Citation Nr: 21024655 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-15 994 DATE: April 23, 2021 ORDER Entitlement to a compensable rating prior to February 9, 2015, and a rating in excess of 30 percent thereafter for service-connected migraine headaches is denied. Restoration of the prior 20 percent disability rating for service-connected cervical spine degenerative disc disease with intervertebral disc syndrome (IVDS), which was reduced to 10 percent effective March 8, 2013, is granted. REMANDED Entitlement to a rating in excess of 20 percent from March 8, 2013 to February 8, 2015, and a rating in excess of 40 percent from February 9, 2015 for service-connected IVDS and degenerative arthritis of the thoracolumbar spine, is remanded. Entitlement to a rating in excess of 20 percent for cervical spine degenerative disc disease with IVDS is remanded. FINDINGS OF FACT 1. Prior to February 9, 2015, the most probative evidence of record does not show that the Veteran’s headaches were manifested by migraines with characteristic prostrating attacks averaging one in two months over last several months. 2. From February 9, 2015, the most probative evidence of record demonstrates that the Veteran’s headaches were manifested by migraines with characteristic attacks occurring on an average once a month over last several months but does not demonstrate migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. A March 2015 rating decision reduced a 20 percent disability rating assigned for cervical spine degenerative disc disease with IVDS to 10 percent effective March 8, 2013; the probative evidence of record does not demonstrate that the Veteran was provided any appropriate notice of the proposed reduction, notice letter, or provided 60 days for the presentation of additional evidence prior to the reduction under 38 C.F.R. § 3.105(e). CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating prior to February 9, 2015, and a rating in excess of 30 percent thereafter for service-connected migraine headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10,4.124a, Diagnostic Code 8100. 2. The reduction of the disability rating for cervical spine degenerative disc disease with IVDS from 20 percent to 10 percent from March 8, 2013 was improper and the criteria for restoration of the 20 percent disability rating effective March 8, 2013 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Codes 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1976 to May 1980, and April 1983 to April 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, a March 2015 rating decision assigned increased staged ratings of 20 percent effective March 8, 2013, and a rating of 40 percent from February 9, 2015 for service-connected IVDS and degenerative arthritis of the thoracolumbar spine; and an increased rating from noncompensable to 30 percent for the Veteran’s service-connected migraine headaches from February 9, 2015. As the increases did not satisfy the appeals in full, the issues remain on appeal and have been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). Additionally, in the March 2015 rating decision, the RO decreased the Veteran’s disability rating from 20 percent to 10 percent for service-connected cervical spine degenerative disc disease with IVDS effective March 8, 2013. The Board notes that the April 2014 rating decision included a denial of the issue of entitlement to service connection for irritable bowel syndrome (IBS). The Veteran’s March 2015 Notice of Disagreement (NOD) specified that he desired to appeal the issue of entitlement to service connection for IBS. In a June 2015 rating decision, the RO granted the Veteran service connection for IBS. Therefore, despite the Veteran’s February 2016 VA Form 9 indicating the VA failed to address the issue of IBS, the issue is not before the Board. Additionally, the June 2015 rating decision represents a full grant of the benefit sought. The Veteran requested a Board hearing in his February 2016 VA Form 9 and was scheduled for a hearing in August 2019; however, VA’s Veterans Appeals Control and Locator System (VACOLS) reflects that the Veteran was a “no show.” To date, the Veteran, nor his representative, have provided any good cause explanation for his absence nor requested to reschedule the hearing. Therefore, the Board finds that the Veteran’s hearing request is withdrawn. See 38 C.F.R. § 20.702(d). Entitlement to a compensable rating prior to February 9, 2015, and a rating in excess of 30 percent therefrom for service-connected migraine headaches. The Veteran seeks a higher rating for his service-connected migraine headaches. The Veteran’s increased rating claim was received on March 8, 2013. Therefore, the relevant rating period is from March 8, 2012, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400(o)(2). Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule. If there is a question as to which evaluation should be applied to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran’s service-connected headaches are rated as noncompensable from prior to February 9, 2015, and 30 percent thereafter under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. 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 occurring on an average of once in 2 months over the last several months; a 30 percent rating is warranted for characteristic prostrating attacks occurring on average once a month over the last several months; and the maximum schedular rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define “prostrating.” By way of reference, the Board notes that DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), defines “prostration” as “extreme exhaustion or powerlessness.” VA regulations also do not define “economic inadaptability.”  