Citation Nr: 21031368 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-19 007 DATE: May 21, 2021 ORDER 1. A 10 percent rating for headaches is granted from April 14, 2018 (but not earlier), subject to the regulations governing payment of monetary awards. REMANDED 2. Entitlement to service connection for a bilateral foot skin disability is remanded. 3. Entitlement to service connection for temporomandibular joint dysfunction (TMJ) is remanded. FINDING OF FACT Prior to April 14, 2018, the Veteran's Traumatic Brian Injury (TBI)-related headaches are not shown to have been manifested by characteristic prostrating attacks, and are not shown to have impacted on occupational functioning; from that date, the headaches are reasonably shown to have been manifested by characteristic prostrating attacks averaging one in 2 months over the last several months and to have impacted on occupational functioning. CONCLUSION OF LAW A 10 percent rating for headaches is warranted from April 14, 2018, but not earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.3, 4.21, 4.31, 4.124A, Diagnostic Codes 8045, 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 2003 to February 2005, and had additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal of October 2015 (that granted service connection for headaches, rated 0 percent, effective August 14, 2015), July 2016 (denied service connection for TMJ), and September 2016 (denied service connection for a bilateral foot skin disability) rating decisions. In March 2019 a videoconference hearing was held before the undersigned; a transcript is in the record. In September 2019, the case was remanded for further development. [A January 2021 Decision Review Officer (DRO) decision granted service connection for chronic sinusitis. Accordingly, that matter is no longer before the Board.] 1. A 10 percent (but not higher) rating for headaches is granted from April 14, 2018, but not earlier. Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. When the appeal is from the initial rating assigned with a grant of service connection, the severity of the disability during the entire period from the grant of service connection to the present is to be considered. "Staged" ratings may be assigned for distinct periods when different levels of impairment are shown. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). There is no specific Code for rating tension headaches; the disability is rated by analogy. 38 C.F.R. § 4.20. The originating agency has rated the disability by analogy to Code 8100 (for migraine headaches). That Code is not optimal for rating tension headaches (as they do not generally have symptoms associated with migraines such as prostrating attacks); but given the anatomy involved and the related functional impairment, the Board finds Code 8100 best fitting for analogous rating. The Board has also considered rating the disability by analogy to the criteria for rating TBI (i.e., as headaches due to head trauma), because service connection for headaches was granted as secondary to a TBI in service. This will be discussed in more detail below. Under Code 8100, a (maximum) 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months; a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over last several months; and a 0 percent rating is warranted for less frequent headache attacks. 38 C.F.R. § 4.124A. The rating criteria do not define "prostrating" and the courts have not undertaken to define "prostrating" for purposes of Diagnostic Code 8100. See Fenderson, 12 Vet. App. at 119. 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." Under Code 8045, headaches that are TBI residuals are rated as subjective symptoms (under the Criteria for Evaluation of Cognitive Impairment and Other Residuals of TBI Not otherwise Classified). Where the symptoms are subjective symptoms (such as headaches), and do not interfere with work, instrumental activities of daily living, or other ot other work, family, or other close relationships (e.g., mild or occasional headaches), they warrant a 0 impairment level (and a 0 percent rating). Where there are 3 or more subjective symptoms that mildly interfere with work, they warrant a Level 1 impairment rating (and a 10 percent rating). A 40 percent rating requires Level 2 impairment, with 3 or more subjective symptoms that moderately interfere with work shown. 38 C.F.R. § 4.124A. On October 2015 VA headaches examination, the diagnosis was tension headaches. The Veteran reported headaches that occurred twice a week that may last for several hours during the day and that he took Ibuprofen for the pain. He related that his headache pain increased with stress, that the headaches were located in the front and both sides of his head, and that he did not seek regular treatment for his headaches. He also related that he experienced sensitivity to light but no characteristic prostrating attacks of migraine headache pain. A recent brain CT was normal. The Veteran related that he worked in the coal mines and that he had no problems at work related to his headaches. The examiner opined that the Veteran's headaches were mild in severity, likely related to a mild TBI in service, and did not impact on his ability to work. On October 2015 TBI examination, the Veteran reported that he had headaches twice a week which increased in severity with stress and that he took Ibuprofen for the pain. Regarding the facets of TBI relating to cognitive impairment and subjective symptoms, the Veteran reported mild memory loss. However, on Mini Mental State Examination, he scored 30/30, which is normal cognition, and was asked questions regarding orientation, registration, attention, and calculation, recall and language. His social interaction was noted to be occasionally inappropriate because he had mild PTSD symptoms