Citation Nr: 22010899 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 19-05 776 DATE: February 24, 2022 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is granted. Service connection for left upper extremity neurologic impairment, claimed as secondary to service-connected cervical spine degenerative disc disease, is granted. Entitlement to at least an initial 30 rating throughout the appeal period for headaches is granted. Entitlement to at least an initial 70 percent rating throughout the appeal period for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for headaches is remanded. Entitlement to an initial rating in excess of 70 percent for PTSD is remanded. Entitlement to an initial rating in excess of 10 percent for left elbow lateral epicondylitis is remanded. FINDINGS OF FACT 1. The Veteran's TBI had its onset in service. 2. The Veteran's left upper extremity neurologic impairment is proximately due to his service-connected cervical spine degenerative disc disease. 3. Throughout the appeal period, the Veteran has characteristic prostrating attacks occurring on an average of at least once a month over the last several months. 4. Throughout the appeal period, the Veteran's PTSD has been productive of at least occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for service connection for TBI have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left upper extremity neurologic impairment have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for at least an initial 30 percent rating for headaches throughout the appeal period have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 2000 to September 2015, including combat service in Afghanistan, and his decorations include Air Force Combat Action Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, a March 2019 rating decision granted an initial increased rating for the Veteran's left elbow (10 percent throughout the appeal period) and headaches (10 percent effective November 27, 2018, the date of VA examination). As the maximum ratings have not been assigned, the Veteran has continued his appeal, and the claims have been characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified before the undersigned Veterans Law Judge in a January 2022 virtual hearing. At the hearing, the Veteran testified that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was not before the Board. Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, at the January 2022 hearing, the Veteran notified the Board as to the correct spelling of his name. His name has been updated in his claims file to reflect the proper spelling of his name and is provided in this opinion at the request of the Veteran. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a TBI. In this case, the Veteran contends that he suffered a TBI during his service in Afghanistan due to his exposure and proximity to explosions. See, e.g., March 2016 TBI VA examination; see also January 2022 virtual hearing. In this case, the Board presumes the occurrence of the in-service injury based on the Veteran's combat service in Afghanistan. See also April 2016 rating decision (awarding service connection for PTSD based on conceded stressful event in service or fear of hostile military or terrorist activity). In addition, the medical evidence shows that the Veteran has been diagnosed as having TBI. See March 2016 VA speech therapy consult report. Furthermore, the Board finds that the Veteran is both competent to report TBI in service, and that his account of having such in service is credible and consistent with the circumstances of his service in Afghanistan. 38 U.S.C. § 1154(a); see also June 2015 report of medical history (reporting close proximity to multiple explosions during deployment). Thus, the Board finds that the evidence is not sufficient to rebut the presumption that he suffered TBI during his combat service. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). As such, service connection for TBI is warranted. 2. Entitlement to service connection for left upper extremity neurologic impairment. The Veteran seeks service connection for left upper extremity neurologic impairment as secondary to his service-connected cervical spine degenerative disc disease (hereinafter cervical spine disability). The Veteran's service treatment records include June 2015 reports noting his complaint of tingling and pain in his left hand, as well as a history of left upper extremity pain and paresthesias. On June 2015 report of medical history, the Veteran reported numbness and tingling in his left hand. In July 2015, the Veteran complained of continued numbness, tingling, radiating and weakening sensations in his upper extremities associated with neck pain. In this case, the Veteran has testified and reported left upper extremity neurologic symptomatology during and since service. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board finds the Veteran's reports as to the onset of his symptomatology to be competent and credible. In addition, treatment records reflect the symptomatology is associated with his service-connected cervical spine disability. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his left upper extremity neurologic impairment became manifest during his combat service, and is associated with his service-connected cervical spine disability. See Reeves v. Shinseki, 682 F.3d at 998-99. As such, service connection for left upper extremity neurologic impairment as secondary to service-connected cervical spine disability is warranted. 38 C.F.R. § 3.310. Increased Rating 3. Entitlement to an initial compensable rating prior to November 27, 2018 for headaches. 