Citation Nr: 21040213 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-32 360 DATE: July 2, 2021 ORDER Prior to January 20, 2019, an initial rating of 30 percent, but no higher, for headaches is granted. From January 20, 2019, an initial rating of 50 percent, but no higher, for headaches is granted. REMANDED Entitlement to service connection for a left thumb injury is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a kidney condition is remanded. Entitlement to service connection for bilateral pes cavus is remanded. Entitlement to service connection for a rib condition is remanded. Entitlement to service connection for an acquired psychiatric condition is remanded. FINDINGS OF FACT 1. Prior to January 20, 2019, the Veteran's headaches were manifested by characteristic prostrating attacks occurring an average once a month over the last several months, with the Veteran taking medications to control his headaches. 2. From January 20, 2019, the Veteran's headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, with or without the Veteran taking daily medications to control his headaches. CONCLUSIONS OF LAW 1. Prior to January 20, 2019, the criteria for a higher initial rating of 30 percent, but no greater, for headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.6, 4.10, 4.20, 4.27, 4.124a, Diagnostic Code 8100 (2020). 2. From January 20, 2019, the criteria for the maximum 50 percent rating for headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.6, 4.10, 4.20, 4.27, 4.124a, Diagnostic Code 8100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1989 to December 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his August 2014 VA Form 9, substantive appeal, the Veteran requested a Board hearing. Although a hearing was rescheduled at his request, the Veteran failed to report for the hearing without providing cause; accordingly, his request for a hearing is deemed withdrawn This case was remanded in July 2020 for issuance of a supplemental statement of the case (SSOC), which was done in September 2020; the case has since been re-assigned to the undersigned. While this claim was on appeal, the RO, in a September 2020 rating decision, increased the Veteran's disability rating for his service-connected headaches to 30 percent disabling effective January 20, 2020 (the date the evidence showed a worsening of the Veteran's disability). As this constituted a partial, and not a full, grant on appeal, the Board will look at whether the Veteran is entitled to a compensable disability rating for the period prior to January 20, 2020, and in excess of 30 percent thereafter. The Veteran's claim for service connection for a kidney disability was denied in a March 2004 rating decision. The Veteran continued to receive treatment at a VA facility, and treatment records containing evidence relevant to the claim were created within one year of the March 2004 denial. Those records were constructively before the Agency of Original Jurisdiction (AOJ), but the AOJ never determined whether the evidence was new and material. Therefore, the March 2004 rating decision did not become final, and any discussion regarding reopening of the claim is unnecessary. 38 C.F.R. § 3.156(b); Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020). Entitlement to a compensable disability rating for migraine headaches prior to January 20, 2020, and in excess of 30 percent disabling thereafter. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned under separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial and increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The ratings have been staged by the grant of a 30 percent rating effective January 20, 2020. The analysis is therefore undertaken with consideration of the possibility that additional staged ratings may be warranted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran seeks a compensable disability rating for his service-connected headaches for the period prior to January 20, 2020, and in excess of 30 percent thereafter. For the reasons discussed below, the Veteran's claim is granted. The Veteran's headaches are presently rated under Diagnostic Code (DC) 8100 which, in pertinent part, provides a 10 percent rating for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (DC 8100 is quoted verbatim, but the Court does not specifically address the matter of what is a prostrating attack). According to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), "prostration" is defined as "extreme exhaustion or powerlessness." 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). With regard to lay evidence, the Court has held that lay evidence may be probative of the frequency, prolongation, and severity of headaches. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Frequency of migraine headache attacks or episodes is a factual determination. VA must analyze all medical, lay, and other evidence in the record bearing on that question. And the absence of medical treatment is not necessarily probative on the question of headache frequency as a claimant may not seek treatment for headaches during every episode. The Veteran was initially afforded a July 2012 VA headache examination. At that time, he was found to have pain on both sides of his head with a typical duration of less than one day. The Veteran did not experience prostrating attacks of migraine, or non-migraine, headache pain. However, he described the symptoms of headaches as sharp pain and tightness as if his head was to explode. The Veteran submitted a private May 2013 Disability Benefits Questionnaire (DBQ) from a Dr. R.W. regarding his claimed