Citation Nr: 21028696 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-28 492 DATE: May 11, 2021 ORDER Entitlement to a compensable disability rating for migraine headaches prior to June 17, 2019, is denied. Entitlement to a compensable disability rating for acne of the back is denied. FINDINGS OF FACT 1. The Veteran's migraine headaches were not manifested by characteristic prostrating attacks of any frequency prior to June 17, 2019. 2. The Veteran's acne was at worst manifest by superficial acne during the period on appeal; associated scars were not painful, unstable, associated with underlying soft tissue damage, and did not cover an area of at least 144 square inches. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for migraine headaches prior to June 17, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. The criteria for a compensable disability rating for acne are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7800-7805, 7828. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1994 to December 1998. These matters come to the Board on appeal from a September 2017 Regional Office (RO) rating decision. The issue of entitlement to a compensable rating for acne was remanded by the Board in January 2020. The requested medical opinions were obtained in February 2020 and August 2020. As such, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). That decision also denied entitlement to a compensable rating for migraine headaches. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court), and the denial was vacated and sent back to the Board for further action via a November 2020 Joint Motion for Partial Remand (Joint Motion). The Joint Motion specifically noted that only the denial of an increased rating prior to June 17, 2019 was being remanded. As such, the Board will not address the period from June 17, 2019 forward. The Veteran was notified in November 2020 that his appeal had been returned to the Board, and that he had 90 days in which to submit additional evidence or argument. The 90-day period having passed, the Board will proceed to address the merits of the appeal. Clark v. O'Rourke, 30 Vet. App. 92, 9799 (2018). Increased Ratings 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. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 1. Entitlement to an increased rating for migraine headaches. The Veteran's service-connected headaches are evaluated under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, 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 migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months; and the maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating" nor has the Court of Appeals for Veterans Claims. Cf. Fenderson, 12 Vet. App. at 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), "prostration" is defined as "extreme exhaustion or powerlessness." VA regulations also do not define the term "severe economic inadaptability." The Court has noted that DC 8100 does not requires the veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. at 445-46 (2004). However, "severe economic inadaptability" denotes a degree of substantial work impairment. Evidence of work impairment may include, but is not necessarily limited to, the use of sick leave or unpaid absence. Turning to the medical evidence of record, in May 2017, the Veteran reported having experienced headaches three to four times per week, without any associated change in vision or numbness or weakness or causing tearing or runny nose, and that he did not take medications. The Veteran was afforded a VA examination to evaluate the severity of his headaches in September 2017. The Veteran reported headaches all the time, but without associated symptoms and no medication taken. However, on examination, the Veteran did report symptoms of constant pain on both sides of the head. The examiner indicated that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. There was no functional impact on the ability to work. The examiner noted that the Veteran was physically active and worked as a coach for a physical competition. VA treatment records from December 2018 show that the Veteran reported a return of his headaches, but was not taking medication. A May 2019 VA treatment record showed the Veteran reported frequent headaches, sometimes lasting for more than a day. He reported a frequency of three a week, and stated that it caused a burning behind the eyes. The headaches were made worse with light and sound. He also sometimes felt pain in his neck. There was occasional nausea and vomiting. The Veteran was sporadically taking medication, which helped. The Veteran's accounts of his symptoms in his VA treatment records in particular are of significant probative weight. White v. Illinois, 502 U.S. 346, 356 (1992) (noting that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). The Board finds that the Veteran's headaches did not manifest in characteristic prostrating attacks prior to June 17, 2019. While he has reported various symptoms related to his headaches, he has not reported that they cause him to stop daily activities, or are of such severity to interfere with work. Further, the record does not show symptoms comparable to extreme exhaustion or powerlessness. Ultimately, while it is uncontroverted that the Veteran experiences frequent headaches and associated symptoms such as pain and nausea, the evidence of record does not show that the headaches result in characteristic prostrating attacks. Therefore, a compensable rating prior to June 17, 2019, is not warranted. The Veteran has only been diagnosed with migraine headaches during the period on appeal, which are specifically covered by Diagnostic Code 8100. As such, it would be inappropriate to