 2006. These matters were previously before the Board of Veterans’ Appeals (Board) in September 2019 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO). INCREASED RATING Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Hearing loss By rating decision in June 2014, service connection was granted for bilateral hearing loss, with a 0 percent rating effective July 31, 2013 under Code 6100. Under Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000; 2000; 3000; and 4000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Code 6100. As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Code 6100. Hearing tests will be conducted without hearing aids, and the results are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. In April 2014, the Veteran underwent a VA audiology examination, pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG. RIGHT 15 20 40 60 34 LEFT 15 20 40 50 31 Speech audiometry revealed speech recognition ability of 96 percent in both ears. The diagnosis was bilateral sensorineural hearing loss. The Veteran reported having increased difficulty understanding speech in noisy settings, “even when only the television or radio is on.” Applying 38 C.F.R. § 4.85 Table VI to the findings on April 2014 VA audiometry establishes the Veteran had Level I hearing acuity in the both ears. Such findings warrant a 0 percent rating under Table VII, Code 6100. An exceptional pattern of hearing loss (to warrant rating under the alternate criteria in Table VIA) was not found on the April 2014 examination. This examination was conducted in accordance with regulatory criteria, and the examiner commented on the effect the Veteran’s hearing loss disability had on his functional abilities. Accordingly, there is no schedular basis for a compensable rating based on the above test results. In October 2020, the Veteran underwent a VA audiology examination, pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG. RIGHT 15 25 55 75 42.5 LEFT 15 25 50 60 37.5 Speech audiometry revealed speech recognition ability of 94 percent in both ears. The diagnosis was bilateral sensorineural hearing loss. The Veteran reported that holding normal conversations are difficult and it causes frustrations with his family. He related that is was hard watching training materials, hearing in meetings, conferences, radio operations or getting instructions. Applying 38 C.F.R. § 4.85 Table VI to the findings on October 2020 VA audiometry establishes the Veteran had Level I hearing acuity in the both ears. Such findings warrant a 0 percent rating under Table VII, Code 6100. An exceptional pattern of hearing loss (to warrant rating under the alternate criteria in Table VIA) was not found on the October 2020 examination. The Board finds the October 2020 VA examination to be adequate for rating purposes; it was conducted in accordance with regulatory criteria, and the examiner commented on the effect the Veteran’s hearing loss disability had on his functional abilities. Accordingly, there is no schedular basis for a compensable rating based on the above test results. The Board has carefully reviewed the evidence of record but finds no further audiometric data upon which it may rate the Veteran's hearing loss under the mechanical statutory requirements in the diagnostic code. The Board has also considered the Veteran's lay statements regarding the severity of his hearing loss. However, as a lay person, the Veteran's testimony may only speak to those symptoms which he has personally observed. That hearing loss causes noticeable symptoms is certainly anticipated by the rating criteria, and the symptoms here are consistent with the testing results and the corresponding assigned rating. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Thus, even acknowledging the Veteran's lay statements regarding the severity of his hearing loss, it does not alter the Board's rating of his disability under the diagnostic criteria. Accordingly, the claim for an initial compensable rating for bilateral hearing loss must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 4.3. Migraines By rating decision in June 2014, service connection was granted for migraines, claimed as cluster headaches and assigned a 0 percent rating effective July 31, 2013 under Code 8100. In November 2020 the RO increase the rating for migraine headaches to 30 percent effective May 2, 2019. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Code 8100, for migraine. Under Code 8100, a 50 percent rating requires very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned when there are characteristic prostrating attacks occurring on an average of once a month over the last several months. A 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A noncompensable rating is assigned for migraines with less frequent attacks. See Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under Code 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. Prior to May 2, 2019 In May 2011 the Veteran was seen in the emergency room at a private hospital with complaints of global headaches. He reported a history of cluster headaches, with the last set about a year prior. He reported a history of chronic headaches, which he gets about once a year. He reported his headaches were causing nausea, photophobia and phonophobia. He awoke with the pain in the morning. His pain level was 10/10. He took Aleve with no relief. On physical examination, he was sitting very still on the examination table in the dark with sunglasses on. It was noted that this was his third episode of a cluster headache since 2002. He was sensitive to light and sound and had some nausea. The clinical impression was cluster headache. In January 2013, the Veteran was seen by a private physician for an annual examination. He complained of episodic headaches, which were typically behind his eye. The provider noted that the Veteran’s headaches are more of a mixed headache that occurs a few times a year. On neurologic examination, findings were negative concerning headaches, significant or new memory problems, tingling, numbness, gait, balance or coordination problems or seizures. The diagnosis was cluster headache. On April 2014 VA headaches examination, the Veteran reported having cluster headaches. He stated his headaches occur suddenly and somewhat explosive in his entire head and somewhat behind the eyes associated with photophobia and sound sensitivity. He reported the initial frequency of his headaches was 3 to 4 a year but he has had 3 to 4 since he moved in June 2013. His symptoms were constant head pain, and pain on both sides of his head; the pain worsens with physical activity. His non-headache symptoms associated with headaches were vomiting, and sensitivity to light and sound. The duration of typical head pain was 1 to 2 days on both sides of his head. He had characteristic prostrating attacks with less frequent attacks of migraine/non-migraine headache pain. He did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The diagnosis was migraine including migraine variants. The Veteran’s headache disability impacts his ability to work in that he has gone home from work 3 to 4 days in a 10-month period. In a June 2014 VA traumatic brain injury second level evaluation consult report, the Veteran had an assessment of post-concussive migraine headaches that occur once a month and are well aborted by medication. It was noted that the Veteran’s headaches had onset in 2002 upon return from Saudi Arabia. He reported that he fell and hit his head and lost consciousness for at least 30 minutes. He was found lying in a pool of blood. He described symptoms of throbbing, like his whole head was going to explode. If treated with Imitrex, the headache is aborted. Based on the foregoing, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran’s service-connected migraine headaches prior to May 2, 2019. Notably, the rating criteria for migraine headaches is largely based on subjective reports of symptomatology. The Board notes that the Veteran has reported varying frequencies of occurrence of his headaches. For example, he reported that while he was in service, he began having headaches once a month. His post-service treatment and examination reports, for the period under consideration, do not show he reported the same frequency. In a May 2011 private treatment report, he reported a history of chronic headaches, which he got about once a year. In January 2013 his private physician noted that his headaches occurred a few times a year. During the April 2014 VA compensation examination, he reported that the initial frequency of his headaches was 3 to 4 a year and stated that his headaches increased from 3 to 4 when he moved to another city but did not report exactly how much they had increased. The Board finds that for the period prior to May 2, 2019, the frequency of occurrence of the Veteran’s migraine headaches approximates the criteria for a 10 percent rating and is commensurate to characteristic prostrating attacks averaging one in 2 months over the last several months. Thus, an initial 10 percent rating for migraine headaches prior to May 2, 2019 is warranted. The Board further finds that the Veteran is not entitled to an initial rating higher than 10 percent prior to May 2, 2019, as there is no evidence of characteristic prostrating attacks occurring on an average of once a month over the last several months. Therefore, the Board finds that an initial 10 percent rating prior to May 2, 2019 is the most appropriate rating for the Veteran’s migraine headaches for that period. From May 2, 2019 At the May 2019 Board hearing, the Veteran testified that his migraines had worsened. By rating decision dated in November 2020, the RO awarded an increased rating of 30 percent for the Veteran’s migraine headaches from May 2, 2019, the date of the Board hearing when the Veteran testified that his migraine headaches had worsened. At the hearing the Veteran testified that his headaches have worsened since his last VA compensation examination. He related that when he gets a headache, he immediately becomes sick with nausea and would need