Citation Nr: 21042499 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 05-27 205 DATE: July 13, 2021 ORDER The July 29, 2020 Board of Veterans' Appeals (Board) decision denying a higher initial disability rating for the service-connected undiagnosed illness manifested by headaches (headache disability) in excess of 0 percent from November 9, 2001 to September 4, 2009, and in excess of 30 percent from September 4, 2009, is vacated. For the initial disability rating period on appeal from November 9, 2001 to September 14, 2007, a higher initial (compensable) disability rating for the service connected headache disability is denied; from September 15, 2007, a higher initial disability rating of 50 percent, the maximum schedular rating, is granted. FINDINGS OF FACT 1. Due process was not followed when VA failed to upload relevant evidence from the Veteran's representative, which was received by VA in March 2020, prior to the issuance of a July 29, 2020 Board decision denying a higher initial disability rating for the service-connected headache disability in excess of 0 percent from November 9, 2001 to September 4, 2009, and in excess of 30 percent from September 4, 2009. 2. From November 9, 2001 to September 14, 2007, the Veteran's headaches were not prostrating. 3. From September 15, 2007, the service-connected headache disability more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The July 29, 2020 Board decision denying a higher initial disability rating for the service-connected headache disability in excess of 0 percent from November 9, 2001 to September 4, 2009, and in excess of 30 percent from September 4, 2009, is vacated. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 2. For the initial rating period from November 9, 2001 to September 14, 2007, the criteria for an initial compensable disability rating for service-connected headache disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.10, 4.21, 4.25, 4.124a, Diagnostic Code 8100. 3. Resolving reasonable doubt in the Veteran's favor, from September 15, 2007, the criteria for a staged 50 percent initial disability rating for service connected headache disability, the maximum schedular rating, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.10, 4.21, 4.25, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from March 1988 to March 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Relevant to the instant decision, this matter was previously before the Board in June 2018. At that time, the Board denied entitlement to a higher (compensable) initial disability rating for the service-connected headache disability from November 9, 2001 to September 4, 2009, and granted a higher initial disability rating of 30 percent for the headache disability from September 4, 2009. The Board also dismissed a claim for service connection for low back pain and granted a separate rating of 20 percent for the service-connected undiagnosed illness manifested by fatigue and muscle twitching from May 25, 2013. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). An April 2019 Order by the Court adopted a March 2019 Joint Motion for Partial Remand (JMPR) filed by the parties. Relevant to the instant decision, in the JMPR, the parties agreed to not disturb the award of a 30 percent disability rating for the headache disability from September 4, 2009, and the award of a separate 20 percent disability rating from May 25, 2013 for undiagnosed illness manifested by fatigue and muscle twitching. The parties agreed that the Board overlooked potentially favorable evidence pertaining to the Veteran's economic inadaptability and overall provided a "cursory analysis" finding the Veteran's headaches were not productive of, or capable of producing, severe economic inadaptability at any time during the appellate time frame. The parties specifically noted that the Board did not address July 2011 lay statements from a D.J., which indicated that D.J. observed the severity and frequency of the Veteran's headaches, to include headaches three to four times a week, getting easily fatigued, and requiring bedrest. See July 2011 Lay Statement. The parties also specifically noted that the Veteran submitted a statement in September 2012 indicating that he experienced headaches five to seven days a week lasting for "a couple of hours off and on throughout the day and night" that affected the ability to "hold and work a job on a regular basis and keep a regular schedule." In the September 2012 statement, the Veteran indicated that he was unable able to maintain a job since 2007 because of the headaches. As will be discussed in greater detail below, during the course of this appeal the Veteran has denied having any prostrating headaches prior to 2007, as is required for a compensable rating under Diagnostic Code 8100. See 38 C.F.R. § 4.124A. As such, the question of economic inadaptability is only relevant following the manifestation of prostrating headaches on or about 2007. For the reasons discussed below, in the instant decision the Board finds that a staged initial 50 percent disability rating, the maximum schedular rating, is warranted for the service-connected headache disability from September 15, 2007, which is the earliest date of record indicating that the Veteran had prostrating headaches resulting in economic inadaptability. Such action satisfies the March 2019 JMPR. See Forcier v. Nicholson, 19 Vet. App. 414 (2006). The Veteran testified from Atlanta, Georgia, at a December 2017 Board videoconference hearing before the undersigned Veterans Law Judge, who was seated in Washington, DC. The hearing transcript has been associated with the record. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is potentially an element of all rating issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009). At the December 2017 Board videoconference hearing, it was specifically requested that the Board not consider a TDIU pursuant to Rice at that time, as the issue was being worked at the Agency of Original Jurisdiction (AOJ). Currently the question of entitlement to a TDIU is being adjudicated under the Appeals Modernization Act (AMA), and is awaiting a hearing before the Board under the AMA Hearing Lane. As such, the issue of entitlement to a TDIU is not before the Board at this time. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the headache disability rating issue arises from the Veteran's disagreement with the initial rating assigned following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3). Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and provided the Veteran with adequate VA headache examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. 1. The Board's July 29, 2020 Decision is Vacated. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. In its July 29, 2020 decision, the Board denied a higher initial disability rating for the service-connected headache disability in excess of 0 percent from November 9, 2001 to September 4, 2009, and in excess of 30 percent from September 4, 2009. Subsequently, the Veteran's representative filed a Motion for Reconsideration in February 2021, arguing that VA had failed to upload a private Vocational Assessment that was received in March 2020, prior to the issuance of the July 29, 2020 Board decision. The representative correctly argued that the Vocational Assessment contained evidence relevant to the question of a higher initial disability rating for the service-connected headache disability. In fact, the Board uses this report in the instant decision to grant a staged higher initial disability rating. Considering the above, the Board finds that issuing a decision denying a higher initial disability rating for the service-connected headache disability prior to having access to the Vocation Assessment, which was in VA's possession prior to the issuance of the decision, was a denial of due process. Accordingly, the Board VACATES its July 29, 2020, decision denying a higher initial disability rating for the service-connected headache disability in excess of 0 percent from November 9, 2001 to September 4, 2009, and in excess of 30 percent from September 4, 2009. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. A Staged Higher Initial Disability Rating for Service-Connected Headache Disability is Granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The Veteran has appealed from the initial rating assigned for the service-connected headache disability. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the Court addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. 303. The Board has thoroughly reviewed all the evidence in the Veteran's claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Under Diagnostic Code 8100, a 10 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once in two months over the last several months. A noncompensable (0 percent) rating is assigned for less frequent attacks. A 30 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once per month over the last several months. A 50 percent rating is assigned for migraine headaches when a Veteran has very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a. November 9, 2001 to September 14, 2007 After a review of all the evidence of record, lay and medical, the Board finds that, for the initial rating period from November 9, 2001 to September 14, 2007, the service connected headache disability did not manifest as prostrating attacks of headache pain. In a November 2001 VA treatment record, during a psychiatric appointment, the Veteran conveyed tension headaches, but the severity and frequency of these headaches were not documented, and there was no report or description of prostrating attacks. A December 2001 VA treatment record reflects that the Veteran complained of chronic headaches on and off that resolved on their own without medication, but occasionally the headaches would last for up to two days. The Veteran filed a statement in support of claim in November 2004 to report complaints of headaches, but did not offer an explanation of severity or frequency, and did not describe prostrating attacks. The Veteran denied experiencing headaches in January 2005 and September 2005. See January 2005 VA Treatment Records; September 2005 VA Treatment Records. The Veteran testified during a December 2017 Board videoconference hearing in Atlanta, Georgia. The Veteran testified that he experienced intermittent headaches since 1991, which became worse in 2001 when he filed a claim for compensation. The Veteran testified that prior to 2007 the headaches did not prevent him from doing any activities. The Veteran also testified that before 2007 he would treat the headaches by lying down for 20 minutes and drinking some water. The Veteran explained that after 2007 the headaches became worse because they occurred daily and lasted up to an hour and a half, and that the headaches have remained the same since 2007. Specifically, at the December 2017 Board videoconference hearing the Veteran testified that the headaches did not become prostrating until on or about 2007 when the Veteran's other medical symptoms worsened, and the Veteran became unable to work. Again, prior to September 15, 2007, by the Veteran's own testimony, and supported by the other evidence of record, the Veteran's service-connected headaches were not prostrating; therefore, a preponderance of the evidence is against a finding that the Veteran was entitled to a compensable disability rating during the initial rating period on appeal from November 9, 2001 to September 14, 2007, and a higher initial disability rating for that period must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100. From September 15, 2007 After a review of all the evidence of record, both lay and medical, the Board finds that, from September 15, 2007, the service-connected headache disability more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As explained in the Board's June 2018 decision, a September 2009 VA examination report reflects that the Veteran advanced experiencing daily headaches and severe headaches twice a week for one hour where the headache was so severe that the Veteran was unable to function (i.e. the headache was prostrating). The Board found this evidence sufficient to find that, from September 4, 2009, the date of examination, the Veteran experienced prostrating attacks of headache pain occurring on average once a month over the last several months, to warrant a staged initial 30 percent disability rating. However, as discussed above, at the December 2017 Board videoconference hearing, the Veteran credibly testified that the headaches first became prostrating on or about 2007, and that the symptoms had remained relatively the same from 2007 to the present. Further, the Veteran testified that the headaches became prostrating on or about the same time that his overall health symptoms had worsened to a point where he was no longer able to work. Per Social Security Administration (SSA) records received during the course of