Citation Nr: 21032705 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 19-12 157 DATE: May 27, 2021 ORDER Entitlement to a separate 30 percent rating for headaches is granted. REMANDED Entitlement to an initial compensable rating prior to June 4, 2018, for pseudophakia YAG and capsular opacity is remanded. Entitlement to a rating higher than 10 percent from June 4, 2018, for pseudophakia YAG and capsular opacity is remanded. FINDING OF FACT Throughout the appeal period, the Veteran experienced headaches manifested by characteristic prostrating attacks occurring on an average once a month due to pseudophakia. CONCLUSION OF LAW Throughout the appeal period, the criteria for a separate 30 percent rating for headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to November 1968. In May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. At the May 2021 hearing, the Veteran specifically indicated that, although he was not employed, he did not wish to include a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) claim as part of this appeal. Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes additional VA medical records were added to the record after the February 2019 statement of the case. The new evidence consists of treatment notes that do not pertain to the claims on appeal. When evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case must be issued unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. §§ 19.31, 19.37(a). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to a separate 30 percent rating for headaches secondary to pseudophakia The Veteran contends that he has severe headache pain due to the service-connected right eye disability. At the May 2021 Board hearing, the Veteran testified that he has experienced headaches 3-4 times a week since July 2008. He explained that he has to lay down for several hours to recover. In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court held, "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." Morgan, 31 Vet. App. at 167. Pursuant to Morgan v. Wilkie, 31 Vet. App. 162, it is essential to the rate, on a schedular basis, all of the manifestations of the Veteran's service-connected right eye disability. A separate evaluation is warranted where a symptom or manifestation is not duplicative of or overlapping with the symptoms of the other conditions, here headache pain related to the Veteran's pseudophakia. Esteban v. Brown, 6 Vet. App. 259 (1994) (addressing a veteran's entitlement to separate ratings). The Board must resolve reasonable doubt in the Veteran's favor and attribute the headaches to his service-connected pseudophakia. To account for the headache pain, the Board finds that these symptoms can be rated under DC 8100, which evaluates migraine headaches. See Morgan. DC 8100 provides a 0 percent rating for less frequent attacks. A 10 percent rating is warranted for characteristic prostrating attacks occurring an average of once every two months over the several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. In light of the Veteran's testimony and resolving all reasonable doubt in favor of the Veteran, the Board finds that a 30 percent rating is warranted for the Veteran's headaches throughout the appeal period. The Board recognizes the Veteran's testimony that the headaches occurred at least three times a week, and that he required rest and needed to lay down to recover. That evidence suggests the Veteran's severe headaches were not manifested by very frequent completely prostrating attacks productive of severe economic inadaptability. Headaches of the nature described at the May 2021 Board hearing warrant the assignment of no more than a 30 percent rating. In the absence of very frequent, completely prostrating headaches, which are productive of severe economic inadaptability, the Board may not assign the headaches a schedular rating in excess of 30 percent under Diagnostic Code 8100. Thus, the Board finds the headaches manifested with characteristic prostrating attacks occurring on an average of once a month over the last several months. Accordingly, the Board finds that throughout the appeal period a separate 30 percent rating for headaches is warranted, which satisfies the Veteran's appeal with regard to this manifestation of his eye disability. See AB v. Brown, 6 Vet. App. 35, 38 (1993). REASONS FOR REMAND 1. Entitlement to increased ratings for pseudophakia is remanded. The Veteran's most recent VA eye examination was in June 2018. Since that time, at the May 2021 Board hearing, the Veteran's representative indicated that the Veteran's vision had worsened. As such, the Board finds it necessary to remand this matter to afford him an opportunity to undergo a contemporaneous VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Obtain from the VA healthcare system all outstanding relevant treatment records dated from February 2020 to present. 2. Ask the Veteran to identify all medical providers who have treated him for right eye problems, to specifically include the Coleman Eye Center. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of the Veteran's service-connected eye disability, to include the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Following the receipt of outstanding records, schedule the Veteran for a VA eye examination to determine the current nature and severity of service-connected pseudophakia. The examiner must review the claims file and should note that review in the report. All studies deemed necessary should be performed. The results of visual field testing must be included. The examiner should elicit information about the nature of the eye disability and all symptoms or manifestations of the disability when present, even if not present at the time of the examination, including blurry vision. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A complete rationale for any opinion expressed should be provided. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.