Citation Nr: 22016471 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 18-36 292 DATE: March 22, 2022 REMANDED Entitlement to service connection for Type II diabetes mellitus as due to exposure to herbicide agents is remanded. Entitlement to an initial compensable rating for tension headaches prior to January 24, 2020, and in excess of 30 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from December 1971 to May 1979, and from May 1979 to June 1992, to include service in Thailand. These matters come to the Board of Veterans' Appeals (Board) on appeal from February 2015 and January 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In the February 2015 decision, the RO granted service connection and an initial 0 (zero) percent (noncompensable) rating for tension headaches, effective September 18, 2014. In the January 2016 decision, the RO, in pertinent part, denied service connection for diabetes mellitus. In February 2020, while the current appeal was pending, the RO increased the rating for the Veteran's tension headaches from 0 to 30 percent, effective January 24, 2020. The issue on appeal has been recharacterized accordingly, as set forth above. In May 2020, the Veteran submitted an application for a TDIU, contending that his service-connected tension headaches, hypertension, and depressive disorder prevented him from securing or following a substantially gainful occupation. The United States Court of Appeals of Veterans Claims (Court) has held that if a claimant or the record reasonably raises the question of whether a veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU is warranted as a result of that disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue of entitlement to a TDIU is also on appeal. In October 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Entitlement to service connection for Type II diabetes mellitus as due to exposure to herbicide agents is remanded. The Veteran contends that he has diabetes that was incurred in or caused by exposure to herbicide agents during his service in Thailand. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). At present, the claims file does not contain records which reflect a diagnosis of diabetes. A November 2013 VA treatment record noted that a diabetes screen was negative at that time, further indicating that the Veteran's A1C was within normal limits. A May 2017 VA treatment record shows that his A1C at that time was 5.8, which was in the pre-diabetes range. A VA treatment record from May 2018 shows an A1C of 6.0, again indicating that the Veteran was pre-diabetic at that time. Finally, a September 2020 private treatment record notes that the Veteran's A1C was 5.1 at that time, which is likewise in the pre-diabetes range. The Board notes that there are outstanding private treatment records that are potentially relevant to the issue on appeal. At the October 2021 Board hearing, the Veteran testified that he received treatment for diabetes at Prisma Health in Columbia, South Carolina, and that he was seen there as recently as a few weeks prior to the hearing. Following the hearing, the Veteran submitted records of treatment from Prisma Health, but a review of those records shows that the most recent record from that provider is dated in August 2020. Inasmuch as the Veteran has reported that he has received more recent private treatment, and those records could have a bearing on the outcome of his claim, additional development is required. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). 2. Entitlement to an initial compensable rating for tension headaches prior to January 24, 2020, and in excess of 30 percent thereafter, is remanded. The Veteran contends that his service-connected tension headaches warrant an initial compensable rating prior to January 24, 2020, and a rating in excess of 30 percent thereafter. At the October 2021 Board hearing, he testified that even when he filed his claim in 2014 his headaches impacted his ability to work at a computer for an extended period of time, and that he had to get up and walk away, using his break time to sit in his vehicle or the break area in order to find a quiet place where he could close his eyes. He added that he had the flexibility to stay late and to work at other times. He also testified that his headaches had worsened in severity since the time of his most recent VA examination. The Veteran's service-connected headache disability has been evaluated as analogous to migraine headaches pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under that diagnostic code, a 0 percent rating is assigned for less frequent attacks than for a 10 percent rating. A 10 percent evaluation is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months A 30 percent 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 Court held in Johnson v. Wilkie, 30 Vet. App. 245 (2018), that Diagnostic Code 8100 contain 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. 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 was afforded a VA examination in connection with his claim in January 2015. The examiner noted that the Veteran's tension headaches were documented during his service, and that at that time they were treated with valium and Fiorinal. The examiner further indicated, however, that the Veteran's current treatment plan did not include taking medications for the condition, and that he did not find documentation of headaches after the Veteran's service. The examiner indicated that the Veteran did not have characteristic prostrating attacks of migraine and/or non-migraine headache pain but stated that the disability impacted his ability to work in that he had to take breaks away from his computer when he had a headache. The Veteran was afforded a second VA examination in May 2018. The examiner noted that the Veteran reported having headaches once a week, which lasted for 45 minutes. The examiner also noted that the Veteran was able to work and indicated that the condition did not impact the Veteran's ability to work, though he also noted that the condition had gotten worse. The examiner indicated that the Veteran's treatment plan included taking Tylenol for the condition. The examiner further indicated that the typical duration