Citation Nr: 21040012 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-13 019 DATE: July 2, 2021 ORDER Entitlement to an initial compensable rating for tension headaches is denied. REMANDED Entitlement to service connection for a right shoulder disorder is remanded. FINDING OF FACT During the appeal period, the Veteran experienced migraines with less frequent attacks. CONCLUSION OF LAW During the appeal period, the criteria for an initial compensable rating for migraines have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1974 to May 1979, and March 1987 to July 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board remanded the matters to the Agency of Original Jurisdiction (AOJ) for additional development and they have since returned to the Board for further appellate review. After the June 2018 remand, the issue of service connection for basal cell carcinoma was granted in an April 2020 rating decision. The award of service connection represents a full grant of the pertinent benefits for that issue during the appeal period, and thus, it is no longer before the Board. Regarding the issue of tension headaches, the July 2019 VA examination is adequate because it is based on the Veteran's description of his symptoms and medical testing, and because it describes his headaches in detail sufficient to allow the Board to make a fully informed determination. There was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Disability Rating for Tension Headaches Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran contends that he is entitled to a higher rating because he gets headaches approximately every 2 to 3 days, and almost daily due to his neck condition. See April 2015 Substantive Appeal. The Veteran's tension headaches are rated noncompensable by analogy pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. "Migraine" is defined as "an often familial symptom complex of periodic attacks of vascular headache, usually temporal and unilateral in onset, commonly associated with irritability, nausea, vomiting, constipation or diarrhea, and often photophobia." Dorland's Illustrated Medical Dictionary, 1166 (32nd ed. 2012). "Migraine" is a broader term than headaches and it contemplates more than only headache pain. Holmes v. Wilkie, 33 Vet. App. 67 (2020). Therefore, if the Veteran has any symptoms besides simply headaches, they are covered under this Diagnostic Code. 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. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. 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. "Completely prostrating" means that "...the headaches must render the veteran entirely powerless." Johnson, 30 Vet. App. at 253. In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Board concludes that the Veteran's tension headaches have occurred with less frequent attacks during the appeal period, corresponding to the criteria for a noncompensable rating under DC 8100. The Veteran was afforded a VA examination in May 2014. He reported that his headaches are secondary to his neck condition. The Veteran reported experiencing constant headache pain which occurred 2 to 3 times a week on both sides of the head. He did not experience non-headache symptoms associated with his headaches. The examiner noted that the Veteran does not have characteristic prostrating attacks of headache pain. A January 2017 VA treatment record indicated that the Veteran's headaches were stable. The Veteran was afforded another VA examination in July 2019. The Veteran reported experiencing tension headaches occurring once or twice a week depending upon activity. The headaches last for a few hours. The Veteran reported the headaches as moderate throbbing pain starting in the back of his head above his ears and wrapping around both sides affecting both temples. The examiner noted the Veteran's symptoms as constant pain, pain on both sides of the head, and pain worsens with physical activity that last less than a day and located on both sides of his head. He described the impact of his condition as needing to support his head and neck with pillows when watching television, and needing to support his head and neck, in general. He stated, "I still do things but I have had to learn to cope with the pain." The Veteran did not experience non-headache symptoms associated with his tension headaches. The examiner noted that the Veteran does not have characteristic prostrating attacks of headaches. The examiner further noted that the Veteran does not have very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. The examiner stated that the Veteran's headaches limit his concentration at work. Considering all relevant evidence of record, the Board finds that the evidence does not support the Veteran's claim. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His description of his headaches is credible. While the evidence shows that the Veteran experiences headaches that occur about one or twice a week that last for a few hours, and even at times daily, there is no indication of prostrating or prolonged attacks to warrant a higher rating. Accordingly, the Board concludes that the Veteran's tension headaches occurred with less frequent attacks throughout the appeal period, corresponding to the criteria for a noncompensable rating under Diagnostic Code 8100. A compensable rating under Diagnostic Code 8100 is not warranted unless there are headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. The evidence does not show findings of prostrating attacks. Thus, the Board concludes that the Veteran's headaches did not occur with characteristic prostrating attacks averaging one in 2 months over the last several months at any time during the appeal period. Although the July 2019 VA examiner stated that the Veteran's headaches limit his ability to concentrate at work, the Veteran has not asserted, and the evidence does not show, that concentration difficulties are capable of producing economic inadaptability. Further, even if the concentration difficulties are capable of producing economic inadaptability, to satisfy the 50 percent rating criteria, there must be completely prostrating headache attacks. In this case, the Veteran does not have headache attacks that render him entirely powerless. Johnson, 30 Vet. App. at 253. Significantly, at his July 2019 VA examination he stated he was able to do things while coping with pain, supporting a finding that his headaches did not render him entirely powerless. A compensable rating under Diagnostic Code 8100 is not warranted. REASONS FOR REMAND While the Board regrets the delay, the issue of service connection for a right shoulder disorder is remanded as additional development is necessary. The Veteran has contended that his right shoulder disorder is secondary to his service-connected chronic arthritis of the cervical spine (neck disability) and left acromioclavicular arthritis with noncompensable scar (left shoulder disability). An August 2019 VA medical opinion was obtained where the examiner noted that the medical record did not show continuous ongoing medical treatment or aggravation of acute or chronic right shoulder condition during time of discharge from active military service to present day that was caused or aggravated by the neck disability or left shoulder disability. However, a review of the record indicates that during a June 2002 examination, the Veteran reported that his neck pain often extended to his upper shoulders. In a March 2004 examination, it was noted that the Veteran's neck pain radiates to both shoulders. In a March 2006 VA treatment, it was noted that the Veteran's neck pain radiates to his shoulders. During the November 2013, March 2014, and September 2015 private treatments, it was reported that the Veteran's neck pain radiates to his shoulders. In a June 2015 private treatment, it was noted that the majority of his right neck pain radiates down to his right shoulder blade. An addendum VA medical opinion is needed to allow a VA examiner to address these treatment reports. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his right shoulder claim. Obtain the Veteran's VA treatment records for the period from April 2020 to the present. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current right shoulder disorder onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether the current right shoulder disorder is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected neck disability and/or left shoulder disability. In offering the opinion, the examiner is asked to consider June 2002 VA examination where the Veteran reported that his neck pain often extended to his upper shoulders, the March 2004 examination where it was noted that his neck pain radiates to both shoulders, and the March 2006 VA treatment where it was noted that the Veteran's neck pain radiates to his shoulders. The examiner is also asked to consider the November 2013, March 2014, and September 2015 private treatments where it was reported that the Veteran's neck pain radiates to his shoulders. Lastly, the examiner is asked to consider the June 2015 private treatment where it was noted that the majority of his right neck pain radiates down to his right shoulder blade. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. Readjudicate the claim. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.