headache condition. The Veteran was diagnosed with migraine headaches that caused throbbing head pain on both sides of his head. However, the private examiner left blank the section regarding prostrating attacks; he found that the Veteran's headache disability did not impact his ability to work. A November 2013 VA treatment record shows that Veteran was started on Inderal for suppression of migraine headaches. The Veteran was reporting migraines at least once a week and was using Maxalt. A May 2018 VA treatment record shows the Veteran was started on additional medication to treat his headaches. The Veteran had reported three migraine headaches a month. On January 2020 VA headache examination, the Veteran reported that his headaches have been progressively getting worse over the last two years and has constant pressure rated 10/10 in frontal and bilateral temples that last less than a day. He takes certain medications for headaches daily and others two to three times a week. The examiner noted characteristic prostrating attacks occurring once every month that do not result in severe economic inadaptability. However, the Board notes that the Veteran reported missing two to four weeks of work time in the last 12 months due to headaches that disturb his attention and interfere with his concentration. He is unable to function when he gets a headache and cannot go to work due to vomiting, nausea, severe pain, and sensitivity to light that make it impossible for him to keep his eyes open. For the period prior to January 20, 2019, the Board finds that a 30 percent rating for headaches under DC 8100 is warranted. The evidence above shows that, even with medication use, the Veteran's migraine headache attacks are very frequent (twice a month or more). Therefore, even with medication use, the Veteran still meets some, if not all of the criteria listed for the 30 percent rating under DC 8100. It is acknowledged that when his medication was effective it can be argued that his headache attacks were not completely prostrating. However, a higher rating may not be denied 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). The rating criteria for headaches listed under DC 8100 fail to consider the ameliorative effects of medication on the Veteran's headaches. Therefore, the Board is obligated to contemplate the severity of his migraine headaches absent the use of his various medication to control the condition. A higher evaluation of 50 percent is denied because there is no evidence that the Veteran's headaches caused very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. From January 20, 2019, however, the Board finds that a 50 percent rating for headaches under DC 8100 is warranted. Specifically, the January 2020 VA examination shows that the Veteran lost two to four weeks of work time in the last 12 months due to the impact of his headaches. The Board concludes that if the Veteran did not constantly take medications, his chronic headaches would nearly always be classified as very frequent "completely prostrating" and prolonged attacks productive of "severe" economic inadaptability. This corresponds to the criteria for a maximum 50 percent rating under DC 8100. His headaches occur on a "very frequent" basis, connoting a frequency at least greater than once a month. Johnson, 30 Vet. App. at 253. Absent his medications, and in fact even with the medications, the headaches are "completely prostrating" meaning they would render the Veteran entirely powerless. Id. Nothing in DC 8100 requires the Veteran to be completely unable to work in order to qualify for the maximum 50 percent rating. Id. Accordingly, a maximum 50 percent rating is warranted for the Veteran's service-connected chronic headaches effective January 20, 2019 (one year prior to the date of examination in which the Veteran reported functional impact regarding his ability to work during the 12 months prior). 38 C.F.R. § 4.3. No higher schedular rating is available for this disability. The claim is granted. REASONS FOR REMAND Although the Board sincerely regrets further delay, after a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating these claims. As an initial matter, the Veteran's DD Form 214 shows receipt of the Kuwait Liberation Medal (K) and Kuwait Liberation Medal (SA). While the DD Form 214 establishes his Persian Gulf veteran status for the purposes of 38 C.F.R. § 3.317, the Veteran's claims file does not include his military personnel records, and remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for sleep apnea is remanded. To date, the Veteran has not been afforded VA examination to address the etiology of his claimed sleep apnea disability. He has been diagnosed with and treated for a sleep apnea condition. Further, his wife and daughter have submitted lay statements that indicated the Veteran had snoring and breathing irregularities while asleep dating back to his active duty service. As such, the Board finds an examination and medical opinion is necessary to determine whether the Veteran's currently diagnosed sleep apnea was caused by, aggravated by, or otherwise etiologically related to his active military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a kidney condition is remanded. The Veteran's service treatment records (STRs) show that there was some question as to whether he actually had a horseshoe kidney. A November 1992 STR notes films consistent with chronic renal disease. A November 1998 report of medical examination continues to note complaints of kidney pain. A February 2004 VA examination included a diagnosis of horseshoe kidney (by prior diagnosis) and noted that such was a "congenital anomaly, not an acquired condition." The examiner noted currently normal laboratory studies. Congenital or developmental defects are not considered to be diseases or injuries within the meaning of applicable VA laws governing disability compensation benefits. 