Citation Nr: 21042392 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 13-01 374 DATE: July 12, 2021 REMANDED Entitlement to service connection for cervical spine disability as aggravated by service-connected right ankle disability is remanded. Entitlement to an initial compensable evaluation for migraine headaches and in excess of 30 percent from July 8, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1972 to April 1975. These issues are before the Board on appeal from March 2012 and August 2018 rating decisions of Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for cervical spine disability as aggravated by service-connected right ankle disability is remanded. The Board denied the appeal for service connection for a cervical spine disability in May 2020. In a Joint Motion for Partial Remand (JMPR), the parties agreed the Board erred in relying on a February 2018 VHA opinion and the case was subsequently remanded by the U.S. Court of Appeals for Veterans Claims in February 2021. See February 2021 JMPR. As observed in the February 2021 JMPR, while the February 2018 VA examiner opined that the Veteran's cervical spine disability was not permanently worsened by his right ankle disability, however, aggravation need not be permanent. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Accordingly, remand is necessary to obtain an opinion addressing aggravation that considers the correct standard. 2. Entitlement to an initial compensable evaluation for migraine headaches and in excess of 30 percent from July 8, 2019 is remanded. The Veteran contends that his headaches are more disabling than currently rated. The Veteran's headache disability is evaluated as noncompensable prior to July 8, 2019 and at 30 percent disabling thereafter. The Veteran contended he experienced 5-6 migraine headaches per month, with two characteristic prostrating attacks. See October 2018 Statement. The Veteran contends the most recent examination is inadequate for adjudication purposes because the examiner failed to provide rationale for the determination that the Veteran's headache disability is not productive of severe economic inadaptability. See March 2021 Correspondence. The Veteran reported localized head pain that was constant in duration at the April 2020 VA examination, and that he experienced nausea, sensitivity to light, and vision changes. See April 2020 Examination. The examiner noted the Veteran experienced characteristic prostrating attacks once per month and these attacks lasted a duration of one day. As relevant to this appeal, under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, a 50 percent evaluation is provided for "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability" and a 30 percent evaluation is provided for "characteristic prostrating attacks occurring on an average once a month over [the] last several months." 38 C.F.R. § 4.124a, DC 8100 (2020). Thus, under DC 8100, both the frequency and the intensity of the headaches are relevant to determining the proper evaluation. Id.; see Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018) (holding that the evaluation criteria under DC 8100 are successive). After a review of the evidence of record, the Board finds that an additional examination to determine the severity of the Veteran's migraine headache disability is necessary prior to adjudicating this claim. On remand, the examiner should provide an opinion as to whether the appellant's headache symptoms have caused severe economic inadaptability during any of the period on appeal. If it is found that headache symptoms do cause severe economic inadaptability, the examiner should opine as to when it is ascertainable that this level of severity of the headache disability began. The matters are REMANDED for the following action: 1. Obtain outstanding VA medical records. 2. Schedule the Veteran for a VA examination before an appropriate examiner, to determine the nature and etiology of his cervical spine disability. The claims file should be made available for review, which should be noted in the requested report. The examiner should provide an opinion on whether the Veteran' service-connected right ankle disability, including gait changes, aggravated (increased beyond the normal progression of the disease) his cervical spine disability. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence. Schedule the appellant for an examination by an appropriate clinician to determine the current severity of his service-connected headache disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant's disability under the rating criteria. The examiner should provide a rationale regarding whether the Veteran's headaches are currently productive of severe economic inadaptability. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.