Citation Nr: 21041072 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-10 556 DATE: July 8, 2021 ORDER Entitlement to an initial disability rating of 50 percent for migraine headaches is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to service connection for ataxia, on an aggravation basis, is granted. FINDINGS OF FACT 1. Throughout the claim period, the Veteran's migraine headaches were manifested by very frequent completely prostrating and prolonged attacks capable of producing severe economic inadaptability. 2. The Veteran's ataxia was aggravated by a period of active duty for training (ACDUTRA). CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 50 percent for migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for entitlement to service connection for ataxia, on an aggravation basis, are met. 38 U.S.C. §§ 101, 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to July 1981 and performed service in the U.S. Navy Reserve from approximately 1984 to 1995, including in July 1984. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, granted the claim of service connection for migraine headaches with an initial evaluation of 30 percent, effective March 22, 2017, and denied the claim of service connection for ataxia. The Veteran timely appealed these matters. In September 2020, the Veteran testified before the undersigned Veterans Law Judge during a virtual Board hearing. A transcript of that hearing is of record. Entitlement to a higher initial disability rating for migraine headaches Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran's migraine headaches were awarded an initial evaluation of 30 percent, effective March 22, 2017, under 38 C.F.R. § 4.124a, DC 8100, in a July 2017 rating decision. Under DC 8100, a 30 percent rating is warranted for characteristic prostrating attacks occurring on average once a month over the last several months, and the maximum schedular rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 440 (2004) (noting that the four factors to be considered for a 50 percent rating under DC 8100 are "very frequent," "completely prostrating," "prolonged attacks," and "productive of economic inadaptability"). These criteria are successive, meaning each criterion for a higher rating must be met in order to warrant such a rating. Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). The rating criteria do not define "prostrating." Dorland's Illustrated Medical Dictionary defines "prostration" as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). VA regulations also do not define "economic inadaptability." In Pierce, the Court examined the term "productive of severe economic inadaptability" in the criteria for a 50 percent rating under DC 8100, and noted that "[n]owhere in the DC is 'inadaptability' defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.]." Id. at 446. The Court explained that, "nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating" because "[i]f 'economic inadaptability' were read to import unemployability," a claimant who "met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)]... rather than just a 50% rating." Id. The Court therefore rejected the notion that "severe economic inadaptability" was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. In addition, the Court 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. Id. at 445. During a June 2017 VA headaches examination, the Veteran reported that he saw a neurologist and took medication for his migraine headaches. He endorsed symptoms of constant head pain, pulsating or throbbing head pain, and pain on both sides of the head, and non-headache symptoms of nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The Veteran's typical head pain lasted less than one day and occurred on both sides of the head. He experienced characteristic prostrating attacks of migraine/non-migraine headache pain once every month, although the examiner noted the attacks were not productive of severe economic inadaptability. The examiner additionally found that the Veteran's headache condition did not impact the Veteran's ability to work. An October 2017 letter from the Veteran's private physician indicated that the Veteran experienced intermittent, but severe and disabling, migraine headaches that occurred several times a month. The headaches sometimes required more than one dose of medication, prolonging the headache symptoms. During his September 2020 Board hearing, the Veteran reported experiencing three to four headaches per month that lasted from a few hours to all day. He indicated that when he gets a headache he takes medication, lays down in a darkened room, sometimes puts ice on his forehead, and oftentimes takes a nap. Those remedies and the medication usually work, and the headache typically subsides within a few hours to a day, but sometimes takes two days to go away. The Veteran reiterated during his testimony that his headache symptoms would be much worse if he did not take his medication. He additionally noted that, although he is retired, his headaches would have impacted his work. For the following reasons, the criteria for a 50 percent initial disability rating for service-connected migraine headaches are met. As an initial matter, the evidence of record reflects that, for the period on appeal, the Veteran has used medications to treat his migraine headaches, which at times provided some relief. The Court has held that, in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, DC 8100 does not take into account the ameliorative effects of medication. Thus, the Board's analysis in this case does not consider any ameliorative effects of such medication in assessing the severity level of impairment and contemplates the frequency of characteristic prostrating attacks without medication. The Veteran indicated competently and credibly throughout the claim period that he has suffered from very frequent prolonged and completely prostrating attacks of headaches, and the frequency and severity of his prostrating attacks of headache pain were capable of producing severe economic inadaptability. Specifically, the Veteran noted that he experienced three to four migraine headaches per month that lasted from a few hours to all day, sometimes two days. These headache symptoms were so severe and disabling that he had to lie down in a dark room, put ice on his forehead, if available, and oftentimes take a nap. This would have impacted his work to the extent that it was capable of producing severe economic inadaptability. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's service-connected migraines headaches were manifested by very frequent prolonged and completely prostrating attacks productive of severe economic inadaptability during the entire claim period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a 50 percent initial disability rating is warranted for his migraine headaches throughout the entire claim period. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. This is the maximum possible schedular rating under DC 8100. Entitlement to service connection for ataxia Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to receive VA benefits, a payee must be a "veteran," defined, in part, as "a person who served in the active military, naval, or air service." 38 U.S.C. § 101(2). The term "active military, naval, or air service" includes active duty, and "any period of active duty for training [(ACDUTRA)] during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training [(INACDUTRA)] during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). In this case, the Veteran has achieved "veteran" status as a general matter by virtue of his DD Form 214 that confirms his active duty service from June 1971 to July 1981. Thus, his qualifying as a "veteran," with active military, naval, or air service for disability benefits for a disability resulting from injury or disease incurred during service from June 1971 to July 1981, as well as reference to him as the Veteran, is not in question. For service connection to be granted for any disability resulting from injury or disease incurred during the remainder of his service, it must be shown that the claimed disease or injury was incurred or aggravated during a period of ACDUTRA, or that the Veteran was disabled from an injury incurred or aggravated during a period of INACDUTRA. Here, the Veteran contends that his hereditary ataxia preexisted his periods of ACDUTRA, which began in July 1984. The Veteran's service personnel records reflect periods of ACDUTRA from approximately 1984 to 1995, with the first period in July of 1984. A review of his claims file reflects that there are no enlistment examinations of record during this time period. In addition, a review of the record does not suggest that any such examinations were conducted. In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption of soundness applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected"). Accordingly, because enlistment examinations are not of record for the Veteran's periods of ACDUTRA, the presumption of soundness does not apply to any of his periods of ACDUTRA. Thus, one way that service connection may be established for his claimed ataxia disability is by showing that it was permanently worsened beyond its natural progression during a period of ACDUTRA. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. An August 1996 private treatment record indicated that the Veteran's imbalance symptoms were unchanged, and it looked more clearly as if his ataxia was an inherited disorder. In an October 2017 letter from the Veteran's private physician, the physician noted that she has followed the Veteran and his diagnosis of hereditary spinocerebellar ataxia since at least 1999. While the physician indicated that she did not examine the Veteran before his entry into the U.S. Navy, it was her understanding that the Veteran was able to pass various physical tests required of midshipmen, to include walking, running, and swimming, and the Veteran was able to engage in other physical activities, such as boxing and wrestling. The physician noted that the Veteran retired from the U.S. Navy in 1995, and it was her understanding that the Veteran was not able to pass the same military physical fitness tests at the time he retired. Based on her examination in 1999, the physician found it was likely that the Veteran's failure to pass the physical fitness tests in 1995 was due to his neurological condition, and not for some other unrelated reasons. It was very clear to the physician, without a doubt, that the Veteran's neurological condition progressed, or was aggravated, during his career in the U.S. Navy. During his September 2020 Board hearing, the Veteran testified that he was able to participate in sports and an intense physical program when he was a midshipman at the U.S. Naval Academy in the late 1960s. However, he was unable to run or perform tasks that required coordination or physical ability in the early 1990s during his required physical fitness tests for the U.S. Navy Reserve. For the following reasons, the Veteran's ataxia was aggravated by his first period of ACDUTRA in July 1984. The evidence of record reflects that the Veteran's ataxia preexisted his periods of ACDUTRA, including his first period of ACDUTRA in July 1984. Namely, an August 1996 private treatment record indicated that the Veteran's ataxia looked more clearly like an inherited, or congenital, disorder, and the Veteran's private physician in an October 2017 letter noted the Veteran's diagnosis of hereditary spinocerebellar ataxia. Generally, a congenital disease, "by its very nature, preexists the claimant's military service," and service connection for disability due to such disease typically turns on "whether manifestations of the disease in service constituted 'aggravation' of the condition." VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (Oct. 30, 1990). Thus, the evidence reflects that the Veteran's ataxia preexisted his military service. Moreover, the October 2017 private physician found that it was likely that the Veteran's failure to pass his military physical fitness tests in 1995 was due to his neurological condition, and not for some other unrelated reasons. It was very clear to the physician, without a doubt, that the Veteran's condition progressed, or was aggravated during his career in the U.S. Navy. Reading the October 2017 private physician's opinion as a whole and in the context of the evidence of record, and as the physician explained the reasons for the conclusion based on an accurate characterization of the evidence, the opinion is entitled to some probative weight. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Furthermore, as the October 2017 opinion indicated that the Veteran's condition progressed, or was aggravated, during his career in the Navy, the Board will interpret the opinion in the manner most favorable to the Veteran and find that the private physician implicitly found aggravation and that there was a permanent increase in the Veteran's ataxia beyond the natural progress of the disease during the Veteran's periods of ACDUTRA, specifically the first period in July 1984, given her discussion of the Veteran's ataxia and his military physical fitness history, in particular his inability to pass the physical fitness tests prior to his retirement in 1995. Cf. Brown v. Gardner, 513 U.S. 115, 118 (1994) (in construing veterans' law, "interpretive doubt is to be resolved in the Veteran's favor"). Moreover, there is no contrary opinion in regard to aggravation of the Veteran's preexisting ataxia disability in the evidence of record. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's ataxia was aggravated by his period of ACDUTRA in July 1984. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for ataxia is warranted on an aggravation basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.