Citation Nr: 21042841 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 16-04 894 DATE: July 14, 2021 ORDER An initial rating in excess of 10 percent for right wrist strain based on limitation of motion is denied. An initial compensable rating for tension headaches prior to May 27, 2016 is denied. A 50 percent rating is granted for tension headaches from May 27, 2016, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's right wrist strain is manifested by pain and limited motion; it is not manifested by ankylosis or the functional equivalent thereof. 2. Prior to May 27, 2016, the Veteran's headaches were not manifested by characteristic prostrating attacks averaging one in two months over the last several months. 3. From May 27, 2016, the evidence as to whether the Veteran's service-connected tension headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability is at least in equipoise. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right wrist strain based on limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5215. 2. The criteria for an initial compensable rating for tension headaches prior to May 27, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.124a, Diagnostic Code 8100. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for a 50 percent rating for tension headaches have been met from May 27, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from August 2000 to June 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO, in pertinent part, granted service connection and a 0 (zero) percent (noncompensable) rating for tension headaches, effective June 21, 2012. The RO also granted service connection and a 10 percent rating for right wrist strain effective from the same date. This case was previously before the Board in September 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In February 2020, after taking further action, the AOJ increased the rating for tension headaches from 0 to 30 percent, effective May 27, 2016. In the September 2018 remand, the Board noted that the evidence suggested that a February 2014 surgery may have caused nerve damage to the Veteran's right wrist, and that a separate rating for that disability might be warranted. It also noted that the Veteran had submitted a claim seeking a temporary total rating based on the need for convalescence following the right wrist surgery. The Board directed the AOJ to afford the Veteran new VA examinations to assess the severity of his service-connected tension headaches and right wrist strain, to obtain a VA opinion regarding whether the February 2014 surgery caused nerve damage, and to adjudicate the Veteran's claim of entitlement to a temporary total rating based on the need for convalescence following the February 2014 right wrist surgery. In July 2019, the AOJ afforded the Veteran new VA examinations regarding his service-connected headaches and right wrist strain. In August 2020, it obtained a VA opinion regarding right wrist nerve damage. In an October 2020 rating decision, the AOJ adjudicated the Veteran's claim for a temporary total rating following his February 2014 right wrist surgery. The Board finds that there has been substantial compliance with the September 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in its October 2020 rating decision, the AOJ granted service connection for right carpal tunnel syndrome (CTS) status post CTS release and neurolysis and assigned a 10 percent rating; granted service connection for a scar of the right wrist and assigned a noncompensable rating; and denied entitlement to a temporary total rating based on the need for convalescence following the Veteran's February 2014 right wrist surgery. The Veteran was notified of that decision and of his appellate rights by letter dated later that same month, which stated that if he wished to appeal the decision, he must submit an appropriate form within one year of notification of the decision. To date, the Veteran has not appealed either the ratings assigned, the effective dates of the awards, or the denial of his claim for a temporary total rating by submitting an appropriate form. As such, those issues are not before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating a veteran must separately appeal "downstream" issues regarding the ratings and effective dates assigned once disabilities are granted service connection). If the Veteran wishes, he can still appeal the ratings and/or effective dates assigned, as well as the denial of his claim for a temporary total rating, by filing an appropriate form within a year of the notification of the October 2020 rating decision, which would be October 23, 2021. The Board also notes that the AOJ furnished the Veteran a supplemental statement of the case relative to the matters addressed herein in October 2020. Although additional VA treatment records have been added to the record since that time, none of them bear meaningfully on the outcome of the present appeal. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1304(c). In November 2020, the Veteran's representative notified VA that he was withdrawing his representation. The Veteran is currently proceeding pro se. Higher Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 1. Entitlement to a rating in excess of 10 percent for right wrist strain When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Lay testimony is competent when it concerns the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim. Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159 (a)(2) (2018). The Veteran's right wrist disability has been rated as 10 percent disabling under Diagnostic Code 5215 for limitation of motion throughout the appeal period. The maximum available rating available under that diagnostic code is 10 percent for dorsiflexion limited to less than 15 degrees or palmar flexion limited in line with the forearm. The Veteran seeks a higher rating. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). However, the rating criteria regarding Diagnostic Code 5215 were not affected by the February 2021 amendments. The Veteran is currently in receipt of the maximum schedular rating for limitation of motion of his right wrist. As such, a higher rating cannot be awarded on the basis of functional impairment due to manifestations such as flare-ups and pain with repeated use under that diagnostic code. See, e.g., Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (indicating that consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995) is not required if the claimant is already in receipt of the maximum schedular rating for limitation of motion under the pertinent diagnostic code). Although higher ratings are available for ankylosis of the wrist (see 38 C.F.R. § 4.71a, Diagnostic Code 5214), the record does not establish the presence of ankylosis or the functional equivalent thereof. A July 2012 VA examination shows pain and limited motion in the right wrist, but there was no ankylosis. A June 2015 VA examination also showed pain and limitation of motion in the right wrist, but the examiner specifically noted that there was no ankylosis. Finally, a July 2019 examination showed evidence of pain and limited motion in the right wrist, but the examiner again specifically indicated that there was no ankylosis. Inasmuch as the Veteran is in receipt of the maximum schedular rating for limitation of motion under DC 2515, and the evidence does not warrant a separate rating under DC 2514 for ankylosis, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for right wrist strain based on limitation of motion. The Board has considered the Veteran's various lay statements with regard to additional symptoms regarding the right wrist, including increased symptoms following a right CTS release surgery, the need to use splints and/or braces, and reports of tingling and numbness in the right wrist and hand. However, the Board notes that these symptoms appear to relate to other disabilities and/or claims, including right CTS status post CTS release and neurolysis (for which the Veteran has been awarded service connection and is being separately compensated), and a period of convalescence related to his CTS release surgery, which the AOJ has previously denied. Consideration has also been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. In sum, there is no basis for the assignment of a higher rating for the Veteran's right wrist strain based on limitation of motion. As the preponderance of the evidence is against the claim, the appeal must be denied. 2. Entitlement to an initial compensable rating for migraine headaches prior to May 27, 2016 3. Entitlement to a rating in excess of 30 percent for migraine headaches from May 27, 2016 As noted, in its December 2012 rating decision, the AOJ granted service connection for tension headaches and assigned a noncompensable rating. In a February 2020 rating decision, the AOJ increased the rating for tension headaches from 0 to 30 percent, effective May 27, 2016. The Veteran seeks higher ratings. Specifically, in a February 2017 submission, he contended that a 50 percent rating for his tension headaches was warranted. He cited to a May 27, 2016 lay statement of a fellow service member who stated that the Veteran got headaches about four times a week, that they sometimes lasted an hour or two hours or longer, that when he got a headache the Veteran needed to lie down and have it be totally dark and totally quiet, and that he had trouble working if he got a headache and needed to take a break and go to a place that was dark and quiet or go home. The Veteran also submitted a statement in June 2016 in which he stated that he woke up every morning with a headache, that they got really bad three to four times per week when everything became sensitive like noise and light, that he had to sit down and go to a dark, quiet place, and that while it usually took at least an hour and a half before he could regain concentration abilities, sometimes it took six to eight hours. The Veteran's service-connected headache disability has been evaluated under Diagnostic Code 8100, as analogous to migraines. Under that diagnostic code, a 0 percent rating is assigned for less frequent attacks than for a 10 percent rating. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of 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. The United States Court of Appeals for Veterans Claims (Court) held in Johnson v. Wilkie, 30 Vet. App. 245 (2018), that Diagnostic Code 8100 contains successive rating criteria, as each disability level builds on another in terms of duration and frequency, and requires that a veteran rated at a higher level satisfy all of the requirements at the lower level. While the criteria for a 50 percent rating therefore contain a frequency requirement, they additionally require that a veteran have "completely" prostrating and "prolonged" attacks which are "productive of severe economic inadaptability." 38 C.F.R. § 4.124a, Diagnostic Code 8100. In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what is a prostrating attack.). By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), page 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28th Ed. 1994), page 1367, in which "prostration" is defined as "extreme exhaustion or powerlessness." The Court has also held that the phrase "productive of severe economic inadaptability" should be construed to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Moreover, in making that assessment, the ameliorative effects of medication cannot be taken into account. See Jones v. Shinseki, 26 Vet. App. 56 (2012). The Veteran filed his claim for service connection for headaches in May 2012. He was afforded a VA examination in connection with his claim in July 2012. The examiner diagnosed tension headaches and noted the Veteran's report that he had suffered from migraine headaches for the last year and that he had a headache on most days. The examiner noted that the Veteran did not take any medication for the condition but noted that he had headache pain localized to one side of his head and that he experienced nausea. The examiner indicated that the Veteran did not have any characteristic prostrating attacks of migraine or non-migraine headache pain of any duration or any frequency, that there were no other pertinent findings, and that the condition did not impact his ability to work. In September 2013, March 2014, September 2014, December 2014, July 2015, and May 2016 VA treatment records, the Veteran denied headaches under the review of systems sections of examinations. He did not complain of, seek treatment for, or report any symptoms related to headaches at any time prior to May 27, 2016, aside from in his application for service connection and at the July 2012 VA examination. As noted, the Veteran submitted a lay statement from a fellow service member on May 27, 2016 and submitted his own statement regarding the severity of his headaches in June 2016. The Veteran was afforded a second VA examination in connection with his claim in July 2019. The examiner diagnosed tension headaches and noted that the Veteran took ibuprofen as needed on an average of four to six tablets per week. He also noted that the Veteran reported numerous symptoms, that the duration of typical headache pain was less than one day, and that it affected both sides of his head. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine and non-migraine headache pain once every month, but that he did not have very prostrating and prolonged attacks of migraine/non-migraine headache pain productive of severe economic inadaptability. The examiner also indicated, however, that the disability impacted the Veteran's ability to work inasmuch as the Veteran reported that his headaches were triggered by tinnitus and/or stress, that they occurred two times per week and lasted 30 minutes to a couple of hours, that he had taken ibuprofen 800s as needed, and that he had also applied cold compresses to his head. Prior to May 27, 2016, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating. The July 2012 VA examiner indicated that the Veteran did not have any prostrating attacks of migraine or non-migraine headache pain of any duration or at any frequency. The Board emphasizes that for even a 10 percent rating, the evidence must show that the Veteran has characteristic prostrating attacks averaging one in 2 months over the last several months. Prior to May 27, 2016, there is also nothing noted in the claims file aside from the July 2012 VA examination regarding complaints of, treatment for, or a diagnosis related to headaches, and during the earlier appeal period the Veteran specifically denied having headaches or headache symptoms on numerous occasions. While acknowledging that the ameliorative effects of medication cannot be taken into account, the Board notes that the July 2012 examination notes specifically that the Veteran did not take any medications at that time, and the evidence of record does not indicate or suggest that he took any medication for his headaches at any other time prior to May 27, 2016. The July 2012 VA examiner also opined that the condition did not impact the Veteran's ability to work, and there is no other evidence of record suggesting that the Veteran's headaches prior to May 27, 2016 were either productive of, or capable of producing, economic inadaptability. As to the period on appeal prior to May 27, 2016, the Board finds the results of the July 2012 VA examination highly probative and affords them significant weight. The examiner's findings were based on objective examination and the Veteran's lay statements, and they are consistent with the other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The Board has also carefully reviewed the other evidence of record prior to May 27, 2016 but finds that there is no objective or lay evidence which indicates or even suggests that a compensable rating prior to May 27, 2016 is warranted for the Veteran's service-connected headaches. Simply put, there is no evidence in the claims file which could warrant a higher rating. Accordingly, a compensable rating for the Veteran's service-connected tension headaches prior to May 27, 2016 is denied. The Board further finds, however, that the evidence warrants a 50 percent rating for tension headaches from May 27, 2016. Resolving reasonable doubt in the Veteran's favor, the May 27, 2016 lay statement of the Veteran's fellow service member shows that his headaches from that time were severe enough to cause very frequent completely prostrating and prolonged attacks of headache pain that were productive of severe economic inadaptability. The Veteran's June 2016 statement also indicates that by that time his headaches were very frequent in that they occurred three to four times per week; that they were completely prostrating in that he had to sit down in a dark, quiet place when they occurred; that they were prolonged in that they took at least an hour and a half and sometimes six to eight hours before he could regain his concentration abilities, and that they were productive of severe economic inadaptability in that they occurred at a severity and frequency at which they would certainly impact the Veteran's work function. While the record is not clear on the matter of when the Veteran started taking medication for his headaches, it is clear that he was doing so by the time of the July 2019 VA examination. Even with medication, the examiner opined that the Veteran's headaches caused characteristic prostrating attacks of migraine and non-migraine headache pain once every month. Without the ameliorative effects of medication (which is how the Board must analyze the Veteran's claim), his headaches would very clearly produce economic inadaptability to an even greater degree. At a minimum, the record gives rise to a reasonable doubt on the matter, which the Board resolves in the Veteran's favor. Given the frequency and severity of the Veteran's tension headaches from May 27, 2016, the Board resolves reasonable doubt in his favor and finds that it is at least as likely as not that his headaches satisfied the criteria needed for the maximum 50 percent rating under Diagnostic Code 8100 from that date. Inasmuch as the evidence strongly indicates in this case that different disability ratings are warranted for different periods of time over the life of his claim, the Board has assigned staged ratings based on both the objective and lay evidence of record accordingly. See Hart, supra. The appeal as to the earlier period is therefore denied, and as to the latter period is granted in full. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.