Citation Nr: 22012137 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 14-12 587 DATE: March 2, 2022 ORDER Entitlement to a 30 percent disability rating for migraine headaches is granted. Entitlement to service connection for right hip greater trochanteric bursitis is granted. The appeal as to the claim of entitlement to a compensable disability rating for recurring stomatitis of the tongue with bilateral tinea pedis has been withdrawn. The appeal as to the claim of entitlement to service connection for sleep apnea has been withdrawn. The appeal as to the claim of entitlement to service connection for hypertension has been withdrawn. FINDINGS OF FACT 1. The Veteran's migraine headaches have been productive of characteristic prostrating attacks occurring on an average once a month over last several months. 2. The Veteran's right hip greater trochanteric bursitis is proximately due to his service-connected right knee and right ankle degenerative joint disease. 3. At the time of the Veteran's October 2021 virtual Board hearing, prior to the promulgation of a decision by the Board, the Veteran withdrew his appeals with respect to the issues of entitlement to a compensable disability rating for recurring stomatitis of the tongue with bilateral tinea pedis, entitlement to service connection for sleep apnea, and entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability evaluation, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, Diagnostic Code 8100. 2. The criteria for service connection for right hip greater trochanteric bursitis as secondary to right knee and right ankle degenerative joint disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for withdrawal of the appeals by the Veteran with respect to the issues of entitlement to a compensable disability rating for recurring stomatitis of the tongue with bilateral tinea pedis, entitlement to service connection for sleep apnea, and entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1990 to March 2001 and from June 2001 to August 2011. During his periods of service, he earned the Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Air Force Expeditionary Medal, Marine Corps Good Conduct Medal, Navy and Marine Corps Commendation Medal, Sea Service Deployment Ribbon with one (1) Star, Presidential Unit Citation, Navy Unit Citation Navy and Marine Corps Achievement Medal one (1) Star, National Defense Service Medal, Rifle Expert Badge, and Pistol Marksman Badge. In October 2021, the Veteran attended a virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. In this regard, the Board apologizes for the delay in the full adjudication of his claims. Increased Rating 1. Entitlement to a higher rating for migraine headaches Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that he is entitled to a compensable disability rating for his service-connected migraine headaches. The Veteran's disability is currently evaluated under DC 8100, applicable to migraines. 38 C.F.R. § 4.124a. Under DC 8100, a noncompensable rating is warranted with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran appeared for a VA headaches examination in September 2017. The Veteran reported that he gets headaches weekly, which always manifest as tightness and pain on the right side of his head. The headaches usually began at night and could last one to two days. He also reported light sensitivity. At the time of his October 2021 virtual Board hearing, the Veteran reported experiencing two or more prostrating migraine attacks per month that are alleviated by lying down. In considering the evidence of record and resolving all reasonable doubt in the favor of the Veteran, the Board finds that the Veteran is entitled to a 30 percent evaluation for his service-connected migraine headaches for the period on appeal. When considering his competent and credible testimony regarding experiencing two or more prostrating migraine attacks per month, the Board finds that the totality of the evidence favors the assignment of an initial 30 percent rating for migraine headaches throughout the appeal period. Additionally, there is no indication in the medical evidence of record that the Veteran's symptomatology warranted other than the now assigned 30 percent disability rating throughout the appeal period. Assignment of staged ratings is not warranted. See Fenderson, supra. Although an increased rating of 30 percent is warranted, the evidence of record does not reflect symptoms that would meet the criteria for a higher rating for any period of time during the pendency of the claim. As the evidence does not demonstrate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Although the Veteran has reported some interference with his work, as well as the need for breaks with the onset of his headache symptoms, he has indicated that he has not missed work due to his headache disability. Without evidence of more severe symptoms, an evaluation in excess of 30 percent cannot be assigned. Accordingly, the Board finds that the Veteran's migraine headaches warrant a 30 percent rating throughout the appeals period; however, the claim of entitlement to an initial disability rating in excess of 30 percent must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased initial rating, beyond that assigned herein, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2021); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Service Connection 2. Entitlement to service connection for right hip greater trochanteric bursitis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374. In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran contends that his hip disability is causally related to his service, or, in the alternative, secondary to service-connected disabilities. With regard to a current disability, the Veteran appeared for a VA hip and thigh conditions examination in September 2011. At that time, the examiner diagnosed chronic right hip sprain and strain. Thus, the first elements of the Shedden and Wallin analyses have been met. With regard to the direct service-connection claim, the Veteran's service treatment records reveal a complaint of right hip joint pain in April 2011. Moreover, at the time of his October 2021 virtual Board hearing, the Veteran competently and credibly testified that injured his hip in the course of the playing soccer while stationed at Camp LeJeune in 2008. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). With regard to secondary service connection, the Board notes that the Veteran is service-connected for right knee and right ankle degenerative joint disease. Thus, the second elements of the Shedden and Wallin analyses have been met. As such, the remaining questions are whether the Veteran's right hip disability arose in or is otherwise related to service, such that service connection is warranted on a direct basis; or, if not, whether it was caused or aggravated by his service-connected right knee and ankle disabilities, such that service connection is warranted on a secondary basis. A medical opinion was associated the record in December 2021. Dr. A. P. noted that the Veteran described an injury tin 2008 while playing soccer that resulted in significant injury to his right knee and ankle. Based on the examination and Veteran's history, the physician opined that it was at least as likely as not that the Veteran's right hip trochanteric bursitis developed due to altered gait from his knee and ankle injury. The physician noted his belief that the Veteran's right hip symptoms were linked to and exacerbated by the Veteran's service-connected knee and ankle conditions. In light of the positive nexus opinion, as well as lack of negative evidence weighing against the claim, the evidence is at least in equipoise regarding the question of whether the Veteran's right hip disability is related to his service-connected right knee and ankle disabilities. As such, reasonable doubt will be resolved in favor of the Veteran and service connection for right hip greater trochanteric bursitis is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As the Board is granting service connection for right hip greater trochanteric bursitis on a secondary basis, there is no further need to discuss entitlement to service connection on any other basis, as other theories of entitlement have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (2012). Withdrawn Claims 3. Entitlement to a higher rating for recurring stomatitis of the tongue with bilateral tinea pedis 4. Entitlement to service connection for sleep apnea 5. Entitlement to service connection for hypertension 6. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 19.55. 7. In the present case, at the time of his October 2021 virtual Board hearing, the Veteran withdrew his appeals with respect to the issues of entitlement to a compensable disability rating for recurring stomatitis of the tongue with bilateral tinea pedis, entitlement to service connection for sleep apnea, and entitlement to service connection for hypertension on the record; hence, there remain no allegations of errors of fact or law for appellate consideration. 8. At the time of the hearing, the undersigned explained the impact of withdrawal of these claims and the Veteran indicated understanding that doing so would lead to dismissal and not a merits determination. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. Thus, the Board finds that there remain no allegations of errors of fact or law for appellate consideration at this time. Accordingly, the Board does not have jurisdiction to review the appeals, and the Veteran's claims for entitlement to a compensable disability rating for recurring stomatitis of the tongue with bilateral tinea pedis, entitlement to service connection for sleep apnea, and entitlement to service connection for hypertension are dismissed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.