Citation Nr: 22016237 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-17 655 DATE: March 21, 2022 ORDER Entitlement to an initial 50 percent disability rating for headaches, prior to May 2, 2017, is granted Entitlement to an initial 30 percent disability rating, but no higher, for headaches since May 2, 2017, is granted. Restoration of a 10 percent rating for left femoral neck stress fracture with early osteoarthritic changes, manifested by limitation of flexion, effective June 11, 2018, is granted. REMANDED Entitlement to increased disability ratings related to the Veteran's left hip to include limitation of flexion, extension, and abduction/adduction of the thigh is remanded. Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to May 2, 2017, the Veteran's service-connected headaches are productive of symptomology most nearly approximating very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. From May 2, 2017, the Veteran's service-connected headaches are productive of symptomology most nearly approximating characteristic prostrating attacks occurring monthly; very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability have not been shown. 3. Improvement in the range of motion as it related to extension of the Veteran's left hip flexion under the ordinary conditions of life has not been demonstrated. CONCLUSIONS OF LAW 1. Prior to May 2, 2017, the criteria for entitlement to an initial 50 percent disability rating, for headaches have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.6, 4.7, 4.124a, Diagnostic Code 8100. 2. From May 2, 2017, the criteria for entitlement to an initial 30 percent disability rating, but no higher, for headaches have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.6, 4.7, 4.124a, Diagnostic Code 8100. 3. The criteria for restoration of a 10 percent rating for left femoral neck stress fracture with early osteoarthritic changes, manifested by limitation of flexion effective June 11, 2018, have been met. 38 U.S.C. §§ 1155, 5103, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.3, 4.7, 4.104, Diagnostic Code 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from November 2001 to November 2004 and August 2008 to September 2009, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from decisions by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran testified before the undersigned in a September 2021 Board hearing. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to TDIU was raised by the Veteran in the September 2021 Board hearing; therefore, the Board has jurisdiction over that issue are well. Increased rating The Veteran contends that his headaches are more severe than initially rated. Specifically, the Veteran contends he had severe headaches until his cervical spine surgery at which point his headaches were less severe but still affected him. The Board notes that the Veteran's treatment records indicates that the Veteran had cervical spine surgery on May 2, 2017. The Veteran's headaches are rated noncompensable under Diagnostic Code 8100, effective September 27, 2012. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Pursuant to Diagnostic Code 8100, a 10 percent rating is warranted with migraine headaches with characteristic prostrating attacks occurring on average of one in two months over the last several months; 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months; and a 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating" as used in Diagnostic Code 8100. By way of reference, the Board notes that DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1530 (32nd Ed. 2012), defines "prostration" as "extreme exhaustion or powerlessness." Similarly, the rating criteria also do not define "severe economic inadaptability." "Productive of economic inadaptability" can be read as having either the meaning of "producing" or "capable of producing" severe economic inadaptability. However, nothing in Diagnostic Code 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating. Id. at 440. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). A May 2015 VA treatment record that documents the Veteran establishing care with VA, indicates that the Veteran complained of headaches. The Veteran reported he had photophobia, nausea, and vomited several times due to his headaches. The Veteran reported he had lie down in a dark room to fix the problem. The Veteran stated he was proscribed medication for his headaches and the VA provider continued that proscription. In the Veteran's May 2016 yearly check up, he reported that recurrent headaches. In October 2016, the Veteran reported that he had headaches related to his neck disability that occur once to twice a week. The Veteran reported the headaches were accompanied by photophobia and phonophobia. In a May 2017 VA social worker note, the Veteran reported his headaches had gone away to large degree. In an October 2017 social work examination, the Veteran reported that his surgery had not helped with his headaches. In September 2018, the Veteran reported to his VA primary care provider that since his cervical fusion his headaches had improved. The Veteran noted he still had severe headaches twice a month, for which his prescribed medication was still effective. In January 2013, VA obtained an Acceptable Clinical Evidence (ACE) examination regarding the Veteran's headaches. The examiner did not comment on the severity of the Veteran's headaches. In April 2014, the Veteran underwent a VA headache examination. During the examination, the Veteran stated his headaches