Citation Nr: 21026480 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-05 671 DATE: May 3, 2021 ORDER Entitlement to a rating in excess of 30 percent for tension headaches is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT Throughout the period of appeal, the Veteran has experienced migraine headaches with characteristic prostrating attacks occurring, on average, once a month over the last several months; very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability have not been shown. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for tension headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1-4.14, 4.121, 4.122, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2005 to May 2006 and from December 2008 to April 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2012 and January 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In a January 2015 and a June 2015 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran requested a hearing before the Board. However, in December 2018 correspondence, the Veteran withdrew the hearing requests. Accordingly, the Board considers the request for a hearing to be withdrawn and will adjudicate the claims accordingly. 38 C.F.R. § 20.704(d), (e). In March 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to a rating in excess of 30 percent for tension headaches Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's tension headache disability has been rated pursuant to Diagnostic Code 8100 which provides ratings for migraine headaches. That Diagnostic Code provides a 10 percent rating for characteristic prostrating attacks occurring an average of once every two months over the several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran contends that he is entitled to an increased rating for a service-connected tension headaches disability, currently rated 30 percent, effective January 23, 2012. The current claim on appeal for an increased rating stems from the initial grant of service connection for tension headaches. During VA TBI examination in March 2013, the Veteran reported experiencing migraines and stress or tension headaches, bilaterally, from the bitemporal to the occipital. The Veteran reported having daily headaches, which he treated with ibuprofen. During a headache, the Veteran was sensitive to light. During this examination, the Veteran's diagnoses were found to result in mild functional impairment. During a March 2013 VA headache examination, the Veteran reported having headaches that started from the back of the head and went around the head. The Veteran took over the counter ibuprofen to treat the condition. On examination, the Veteran was found to have pulsating or throbbing head pain on both sides of the head, that lasted less than one day. The Veteran did not have non-headache symptoms associated with the headaches. The Veteran was not found to have characteristic prostrating attacks of migraine headache pain but was found to have prostrating attacks of non-migraine headache pain occurring more frequently than once per month. During the examination, the Veteran's condition was found to have no impact on the ability to work. During a June 2019 VA headache examination, the Veteran reported having daily frontal temporal headaches that lasted a few hours. The Veteran took ibuprofen or Excedrin to treat the tension headaches. On examination, the Veteran was found to have constant pulsating or throbbing head pain, on both sides of the head, that was worsened with physical activity, lasting less than one day. The Veteran also experienced nausea and sensitivity to light. The Veteran was not found to have characteristic prostrating attacks of migraine or non-migraine headache. During the examination, the Veteran's condition was found to have no impact on the ability to work. During a December 2020 VA headache examination, the Veteran reported having daily headaches that were pulsating and usually on both sides of the head. The Veteran denied sensitivity to light and sound, but he experienced nausea at times. The Veteran also stated that the headaches were very severe about five times a week. The Veteran took ibuprofen three times a day and Tylenol as needed for the tension headaches. On examination, the Veteran was found to have pulsating or throbbing head pain, on both sides of the head, that was worsened with physical activity, lasting less than one day. The Veteran also experienced nausea and changes in vision during headaches. The Veteran was found to have characteristic prostrating attacks of migraine or non-migraine headache once every month. However, the Veteran was not found to have very prostrating and prolonged attacks of migraines or non-migraine pain productive of severe economic inadaptability. During the examination, the Veteran's condition was found to have impact on the ability to perform work duties during severe episodes of tension headaches. The Veteran lost two to four weeks of work time in the last 12 months as a result of the condition. Initially, the Board notes that the Veteran has been rated separately for a traumatic brain injury (TBI) and any associated TBI residuals. Thus, any issues pertaining the service-connected traumatic brain injury are not currently before the Board and will not be addressed in this decision. The Board finds that, during the appeal period, the service-connected tension headaches do not warrant a rating in excess of 30 percent. The symptoms the Veteran experiences do not more nearly approximate those described under the criteria for a 50 percent rating. While the evidence shows that the Veteran has frequent headaches, the weight of the evidence does not show that the frequent headaches are