Citation Nr: 21040565 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-27 032 DATE: July 6, 2021 ORDER A disability rating in excess of 30 percent for frontal headaches, for the period on appeal prior to December 18, 2019, is granted. A disability rating in excess of 50 percent for frontal headaches, from December 18, 2019 onward, is denied. An initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to December 18, 2019, the most probative evidence shows that the Veteran's service-connected frontal headaches approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. From December 18, 2019 onward, the Veteran is in receipt of the maximum available disability rating for service-connected frontal headaches. 3. During the period on appeal, the Veteran's left ear hearing loss has manifested as no worse than Level I hearing loss for VA purposes; his right ear hearing loss has manifested as no worse than Level I hearing loss for VA purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 50 percent rating, but no higher, for a headache condition have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.14, 4.124a, Diagnostic Code 8100. 2. The criteria for a disability rating in excess of 50 percent for service-connected frontal headaches, from December 18, 2019 onward, are not met. U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.14, 4.124a, Diagnostic Code 8100. 3. The criteria for a compensable rating for bilateral hearing loss have not been met at any time during the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to December 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a disability rating in excess of 30 percent for service-connected headaches; and granted service connection for bilateral hearing, and assigned an initial noncompensable disability rating effective from November 30, 2012. The Veteran's notice of disagreement (NOD) was received in June 2013. The RO issued the statement of the case (SOC) in June 2015, and the Veteran's VA Form 9, substantive appeal was received in July 2015. In February 2019, the Board remanded the case for further development and adjudicative action. In a July 2020 rating decision, issued during the pendency of the appeal, the RO granted an increased disability rating of 50 percent for service-connected frontal headaches, effective from December 18, 2019 onward. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a disability rating in excess of 30 percent prior to December 18, 2019, and in excess of 50 percent thereafter, for service-connected frontal headaches The Veteran seeks a rating in excess of 30 percent for service-connected frontal headaches prior to December 18, 2019 and a rating in excess of 50 percent thereafter. The Veteran's frontal headaches are evaluated under 38 C.F.R. § 4.124a, DC 8100 for migraine headaches, and are currently rated as 30 percent disabling for the appeal period prior to December 18, 2019, and 50 percent disabling from December 18, 2019 onward. Under DC 8100, a 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent disabling. Migraine headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. As the 50 percent rating assigned from December 18, 2019 onward is the highest rating allowed under DC 8100, an increased rating during that period is not available; thus, the sole issue is whether a disability rating greater than 30 percent is warranted for the appeal period prior to December 18, 2019. Notably, the regulation does not specifically define a "characteristic prostrating migraine;" however, "prostration" is defined as extreme exhaustion or powerlessness. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012) [hereinafter DORLAND'S]. VA regulations also do not define "economic inadaptability." The Court, however, has noted that nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). A July 2011 VA vocational rehabilitation note shows that the Veteran was "eager to find employment" and "will do whatever training it takes to land a job." A November 2011 VA homeless program note shows that the Veteran had secured employment. The Veteran had a VA headaches examination in January 2013. The examiner noted a diagnosis of tension headaches causing pain on both sides of the head. The Veteran reported intermittent headaches every day which can last all day. The examiner noted that the Veteran did not have characteristic prostrating attacks of migraine, or non-migraine, headache pain. In a June 2013 statement, the Veteran reported that he was taking Aleve for his headaches and that he was given medication for them, but that it caused adverse side effects. The Veteran reported that his headaches affect him at his job, where he works in fabrication around machinery. The Veteran further stated that he gets a headache on a daily basis four times per week between the hours of 2:00 and 3:00. The Veteran also reported that the headaches that he gets between 7:00 and 8:00, which occur twice a week, require that he take medication and retreat to the bathroom for a least fifteen minutes. The Veteran noted that he spoke with his boss about having to go to the bathroom so much. The Veteran also stated that when taking classes, he had to drop out of school because he could not concentrate due to the headaches. See June 2013 Statement in Support of Claim. A January 2013 VA neurology clinic note shows reports of a