began a few years ago and had gotten progressively worse. The Veteran stated his headaches were getting more frequent and increasing in intensity until he got an injection in his neck, but now the relief was wearing off and the headaches returned. The Veterans stated he would have headaches daily unless he took ibuprofen. The Veteran reported that his headache would last until he could lay down to sleep. The Veteran reported associated symptoms of nausea, vomiting, and blurred vision if his headaches went far enough. The examiner stated that there is insufficient clinical evidence to support a diagnosis related to headaches. The examiner stated there was no evidence that established a headache disorder other than a note from his wife that sounded more to be migraine headaches. In April 2014, the Veteran's spouse, a registered nurse, submitted a statement regarding the Veteran's headaches. The Veteran's spouse stated that she knew the Veteran had migraine like headaches. She noted the Veteran had headaches 5 to 6 times a month. The Veteran's spouse noted the Veteran would become violent ill with nausea, vomiting, and vision disturbances. The Veteran's spouse noted that obtained an injection between his C5 and C6. She noted that the headaches immediately went away, however, returned as the injection wore off. In June 2019, the Veteran underwent a VA headache examination. The examiner diagnosed the Veteran with migraines including migraine variants. During the examination the Veteran reported that prior to his C-spine surgery, in May 2017, he had 2 to 3 headaches a week and he was unable function outside the home, mostly lying in bed in a dark room. Since the surgery his headaches occurred 2 times a month and limited his ability to work. The Veteran had symptoms of headache pain of constant head pain, pulsating or throbbing head pain, and pain localized to one side of the head. The Veteran had non-headaches symptoms of sensitivity to light and changes in vision. The duration of the Veteran's typical head pain was less than a day. The examiner found the Veteran did not have very prostrating and prolonged attacks of migraine or non-migraine pain productive of serve economic inability. The examiner found the Veteran did not have other pertinent physical findings, complications, conditions, signs, symptoms, and/or scars. The examiner found the Veteran's headache condition impacted his ability to work. The examiner noted the Veteran had to lay down in a dark room and sleep of the headache. The Veteran submitted a headache journal that covered November 2019 to the beginning of April 2020. The headache journal documents what appears to be one headache in November last three days; two headaches in December 2019 last two and three days respectively; three headaches from January 2020 to February 2020 last four days and three days each; and two headaches in March 2020 lasting three days each. An August 2021 headache medical source statement completed by a private physician indicated the Veteran had headaches 2 to 3 headaches a week prior to his cervical spine surgery and 2 to 3 times a month after the surgery. The private physician noted that the Veteran had symptoms of inability to concentrate, phonophobia, photophobia, throbbing pain, exhaustion, pain worse with activity and caused avoidance of activity. The physician noted that the headaches at their worst resulted in the Veteran to confining to a dark, quiet room for days at time and unable to use a computer, phone, or drive a car. The physician found that during a headache the Veteran would generally be precluded from performing even the basic work activities and needed a break from the workplace. In September 2021, the Veteran testified in a Board hearing. The Veteran testified that prior to his neck surgery he had headaches 2 to 3 times a week, which were pretty significant and fairly serve. The Veteran stated that during a headache, he would lay down in a dark room and take medication. The Veteran stated that sometimes the medication would work and sometimes it would not. The Veteran stated that when he took the medication, the side effects prevented him from doing anything. The Veteran stated the medications caused him to be drowsy and affected his concentration. The Veteran stated his headaches would last at least day and could last up to three days. The Veteran stated that prior to 2017, the Veteran worked from home in a very flexible work environment. The Veteran stated that during that period it would have been impossible to work outside of the home. The Veteran explained that his last full-time job (that he left in the beginning of 2013) he would have to take several days off. The Veteran noted he would have to sit in a dark room and not look at a computer, or go home early from work, and not come back for days at time. The Veteran explained he left that job because of his headaches. The Veteran testified that after his cervical spine surgery, his headaches went down to 2 to 3 times a month. The Veteran stated that the severity was 7 out 10. He noted that medication and rest would be needed. The Veteran explained that his headaches would last 2 to 3 days. The Board notes that in August 2018, the Veteran testified before a different VLJ regarding a separate yet related issue of service connection for his headaches. During that hearing the Veteran testified that prior to his neck surgery he had 2 to 3 migraines a week and then after the surgery it was 1 to 2 a month. The Veteran described the headaches prior the surgery as "debilitating." The Board finds that the evidence demonstrates that a disability rating of 50 percent prior to May 2, 2017, is warranted. Prior to the Veteran's May 2017 neck surgery, the had two to three headaches a week, which the Board views as frequent. Further, the evidence indicates the duration was several days, which the Board finds meets the criterion of "prolonged." Additionally, the Board finds that the record supports a finding that the Veteran's headaches are "completely prostrating" or render him "entirely powerless." The Veteran testified, and the VA treatment records document, that he had to stay in a dark room when he experienced headaches. Prior to May 2, 2017, the Veteran reported nausea, photophobia, and vomiting related to his headaches to medical providers including during the April 2014 VA examination. The Veteran's spouse, a registered nurse noted that the Veteran became violently ill and had blurry vision when the Veteran had headaches. Furthermore, they reported to providers that he missed work because of his headaches and also testified to the same. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's headaches are productive of severe economic inadaptability. Thus, the Board finds that prior to May 2, 2017, a 50 percent disability rating is warranted. The Board finds that from May 2, 2017, a 30 percent disability rating for the Veteran's headaches is warranted. The Board finds that the Veteran had 2 to 3 headaches a month that were characteristically prostrating. The Veteran's headaches caused him to go to a dark room and take medication. However, the Board finds that a 50 percent disability rating is not warranted. The Veteran noted that his headaches were less frequent and less severe than prior to his surgery. The Board does not consider headaches 2 to 3 times a month frequent. The Board also finds that severe economic inadaptability as a result of the Veteran's headaches is not shown here. The Veteran has stated that he had to rearrange his work schedule due to his headaches. While this may result in some economic hardship, it does not, equate to severe economic inadaptability. Had the Veteran alleged that the time lost from work resulted in termination or reduction in pay or other adverse employment action, such work accommodations might be sufficient to be considered a severe economic hardship. Absent such a showing, however, the Board does not find severe economic hardship in this case. Accordingly, a 50 percent disability rating for headaches is not warranted after his May 2, 2017, surgery. 38 C.F.R. § 4.124a. In summary, prior to a May 2, 2017, the Veteran's headaches warrant a 50 percent disability rating and a 30 percent disability rating thereafter. Reduction of the Hip In a June 2018, the AOJ decreased the rating assigned for left femoral neck stress fracture with early osteoarthritic changes, from 10 percent to noncompensable (rated under limitation of flexion), effective June 11, 2018, the date of a VA hip examination. That same June 2018 rating decision granted service connection for impairment of the left hip with a 10 percent disability rating and limitation of extension of the left hip rated noncompensable, each effective May 17, 2018, the date of receipt of an increased rating claim for the left hip. Generally, when a rating is reduced, certain due process requirements that are provided under 3.105(e) must be met. However, because the Veteran's overall, combined evaluation was not reduced, the due process requirements under 3.105(e) are not applicable in this case. Nevertheless, the Veteran disagreed with the reduction in his disability rating and argued that the 10 percent rating be restored. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 1992). Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, it must be determined that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Moreover, if the VA examination report justifying the rating reduction is inadequate, the reduction cannot be upheld. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). According to McLendon v. Nicholson, when required to adequately adjudicate the claim, VA must provide a medical examination assessing the Veteran's claimed disabilities or conditions. See generally 20 Vet. App. 79 (2006). Such a medical examination is adequate when it describes the disability in sufficient detail such that the examiner's evaluation of the disability is "fully informed." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination is "fully informed" when the examiner has sufficient facts upon which to base an opinion relevant to the issue at hand. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Importantly, for musculoskeletal claims, the AOJ and by extension the examiner must consider functional loss such as less or more movement than normal, weakened movement, excess fatigability, and incoordination. See 38 C.F.R. §§ 4.2; 4.45. Further, in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the United States Court of Appeals for Veterans Claims (Court) explained that "the VA Clinician's Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a veteran, including during flare-ups." Therefore, the Court found, the examiner should elicit relevant information as to a veteran's flares with a description of the additional functional loss, if any, a veteran suffers during flares, and estimate a veteran's functional loss due to flare-ups based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so without resort to speculation; as such, the examiner may not state the