productive of severe economic inadaptability. Notably, the treatment records do not show, and the Veteran has not asserted, that the frequent headaches are completely prostrating in nature and productive of severe economic inadaptability. No examiner has found the Veteran to have very frequent prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. All indications are that the Veteran frequently experiences migraine headaches, but he is able to manage them with over the counter medications and rest, as he continues to work. Therefore, the Board finds that a rating in excess of 30 percent is not warranted for tension headaches. The Board is appreciative of the Veteran's faithful and honorable service. However, the Board finds that the Veteran's disability picture more nearly approximates a rating of 30 percent for tension headaches, and not higher, effective January 23, 2012, but not earlier, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board finds that the preponderance of the evidence is against the assignment of any higher ratings. As the Board finds that the preponderance of the evidence is against the assignment of any higher ratings, the claim for any higher ratings must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a low back disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The Veteran contends that a back injury is related to service. Specifically, the Veteran contends that his back injury began in service and stems from numerous jumps out of airplanes. The Veteran earned the parachutist badge during service. At a June 2019 VA back examination, the examiner diagnosed ankylosing spondylitis and lumbosacral strain. The examiner opined that the claimed back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury, event, or illness in service. The examiner explained that the Veteran had a diagnosis of back strain, but that was diagnosed after time in service. The examiner explained that a review of the available medical records during service did not produce medical provider notes documenting evaluation of, treatment for, or diagnosis of a back condition. At a December 2020 VA back examination, the examiner found that the claimed disability was less likely than not (50 percent or less probability) incurred in or caused by the claimed injury, event, or illness in service. The examiner explained that the claims file did not show a back condition during service and therefore a direct nexus could not be established. The examiner explained that injuries following parachute jumps had been intensively studied for greater than 200,000 jumps. Lower extremity injuries made up 65 percent of the total injuries, followed by 22 percent head injuries, 22 percent neck or back injuries, and 19 percent upper extremity injuries. The data supported acute injury associated with parachute jumps. However, the examiner cited a study to show that there was no evidence of late onset conditions associated with parachute jumps. Therefore, the examiner opined that the claimed back condition was not secondary to parachute jumps or equipment. The examiner stated that there were no back X-rays in the record to make a diagnosis of arthritis within one year of separation. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment during service is incomplete. As the June 2019 and December 2020 examiners relied on the absence of symptoms or treatment in-service for the negative opinions concerning the demonstrated disabilities and did not provide an adequate rationale for the opinions provided, the Board finds the June 2019 and December 2020 VA examinations to be incomplete. Further, the VA examiners do not appear to have considered the Veteran's contentions regarding the back condition, as that was not addressed in the rationale. The VA examiners appear to have based the opinions solely on the objective evidence of record. Because the examiners did not discuss or consider whether there is any subjective evidence or lay evidence to support a theory that a back disability was related to his service, the Board again finds the June 2019 and December 2020 examination reports to be incomplete. Because the Veteran may have a disability that is related to service, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of the claimed back disability. Therefore, on remand an examination must be scheduled and an opinion as to the etiology of the Veteran's back disability must be requested. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service connection for a right ankle disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a right ankle disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that a right ankle injury is related to service. Specifically, the Veteran contends that a right ankle injury began in service and stems from numerous jumps out of airplanes. The Veteran earned the parachutist badge during service. During a June 2019 VA ankle examination, the Veteran was diagnosed with right ankle strain. At an October 2019 VA examination, the examiner opined that it was at least as likely as not (50 percent or more probability) that the Veteran had a right ankle disability that had its origin in service, or was related to active service. The examiner noted the Veteran's April 2013 credible statement regarding onset and continuity of symptoms and the fact that the Veteran's decorations included a Parachutist Badge. The examiner noted that the fact that a right ankle disability was not mentioned in the service medical records could not serve as the sole basis for a negative finding. The examiner explained that, as a combat Veteran, the Veteran's statement that an ankle condition was incurred in combat was accepted as sufficient proof as it