to be in a dark room with complete silence. He stated that he sometimes goes to a hospital emergency room. He reported having migraine headaches 3 to 4 times a month and sometimes must miss two to three hours or one to two days from work. In a May 2019 statement, Dr. R.E.H., a private physician, noted that the Veteran requested a letter supporting his current diagnosis of migraine headaches. Dr. R.E.H. noted that the Veteran has been a patient since 2014 and that he does get occasional migraine headaches and takes 100 mg Imitrex, 1 to 2, per occurrence. In a May 2019 statement, the Veteran’s wife related that from the time of the Veteran’s head injury in service, he has had migraine headaches. She stated that at least once or twice a month she picks the Veteran up from work and takes him home due to a migraine. He misses a lot of time from work because of his migraines. At times he is nauseated due to the pain. Several times he was taken to the emergency room to get the help he needed. In a May 2019 statement, the Veteran’s co-worker, B.D., noted that the Veteran has a history of suffering from headaches which render him unable to work. B.D. stated that when the Veteran has a headache, he requires total silence and lies down in a dark room. B.D. further stated that he has witnessed the Veteran miss numerous days and take time-off work as a result of the migraine headaches. In a May 2019 statement by J.B. who worked with the Veteran, stated that he had seen the Veteran taking time off of work due to the headaches. On November 2020 VA-contract examination, the Veteran reported his headaches had worsened with episodes about once a month that caused reduced ability to work. He experiences symptoms of pulsating or throbbing head pain. He also experiences non-headache symptoms associated with his headaches such as sensitivity to light and sound and changes in vision. He indicated that the duration of his head pain is 1 to 2 days. The pain is located on both sides of his head. He has characteristic prostrating attacks of migraines once every month. He did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The diagnosis was migraine including migraine variants. Based on the foregoing, the Board finds the Veteran is not entitled to a rating higher than 30 percent from May 2, 2019 because there is no evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability to warrant the next higher 50 percent rating under Code 8100. In this regard, the Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the evidence of record, including a statement from Dr. R.E.H., a private physician, lay statements from his wife and co-workers, the Veteran’s May 2019 hearing testimony, and the November 2020 VA-contract examination, for the period from May 2, 2019, do not show the Veteran’s migraine headaches were very frequently completely prostrating and prolonged and productive of severe economic inadaptability. Specifically, Dr. R.E.H. the Veteran does get occasional migraine headaches and takes medication. His wife stated that at least once or twice a month she picks him up from work due to a migraine, and he misses a lot of time from work because of his migraines. His co-workers related that the Veteran misses time from work because of his headaches. By his own testimony at the hearing, the Veteran reported having migraine headaches 3 to 4 times a month and sometimes must miss two to three hours or one to two days from work. On November 2020 VA headaches examination, very prostrating and prolonged attacks of migraines productive of severe economic inadaptability were not shown. The Board recognizes that “productive of severe economic inadaptability” does not require actual unemployability. The evidence of record shows the Veteran’s work, while impacted, was not so impacted that there was a severe economic impact to him. As such, the Board finds that the Veteran’s migraine headaches, while frequent, were not completely prostrating with prolonged attacks and were not productive of severe economic inadaptability from May 2, 2019. Thus, the Board finds that a 30 percent rating from May 2, 2019 is the most appropriate rating for the Veteran’s migraine headaches, and a higher 50 percent rating is not warranted for that period. The Board’s final consideration here is whether the matter of entitlement to a total rating based on individual unemployability (TDIU) has been raised by the record in this case. The Board notes that at no point has the evidence supported, nor has the Veteran contended, that his service-connected bilateral hearing loss or migraine headaches render him unable to secure and follow substantially gainful employment. While the evidence supports that the Veteran misses time from work due to his migraine headaches, he remains employed. Accordingly, the matter of TDIU due to service-connected bilateral hearing loss and migraine headaches is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Moreover, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Young, 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.