constant background headache which causes a sharp pain, frontal, lasting about 10 minutes several times per week. A June 2013 VA primary care progress note shows that the Veteran was working at a casket company. A May 2014 VA neurology note shows that the Veteran reported five headaches per week; he described the headaches as a sharp throbbing pain lasting about 10 minutes, several times a week. At an October 2014 VA neurology clinic appointment, the Veteran reported daily chronic headaches beginning when he wakes up. A May 2015 VA neurology consult note shows that the Veteran reported daily headaches, usually a 4/10 in intensity, but which do not go away and can flare to as worse as 10/10. In October 2015 correspondence, the Veteran reported that his headaches prevented him from concentrating at school. Specifically, when he "was going to school [] and got a headache, I'd go to the bathroom take 3 Aleve (or more, the meds I was receiving either [were] ineffective, or I was prescribed something that made me hear voices in my head) and come back to class after [the headache] subsides." He described one headache, in July 2015, when he began having migraines, sharp pain, and spasms for two to three minutes. The next day, when he had not yet taken his medications, he experienced stomach trouble and spasms. He reported that when he has headaches at work, he gets in trouble for going to the bathroom to take his medications. A December 2017 VA neurology note shows the Veteran's report of 3-4 headaches per week, varying in severity from 5-8 out of 10. A February 2018 VA vocational rehabilitation note shows that the Veteran was employed part time, but was seeking full-time employment. A March 2018 VA neurology addendum note reflects the Veteran's complaint of headaches 3-4 time per week, and that medications were generally ineffective. He was assessed with chronic migraine headache without aura. An August 2018 VA social work note shows that the Veteran was working full time through a temp agency. A June 2018 VA social work note shows that the Veteran "is employed part time through Labor Works. Veteran is interested in full time employment and participated in an interview this week . . . ." An April 2019 VA social work note shows that the Veteran was "working part-time, but looking for something that appeals to him more." The social worker clarified that the Veteran was actually unemployed, but works part time jobs occasionally. A September 2019 VA neurology note shows that the Veteran had quit Botox treatments after two sessions because of ineffectiveness. The frequency of headaches was still approximately four times per week, but the intensity had come down to about a 3/10 in severity. In an October 2019 Statement in Support of Claim, the Veteran reported that he had Botox treatments to address his headaches, but the treatment only centralized the headaches. The Veteran had a VA headaches examination in December 2019. The examiner reviewed the Veteran's VA e-folder, and determined that the Veteran's occupational function is compromised due to persistent frontal headache, poor concentration, and photophobia (fear of light). The examiner noted current symptoms including daily frontal headaches with photophobia, phonophobia (fear of sound). Current symptoms included constant head pain, pulsating or throbbing head pain, pain worsening with physical activity, and frontal headaches. The Veteran endorsed sensitivity to light and sound. The duration of typical head pain was less than one day and was located in the frontal region. The examiner determined that the Veteran experiences characteristic prostrating attacks of migraine/non-migraine headache pain once per month, productive of severe economic inadaptability. The examiner specifically noted that episodic frontal headaches compromise the Veteran's ability to work due to the persistent pains and poor concentration. For the period prior to December 18, 2019, and considering the above, the Board finds that the most probative evidence of record shows that the Veteran's headaches more closely approximate the criteria for a 50 percent rating under DC 8100. Here, the question of whether the symptoms meet the relevant criteria is a legal and not a medical one, and the VA adjudicators, including the Board, are responsible for making this ultimate determination. The Board finds credible and probative the Veteran's statements that demonstrate that he has experienced frequent prostrating headaches with prolonged attacks that are productive of severe economic inability. Also, to this end, the December 2019 VA examiner endorsed that the Veteran had characteristic prostrating attacks of migraine/non-migraine headaches once every month that lasted less than one day, as well as very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability, and which were manifested by symptoms of constant head pain; pulsating or throbbing head pain; pain that worsens with physical activity; and sensitivity to light and sound. Additionally, the Veteran has credibly stated that he experiences prostrating headaches at least twice per week (at least eight per month) that require that he retreat to a quiet restroom while at worka physical job that requires that he remain on his feet--and which required that he discuss the condition with his boss due to frequent restroom breaks. The