this appeal, the Veteran ceased working substantially gainful employment on September 15, 2007. As such, the Board finds this to be the earliest evidence of record of the manifestation of prostrating attacks of headache pain, and, at the very least, a staged 30 percent disability rating should be awarded from that date. As the Board has found that, at the very least, a staged initial 30 percent disability rating is warranted from September 15, 2007, the only remaining question before the Board is whether the Veteran's service-connected headache disorder manifested as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability during this time period, to warrant a staged initial 50 percent disability rating. For the reasons discussed below, the Board finds that a staged initial 50 percent disability rating is warranted for the initial rating period from September 15, 2007 (the earliest date of record indicating that the Veteran's headaches had become prostrating). On the question of economic inadaptability, the Board received a private Vocational Assessment dated March 2020. The assessment considered the period from September 15, 2007, when the Veteran was awarded SSA benefits, to the present. Per the private Vocational Assessment, the private vocational consultant reviewed the lay and medical evidence of record and conducted a telephone interview with the Veteran. As to the headache disability alone, since September 15, 2007, the private vocational consultant opined that the headache symptoms would impair the ability to sustain focus on work tasks for two consecutive hours, which, per the consultant, is required in all competitive employment. Further, the symptoms would interfere with the ability to start and compete tasks in a timely and accurate manner, and would require the Veteran to undergo frequent supervision and redirection from supervisors to remain on task. The Board finds that such evidence supports that, since September 15, 2007, the Veteran's headache symptoms have resulted in severe economic inadaptability. Finally, the Board notes that there is conflicting evidence concerning whether, since September 15, 2007, the Veteran's prostrating headaches have been very frequent and prolonged. During the course of this appeal, VA examiners in May 2013, March 2016, and February 2019 found that the Veteran did not have frequent and prolonged prostrating attacks. In December 2020, a VA examiner found that the Veteran did not have "very prostrating and prolonged attacks of migraines/non migraine pain productive of severe economic inadaptability"; however, it is possible that this VA examiner rendered the negative opinion based upon the economic inadaptability prong, and did not specifically find that the headaches were not very frequent and/or prolonged. Nonetheless, having reviewed the evidence of record, lay and medical, the Board finds the evidence at least in equipoise on the question of whether, from September 15, 2007, the service-connected headache disability more nearly approximated very frequent completely prostrating and prolonged attacks. As discussed above, at the December 2017 Board videoconference hearing, the Veteran credibly testified that, beginning on or about 2007, the Veteran's headache symptoms worsened and began resulting in prostrating attacks. These prostrating attacks occurred daily and would last from 60 to 90 minutes. The Veteran credibly testified that these symptoms continued from 2007 to the present. Per the report from a September 2009 VA headache examination, the Veteran had hour-long prostrating attacks approximately twice per week. At a January 2010 VA general medical examination, the Veteran conveyed having daily 15-minute long headaches requiring lying down and resting until they passed. Per an August 2011 VA treatment record, the Veteran complained of having headaches daily, although the severity of the headaches was not reported. In a September 2012 lay statement, the Veteran conveyed having to stop working in 2007 due to headache symptoms. The Veteran advanced that, since that time, the headaches occurred five to seven days a week and lasted for a couple house off and on throughout the day. When a headache would strike, the Veteran would be limited from doing more than resting and taking pain medication. Per the report from the May 2013 VA headache examination, the VA examiner found that the Veteran had prostrating attacks of headache pain more frequently than once per month; however, the VA examiner also found that the prostrating attacks were not very frequent or prolonged. No explanation for why multiple prostrating attacks per month did not constitute very frequent or prolonged symptomatology was given. Finally, as discussed above, during the course of this appeal VA received a private Vocational Assessment dated March 2020. Per the Vocational Assessment report, a review of the record showed that, since 2007, the Veteran had at least one debilitating/incapacitating headache per month. Further, during the telephone interview the Veteran conveyed currently having four to five prostrating headaches per week that can last up to half a day. In sum, while there is significant evidence of record indicating that, since September 15, 2007, the Veteran has not had very frequent completely prostrating and prolonged headaches, base upon the lay and medical evidence discussed above, the Board finds there to be sufficient evidence to at least place the question in equipoise concerning whether the Veteran had very frequent completely prostrating and prolonged headaches since September 15, 2007. As the evidence of record supports that, since September 15, 2007, the Veteran's headaches have resulted in severe economic inadaptability, and as the evidence is at least in equipoise on the question of whether the Veteran had very frequent completely prostrating and prolonged headaches since September 15, 2007, the Board finds that, from September 15, 2007, a staged higher initial disability rating of 50 percent, the maximum schedular rating, for the service-connected headache disability is warranted. 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8100. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the initial rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). Further, for the reasons discussed in the introduction, namely, that the TDIU is being separately adjudicated, the Board need not discuss entitlement to a TDIU at this time. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.