4. Entitlement to an initial rating in excess of 10 percent for headaches since November 27, 2018. Under Diagnostic Code 8100, migraine headaches resulting in characteristic prostrating attacks occurring on average once in 2 months over the last several months warrant a 10 percent rating. Migraines resulting in characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating," and neither has the United States Court of Appeals for Veterans Claims (Court). See Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does 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 1367 (28th ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." Additionally, the Court has held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As Diagnostic Code 8100 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran's headaches, the Board is precluded from considering the relief afforded by the Veteran's medication, if any, in evaluating the severity of his disability. Id. After a review of the evidence of record, the Board finds that the persuasively favors awarding at least an initial 30 percent rating for the Veteran's headaches throughout the appeal period. In reaching this finding, the Board emphasizes the regularity with which the Veteran has reported his headaches occur. See, e.g., March 2016 VA examination (occurring at least three to four times per month); November 2018 VA examination (occurring every one to two weeks, with prostrating attacks once in two months); see also January 2022 hearing (testifying they occur approximately two to three times per month). In addition, the Veteran has reported associated symptoms of photophobia, phonophobia, some dizziness, and occasional nausea. See November 27, 2018 VA examination. He has also indicated that quiet and darkness help to alleviate his headaches. See March 2016 VA examination. Based on the foregoing, the Board finds that the Veteran's headaches are at least reflective of characteristic prostrating attacks occurring on an average once a month over the last several months, warranting at least an initial 30 percent rating throughout the appeal period. To the extent the Veteran seeks an initial rating in excess of 30 percent for his service-connected headaches, such is addressed in the remand portion of the decision below. 5. Entitlement to an initial rating in excess of 50 percent for PTSD. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434 (the General Rating Formula for Mental Disorders (General Formula)), which provides for a 50 percent rating when the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when the evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). After a review of the evidence of record, the Board finds that the Veteran is entitled to an initial increased rating of at least 70 percent for his PTSD throughout the appeal period. The evidence shows that the Veteran's PTSD has been productive of suicidal ideation, depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, flattened affect, impaired abstract thinking, difficulty understanding complex commands, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. See, e.g., March 2016 VA examination; November 2018 VA examination; January 2022 hearing. The Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19-20 (2017) (stating the language of 38 C.F.R. § 3.13 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). At the January 2022 hearing, the Veteran testified that he has experienced passive suicidal ideation throughout the appeal period. The Board finds the Veteran both competent and credible in testifying as to his symptomatology. Given the evidence during the appeal period, the Board finds that at least an initial 70 percent rating is warranted throughout the appeal period for the Veteran's PTSD. To the extent the Veteran seeks an initial rating in excess of 70 percent for his service-connected PTSD, such is addressed in the remand portion of the decision below. REASONS FOR REMAND 6. Entitlement to an initial rating in excess of 30 percent for headaches is remanded. 7. Entitlement to an initial rating in excess of 70 percent for PTSD is remanded. 8. Entitlement to an initial rating in excess of 10 percent for left elbow lateral epicondylitis is remanded. The most recent examinations in this case were conducted in November 2018, over three years ago. The Board finds that contemporaneous examinations are necessary to assess the current nature, extent and severity of his headaches, PTSD and left elbow lateral epicondylitis. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403, (1997); see also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Any outstanding VA treatment records should also be secured on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of record, etc., if an in-person examination is not feasible) to determine the current extent and severity of his headaches. The entire claims file must be reviewed by the examiner. All signs and symptoms of the service-connected headaches must be reported in detail. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of record, etc., if an in-person examination is not feasible) to determine the extent and severity of his PTSD. The entire claims file must be reviewed by the examiner. All signs and symptoms of the service-connected PTSD must be reported in detail. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of record, etc., if an in-person examination is not feasible) to determine the extent and severity of his left elbow lateral epicondylitis. The entire claims file must be reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all left elbow pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-ups. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. If unable to opine without speculation, the examiner should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.