Citation Nr: 21028570 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-44 934 DATE: May 11, 2021 ORDER Entitlement to a 30 percent rating for headaches prior to November 2, 2020 is granted. Entitlement to a rating in excess of 30 percent for headaches beginning on November 3, 2020 is denied. FINDINGS OF FACT 1. For the appeal period prior to November 2, 2020, the Veteran's headaches have been productive of characteristic prostrating attacks occurring on an average of once a month over the last several months and without very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. For the appeal period beginning on November 3, 2020, the Veteran's headaches have been productive of characteristic prostrating attacks occurring on an average of once a month over the last several months and without very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 30 percent for headaches prior to November 2, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a rating in excess of 30 percent for headaches beginning on November 3, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1989 to September 1989, from February 2003 to May 2003, from July 2006 to November 2007, from April 2011 to June 2012, and from August 2015 to August 2016. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by a Department of Veterans Affairs Regional Office (RO). By way of history, the Veteran was granted service connection for headaches in an April 2008 rating decision. An initial 10 percent rating was assigned, effective November 30, 2007. This 10 percent rating was subsequently reduced, in an August 2012 rating decision, to a noncompensable zero percent rating, effective June 24, 2012, on the basis of a VA examination showing marked improvement in the disability picture. The Veteran appealed the reduction in rating and the matter came before the Board in September 2018, whereupon it was remanded to allow for obtaining outstanding records and for the issuance of a Supplemental Statement of the Case. Such records were obtained and associated with the Veteran's file. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). This matter has now returned before the Board for further appellate action. In a February 2021 rating decision, the agency of original jurisdiction (AOJ) found that there was clear and unmistakable error in a prior rating decision and restored a 10 percent rating for headaches, effective June 24, 2012. This rating decision also assigned a 30 percent rating effective November 3, 2020. However, a higher rating is available for headaches. The Veteran is presumed to seek the maximum available benefit for a disability. As such, this claim is still considered to be on appeal. See AB. Brown, 6 Vet. App. 35, 38 (1993). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900. Increased Ratings Criteria Disability evaluations are determined by evaluating 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 for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The rating schedule provides criteria for evaluating headaches is as follows: a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a , Diagnostic Code 8100. Governing case law and regulations have not defined "prostrating." For reference, the Board notes that "prostration" is defined as "extreme exhaustion or powerlessness." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d. ed. 2012). The use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991); Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for a higher rating to be assigned). Here, each of the criteria listed in the 50 percent rating must be met in order to warrant a 50 percent rating. Tatum v. Shinseki, 23 Vet. App. 152 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to increased rating for headaches The Veteran asserts that he is entitled to an increased rating for his headaches, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. The Veteran's headaches are rated under Diagnostic Code 8100 and was rated as 10 percent disabling prior to November 3, 2020 and 30 percent thereafter. 38 C.F.R. § 4.124(a) The period on appeal in this instant matter begins on November 30, 2007. As such, the Board will review all evidence from that time onward. VA treatment records show a note from January 2008 in which the Veteran's headaches were noted as mainly occurring in his frontal lobe and lasting two hours per episode. The headaches occurred once or twice a week and occurred randomly without any trigger. The Veteran also had suffered from increased sensitivity to light due to the headaches. The note also stated that the migraine episodes had been occurring "for months now", at a frequency of once or twice a week. The migraines were of enough severity to force the Veteran to lay down. The Veteran was provided a VA examination in February 2008. The Veteran reported recurrent episodes of headaches that had no specific cause or trigger. The headaches were moderate in severity and accompanied by chills and nausea. The episodes lasted for an hour at a time. Increased sensitivity to light or sound were not noted at this examination. The note also stated that the migraines were severe enough to require "bed rest" in order to obtain relief. A treatment note from February 2012 notes the Veteran being evaluated for headaches. The headache lasted for nine hours and the Veteran was prescribed Tylenol to treat his symptoms. The Veteran described his pain at a level of 10 out of 10, and reported that he suffered such attacks once every two months. The Veteran also stated that he experienced photophobia (increased sensitivity to light) Phonophobia (increased sensitivity to sound) was not noted at this examination. The Veteran was provided a VA examination in July 2012, in which he reported that his headaches had progressively worsened during his deployment in Afghanistan, occurring at least once a week. The Veteran described his pain as occurring on both sides of the head. The Veteran also complained of increased sensitivity to light and sound. The duration of these episodes was less than one day. The