Citation Nr: 21032508 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-65 930 DATE: May 27, 2021 ORDER The reduction in disability rating for tension headaches from 30 to zero percent from May 19, 2016, was improper. Beginning May 19, 2016, a maximum schedular rating of 50 percent for tension headaches is granted. FINDINGS OF FACT 1. Sustained material improvement of the Veteran's ability to function under ordinary conditions of life and work as a result of his tension headaches has not been demonstrated during the period on appeal. 2. Resolving any reasonable doubt in the Veteran's favor, his tension headaches have been characterized by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability beginning May 19, 2016. CONCLUSIONS OF LAW 1. The RO's reduction in disability rating for the Veteran's service-connected tension headaches from 30 to zero percent, effective May 19, 2016, was improper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.114, Diagnostic Code (DC) 8100 (2020). 2. Resolving any reasonable doubt, the criteria for a maximum 50 percent disability rating for tension headaches are met beginning May 19, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.114, DC 8100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1981 to May 1984. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2016 rating decision, which reduced the Veteran's rating for tension headaches from 30 percent to 0 percent, effective June 1, 2016. In a March 2017 rating decision, the RO found clear and unmistakable error in the June 2016 rating decision and changed the effective date of the reduction from June 1, 2016, to May 19, 2016. The Veteran submitted a notice of disagreement in March 2017 and thereafter perfected the appeal. In September 2020, the Veteran and his spouse testified at a Videoconference Hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Reduction The Board notes that a rating reduction claim is separate and distinct from an increased rating claim. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The Veteran in this case seeks restoration of a 30 percent rating for his service-connected tension headaches from May 19, 2016, as well as an increased rating. The reduction of a rating has certain procedural requirements that must be followed by the RO if the lower evaluation results in a reduction or discontinuance of compensation payments being made. 38 C.F.R. § 3.105 (e). Here, a rating action proposing such reduction was not warranted because the rating reduction did not result in a reduction or discontinuance of current compensation payments. The Veteran has not alleged otherwise. 38 C.F.R. § 3.105 (e). Reducing a rating also brings concurrent substantive requirements that must be followed. When a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344 (c). In making this determination, VA is required to comply with several regulations applicable to all rating- reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). The 30 percent rating for the Veteran's tension headaches was in effect for fewer than five years at the time of the reduction. In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. See Dofflemeyer at 281-282. However, post-reduction evidence may not be used to justify an improper reduction. In considering the propriety of a reduction in this case, a review of the regulations for establishing disability ratings is appropriate. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R., Part 4 (2020). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2020). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2020). In this case, the Veteran's headaches are rated under DC 8100. 38 C.F.R. § 4.124a. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as non-compensable. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. The term "prostrating attack" is not defined in regulation or case law but can be defined as extreme exhaustion or powerlessness. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack); DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012). Further, "severe economic inadaptability" is also not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the Court has held that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. It was explained by the Court that if "economic inadaptability" were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating. Id. citing 38 C.F.R. § 4.16. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words "productive of" could be read to mean either "producing" or "capable of producing." Id. at 446-447. The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Reduction Analysis Initially, the Board finds that the rating reduction was improper, and restoration of at least a 30 percent rating is warranted. Historically, at a VA examination in December 2013, the Veteran reported daily headaches, located bilaterally, above the ears. He stated that if the headache was not present when he awoke, it tended to start within a few hours and lasted all day. He reported incapacitating headaches approximately three times per week. Medications taken for the headache included propanolol, morphine and Vicodin. Nausea, sensitivity to light and sound, as well as a loss of appetite were reported by the Veteran. The examiner indicated that the Veteran had very frequent prostrating and prolonged attacks of non-migraine headache pain. Lastly, the examiner noted that the Veteran's headache condition impacted his ability to work as he was likely to have markedly increased absenteeism. In January 2014, a rating of 30 percent was assigned based on the characteristic prostrating attacks occurring on an average of once a month over the last several months. VA treatment records ranging from August 2009 to April 2016 show continued treatment based on complaints of daily headache pain. The Veteran was prescribed different medications to try. In January 2016, he reported getting a piercing in his left ear to try and alleviate the headache pain. In an April 2016 statement in support of claim, the Veteran noted that his headaches occurred daily, that he required medication to help reduce the severity, and that his wife needed to drive due to the severity of his headaches. He also noted that he did not interact with other people, in part, due to the severity of his headaches. During a May 2016 VA-contracted examination, the Veteran reported constant head pain for the last five years, 24 hours a day, seven days a week. The location of the head pain was variable, and characterized as a dull ache with sharp pains and baseline from moderate intensity to severe. The headaches were helped by medication and lying down. The Veteran's medications included oxycodone, and propanolol. The examiner noted that the Veteran experienced constant head pain on both sides of his head accompanied by sensitivity to light and sound. The headaches never went away. He added that the Veteran did not have very frequent prostrating and prolonged attacks on non-migraine headache pain and that the headaches did not impact his ability to work. Lastly, the examiner stated that since there is a lack of corroborating evidence for the headaches, it was suggestive of symptom amplification. Thereafter, in a June 2016 rating decision, the RO reduced the rating for headaches from 30 to zero percent effective June 1, 2016, finding that the Veteran no longer met the criteria for a 30 percent rating (i.e., characteristic prostrating attacks occurring on an