Veteran also stated that due to his headaches, he had to discontinue taking courses at a community college. Notably, the Veteran has reported throughout the appeal period that he must take medication on a daily basis to relieve his headache symptoms. Although the term "severe economic inadaptability" is not defined in the regulation, the Board finds that the nature and frequency of the headaches described by the Veteran and the VA treatment providers would approximate this definition. Pierce v. Principi, 18 Vet. App. 440, 445 (2004) (acknowledged VA's concession that the phrase "productive of severe economic inadaptability" in DC 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability). In sum, the most probative evidence of record shows that the Veteran's headaches more nearly approximate the criteria for a 50 percent rating under DC 8100 for the period prior to December 18, 2019 as the Veteran's headaches were frequent, completely prostrating, and the prolonged attacks were productive of severe economic inadaptability. Accordingly, entitlement to the maximum schedular 50 percent rating for the Veteran's headaches under DC 8100 is warranted for this period. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Veteran is now in receipt of the maximum schedular rating for headaches under DC 8100 for the entire claim period (due to the grant herein for the period prior to December 18, 2019). As such, a higher rating is not allowable under the law, and the Veteran has not reported any symptoms that are not be contemplated by the schedular rating criteria under DC 8100. 2. Entitlement to an initial compensable rating for service-connected bilateral hearing loss The Veteran seeks entitlement to a compensable rating for bilateral hearing loss for the entire period on appeal. In general, to evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI, VIa, VII. Organic impairment of hearing acuity is measured by the results of controlled speech discrimination tests (Maryland CNC) together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. See 38 C.F.R. § 4.85(a), (d). Ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The schedular ratings are intended to make proper allowance for improvement by hearing aids. 38 C.F.R. § 4.86 (2017). Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), or hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b) (2017). Where there is an exceptional pattern of hearing loss of 55 decibels or more in each of the four specified frequencies, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a) (2017). In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran had VA hearing examinations in January 2013 and December 2019. At the January 2013 examination, speech discrimination was 96 percent in each ear. Audiometric testing revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 30 40 40 LEFT 35 30 30 35 30 The average puretone threshold for VA purposes (i.e. the average of frequencies from 100 Hz to 4000 Hz) was 35 dB for the right ear, and 31 dB for the left ear. At the December 2019 examination, speech discrimination was 92 percent in the right ear, and 94 percent in the left ear. Audiometric testing revealed the following puretone thresholds (in dB): HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 30 45 LEFT 25 20 15 30 25 The average puretone threshold for VA purposes was 30 dB for the right ear, and 22.5 dB for the left ear. As noted above, the assignment of a disability rating for service-connected bilateral hearing loss requires a mechanical approach. Specifically, this means that a rating is assigned by applying the Veteran's audiometric testing results to the diagnostic criteria to determine the appropriate rating based on the degree of hearing impairment. Applying the diagnostic criteria to the results of the January 2013 VA examination reveals Level I hearing impairment in the right ear, and Level I hearing impairment in the left ear. Applying the diagnostic criteria to the results of the December 2019 VA examination reveals Level I hearing impairment in the right ear, and Level I hearing impairment in the left ear. Applying the results of each examination to Table VII, which is the table consulted in order to assign the appropriate disability rating for service-connected bilateral hearing loss under the rating criteria, a noncompensable disability rating is warranted throughout the period on appeal. As noted above, the assignment of a disability rating for service-connected bilateral hearing loss requires a mechanical approach, and in this case, there is no evidence which would support assignment of a compensable rating at any time during the period on appeal. The Board in no way discounts the difficulties that the Veteran experiences as a result of bilateral hearing loss. In terms of daily life, the Veteran has reported that it is difficult to hear and understand conversations, to include those with his boss and co-workers, and that he has difficulty hearing the television. the television, and his boss or co-workers. The symptoms of this disability, however, have been accurately reflected by the schedular criteria. The Board is grateful for the Veteran's honorable service. However, the Board is bound by the requirements listed in 38 C.F.R. § 4.85 for rating purposes. And, as such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.