that caused some social anxiety with crowds. Regarding three or more subjective symptoms that the examiner suggested mildly interfere with work, activities of daily living, and/or family relationships, it was noted that he had mild headaches, photophobia, some hearing difficulty with tinnitus, and mild PTSD symptoms which relate to some intrusive thoughts, occasional dreams of the past, and some anxiety around social situations and avoidance of watching war movies or news. A March 2016 VA treatment record notes that the Veteran reported frequent headaches. On June 2016 PTSD examination, the Veteran reported tension headaches that occurred 2-3 times a week for several hours and that he took Ibuprofen for the pain. He indicated that the headaches increased in severity with stress and covered his entire head. A July 2016 VA treatment record notes that the Veteran reported "horrible headaches" and that he was very nervous and anxious. A January 2017 VA treatment record notes that the Veteran reported occasional headaches. A January 2018 VA treatment record notes that the Veteran underwent sinus surgery in March 2017, and that he did not experience any headaches from March 2017 until they began to reoccur in December 2017. On April 2018 TBI residuals examination, under the assessment of cognitive impairment and other residuals of TBI, the Veteran reported such impairment in multiple areas. He reported mild memory loss such as forgetting where he put his keys and the names of former co-workers, mild impairment of judgment that manifested as impatience and his ability to anger easily, occasional disorientation that manifested as a periodic inability to remember where he is when driving, and neurobehavioral effects which manifest as his inflexibility and argumentativeness. Regarding three or more subjective symptoms that mildly interfere with work, the Veteran reported frequent headaches, that his headache pain occurred in the back of his head, and that he took Ibuprofen for the pain. He also related that he had constant ringing in his ears and trouble sleeping. The examiner opined that the Veteran's TBI residuals impacted his ability to work (and his ability to currently perform as a student) because he had lost 1-2 weeks work time in the last 12 months due to tension headaches. On April 14, 2018 headache examination, tension headaches were diagnosed. The Veteran reported that his headaches had become worse over the past few years and that when he has a headache, all he wants to do is sleep. He reported constant head pain localized to the back of the head, sensitivity to light, and headache pain that lasted less than 1 day (per headache episode). He denied characteristic prostrating attacks of migraine or non-migraine headache pain, and denied very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The examiner indicated that the Veteran's headaches had some functional impact because he reported 1-2 weeks work time lost in last 12 months (due to headaches), that he had difficulty concentrating and learning new information because of his headaches, and that he has had to turn in assignments late for online classes because his headaches interfered with his studies. At the March 2019 Board hearing, the Veteran testified that he experienced headaches "about 90 percent of the time" and about four or five times a month his headaches are so severe that he goes to bed and sleeps for 8-10 hours. He related that during any of those headache episodes he would not be able to go to the grocery store, go to work, or leave his house because the headaches cause light sensitivity and drowsiness. The Veteran reported that he just "pushes through" when he experiences a less intense daily headache (that may last all day or just occur during the morning), that he took Ibuprofen or Tylenol for the pain, and that he sees a VA provider regarding his headaches about every three months. A May 2019 VA treatment record notes that the Veteran reported headaches, but he did not indicate the frequency, severity, or duration of the headaches. On May 2020 VA headache examination, the diagnosis was migraine headaches. The Veteran reported constant head pain that pulsated or throbbed, was located on both sides of his head, and worsened with physical activity. He related that his headaches lasted several hours and were accompanied by sensitivity to light and sound and nausea, and that he took Tylenol for the pain. The Veteran denied characteristic prostrating attacks of migraine or non-migraine headache pain, and the examiner opined that his headaches had no functional impact. A July 2020 VA treatment record notes that the Veteran reported no current headaches. On December 2020 headache examination, the diagnosis was migraine headaches. The Veteran reported that he experienced approximately 10-15 headaches a month that lasted 1-2 days per episode. He related that he experienced constant head pain that pulsated or throbbed on both sides of his head that worsened with physical activity and that he took Motrin as needed for the pain. The Veteran reported non-headache symptoms of nausea, sensitivity to light and sound, and sensory changes such as feeling of pins and needles in his extremities. He denied characteristic prostrating attacks of migraine or non-migraine headache pain, and denied very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The Veteran related that he was currently employed, had lost approximately 1 work week in the last 12 months due to headaches, and often had to lay in a quiet dark room and unable to focus on work when he had a headache. Prior to April 14, 2018, the Veteran's headaches were rated 0 percent. The evidence does not show the headaches were manifested by characteristic prostrating attacks averaging one in 2 months over the last several months (for a 