38 C.F.R. § 3.303(c). Service connection may be granted for diseases, as opposed to defects, of congenital, developmental, or familial origin. VAOGCPREC 82-90 (July 18, 1990), 55 Fed. Reg. 45711; VAOPGCPREC 67-90 (July 18, 1990), 55 Fed. Reg. 43253 (1990). Service connection can also be established if a congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. VAOPGCPREC 82-90 (July 18, 1990). A congenital disease is capable of improving or deteriorating whereas a congenital defect is "more or less statutory in nature." VAOPGCPREC 82-90 (July 18, 1990). The presumption of soundness applies to a congenital disease, but not to a congenital defect. Quirin v. Shinseki, 22 Vet. App. 390 (2009). It is unclear from the February 2004 VA examination whether the Veteran has a congenital defect or disease or a separate disability altogether. Additionally, a December 2013 kidney DBQ included a diagnosis of gross hematuria, noting a history of such during service in the 1990s that is "now recurrent." The examiner also noted that the Veteran has kidney calculi. Based on the foregoing, the Board finds that there are outstanding medical questions necessitating a remand for VA examination. 3. Entitlement to service connection for bilateral pes cavus is remanded. The Veteran contends that his diagnosis of bilateral pes cavus pre-existed, and was aggravated by, his active duty service. The Board notes that the Veteran's STRs indicate a diagnosis of bilateral pes cavus during his entrance examination. The Board also notes a later December 1995 treatment note in his STRs where the Veteran reports pain in his right foot; the physician documents pain in the Veteran's calcaneus. The Board finds it prudent to obtain an additional medical examination to determine whether the Veteran's diagnosed bilateral pes cavus was worsened by his active duty service. 4. Entitlement to service connection for a rib condition is remanded. The Veteran is seeking service connection for a rib condition. His STRs indicate that he was treated for bruised ribs in 1992 and a chest injury from playing football in 1996. To date, he has not been afforded a VA examination to address the etiology of his claimed disability. Because medical questions remain outstanding, remand for a VA examination is necessary. McLendon, 20 Vet. App. at 79. 5. Entitlement to service connection for an acquired psychiatric condition is remanded. The Veteran is seeking service connection for an acquired psychiatric disability. His STRs show that he was experiencing nervousness and twitching during service. His VA treatment records contain psychiatric treatment for an anxiety disorder, trauma related symptoms, panic attacks, and depression. Additionally, his representative has argued that the Veteran's in-service report of nervousness may have been an early sign of his current anxiety disorder. To date, the Veteran has not been afforded a VA examination to address the etiology of his claimed psychiatric disabilities. Because medical questions remain outstanding, remand for a VA examination is necessary. McLendon, 20 Vet. App. at 79. The matters are REMANDED for the following action: 1. Obtain and associate with the claim file the Veteran's complete service personnel record. All actions to obtain the requested records should be fully documented in the electronic claim file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Obtain copies of VA treatment records from September 2020 to the present. 3. Ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for the disabilities on appeal since his discharge from service (records of which are not already associated with the claim file or established to be unavailable), and to provide all releases necessary for VA to obtain the complete clinical records of all such treatment or evaluation. He should also be requested to specifically identify when the disabilities on appeal were first diagnosed and the diagnosing physician and/or facility. With his cooperation (by providing releases), the AOJ should obtain for the record complete clinical records of all such evaluations and treatment. If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 4. Thereafter, arrange for a VA examination (or telehealth interview) to determine the nature and likely cause of the Veteran's sleep apnea. The examiner should review the claim file (including this remand) and note such review was conducted. The Board recognizes that the complex and intertwined nature of the medical questions involved require significant work on the part of the medical examiner. However, the Board is unable to adjudicate the Veteran's claim until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with the following directives (that is, full and thoroughly explained answers to each of the questions) to avoid delays in adjudication. