Citation Nr: 21029625 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-37 284 DATE: May 14, 2021 ORDER Entitlement to an initial increased rating of 50 percent for migraine headaches is granted. Entitlement to an initial compensable rating for scars of the left eyelid, nose, and forehead is denied. REMANDED Entitlement to service connection for a left eye disability is remanded. Entitlement to an increased rating in excess of 30 percent for no more than light perception in the right eye is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows the Veteran's headaches manifest in very frequent prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran's facial scars do not manifest in a characteristic of disfigurement and do not have visible or palpable tissue loss, nor gross distortion or asymmetry. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 50 percent for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to an initial compensable rating for scars of the left eyelid, nose, and forehead have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.118, Diagnostic Code 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1982 to March 1984. These matters are on appeal to the Board of Veterans' Appeals (Board) from March 2015 and January 2008 rating decisions. The claims were remanded by the Board in April 2019 to obtain SSA disability records; the records were subsequently added to the claims file. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as in this case, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran was granted service connection for headaches and facial scars in a March 2015 rating decision effective July 28, 2014, the date of claim. He filed a Notice of Disagreement seeking increased ratings in May 2015. Thus, the Board will consider the evidence for his headaches and scars claims as of July 28, 2014. 1. Increased rating migraine headaches The Veteran's headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Diagnostic Code 8100 provides that migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraines with characteristic prostrating attacks occurring on an average once a month over last several months warrant a 30 percent rating while migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. Finally, less frequent attacks are rated as noncompensable. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating." By way of reference, the Board notes that, according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." The Veteran underwent a VA examination for his headaches in February 2015. He endorsed throbbing head pain localized to one side of the head accompanied by sensitivity to light and sound lasting almost all day. The examiner indicated that the Veteran experiences characteristic prostrating attacks of headaches productive of severe economic inadaptability once monthly. However, under the functional impairment section, the examiner indicated the Veteran experiences severe, episodic headache attacks with pain rated a 10 out of 10 several times a month. Another VA examination was conducted in August 2016. The Veteran endorsed headaches described as pressure at the top of the head with light and sound sensitivity usually lasting half a day occurring several times per week in the summer, and less often in the fall, winter, and spring. The examiner indicated there were no characteristic prostrating attacks. He opined that the headaches did cause functional impairment as the Veteran reported missing work at times when he was employed. The medical treatment records reflect complaints of severe, constant headaches. In November 2014, he described constant head pain about 3 to 7 times a week in the summer and 2 to 3 times a week in the winter. He rated the pain a 5 or 6 out of 10, accompanied by photophobia and phonophobia. In October 2015, the Veteran endorsed severe headaches anywhere from 3 to 8 times monthly with constant photophobia and phonophobia. In April 2015, he reported daily headaches. In July 2019, a treatment note reflects chronic cluster headaches and persistent pain on the side of the head since his in-service injury. The Board finds that the preponderance of the evidence establishes very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. While the February 2015 examiner indicated the prostrating attacks occur monthly, the same report reflects severe headache attacks rated a 10 out of 10 for pain several times a month. While the August 2016 examiner did not indicate prostrating attacks, the medical history section indicates that headaches occur several times a week with symptomatology of pressure and light and sound sensitivity. The treatment records are more consistent with a finding of very frequent prostrating attacks due to the reported frequency and severity. Both VA examiners indicated the Veteran's headaches impaired his ability to work, indicating economic inadaptability. Thus, the criteria for a 50 percent rating, the highest available under Diagnostic Code 8100, are met. 2. Increased rating scars of the left eyelid, nose, and forehead Under Diagnostic Code (DC) 7800, which contemplates scars or disfigurement of the head, face or neck, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. Note (1) following DC 7800 identifies 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118: (1) scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (4) instructs to separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nervy injury, under the appropriate diagnostic code(s) and apply § 4.25 to combine the evaluation(s) with the evaluation assigned under this diagnostic code. Note (5) states that the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. In a February 2015 VA examination, the examiner identified three facial scars. The eyelid scar was pruritic at times with a 1 mm by 2 mm skin tag at the lower end of scar, otherwise the scar was stable and linear, measuring 1.5 cm by 0.2 cm. The nose scar was