examination found that the Veteran's migraines did not manifest in the form of characteristic prostrating attacks. However, the examination did note that the Veteran suffered from characteristic prostrating attacks from non-migraine headache pain; such attacks occurred more than once per month. A VA treatment note from November 2012 documents the Veteran's ongoing migraines, stating that they had progressively worsened after the Veteran's return from deployment. The migraines occurred once or twice per week and were accompanied by eye tearing and increased sensitivity to light and sound. The note did not mention whether the migraines forced the Veteran to lie down. The Board has also reviewed a VA treatment note from September 2013, which documents the Veteran's ongoing migraines, noting that they occurred once or twice a month. The note did not specify if the migraines led to prostrating. VA treatment records also show that the Veteran was evaluated for migraines in October 2016. The treatment note documents the Veteran suffering from ongoing migraines, which had been ongoing since 2006. The migraines occurred twice a month and were accompanied by a throbbing pain and increased sensitivity to light and sound. Importantly, the note also documented that the migraines, and its associated pains, chills, and nausea, forced the Veteran to lay down. The Veteran was subsequently provided another VA examination in February 2019. The Veteran reported recurrent headaches occurring several times per week, and lasting for two to four hours at a time. Some of those migraines, around two per week, were also accompanied with chills and an urgent need to defecate. The Veteran denied nausea, vomiting, visual disturbances, and/or sensitivity to light or sound. Characteristic prostrating was specifically not found. A VA treatment note from November 2020 describes the Veteran's ongoing migraines as ranging in pain from a level 4 out of 10 to a 10 out of 10; and occurring three to four times per week. The note mentioned that some relief was obtained after taking aspirin and "resting [in] dark room." Upon a thorough review of the record, the Board finds that the Veteran's headaches warrant a 30 percent throughout the appeal period. The January 2008 VA treatment note indicates the Veteran having to "lay down" to deal with the gradually increasing pain. Although the January 2008 treatment note does not specify how many times these episodes occurred in the preceding months; elsewhere in the record, the headaches have been noted to have started in 2006. The February 2008 VA examination, taken one month after the January 2008 treatment note, also documents recurrent episodes of headaches, occurring at least once per week, and severe enough to require bed rest. Further, the July 2012 examination documents prostrating attacks occurring more than once per month. The November 2012 treatment note does not mention prostrating but does note migraine episodes occurring once or twice per week. Next, the September 2013 note also documents migraine attacks occurring once or twice per month; albeit not specifying whether any prostrating occurred. However, the October 2016 VA treatment note indicates that there were migraines twice a month and causing characteristic prostrating. The examination also notes the migraine episodes to have been ongoing since 2006. The February 2019 VA examination also notes recurrent headaches occurring several times per week, but specifically without prostrating episodes. However, the November 2020 VA examination found migraines occurring three to four times per week and requiring resting in a dark room. Thus, the record generally shows, with the few aforementioned exceptions, that the Veteran has suffered recurrent prostrating headaches episodes occurring at least once a month or more for the appeal period prior to November 3, 2020. The Board finds that the Veteran is not entitled to a rating of 50 percent for his headaches at any time during the period on appeal. In this regard, the Veteran was not shown to have headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Specifically, the February 2019 VA examination report shows the Veteran did not have very prostrating and prolonged attacks of migraines or non-migraine pain productive of severe economic inadaptability. In addition, the Veteran has not alleged severe economic inadaptability. The Veteran denied that his headaches impacted his ability to work in the July 2012 and February 2019 VA examinations. Therefore, a higher rating is not warranted. The Board has also considered the Veteran's lay assertions in support of his claim. The Board acknowledges that the Veteran is competent to make assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings involve medical findings that are within the province and purview of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, while the Board gives due consideration to the Veteran's lay assertions, it accords them lesser probative value than the medical evidence on record. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his headaches according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); The Board has considered whether a staged rating under Hart v. Mansfield, supra is appropriate; however, the Board finds that the remainder of his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (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). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran reported being employed as a handyman in an October 2016 VA treatment note and his current employment status is unknown. Moreover, he has not alleged being unable to obtain and maintain gainful employment due to his service-connected headaches. As such, Rice is inapplicable in this case. (Continued on the next page) Therefore, viewing all facts in a light most favorable to the Veteran, and giving him the benefit of the doubt, the Board grants an increased rating to 30 percent for the appeal period prior to November 2, 2020. To that extent, the appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.