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Regarding the Veteran's sleep apnea, is it at least as likely as not (50% or greater probability) that such can be attributed to a known clinical diagnosis? (b) If the answer to (a) is yes, does such disability have an understood or partially understood etiology and pathophysiology? Please explain why. Both etiology and pathophysiology must be discussed. (c) If the answers to (b) is yes, then is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? In answering this question, please specifically address the significance (if any) of any pertinent environmental exposures associated with his service in the Persian Gulf. (d) Are any of the Veteran's symptoms attributable to another medically unexplained chronic multisymptom illness? (e) Are any of the Veteran's symptoms and disability patterns objective indications of manifestations of a chronic undiagnosed illness? The examiner must provide a thorough explanation (rationale) for all opinions, citing to supporting factual data and/or medical literature, as appropriate. The examiner should take into consideration that the Veteran is competent to report observable symptoms and experiences, and should discuss the January 2012 lay statements from the Veteran's spouse and daughter. 5. After the above development in #1-3 have been completed, arrange for a VA examination of the Veteran with an appropriate examiner (or telehealth interview), to determine the nature and likely cause of any kidney disability he may currently have. The examiner should review the claim file (including this remand) and note such review was conducted. The Board recognizes that the complex and intertwined nature of the medical questions involved require significant work on the part of the medical examiner. However, the Board is unable to adjudicate the Veteran's claim until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with the following directives (that is, full and thoroughly explained answers to each of the questions) to avoid delays in adjudication Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: (a) Please identify, by diagnosis, the Veteran's kidney disabilities throughout the appeal period (from May 2003). (b) If the Veteran is found to have a congenital disability, please identify whether such disability is a congenital defect or a congenital disease and explain why. (For VA adjudication purposes, a defect is a condition that can neither improve nor worsen. A congenital disease is a congenital condition that is subject to improvement and/or worsening.) (c) For each disability diagnosed that is not congenital, does such disability have an understood or partially understood etiology and pathophysiology? Please explain why. Both etiology and pathophysiology must be discussed. (d) If the answer to (c) is yes, then is it at least as likely as not (50% or greater disability) that such disability is related to the Veteran's service? In answering this question, please specifically address the significance (if any) of any pertinent environmental exposures associated with his service in the Persian Gulf. (e) If a disability is diagnosed that is a congenital defect, is it at least as likely as not that the Veteran suffered a superimposed injury or disease in service which resulted in additional disability? Please explain why. The examiner must provide a thorough explanation (rationale) for all opinions, citing to supporting factual data and/or medical literature, as appropriate. The examiner should comment on the November 1992 renal sonograms which report decreased renal function. 6. After the development in #1-3 is completed, arrange for a VA examination (or telehealth interview) to determine the nature and likely cause of the Veteran's bilateral pes cavus. The examiner should review the file, including this remand. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following: Is it at least as likely as not (50% or greater probability) that the Veteran's pre-existing bilateral pes cavus was aggravated by active service, to include any incremental increase or non-permanent aggravation of the condition? Please explain why. The Board specifically directs the examiner's attention to the Veteran's December 1995 STR documenting pain in his right foot. The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the examiner must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community at large. 7. After the development in #1-3 is completed, arrange for a VA examination (or telehealth interview) of the Veteran to determine the nature and likely cause of any psychiatric disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all psychiatric disabilities present during the appeal period (from August 2011). For each disability diagnosed, identify when their symptoms first presented. (b) For each acquired psychiatric disorder diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or is otherwise related to the Veteran's military service? Please explain why. The examiner should consider the Veteran's STRs which include notations of nervousness and twitching and address whether this was an early sign of the onset of his anxiety or other psychiatric disability. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 8. After the development in #1-3 is completed, arrange for a VA examination (or telehealth interview) to address the nature and etiology of the Veteran's rib condition. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and interview and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following (a) Please identify, by diagnosis, all rib disabilities present during the appeal period (from August 2011). If no rib disability is diagnosed, the examiner must discuss whether the Veteran has any functional impairment that results from any rib pain. (b) For each rib disability diagnosed, or with pain with functional impairment, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. 9. The examiner) must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (SCONTINUED ON NEXT PAGE) 10. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. T. MATTA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.