of headache pain was less than one day, that the Veteran did not have characteristic prostrating attacks of migraine and/or non-migraine headache pain, and that he also did not have very prostrating and prolonged attacks of migraine and/or non-migraine headache pain productive of severe economic inadaptability. The Veteran was afforded a third VA examination in February 2020. The examiner noted the Veteran's report that his headaches had become so bad that he had to lie down to alleviate them, and that they had become worse over time. The examiner further noted that the Veteran's treatment plan included taking Tylenol. He indicated that the Veteran had characteristic prostrating attacks of migraine and/or non-migraine headache pain once every month, but that he did not have very prostrating and prolonged attacks of migraine and/or non-migraine headache pain productive of severe economic inadaptability. He further indicated that the disability impacted the Veteran's ability to work in that he was unable to focus and concentrate. The Veteran was afforded a fourth VA examination in June 2020. The examiner noted the Veteran's report that his headaches had progressively worsened over time, and that he continued to take Tylenol as part of his treatment plan. He indicated that the Veteran had characteristic prostrating attacks of migraine and/or non-migraine headache pain once every month, but that he did not have very prostrating and prolonged attacks of migraine and/or non-migraine headache pain productive of severe economic inadaptability. He further indicated that the disability impacted the Veteran's ability to work in that he would have difficulty focusing and being attentive while having a tension headache attack. While acknowledging that the Veteran does not appear to have been taking medication for his headaches at the time of the first VA examination in January 2015, the Board notes that the May 2018, February 2020, and June 2020 VA examinations all indicate that the Veteran takes or has taken medication to ameliorate the effects of his headaches during the period on appeal. It does not appear that any of the VA examiners offered an opinion which disregarded the ameliorative effects of medication, as required by the Court. See Jones, supra. Given that fact and the Veteran's contention that his headache disability has worsened since the time of the most recent VA examination, the Board finds that a remand for a new examination, to include a retrospective opinion regarding the severity of the Veteran's tension headaches, is warranted. The Board also notes that in his July 2018 substantive appeal as to tension headaches, the Veteran stated that he was taking propranolol to help with tension headaches and indicated that the medication was prescribed by a D.M., M.D. at Providence Northeast Family Care. At present, there are no records from Dr. M. in the claims file. Inasmuch as Dr. M.'s records could have a bearing on the outcome of the Veteran's claim, additional development is warranted. 3. Entitlement to a TDIU is remanded. The Veteran contends that he is unable to sustain substantially gainful employment due to his service-connected disabilities. As noted, in his May 2020 application for a TDIU, he stated that his tension headaches, hypertension, and depressive disorder were the service-connected disabilities that prevented employment. The Board also notes that in a February 2021 rating decision, the RO granted service connection for obstructive sleep apnea and assigned a 50 percent rating. At the October 2021 hearing, the Veteran testified that he was unable to work due to his service-connected disabilities of tension headaches, hypertension, and sleep apnea. The Veteran's claim for a TDIU is inextricably intertwined with his claim for an increased rating for tension headaches, which is being remanded for additional development. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on an appellant's claim for another issue). As such, the Board will remand the TDIU issue as well. These matters are REMANDED for the following action: 1. Ask the Veteran to provide a release(s) for relevant records of treatment from Prisma Health in Columbia, South Carolina (since August 2020), and from Dr. M. at Providence Northeast Family Care in Columbia, South Carolina, and to identify and provide an appropriate release(s) for any other private care providers who have treated him for the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination to assess the current severity of his service-connected tension headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner should disregard the ameliorative effects of medication, providing his or her opinion as to the severity of the Veteran's service-connected tension headaches without taking into account the effects of medication. The examiner should also provide a retrospective opinion on the matter of the severity of the Veteran's headaches back to September 2014 (when the Veteran filed his claim for service connection). In so doing, the examiner should disregard the ameliorative effects of medication, providing his or her opinion as to the severity of the Veteran's service-connected tension headaches without taking into account the effects of medication. The examiner's retrospective opinion regarding the severity of the Veteran's service-connected tension headaches should describe functional impairment as it relates to the relevant rating criteria, to include whether, without the use of medication, there were or would have been prostrating attacks; if so, how often they would have occurred, on average; how long they generally would have lasted; and how they would have impacted the Veteran in terms of economic adaptability. The examiner must consider the January 2015, May 2018, February 2020, and June 2020 VA examinations regarding headaches, as well as the Veteran's October 2021 hearing testimony to the effect that even back in 2014 he had to take breaks from work due to his headaches, using his break time to sit in his vehicle or in the break area in order to find a quiet place where he could close his eyes. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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.