Citation Nr: 21030933 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-28 304 DATE: May 20, 2021 ORDER Entitlement to service connection for diabetes mellitus, type 2 disability is granted, subject to the laws and regulations governing the payment of monetary benefits. An initial rating of 50 percent for migraine headache disability is granted, subject to the laws and regulations governing the payment of monetary benefits. An initial rating in excess of 10 percent for hypertension disability is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his diabetes mellitus, type 2 disability began during his active service. 2. The frequency, duration, severity, and economic impact of the Veteran's migraine headache disability symptoms have more nearly approximated very frequent completely prostrating and prolonged attacks that are capable of producing severe economic inadaptability. 3. During the appeal period, the Veteran's hypertension did not manifest in diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type 2 are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial disability rating of 50 percent for migraine headache disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, diagnostic code (DC) 8100. 3. The criteria for a disability rating in excess of 10 percent for service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.104, DC 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2000 to August 2004. These matters are before the Board on Veterans' Appeals (Board) on appeal of May 2015 and October 2016 and May 2017 November 2016 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). In February 2021, the Veteran and his wife testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Entitlement to service connection for diabetes mellitus, type 2 is granted. The Veteran contends that his diabetes mellitus, type 2 onset during his active service. The Board concludes that the Veteran has a current diabetes mellitus, type 2 disability that began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). At the February 2021 Board hearing, the Veteran testified that during his active service he experienced symptoms associated with diabetes mellitus, type 2, including fatigue, thirst, hunger, as well as a weight gain of 40 pounds. He further testified that shortly after his discharge from active service, his mother tested his blood glucose level with a glucose machine and the testing showed that his glucose level was very high. The Veteran's wife, a nurse, testified that the Veteran's blood sugar reading "when he got home" was 315. The Veteran is competent to report matters of which he has personal knowledge, such as excessive fatigue, thirst, hunger, and weight gain during his active service. See Layno. His reports are consistent with the other evidence of record, and the Board finds that he is credible in his reports. Jandreau; Buchanan. The Veteran's service treatment records show that in March 2001 the Veteran did not meet the maximum allowable weight standards and administrative action was indicated. March 2010 private treatment records show the Veteran has a current diagnosis of diabetes mellitus, type 2. Thus, the issue is whether the current diabetes mellitus type 2 disability is related to his active service. On this question there is are probative opinions from one of the Veteran's private treatment providers in favor of the claim. The Veteran submitted letters dated December 2016 and June 2017 from the Veteran's private treatment provider, A.P. M.D., an endocrinologist. The letters essentially provide the same opinion, with rationale. The doctor stated that the Veteran was diagnosed with diabetes mellitus, type 2 in February 2010 and that he was treating him for the disease. He further stated that he had reviewed the Veteran's service treatment records, post service treatment records and lay statements. The doctor opined that it is more likely than not that the onset of the Veteran's diabetes mellitus, type 2 disease was prior to his discharge from active duty in August 2004. As rationale, he stated that by the time a patient is diagnosed with diabetes mellitus, type 2, the patient has had the disease for anywhere between 5 to 10 years. There are no medical opinions of record to the contrary. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current diabetes mellitus, type 2 arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for diabetes mellitus, type 2 is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. In determining the severity of a disability, the Board is required to consider 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. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). An initial rating of 50 percent for migraine headache disability is granted. The Veteran contends that he is entitled to a compensable initial rating for his service-connected migraine headache disability. The Veteran's service-connected migraine headache disability is rated noncompensable under 38 C.F.R. § 4.124a, DC 8100. throughout the appeal period from October 2, 2013 to the present. 