Citation Nr: 22014671 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 13-00 108A DATE: March 14, 2022 ISSUE Entitlement to a disability rating in excess of 30 percent for residuals of concussion with post-concussion headaches. ORDER Entitlement to a disability rating in excess of 30 percent for residuals of concussion with post-concussion headaches is denied. FINDING OF FACT For the period on appeal, the Veteran's migraine headaches have been manifested by characteristic prostrating attacks occurring on average two to three times a month and lasting one to two days a month, and by nausea, vomiting, and sensitivity to light and sound; very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability have not been shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for post-concussion headaches have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1968 to September 1973. The Veteran died in January 2019. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran's claim of entitlement to service connection for post-concussion headaches was granted in June 1980 with a 10 percent rating. The Veteran claimed entitlement to an increased disability rating for his service-connected headache disability on April 14, 2009. The disability rating of 10 percent was continued. The Veteran filed a timely Notice of Disagreement (NOD) in July 2011, and his claim was certified to the Board in December 2016. The Veteran testified in a Board video hearing before the undersigned Veterans Law Judge (VLJ) in December 2016. A transcript of the hearing is of record. The Board remanded the issue on appeal for additional development in May 2017, May 2018 and November 2019. In December 2020 the RO issued a rating decision which increased the Veteran's disability rating for his headache disability to 30 percent, effective April 14, 2019 before returning the matter to the Board. In March 2021, the Board issued a decision denying the claim for a disability rating in excess of 30 percent for residuals of concussion with post-concussion headaches. The appellant filed an appeal to the Court of Appeals of Veterans Claims (CAVC) contesting the Board's decision. In December 2021, CAVC vacated and remanded the Board's decision for compliance with the instruction in a Joint Motion Remand (JMR). The parties of the JMR agreed that the Boards March 2021 decision erred when it failed to provide an adequate statement of reasons or bases for its determination that the Veteran's headaches did not reach the frequency to warrant a higher disability rating. After vacating the Board's decision, the case was remanded pursuant to 38U.S.C. §7252 (a) for readjudication of the issue of entitlement to an increased rating. The matter has since been returned to the Board to adequately address the CAVC remand directives. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. 447. In a September 2014 claim, the Veteran asserted that he is unemployable in part due to his service-connected disabilities. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, the Veteran withdrew the claim for TDIU in a September 2016 correspondence. Moreover, during the December 2016 hearing, he testified that his retirement was due exclusively to his back surgery, a disability which is not service-connected and for which the Veteran withdrew his claim for service connection. Given these facts, the Board finds that the issue of TDIU is not before the Board at this time. Increased Schedular Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38U.S.C. §1155; 38C.F.R. §§3.321(a), 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38C.F.R. §4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38U.S.C. §5107(b); 38C.F.R. §4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38C.F.R. §4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. 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 38C.F.R. §4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38C.F.R. §4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38U.S.C. §1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38C.F.R. §4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). A claim will be denied only if the preponderance of the evidence is against the claim. See 38U.S.C. §5107; 38C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38C.F.R. §4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38C.F.R. §4.7. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Evidence and Analysis The Veteran's post-concussion headaches are assessed as having a 30 percent disability rating under DC 8100. The appellant contends that the Veteran's disability was more severely disabling than contemplated by the current rating. DC 8100 provides ratings for migraine headaches. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensable (0 percent disability rating). Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, DC 8100. The term "very frequent" is not defined in DC 8100. The ordinary definition of "frequent" is "acting or returning regularly or often." See Merriam Webster Dictionary, https://www.merriam-webster.com/dictionary/frequent. The modifier "very" in front of the word "frequent" is defined as "to a high degree: exceedingly." See Merriam Webster Dictionary, https://www.merriam-webster.com/dictionary/very. Thus, based on its ordinary definition, the Board understands the combined term "very frequent" to generally refer to something that occurs in excess of regularly or often. Governing case law and regulations have not defined "prostrating." For reference, the Board notes that "prostration" is defined as "extreme exhaustion or powerlessness." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d. ed. 2012). Similarly, while "prolonged" is not defined by VA regulations, Oxford Dictionaries defines "prolonged" as "continuing for a long time or longer than usual; lengthy." OXFORD DICTIONARIES ONLINE. Finally, the phrase "productive of severe economic inadaptability" has also not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, because it would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability (TDIU). Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at minimum, capable of producing "severe" economic inadaptability. Turning to the evidence of record, during the period on appeal the Veteran was first afforded a traumatic brain injury VA examination in June 2009. At that time the Veteran reported that he was having frequent headaches. He reported that the headaches occurred every day and they overwhelmed him. The Veteran reported that his headaches caused him to feel week and to have sleep disturbances. The Veteran stated that he also experienced numbness and blurred vision. The examiner noted that the Veteran had hypersensitivity to light and sound. The Veteran was afforded another VA examination for his headaches in February 2010. At that time the Veteran reported that his headaches had become more intense. The Veteran reported that he would have migraines twice a month and they would last most of the day, but his head throbbed all of the time. He also reported that the migraines would cause him to become dizzy and lose his balance, and he would need to lay down. The Veteran explained that he would have blinding pain in his right temple which would cause him to not be able to see. He reported that the migraines would usually occur when he was not working, such as in the evenings or the middle of the night. He reported that he had to call in sick approximately six times in the previous year. The Veteran was taking over the counter medication for pain relief. In April 2015 the Veteran was afforded another VA examination. At that time the Veteran reported having migraines with constant pulsating or throbbing head pain. He reported that the pain was on both sides of his head and worsened with physical activity. Non-headache symptoms included nausea, sensitivity to light and sound and changes in vision. The Veteran reported that his headaches would occur approximately 4 to 5 times a month and would typically last less than one day. The Veteran reported that over the past several months his headaches had been under much better control. At that time the Veteran was taking sumatriptan injections for pain relief. The examiner opined that the Veteran was experiencing ongoing controlled and episodic concussive headaches. The examiner determined that the Veteran did not have characteristic prostrating migraine attacks. The examiner also opined that the headache condition did not impact the Veteran's ability to work. The Veteran's treatment records indicate that during the appeal period the Veteran frequently sought treatment and received medication for his migraine headaches. Notably, a January 2016 neurology treatment note reflects that the Veteran reported that he was prescribed Maxalt because he was no longer able to get instant pain relief from his sumatriptan injections. He was directed to take two doses per migraine headache. In October 2016 the Veteran was afforded another VA examination. The Veteran reported that he had pulsating or throbbing head pain which would occur either localized or with pain on either one or both sides of the head. Non-headache symptoms included sensitivity to light and sound, changes in vision and sensory changes. His headaches could typically last more than two days. The Veteran reported that he was experiencing headaches two times a month and approximately two times a week. The Veteran was still taking Maxalt for his migraines. The examiner opined that the Veteran did not have characteristic prostrating migraine attacks. The examiner also opined that Veteran's headaches did not impact his ability to work. In November 2016 the Veteran was afforded another VA examination. At that time the Veteran's treating neurologist, Dr. D.S., opined that although the Veteran reported fluctuations in his headaches, none of the changes represented any clinically significant deuteriation or decompensation on his post- concussive headaches. The examiner opined that that any worsening of the Veteran's condition would be more likely than not due strictly to non-TBI types of problems and/or stressors or other a psychosocial or physical nature. At the December 2016 Board hearing the Veteran testified that he suffered from approximately eight headaches a month. The Veteran stated that during episodes he was not able to do anything and would need to be in a dark room with no light or noise. He testified that the episodes lasted three to five hours. The Veteran reported that taking Maxalt did help with the headaches, but they would come back a few days later. A March 2017 VA treatment note reflects that with Maxalt the Veteran's migraines were under much better control than before, but he would still have residual headaches which would come back after his primary ones. He reported that his headaches were quelled in two hours or less most of the time, and sometimes the residuals would go on for four to five hours. A September 2018 VA treatment note reflects that the Veteran reported that he was having approximately two migraines a week. He stated that his use of Maxalt reduced or eliminated his migraines most of the time, but not always. The Veteran reported having residual headaches which came back after his primary ones and caused him to be virtually dysfunctional for approximately one to two days, if not more on a weekly basis. After the Veteran passed away in January 2019, the Board remanded the matter in November 2019 for a retrospective VA opinion to assess the nature and severity of the Veteran's service- connected headaches disability. In December 2020 the Board-directed retrospective Medical Opinion and Disability Benefits Questionnaire was completed. At that time the examiner reviewed the Veteran's entire claim file. Following the review, the examiner opined that the Veteran's headaches were prostrating in nature with at least two to three episodes per month. The frequency of headaches were about one to two times a week and lasted from one to two days. The examiner stated that based on the Veteran's neurological evaluation notes, the Veteran did not have economic inadaptability due to his headaches. In December 2021 correspondences, the appellant asserted that the Veteran's treatment records and VA examinations do not accurately reflect the number of migraines the Veteran would experience a month, and that she remembers that the Veteran told her he suffered from 16 migraines a month. Entitlement to a disability rating in excess of 30 percent for residuals of concussion with post-concussion headaches. In consideration of the above, for the period on appeal, the Board finds that the Veteran's symptoms most closely approximate the criteria at the 30 percent disability level. During this period the Veteran noted frequent headaches with constant pulsating or throbbing head pain which would occur either localized or with pain on either one or both sides of the head, all of which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). During the December 2016 Board hearing the Veteran testified that during these episodes he was not able to do anything and would need to be in a dark room with no light or noise. The Board also notes that during the February 2010 VA examination the Veteran reported that he had to call in sick approximately six times in the previous year due to his headaches. A higher evaluation of 50 percent is not warranted for migraine headaches unless the evidence shows very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. This is not the case here, as the most probative evidence does not demonstrate such frequent or severe impairment. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). He is competent to report nausea, vomiting and sensitivity to light and sound. He is competent to report the frequency of such events, and that they are somewhat relieved by medication. Here, the Board finds that the retrospective clinical findings of the December 2020 VA examiner is highly probative. The examiner reviewed the entire claims file and considered the Veteran's lay history. In relevant part, the VA examiner found that the Veteran's migraine headaches are productive of prostrating attacks that occurred approximately two to three times a month and lasting one to two days. The examiner found that based on neurological evaluation notes, the Veteran did not have economic inadaptability due to headaches. The Board observes that these findings are relatively consistent with the VA treatment records and lay reports. The difference between a 30 percent rating and the next higher rating of 50 percent for headaches is the lack of frequent completely prostrating attacks and prolonged attacks productive of severe economic adaptability. Here, a higher rating of 50 percent is not warranted because such symptomology has not been shown indicating that the Veteran experienced headaches to such a degree. While the Board recognizes that the Veteran was competent to report his experiences and reported up to approximately two migraines a week lasting one to two days, the record does not support an interpretation that these attacks were very frequent and completely prostrating. Specifically, there is no indication in the record that exceedingly often he experienced lengthy complete physical or mental exhaustion or powerlessness as a result of his headaches. Furthermore, the evidence of record does not demonstrate that the Veteran's headaches were productive of severe economic inadaptability. To the contrary, during his February 2010 examination the Veteran reported that his migraines would usually occur when he was not working, such as in the evenings or the middle of the night and he had only had to miss approximately six days of work due to his migraines in the prior year. At the April 2015 and October 2016 VA examinations, the examiners noted that the Veteran's migraines did not impact his ability to work. Furthermore, during the December 2016 Board hearing the Veteran testified that he left his job at the US postal service exclusively because of a back injury, but not his migraines. Finally, the December 2020 VA examiner opined that the Veteran did not have economic inadaptability due to his headaches. Therefore, the preponderance of the evidence is against finding the Veteran had experienced very frequent and completely prostrating severe economic inadaptability due to his migraines. Accordingly, the criteria for an assignment of no more than a 30 percent disability rating has been met for this period. While the Veteran's reported regular headaches, the Board does not find that the Veteran's migraine headaches were very frequent, completely prostrating, and the Board does not find that the Veteran suffered from prolonged attacks that were productive of severe economic inadaptability, as required for a higher 50 percent disability rating under DC 8100. In reaching the above conclusion, the Board has not overlooked the Veteran's statements and testimony with regard to the severity of his service-connected headache disability. In this regard, the Veteran was competent to report on factual matters of which he had firsthand knowledge, e.g., nausea, vomiting, and sensitivity to light and sound. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Lay evidence was provided by the Veteran through submitted statements, his Board hearing testimony, treatment records and during the course of his VA examinations. However, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise to diagnose or observe, which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person, the Board has accorded greater probative weight to objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports. See Woehlaert, 21 Vet. App. at 456 (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). While the Board recognizes that in December 2021 correspondence the appellant asserted that the Veteran had reported to her that he experienced on average 16 migraines a month, the Board however finds that this assertion is generally inconsistent with the medical records and lay reports from the Veteran during the period on appeal. As such, the Board finds the evidence recorded in conjunction with evaluations of the Veteran during the period on appeal to have more probative value than the appellants current recollections. See Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence can have greater probative value than inconsistent testimony provided by the claimant at a later date). The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). However, the Court has held that where extraschedular consideration is not specifically sought by the claimant nor reasonably raised by the facts found by the Board, discussion of referral for extraschedular consideration is not required. See Yancy v. McDonald, 27 Vet. App. 484, 4919 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006); aff'd 226 Fed. Appx. 1004 (Fed. Cir. 2007). Similarly, the Court stated "that the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities." Yancy, 27 Vet. App. at 495; see Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In the present case, the appellant has not indicated she is seeking an extraschedular rating, nor have facts been shown which support referral for extraschedular consideration on either a single disability basis or combined effects basis. Thus, further discussion of this matter is unnecessary. All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's post-concussion headaches. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In light of the foregoing, the Board finds that the criteria for the assignment of a disability rating in excess of the currently assigned 30 percent rating for the Veteran's migraines have not been more nearly approximated for the entire period on appeal. 38U.S.C. §5107(b), 38C.F.R. §4.3. In reaching this conclusion, the evidence persuasively stands against finding in favor of the claim in that it is not in "approximate balance" or "nearly equal" to the evidence that supports the claim. See Lynch v. McDonough, No. 20-2067 (Fed. Cir. 2021) (holding "[E]vidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other). Although the rule does not require that the evidence be in exact equipoise, there is still no doubt to resolve in the appellant's favor. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the claim is denied. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.