rate by analogy to any other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333, 33637 (2015) (stating that when a condition is specifically listed in the schedule, it may not be rated by analogy). Thus, consideration of any alternative Diagnostic Codes, and any potentially higher ratings associated with alternative Diagnostic Codes, is not warranted. The Board notes that during the period at issue the evidence of record has reflected a wide-variety of symptoms, including pain, photophobia and nausea. However, these symptoms are contemplated by the currently assigned rating, as the rating criteria for migraine headaches are based on the frequency of the headaches and whether the headache, and its associated symptoms, results in prostration. Holmes v. Wilkie, 33 Vet. App. 67 (2020). Thus, Diagnostic Code 8100 inherently considers all symptoms associated with a headache disability, in that it focuses only on the frequency of any and all symptoms and whether those symptoms result in prostration. Id. As all of the Veteran's symptoms are contemplated by the assigned ratings, referral for extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Chudy v. O'Rourke, 30 Vet. App. 34 (2018). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). The preponderance of the evidence is against a compensable rating for the Veteran's service-connected headaches prior to June 17, 2019. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 2. Entitlement to a compensable disability rating for acne of the back. The period for appellate consideration is from up to one year prior to September 1, 2017, the date of the Veteran's claim for increase. The Veteran is service connected for acne of the back that first occurred in service, and associated scars. The Veteran's disability is rated as noncompensable under Diagnostic Code 7828. Under Diagnostic Code 7828, a noncompensable disability rating is warranted for superficial acne (comedones, papules, pustules, superficial cysts, of any extent. A 10 percent disability rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. The maximum 30 percent disability rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. Acne may be rated as disfigurement of the head, face or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, 7805), depending upon the predominant disability. The Veteran was seen for a VA examination in September 2017 to evaluate the severity of his service-connected acne. The examiner found the Veteran's diagnosis to be "acne" He noted that he uses special soaps, and was given benzoyle peroxide a few months prior but it did not work. There was no scarring or disfigurement of the head, face, or neck. The use of the topical peroxide was noted for less than 6 weeks. The Veteran's acne was described as superficial. A VA dermatology consult in January 2018 also showed a diagnosis of dermatitis and folliculitis, as well as acne. He was noted as having large scaling patches with some follic papules and comedones and acne type atrophic scars. The Veteran was seen for another VA examination in June 2019. The examiner diagnosed both dermatitis and acne. The Veteran reported using topical treatments and also medication twice a day. The examiner noted treatment with topical corticosteroids or other immunosuppressive treatments on a constant basis and dermatitis over 5 to 20 percent of exposed body area. However, the examiner described the Veteran's acne as superficial. A separate scars examination showed tiny dotted scars on the back. The examiner found no painful or unstable scars and e tissue damage. A February 2020 VA scars examination noted 3 scars at a quarter inch squared in size on the back. There was no scars or disfigurement of the head, face, or neck. None of the scars were painful, unstable, or involved underlying soft tissue damage. The January 2020 Board remand sought to determine whether the Veteran's dermatitis was a part of his service-connected acne. The Board notes that the Veteran is only service connected for acne and associated scars. A subsequent February 2020 examination found a diagnosis of acne and dermatitis. The Veteran claimed he had his acne condition since service. The Veteran's acne was again noted to be superficial. An August 2020 addendum opinion noted that the Veteran's acne and dermatitis are two completely separate entities with different pathophysiologic causes and different treatments, though there may be some overlap in the use of topical steroids. The Board again notes that the Veteran is only service connected for acne, due to its in-service diagnosis. The Board is limited in its jurisdiction and the issue of entitlement to service connection for dermatitis is not currently before the Board, as the competent medical evidence of record does not show that it is a symptom or manifestation of his service-connected acne. The Board affords the greatest probative weight to the findings of the August 2020 medical professional who offered his opinion on the relationship of dermatitis to acne. The Board finds that the Veteran's acne has not manifest in worse than superficial acne during the period on appeal. Multiple VA examinations showed superficial acne, without any findings of deep acne in the record. The Veteran's associated acne scars of the back did not cover an area of 144 square inches, and were not unstable, painful, and did not involve underlying tissue loss. As such, the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's acne. 38 C.F.R. § 4.3, 4.7, 4.118, Diagnostic Code 7828. All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). The preponderance of the evidence is against a compensable rating for the Veteran's service-connected acne. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.