stable, linear, with no impairment, measuring 1.5 cm by 0.2 cm. The forehead scar was stable, linear, with no impairment, measuring 4.0 cm by 0.4 cm. No pain was reported, though the Veteran endorsed feeling embarrassed by the scars. There was no elevation, depression, adherence to or missing underlying soft tissue, no abnormal pigmentation or texture, and no gross distortion or asymmetry. In the August 2016 VA examination for headaches, a scar on the frontal head region was noted, measuring 1.5 cm by 0.1 cm, and was noted to be stable and non-tender. The medical evidence of record does not warrant a compensable rating for the Veteran's facial scars. While the Board acknowledges the Veteran's complaints of embarrassment, accompanying emotional symptoms are not provided for under DC 7800; moreover, these symptoms are already encompassed under his service-connected psychiatric disabilities stemming from his in-service incident. See generally Long v. Wilkie, 33 Vet. App. 167 (2020). As the Veteran does not meet the criteria for a compensable rating, his claim must be denied. REASONS FOR REMAND 1. Service connection left eye disability The Veteran claims his left eye pain is caused or aggravated by strain and overuse due to his right eye blindness. As the Veteran has been service connected for the right eye since discharge from service, he has undergone several VA examinations. In a 2003 examination, he had 20/20 visual acuity in the left eye with no difficulties or problems. A July 2004 optometry record shows full visual field and 20/25 visual acuity on the left. In a June 2005 VA examination, the examiner noted that the Veteran denied light sensitivity to the left eye, which was contrary to the information he had been given. The only diagnosis given for the left eye was an age-related cataract, and he had 20/20 visual acuity. The examiner opined there was no pathology of the left eye, and the Veteran did not give any symptoms referable to the left eye in any way. In a September 2006 Board hearing, the Veteran relayed his belief that his eyesight had worsened in the left, and overuse caused strain, soreness, and a sense of double vision and blurred vision. In an October 2006 statement, the Veteran complained of light sensitivity in the left eye. In a January 2008 VA examination, the Veteran's best corrected distance visual acuity was 20/40 with full visual field in the left. He was glaucoma suspect in the left eye, which was determined to be genetic, not service, related. In a November 2014 VA examination, the Veteran's visual acuity was 20/40 or better. Visual field testing was not performed. The examiner stated that the left eye was normal. In an August 2016 VA examination, his visual acuity was 20/40 or better, but visual field testing was not conducted. Turning to the treatment records, a June 2007 ophthalmology note lists pinguecula in both eyes. A January 2010 record lists a diagnosis of traumatic cataract of the left eye. A July 2011 record notes mild meibomitis, blepharitis, pinguecula, and mild arcus bilaterally. April 2012 visual field testing revealed a superior arcuate defect with scattered inferior misses in the left eye. In September 2014, the Veteran complained of discomfort in the left eye. He complained of a strained left eye in a November 2014 neurology consultation. In August 2014, an optometry resident noted the superior arcuate defect, and suggested it was due to possible ptosis. In July 2019, he complained of increasing light sensitivity, blurred vision, and mild pain in the left eye. He stated the symptoms were longstanding and unchanged, but he had not yet been evaluated. The previous visual field defects were again noted. The Board finds that VA treatment records reflect symptomatology that have not been sufficiently explained by a VA examiner. For example, there is evidence of a visual field defect in the left eye as of 2012, yet visual field testing was not conducted in 2014 and 2016. While none of the VA examinations identify a diagnosed left eye disability, there are notations in the record of possible left eye disabilities that must be considered and addressed by an examiner. Thus, remand is necessary for an additional VA medical examination and opinion. 2. Increased rating right eye disability The Veteran is currently assigned a 30 percent rating for light perception only in his right eye under DC 6064, which is the highest rating available when there is light perception only in the only service-connected eye. As the left eye is not service connected, it is considered 20/40 visual acuity for rating purposes. See 38 C.F.R. § 4.75(c). However, if the Veteran were to prevail on his service connection claim for the left eye, the assigned rating could affect his right eye rating, as DC 6064 provides for increased ratings based on the level of visual impairment in the other eye. As the increased rating claim for the right eye could depend on the outcome of the service connection claim for the left eye, the Board finds that, for purposes of efficiency, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, the Board must remand the increased rating claim pending the outcome of the Veteran's left eye service connection claim. The matters are REMANDED for the following action: Obtain a VA examination for the Veteran's eye disabilities. All diagnoses must be clearly identified, and visual field testing of the left eye must be conducted. If a left eye disability exists, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that it is caused OR aggravated by the Veteran's in-service injury or resulting right eye disability, to include due to overcompensation. The examiner must consider and address the medical significance, if any, of the left eye diagnoses listed in treatment records, the visual field defect noted in the treatment records, as well as the Veteran's subjective complaints of pain and light sensitivity. L.M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.