average once a month over last several months). In his March 2017 notice of disagreement, the Veteran reported that he has daily headaches and must stay in bed with lights off and door closed two to three times per month due to his headaches. He also reported nausea due to his headaches causing him to lose weight. As indicated, by a March 2017 rating decision, the RO found clear and unmistakable error in the 2016 reduction and assigned the zero percent rating, effective May 19, 2016. At a VA examination in May 2020, the Veteran again reported daily, constant headaches, with nausea, and sensitivity to light and sound. The examiner indicated that the Veteran experienced prostrating attacks of non-migraine headache pain more frequently than once a month and that the Veteran's pain level prohibited his ability to work full-time or seek competitive employment. At the Board hearing in September 2020, the Veteran testified that, at the time of the reduction, he had daily prostrating headaches approximately twice a month that required him to lay down in a dark room. He reported that his headaches had not improved but that the prostrating attacks were increasing to two to three times a month which is why he had filed a claim for an increased rating. He reported being able to spend only an hour at a time on a computer screen or reading his kindle. His headache symptoms include nausea which caused weight loss and sensitivity to light. He stopped working in 2013 when the mill shut down and had retraining, but his medication was not compatible to get through interviews. He stated that he has received Social Security disability benefits for several years due to his headaches. He currently takes oxycodone for his headaches, and has tried acupuncture and physical therapy. His spouse testified that his headaches have become worse over the years, that he wears dark shades in the house, and that they are unable to participate in activities anymore or do family things. Finally, he disagreed with the statement by the examiner in May 2016 that his symptoms were over-reported. Upon review, the Board finds that the reduction of the rating from 30 percent to 0 percent was improper as the applicable evidence did not show substantial improvement of the Veteran's tension headaches. Although the RO's reduction was based upon the May 2016 examiner statement that the Veteran did not experience frequent prostrating attacks, the Veteran did report at that examination that his headaches were constant, caused sensitivity to light and sound, and required medication. Furthermore, outpatient treatment records show continuing treatment for chronic headaches necessitating medication and that the physicians have prescribed different types of medication trials in an attempt to help with his chronic headaches. The Board finds the Veteran's statements regarding his headaches to be competent, credible, consistent, and reflective of symptoms consistent with at least a 30 percent rating under DC 8100. Increased Rating Analysis The Veteran also asserts that an even higher rating for his tension headache disability is warranted. After review of all the evidence, the Board resolves any reasonable doubt in the Veteran's favor and finds that the tension headache disability more nearly approximates the criteria for a 50 percent rating from May 19, 2016. In this regard, the Veteran experienced headache symptoms that are more than that which is required for a 30 percent rating in that he reported having headaches at last two times a month that were severe in nature, and those headaches required the Veteran to take medication, lay down in a dark room and wear shades to block out all possible light. As such, at the very least, he had severe headaches that occurred two times a month, which is more frequent than required by the 30 percent rating criteria. Notably, the medical evidence documenting his history of complaints of headaches and medication taken, as well as the lay evidence, including the Veteran and his spouse's testimony, show severe, completely prostrating headaches. Regarding the 2016 VA examination, the Board notes that the examiner opined that the Veteran's headaches did not impact his ability to work and stated that since there was a lack of corroborating evidence for the headaches, it was suggestive of symptom amplification. However, a lay person such as the Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 469 (1994). The fact that the Veteran has not been working during the rating period on appeal does not mean that his headaches are not productive of severe economic inadaptability. Rather, the Board's analysis is focused on whether the disability is capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. Pierce, 18 Vet. App. at 440. As both the Veteran and 2020 VA examiner have indicated that the Veteran's headaches interfere with work, the Board concludes that his headaches have been productive of severe economic inadaptability as required under the criteria for a 50 percent rating beginning May 19, 2016. A 50 percent rating is the maximum schedular rating for migraine headaches under DC 8100 and a higher rating is not possible under this diagnostic code. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. As the maximum schedular rating for headaches under DC 8100 has already been assigned, a higher schedular rating is not available, and the Veteran's claim for a disability schedular rating higher than 50 percent for headaches must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board may not assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also See Yancy v. McDonald, 27 Vet. App. 484 (2016) (the Board is not obligated to analyze whether extraschedular referral is warranted in all cases, but only if the issue is argued or raised by the record). With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that renders the available schedular evaluations for the service-connected headaches inadequate. A comparison between the symptomatology of the Veteran's headaches and the rating criteria reasonably describe his disability level and symptomatology. The medical and lay evidence before the Board, including records of VA examinations, VA treatment records, and the Veteran's lay assertions throughout the period from May 19, 2016, establish that while the examiner at the most recent examination reported his pain level interfered with his ability to work, severe economic inadaptability, as well as his sensitivity to pain and light, are already contemplated within the 50 percent rating schedular criteria pertaining to headaches. The Veteran has not identified any other symptoms not already contemplated by the rating criteria or those that have been associated with his headaches. The Board has determined that referral is not warranted as the first element of the Thun analysis is not satisfied, and it therefore need not address the second and third elements. See Doucette v. Shulkin, 28 Vet. App. 366 (2017); see also Yancy at 494 ("Although the first and second Thun elements are interrelated, they 'involve separate and distinct analysis,' and '[i]f either element is not met, then referral for extraschedular consideration is not appropriate.'"). Lastly, the Board notes that the Veteran is also in receipt of a separate 100 percent rating for depressive disorder claimed as depression associated with tension headaches. (Continued on the next page) Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.