In Pierce v. Principi, 18 Vet. App. 440, 445 (2004), the Court examined the term “productive of severe economic inadaptability” in the criteria for a 50 percent rating under DC 8100, and noted that “[n]owhere in the DC is ‘inadaptability’ defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.].”  Id. at 446.  The Court explained that, “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating” because “[i]f ‘economic inadaptability’ were read to import unemployability,” a claimant who “met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)]... rather than just a 50% rating.”  Id.  The Court therefore rejected the notion that “severe economic inadaptability” was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU.  Id.  In addition, the Court acknowledged VA’s concession that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability.  Id. at 445. Prior to February 9, 2015 The Board finds that a compensable rating prior to February 9, 2015 is not warranted. In that regard, the Veteran’s VA treatment records do not indicate or suggest that the Veteran’s headaches included migraines with characteristic prostrating attacks. For example, the Veteran did not report headaches during physical examinations or doctor visitations throughout the appeal period prior to February 9, 2015. See April 2012, September 2012, July 2013, and October 2014 VA treatment records. The Veteran was afforded a VA examination in December 2013. The Veteran reported headaches possibly due to prostrating pain from his neck and that his current symptoms involved head pain and the VA examiner noted the Veteran denied having migraines. See December 2013 VA examination. The VA examiner noted the Veteran was more accurately diagnosed with tension headaches. Id. The VA examiner noted the Veteran’s headache pain included symptoms of constant headache pain, pulsating or throbbing head pain, pain on both sides of the head, and pain worsens with physical activity. Id. The VA examiner noted the Veteran did not experience non-headache symptoms associated with his headaches. Id. The VA examiner noted the Veteran did not have characteristic prostrating attacks of migraines or non-migraine headache pain, or any other pertinent physical findings, complications, conditions, or any other signs and/or symptoms related to his headaches. Id. The VA examiner also noted the Veteran’s headache condition did not impact his ability to work, and he used Tylenol as treatment. Id. The evidence of record reflects that, for the period prior to February 9, 2015, the Veteran used Tylenol to treat his headaches. See December 2013 VA examination. The United States Court of Appeals for Veterans Claims (Court) has held that, in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Here, DC 8100 does not contemplate the ameliorative effects of medication. Thus, the Board’s analysis in this case does not consider any ameliorative effects of such medication in assessing the severity level of impairment and contemplates the frequency of characteristic prostrating attacks without medication. To the extent the Veteran contends that his headaches are more severe than reflected by the currently assigned noncompensable evaluation prior to February 9, 2015, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person including painful headaches. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, in view of the relevant evidence of record, the Board concludes that the Veteran is not entitled to a compensable rating for his service-connected migraine headaches prior to February 9, 2015. The Board finds that the December 2013 VA examination offers detailed and specific findings pertinent to the rating criteria, is adequate for decision making purposes, and entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Additionally, the Veteran does not contend that his headaches render him unable to leave the house, powerless, extremely exhausted, or interfere with his activities of daily living prior to February 9, 2015. The Board acknowledges that the Veteran reported his headaches had not worsened since onset in 1987 but were still painful during a February 2015 examination. However, the Board notes that the February 2015 VA examiner did identify additional symptoms, including nausea and incapacitating episodes. Moreover, the Veteran’s treatment records prior to that time reflect multiple instances where the Veteran did not report headaches and or any worsening symptoms for his headaches. Therefore, prior to February 9, 2015, the Board finds the Veteran’s overall symptomatology did not more closely approximate the severity contemplated by the next higher rating under DC 8100, which requires a minimum of migraines with characteristic prostrating attacks averaging one in two months over the last several months. The Board therefore finds that the criteria for a compensable rating for the Veteran’s service-connected headaches have not been met at any time during the rating period, including in the one-year prior to the date of the Veteran’s claim for an increase on March 8, 2013. To the extent the Veteran seeks a higher disability rating, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, a compensable disability rating for service-connected headaches is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). From February 9, 2015 In a March 2015 rating decision, the RO awarded the Veteran a 30 percent disability rating for his service-connected migraine headaches, effective February 9, 2015, the date of an examination demonstrating it was factually ascertainable that an increase in the Veteran’s migraine headaches was warranted. The Board finds that a disability rating in excess