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 averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The United States Court of Appeals for Veteran's Claims (Court) found that "productive of severe economic inadaptability" means either producing or capable of producing severe economic inadaptability. Johnson v. Wilkie, 30 Vet. App. 245, 253. The Court also found that nothing in DC 8100 requires that the claimant be completely unable to work to qualify for a 50 percent rating, as such would undermine the purpose of regulations pertaining to TDIU ratings due to service-connected disabilities. Pierce v. Principi, 18 Vet. App. 440, at 446. (2004); see also 38 C.F.R. § 4.16. During the pendency of this matter, the Court issued a precedential opinion directly relevant to rating this case. In Holmes v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2131, *13-14 (November 5, 2020), the Court held that "[t]he bottom line is that the rating criteria for migraines contemplate all migraine symptoms. And so, we hold that DC 8100 contemplates more than just headache symptoms and requires that VA consider all the symptoms the veteran experiences as a result of migraine attacks, and then rate those symptoms based on the frequency, duration, severity, and economic impact of the attacks." Accordingly, the rating criteria for headaches contemplate the various manifestations of such disability by focusing on the resulting overall functional impairment, rather than particular symptoms. At the February 2021 Board hearing, the Veteran testified that he has had migraine headaches 2-3 times per month for the "last several years." He also testified that when he has a migraine headache he must lay down and rest in a quiet area. He further testified that he was a full-time mechanic, but he had to change jobs at his place of employment and begin working part-time in a boiler room. He first tried to work at a full-time desk job, but he was unable to. He explained that if he must do something that is physically laborious it may trigger a migraine headache. He stated that he must schedule any physically laborious tasks on the last day of the work week so that if he has a migraine headache, he has a few days to recover. He further testified that the he had to change positions and from full-time to part-time work he has had to change positions at his place of employment, in large part due to his migraine headaches. The Veteran is competent to report matters of which he has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). His reports are consistent with the other evidence of record, and the Board finds that he is credible in his reports. Jandreau v. Nicholson, 492 F.3d 1372 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran submitted a letter from L.J. M.D. dated June 2017. Dr. L.J. stated that the Veteran suffers from migraines at least 2-3 times per week that last 6-36 hours at a time. The migraines are often not relieved with the prescribed migraine medications and the Veteran must lie down in a quiet place with decreased light. The Veteran submitted a letter from his treating physician, G.M. M.D, dated February 2021. Dr. G.M. stated that the Veteran had been his patient since March 2014 and despite working with a neurologist, the Veteran's migraine headache symptoms are not relieved using oral medications. He stated that the Veteran has at least 3 debilitating migraine headaches per month that last approximately three or more hours. He further stated that when the Veteran has a migraine headache, he must lie down to rest for several hours in a dark, quiet place. He confirmed that the Veteran has had to change his work schedule from full-time to part time due to the negative impact migraine headaches have on his work abilities. The Veteran's doctor has examined the Veteran in person and found his lay statements regarding the frequency of his migraine headaches and their impact on his employment, and he appears to find the Veteran credible. Thus, the Board finds Dr. G.M.'s report is competent, credible and highly probative. The Veteran has competently and credibly testified that he has very frequent completely prostrating attacks and prolonged migraine headache attacks and submitted competent and credible evidence in support of his claim. The Board finds that his migraine headache symptoms are capable of producing severe economic inadaptability. His symptoms impact his employment such that he was required to change positions within his company and was unable to perform the tasks of his assigned desk job. Further, his symptoms impact his work schedule, as he has necessarily needed to reduce his work hours, and further that he must schedule particular job tasks toward the end of the week in the event he has a migraine headache and must rest for a couple of days. The Veteran's employer appears to have made numerous accommodations for the Veteran and it is uncertain whether his employer could make further accommodations for the Veteran's migraine headache symptoms. The Board concludes that the frequency, duration, and economic impact of the Veteran's migraine headache disability symptoms are productive of very frequent, completely prostrating, and prolonged attacks capable of producing severe economic inadaptability. Thus, an initial rating of 50 percent for service-connected migraine headache disability is warranted under DC 8100. The appeal is granted. An initial rating higher in excess of 10 percent for hypertension is denied. The Veteran contends that he is entitled to a higher initial rating in excess of 10 percent for his service-connected hypertension because his blood pressure is above 180 systolic and above 100 diastolic without the use of prescribed medications. See October 2015 Notice of Disagreement. Hypertension is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. DC 7101 Note (1) requires multiple blood pressure readings to be taken over multiple days to confirm the existence of hypertension. That requirement is not applicable to increased rating claims. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). The term "predominant" is not defined in the rating criteria. Merriam-Webster defines predominant to mean "being most frequent or common." See, e.g., "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. In rating hypertension under DC 7101, the Board may consider blood pressure readings taken while a veteran is using medication to treat hypertension. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (holding that DC 7101 contemplates the effects of medication. For the reasons that follow, the Veteran's hypertension has not manifested in diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more during the appeal period, which is from the October 2013 date of service connection for hypertension to the present. The Veteran's medical records show that he is prescribed medications to control his hypertension. The Veteran submitted private treatment records from Choudhary Cardiology received in October 2015. The Veteran's blood pressure reading on April 2014 was 110/70. Dr. R.C. assessed that the Veteran's blood pressure was "excellent," The Veteran's blood pressure reading in August 2014 was 120/82. Dr. R.C. assessed that the Veteran's blood pressure "is good." The Kaiser Permanente treatment records submitted by the Veteran do not show blood pressure readings that are within the appeal period from October 2013 to the present. A September 2013 Kaiser Permanente treatment record that is outside the appeal period shows that the Veteran's blood pressure is 129/75. The blood pressure log for the visit with Dr. L received in February 2021 shows blood pressure readings obtained in September and October 2012, which is approximately one year outside the appeal period which begins in October 2013. As such, the Veteran's treatment records and his mother's blood pressure log do not show he had diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. The Veteran had a VA contract examination in May 2015. The examiner noted that the Veteran was diagnosed with hypertension and prescribed medication in 2002. On examination, the Veteran's blood pressure readings were 128/71, 123/83 and 126/83. The Veteran submitted a March 2016 private Hypertension Disability Benefits Questionnaire (DBQ) from Dr. C. The examination contains blood pressure readings used to establish the Veteran's initial hypertension diagnosis in 2003, which is outside the appeal period. The DBQ does not contain any current blood pressure readings. Thus, the Board affords the March 2016 private DBQ no probative value. The Veteran submitted a February 2021 letter from G.M. M.D. which addresses his hypertension. Dr. G.M. states that he is treating the Veteran for hypertension and that it is 95 percent controlled by medication. Dr. G.M. then states what the Veteran's blood pressure readings were prior to his use of prescribed medications, including from the Veteran's Kaiser Permanente treatment records as well as from his mother's blood pressure log which are outside the appeal period. He also states that without the use of prescribed medications, the Veteran's blood pressure continues to measure greater than 190 systolic and greater than 130 diastolic. The Board reiterates that DC 7101 contemplates the effects of prescribed medications on hypertension and the Board may consider blood pressure readings taken while the veteran is using medication. See McCarroll. Thus, the Board affords Dr. G.M.'s opinion that the Veteran's current unmedicated blood pressure is greater than 190 systolic and greater than 130 diastolic, based on a review of evidence outside the appeal period, is of no probative value. At the February 2021 Board hearing, the only testimony regarding the Veteran's hypertension was from the Veteran's wife, who said that on several occasions, his blood pressure was above 180 systolic and above 110 diastolic. She did not state when his blood pressure readings were above 180 systolic and above 110 diastolic. To receive a 20 percent rating, or higher, the Veteran must have a diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Although the Veteran's wife testified that the Veteran has had blood pressure readings above 180 systolic and above 110 diastolic, the evidence of record does not show any diastolic readings above 110 diastolic during the appeal period other than the Veteran's wife's assertion. As noted, the Veteran's wife testimony does not establish that the Veteran's diastolic pressure was 110 or more within the appeal period from October 2013. Thus, the Board afford the Veteran's wife's testimony that his diastolic pressure has been above 110 on several occasions, no probative value. The Board is sympathetic to the Veteran's assertion that his symptoms warrant a higher initial rating for his hypertension. However, based on a review of the evidence of record, the Board concludes that a disability rating in excess of 10 percent is not warranted as the preponderance of the evidence is against finding that his diastolic pressure has predominantly been 110 or more, or his systolic pressure predominantly 200 or more. (Continued on the next page) Accordingly, the Board finds that the weight of the evidence is against the claim and an initial rating in excess of 10 percent for hypertension is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.