10 percent rating under Code 8100). VA treatment records provide evidence against the Veteran's claim. On October 2015 headache examination, although the Veteran reported headaches twice a week that may last for several hours, he did not seek regular treatment for his headaches, and denied having characteristic prostrating attacks of migraine headache pain. He related that he worked in coal mines and had no problems at work related to his headaches, and the examiner opined that the Veteran's headaches were mild in severity and did not impact on his ability to work. March and July 2016 VA treatment records note his reports of frequent headaches (March 2016) and "horrible headaches" (July 2016), but no further information was provided. Also, a January 2018 VA treatment record notes that the Veteran reported that he did not experience any headaches from March 2017 until they began to reoccur in December 2017. There is no evidence that he has had characteristic prostrating attacks averaging one in 2 months, or more frequently (or equivalent disability). The level of related impairment (no characteristic prostrating attacks) falls squarely within the criteria for a 0 percent rating under Code 8100. Therefore, a compensable rating for migraine headaches prior to April 14, 2018, is not warranted. Likewise, a compensable rating under the Code 8045 criteria is also not warranted for the Veteran's headaches prior to April 14, 2018. Considering the TBI rating criteria the Board notes that the Veteran reported mild headaches and photophobia on October 2015 headaches examination, and the examiner opined that the headaches did not impact on his ability to work. Such symptoms would ordinarily warrant a Level 0 impairment assessment (as a level 1 assessment requires 3 symptoms), and they were noted to not interfere with work. These manifestations (mild headaches and photophobia) were also reported on TBI examination as subjective symptoms and appear to have been incorporated as part of the 10 percent rating for TBI in the October 2015 rating decision, and, therefore, those same symptoms should not be used to rate the Veteran's headaches under Code 8045, as directed in 38 C.F.R. § 4.124A, Note (1); see also 38 C.F.R. § 4.14 (prohibition against pyramiding). From April 14, 2018, (the date of a VA headache examination), the Veteran's headaches are reasonably shown to have manifested by characteristic prostrating attacks averaging one in 2 months over the last several months, thereby warranting a 10 percent (but no higher) rating under Code 8100. On April 2018 examination, although the Veteran denied characteristic prostrating attacks of migraine or non-migraine headache pain, the examiner indicated that the headaches had some functional impact because he reported 1-2 weeks work time lost in last 12 months (due to headaches), that he had difficulty concentrating and learning new information because of his headaches, and that had to turn in assignments for online classes late because his headaches interfered with studies. The Board finds that losing 1-2 weeks work time (up to approximately 10 days and/or averaging less than one day a month) due to headache symptoms is analogous to experiencing prostrating attacks averaging one in 2 months over the last several months under Code 8100. Having resolved reasonable doubt in the Veteran's favor, the Board finds that a 10 percent rating for headaches is warranted from April 14, 2018. The Board notes that at the March 2019 Board hearing, the Veteran testified that he experienced headaches "about 90 percent of the time" and about four or five times a month his headaches are so severe that he goes to bed and sleeps for 8-10 hours. He also related that during such headache episodes he is unable to go to the grocery store, go to work, or leave his house because the headaches cause light sensitivity and drowsiness. The alleged frequency and severity of such headaches might suggest a rating in excess of 10 percent. However, it is not clear if such headache episodes would be considered "prostrating attacks" because it is not clear what impact, if any, that such headache episodes had on the Veteran's daily activities, and if such attacks would approximate "utter physical exhaustion or helplessness." Although he related that he would not be able to go to work, etc., during such episodes, he did not indicate that he was ever actually not able to engage in these activities during such headache episodes (i.e., he may have simply gone to sleep at the end of a work day). Also, on May 2020 headache examination, he continued to deny having characteristic prostrating attacks of migraine or non-migraine headache pain, and on December 2020 examination, he reported 10-15 headaches a month that lasted 1-2 days per episode, denied characteristic prostrating attacks of migraine or non-migraine headache pain, and reported that he lost approximately 1 week of work due to headaches. Considering the Veteran's testimony and his reports on the May and December 2020 examinations, the preponderance of the evidence does not warrant a rating in excess of 10 percent for headaches under Code 8100 from April 14, 2018. A rating in excess of 10 percent for headaches is also not warranted under Code 8045 criteria from April 14, 2018. Considering the TBI rating criteria, the Board notes that the Veteran reported non-headache symptoms of nausea, sensitivity to light and sound, and sensory changes such as feeling of pins and needles in his extremities on December 2020 examination. The symptoms of nausea, sensitivity to sound, and sensory changes are symptoms that have not been previously considered as part of the TBI rating; however, such symptoms have been shown to only mildly interfere with work (i.e. less than 1 week of work in the last 12 months due to