of 30 percent from February 9, 2015 is not warranted. In that regard, the Veteran’s VA treatment records do not indicate or suggest that the Veteran’s headaches included migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. For example, the Veteran did not report headaches during physical examinations or doctor visitations throughout the appeal period from February 9, 2015. See March 2015 VA treatment records. Moreover, the Veteran has not identified any further VA treatment records relevant to his claim for an increased rating. In February 2015, the Veteran underwent a VA examination. The VA examiner noted the Veteran’s report that his symptoms have not worsened since onset but continue to be painful. See February 2015 VA examination. However, the VA examiner noted the Veteran did have migraines with characteristic prostrating attacks once every month. Id. The VA examiner noted the Veteran’s symptoms included headache pain, pulsating or throbbing head pain, pain on both sides of the head, pain worsens with physical activity, and that he experienced sharp pain at the crown of his head. Id. The VA examiner also noted the Veteran experienced nausea associated with his headaches. Id. The VA examiner noted the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. Id. The VA examiner noted the Veteran occasionally takes Tylenol to treat his headache condition. Id. Finally, the VA examiner noted the Veteran’s reports that his headache condition slows him down at work, he does not keep up with the needed pace as he is told by his supervisor, but he does not miss work regularly due to headaches. Id. The evidence of record reflects that, for the period from February 9, 2015, the Veteran used Tylenol to treat his headaches. See February 2015 VA examination. As noted above, the Court has held that, in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones, 26 Vet. App. at 63. Thus, the Board’s analysis in this case does not consider any ameliorative effects of such medication in assessing the severity level of impairment and contemplates the frequency of characteristic prostrating attacks without medication. To the extent the Veteran contends that his headaches are more severe than reflected by the currently assigned 30 percent disability rating from February 9, 2015, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person including painful headaches. See Jandreau, 492 F.3d at 1377. However, in view of the relevant evidence of record, the Board concludes that the Veteran is not entitled to a disability rating in excess of 30 percent for his service-connected migraine headaches from February 9, 2015. The Board finds that the February 2015 VA examination offers detailed and specific findings pertinent to the rating criteria, is adequate for decision making purposes, and entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, the February 9, 2015 VA examination is the first evidence demonstrating a factually ascertainable worsening of the Veteran’s headache condition. Additionally, the Veteran does not contend that his headaches produce or are capable of severe economic inadaptability at any time from February 9, 2015. See Pierce, 18 Vet. App. at 445. Therefore, from February 9, 2015, the Board finds the Veteran’s overall symptomatology did not more closely approximate the severity contemplated by the next higher rating under DC 8100, which requires migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board therefore finds that the criteria for a disability rating in excess of 30 percent for the Veteran’s service-connected headaches have not been met at any time during the rating period from February 9, 2015. To the extent the Veteran seeks a higher disability rating, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 53. Therefore, a disability rating in excess of 30 percent, from February 9, 2015, for service-connected headaches is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. Restoration of the prior 20 percent disability rating for service-connected cervical spine degenerative disc disease with IVDS, which was reduced to 10 percent effective March 8, 2013. As a matter of background, the Veteran filed a claim for a rating in excess of 20 percent on March 8, 2013 for service-connected cervical spine degenerative disc disease with IVDS. Initially, the April 2014 rating decision on appeal continued a 20 percent disability rating. Following the Veteran’s March 2015 NOD, the Veteran was afforded a VA examination of his cervical spine condition in February 2015. As a result, the RO, in a March 2015 rating decision, reduced the Veteran’s disability rating from 20 percent to 10 percent, effective March 8, 2013, for his service-connected cervical spine disability. Pursuant to 38 C.F.R. § 3.105(e) where a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating decision proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice ot the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, the Veteran was not provided appropriate notice of the proposed reduction and was not given 60 days for the presentation of additional evidence prior to the reduction under 38 C.F.R. § 3.105(e). There was no proposed rating decision issued and no notice provided to the Veteran or his representative. He was not given the opportunity to contest the reduction in rating. The reduction in the Veteran’s rating for his service-connected cervical spine disability from 20 percent to 10 percent resulted in a decrease in a reduction of his compensation payments and effectively resulted in a denial of the Veteran’s claim to entitlement to a disability rating in excess of 20 percent. Accordingly, the Board finds that the reduction in the rating for the Veteran’s service-connected cervical spine disability from 20 to 10 percent effective March 8, 2013 was unwarranted and the 20 percent disability rating is restored, effective the date of the reduction. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent from March 8, 2013 to February 8, 2015, and a rating in excess of 40 percent from February 9, 2015 for service-connected intervertebral disc syndrome (IVDS) and degenerative arthritis of the thoracolumbar spine, is remanded. As noted, the RO, in a March 2015 rating decision, assigned a 20 percent rating from March 8, 2013 to February 8, 2015, and a 40 percent rating effective February 9, 2015 for service-connected IVDS and degenerative arthritis of the thoracolumbar spine. During the appeal period, the Veteran was afforded VA examinations in December 2013 and February 2015. The Court has held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). Such an examination, without rationale, is not adequate for adjudicative purposes. Id. In this case, the December 2013 VA examiner noted the Veteran’s report of flare ups described as pain and stiffness. See December 2013 VA examination. However, the VA examiner noted an inability to provide an estimated degree of additional loss of range of motion due to flare ups or repeated use over time because the Veteran was not being examined during a flare up. Id. The VA examiner did not provide any rationale for the opinion provided. Additionally, the Veteran’s VA treatment records contain the Veteran’s reports that he experienced sharp back pain that comes and goes, sometimes sharp. See January 2013 VA treatment records. As such, the December 2013 VA examination is inadequate for decision making purposes as there is no indication of range of motion estimates due to flare ups or repeated use over time in consideration of the Veteran’s lay statements. See Sharp, 29 Vet. App. at 35. The Court has also held, pursuant to 38 C.F.R. § 4.59, VA examinations must include range of motion testing in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 166 (2016). The December 2013 VA examiner did not provide any range of motion estimates for active and passive motion, or in weight-bearing and non-weight-bearing. Additionally, though the February 2015 VA examiner indicated the Veteran did not have pain with weight-bearing, the examiner did not provide any range of motion estimates for passive motion, weight-bearing, and non-weight-bearing. See February 2015 VA examination. As such, the February 2015 VA examination is also inadequate for decision making purposes. Accordingly, remand is necessary in order to obtain a medical examination in compliance with Sharp and Correia. Entitlement to a rating in excess of 10 percent for cervical spine degenerative disc disease with IVDS is remanded. As noted, the RO, in April 2014 and March 2015 rating decision, denied the Veteran a disability rating in excess of 20 percent for service-connected cervical spine degenerative disc disease with IVDS. The Veteran was last afforded a VA examination in December 2013. The VA examiner noted the Veteran’s report of flare ups described as pain and stiffness. See December 2013 VA examination. However, the VA examiner noted an inability to provide an estimated degree of additional loss of range of motion due to flare ups or repeated use over time because the Veteran was not being examined during a flare up. Id. The VA examiner did not provide any rationale for the opinion provided. Additionally, in January 2013, the Veteran reported he could not, in pertinent part, hold his head in an erect position for long periods of time because his neck will start to hurt and become stiff. See January 2013 VA treatment records. Moreover, the VA examiner did not provide any range of motion estimates for passive motion, weight-bearing, and non-weight-bearing. As such, the Board finds the December 2013 VA examination is inadequate for decision making purposes as it does not comply with the requirements set forth in Sharp and Correia. See Sharp, 29 Vet. App. at 35; Correia, 28 Vet. App. at 166. Accordingly, remand is necessary in order to obtain a medical examination in compliance with Sharp and Correia. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a new examination by an appropriate clinician to determine the current severity of his service-connected IVDS and degenerative arthritis of the thoracolumbar spine and cervical spine disc disease with IVDS. The claims file and a copy of this Remand must be made available to the clinician to review. The examiner must perform appropriate range of motion testing, expressing all findings in degrees and noting the degree where painful motion, if any, is present. Further, note the presence, or absence, of weakened movement, excess fatigability, and incoordination present, to include on repetitive use testing. This information must be derived from joint testing for pain on active and passive motion, and in weight-bearing and non-weight-bearing. The examiner is asked to describe whether pain significantly limits functional ability during flare ups and repeated use over, and if so, the examiner must estimate range of motion during flare ups and repeated use over time, including in consideration of the Veteran’s lay statements. If the examination does not take place during a flare up or after repeated use over time, the examiner should glean information regarding the flare ups severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. A complete rationale for all opinions should be offered. If the examiner is unable to reach an opinion without resort to speculation, he or she must explain the reasons for the inability to do so. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.