was consistent with the circumstances, conditions or hardships of combat service even though there was no official record of such incurrence or aggravation in the service medical records. The Board finds the October 2019 examination report and opinion to be based on an inaccurate factual premise, and as a result, to be inadequate for VA purposes. The examiner stated that the Veteran, as a combat Veteran, was able to opine as to if an ankle condition was occurred in combat. The Veteran is not a recipient of a decoration indicative of combat. Insofar as VA has conceded that the Veteran is a Combat Veteran, the Veteran does not assert that a right ankle injury stems from combat with an enemy during service but rather from numerous parachute jumps. Thus, the Veteran would not be entitled to presumptions associated with combat in regard to the current claim for service connection for a right ankle disability, as the alleged disability does not relate to an injury sustained during combat. Accordingly, the Board finds the October 2019 VA examination relied on a factually inaccurate premise that the Veteran's combat Veteran status can serve as sufficient proof that that an ankle condition, claimed to have occurred not during combat, was incurred in service. At a December 2020 VA back examination, the examiner found that the claimed disability was less likely than not (50 percent or less probability) incurred in or caused by the claimed injury, event, or illness during service. The examiner explained that the claims file did not show any right ankle condition during service and therefore a direct nexus could not be established. The examiner explained that injuries following parachute jumps has been intensively studied for greater than 200,000 jumps. Lower extremity injuries made up 65 percent of total injuries, followed by 22 percent head injuries, 22 percent neck or back injuries, and 19 percent upper extremity injuries. The data supported acute injury associated with parachute jumps. However, the examiner cited to a study to support an opinion that there was no evidence of late onset conditions associated with parachute jumps. Therefore, the examiner opined that the claimed right ankle condition was not secondary to parachute jumps or equipment. The examiner stated that a July 2018 right ankle X-Ray showed small enthesophyte at the Achilles tendon. There was no X-ray evidence of arthritis within one year of service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment during service is incomplete. As the December 2020 examiner relied on the absence of symptoms or treatment in-service for the negative opinions concerning the demonstrated disabilities and did not provide an adequate rationale for the opinions provided, the Board finds the December 2020 VA examination to be incomplete. The VA examiner does not appear to have considered the Veteran's contentions regarding the right ankle condition, as that was not addressed in the rationale. The VA examiner appear to have based the opinion solely on the objective evidence of record. Because the examiner did not discuss or consider whether there was any subjective evidence or lay evidence to support a theory that a right ankle disability was related to service, the Board again finds the December 2020 examination report to be incomplete. Because the Veteran may have a disability that is related to service, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of his claimed right ankle disability. Therefore, on remand an examination must be scheduled and an opinion as to the etiology of the Veteran's right ankle disability must be requested. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for any back or ankle disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. A t a minimum, obtain any outstanding VA treatment records. All attempts to obtain records must be documented in the claims folder. 2. Schedule the Veteran for a VA examination with a medical doctor who has not previously examined the Veteran, to diagnose and determine the nature and etiology of any spine and right ankle disabilities. The examiner must review the claims file and should indicate review of the file in the examination report. The examiner should address the lay statements regarding the claimed back and ankle disability and their etiology. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disabilities. The examiner must reconcile the opinion with any previous opinions of record. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a thoracolumbar spine or right ankle disability that was present in-service, or was incurred in service, or was the result of any disease, injury, or event during service? The examiner should discuss the significance of the Veteran's service, during which he earned the parachutist badge, as it pertains to the current disabilities. (b.) Is it at least as likely as not (50 percent or greater probability) that any thoracolumbar spine or right ankle arthritis manifested within one year following separation from service? Please cite to any evidence to support a finding of arthritis within one year following separation from service. (c.) Is it at least as likely as not (50 percent or greater probability) that any thoracolumbar spine or right ankle disability was caused by any service-connected disability or treatment for any service-connected disability, to specifically include fibromyalgia syndrome? (d.) Is it at least as likely as not (50 percent or greater probability) that any thoracolumbar spine or right ankle disability has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability, to specifically include fibromyalgia syndrome? Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.