he or she cannot provide an opinion without resort to speculation solely because the veteran is not currently experiencing a flare-up at the time of the examination. See generally Sharp, 29 Vet. App. 26. The Veteran underwent a hip and thigh examination in June 2018. The examiner found the Veteran had flexion to 100 degrees in the left hip. The Veteran reported flare-ups with his left hip disability which was described as still able to do things but hurts and had to push through the pain. The examiner stated that during a flare-up of back pain or with repetitive use over a period of time the Veteran's pain, weakness, fatigability, and incoordination would not significantly limit the functional ability of the joint; however, with the same increased utilization and flares there would be increased pain. The examiner also noted that the Veteran had functional loss and functional impairment due to his disability. Specifically, the examiner noted less movement than normal, pain on movement, disturbance of locomotion, interference with sitting, standing and or weight-bearing, and lack of endurance. The examiner was unable to provide an estimation for the Veteran's left hip range of motion during a flare-up. The Board finds that the June 2018 VA examination was not adequate. Although the examiner noted flare-ups the examiner failed to provide an estimation of the limitation of range of motion. The examiner did provide an adequate explanation as to why estimations could not be made other than there was no reported loss of range of motion during a flare-up. The Board finds that such explanation is not adequate because the examiner is required to use their expertise to determine any loss of range of motion based on the evidence in the record, not based on a non-response of any range of motion loss during a flare-up. Therefore, as the June 2018 examination is not compliant with provisions of the Rating Schedule as outlined in Sharp, it is inadequate. Accordingly, because the examination that provided the basis for the reduction was not adequate, the June 2018 reduction was improper, and the Veteran's left hip disability rating based on limitation of flexion is restored to its prior 10 percent level effective June 11, 2018. REASONS FOR REMAND The Veteran also contends that this left hip disability is more severe than currently rated; not only is restoration of the 10 percent rating for flexion warranted, but yet higher ratings for hip manifestations are warranted. The Board notes that the Veteran is service connected for multiple hip disabilities and therefore, the Board interprets the Veteran's increase rating claim as applying to all of the Veteran's left hip disability manifestations, all of which were addressed in the June 2018 decision on appeal and reasonably addressed by his August 2018 notice of disagreement. When a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of one. Manlincon v. West, 12 Vet. App. 238 (1999). Here, the June 2018 decision addressed ratings in several planes of motion of the hip, and the August 2018 notice of disagreement addressed such when read in the light most favorable to the Veteran; this interpretation was raised again at the Board hearing. Thus a remand is required for issuance of an SOC and to provide the Veteran the opportunity to perfect an appeal. 38 U.S.C. § 7105; 38 C.F.R. § 19.26; See Manlincon v. West, 12 Vet. App. 238 (1999). Further, the Veteran last underwent a VA hip and thigh examination in December 2018. During the examination the Veteran reported that he had flare-ups in his left hip and that he had additional range of motion loss during a flare-up. The examiner stated that she was unable to determine the range of motions during a flare-up because there was no additional loss of range of motion. The examiner's explanation as to why she was unable to determine range of motion loss during a flare-up is inadequate. The examiner's explanation that there was no range of loss is in direct conflict with the Veteran's report during the examination without explaining why there was no loss of motion. Thus, the Board finds the examination report violates Sharp and is inadequate. The Board finds that a remand is required for an adequate examination. TDIU Consideration of entitlement to TDIU is dependent upon the impact of service-connected disabilities on a Veteran's ability to obtain or retain substantially gainful employment. The matter of TDIU is therefore inextricably intertwined with the currently pending claims discussed above. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA joint/hip and thigh examination by an appropriate clinician to determine the current severity of his left hip disability. The examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, to include estimating actual functional impairment with repeated motion, use over time, and with flare-ups. The Veteran's testimony regarding such must be discussed. The VA examiner must include a statement of the effect of the Veteran's left hip disability on his occupational functioning and daily activities. 2. Issue a statement of the case regarding the issues of increased ratings for left hip limitations of flexion, extension, and abduction/adduction, as well as TDIU inferred as part of such claims for increase. Advise the Veteran of the procedural requirements to continue an appeal of each issue. If a substantive appeal is timely filed with regard to all or any of these matters, the perfected issue should be certified to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.