headaches), and would warrant only a 10 percent rating from December 2020. Since only one rating for headaches is allowed, the Veteran's headaches will continue to be rated under Code 8100, at 10 percent (but no higher) from April 14, 2018, as explained above. REASONS FOR REMAND 2. Entitlement to service connection for a bilateral foot skin disability. The Veteran alleges he contracted a foot fungus from wearing wet socks and boots for weeks at a time during his deployment to Iraq. His service treatment records (STRs) do not show complaints of, or treatment for, foot fungus, but in a July 2017 statement, a VA provider opined that the problem with fungus on his feet could be related to his time in Iraq and a lack of proper facilities may have contributed to an inability to maintain good foot hygiene. The Board found such opinion to be inadequate for rating purposes because it was stated in speculative terms. On December 2020 VA skin examination, the examiner opined that it was less likely than not that the Veteran's claimed foot skin disorder was related to wearing wet socks and/or boots for extended periods during service. She explained that his foot disorder (tinea pedis) was self-treated during service and resolved. The examiner also noted that the Veteran sought treatment in October 2015, was treated for tinea pedis, and on current examination the tinea pedis appears to have resolved, with no chronic condition shown. The same examiner provided an additional December 2020 opinion in which she again opined that it was less likely than not that the Veteran's foot skin disorder is related to wearing wet socks and/or boots for an extended time. She explained that the Veteran's tinea pedis was acute and not chronic. However, the examiner also indicated that the skin disorder was "likely due to damp conditions but there is no evidence of a chronic condition." The opinions appear to be somewhat inconsistent, and clarification is needed. In each opinion the examiner indicates that the Veteran's foot skin disorder was acute and resolved, but in the second opinion, the examiner suggests that a foot skin disorder was likely due to damp conditions although there was no evidence of a chronic condition. [The Board also notes that a December 2016 VA treatment record indicates that special care needs were identified, to include a fungal foot infection, suggesting a less than thorough review of the record.] Clarification whether the tinea pedis found at least as recently as in July 2017 (by another VA provider) is related to the Veteran's service (to include as due to his wearing wet socks and/or boots) or, if not, to identify the it's likely etiology (i.e. is a foot fungal disorder due to the Veteran's reported exposure to damp working conditions in mines) is needed. 3. Entitlement to service connection for TMJ. At the March 2019 videoconference hearing the Veteran raised an alternate theory of entitlement (that the claimed TMJ is related to a motor vehicle accident (MVA) during service in 2004). In December 2020 VA opinions, the provider opined that it was less likely than not that the Veteran's TMJ was related to his service, to include as due to a head injury sustained in a MVA during service in 2004. In both opinions, the examiner explained that TMJ was not diagnosed until 2016, twelve years after the Veteran's discharge from service, and, therefore, a nexus was not established. The opinion is inadequate for rating purposes because a likely etiology for the TMJ was not identified, and the Veteran was not examined by an appropriate clinician (oral surgeon/dentist, e.g.) as requested. Therefore, remand for an examination to obtain an adequate medical advisory opinion is necessary. The matters are REMANDED for the following: 1. Return the Veteran's record to the December 2020 VA examiner (or another appropriate clinician if that provider is unavailable) for further review and an addendum medical opinion regarding the etiology of his foot skin disorder. [If further examination of the Veteran is deemed necessary for the opinion sought, such should be arranged.] Upon review of the record, the provider should: (a) Identify (by diagnosis), each foot skin disorder found/or shown by the record during the period on appeal. (b) Identify the likely etiology for each foot skin disability diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that the disorder is etiologically related to the Veteran's service/was incurred therein (to include as due to wearing wet socks/boots for extended periods)? (c) If a diagnosed foot skin disability is found to not be related to the Veteran's service, identify the more likely etiology. All opinions must include rationale that cites to supporting factual data and medical principles. 2. Also arrange for the Veteran to be examined by an appropriate clinician (oral surgeon/dentist, e.g.), other than the December 2020 examiner, to confirm he has TMJ/a jaw disability, and if so, ascertain its likely etiology. The Veteran's record must be reviewed by the examiner. The examiner should: (a) State whether the Veteran has a jaw disability/TMJ (identifying any found by diagnosis). (b) Identify the likely etiology of any jaw disability/TMJ entity diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that it is related directly to the Veteran's service to include as due to a head injury sustained in a MVA during service in 2004 (which is acknowledged by his establishment of service-connection for TBI based on such event)? (c) If a jaw disability/TMJ entity is found to not be related to the Veteran's service and head trauma therein, identify the etiology that is considered to be more likely. All opinions must contain rationale that cites to supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, 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.