Citation Nr: 22017882 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 19-28 550 DATE: March 26, 2022 ORDER Entitlement to an initial rating of 50 percent for tension headaches is granted. REMANDED Entitlement to service connection for left shoulder disability to include impingement syndrome, tendinopathy and rotator cuff tendonitis is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's headaches were manifested by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 50 percent for tension headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2005 to October 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2017 and January 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. The Veteran's fiancée was also present and testified at the hearing. A copy of the transcript is associated with the evidentiary record. Increased Rating General Rating Principles Disability evaluations 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. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles- Headaches The Veteran is currently service connected for headaches with a noncompensable rating under diagnostic code 8100. Under Diagnostic Code 8100 a 10 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability 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 rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38C.F.R. §§4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. In nonmedical terms, prostrating is defined as lying flat or at full length, to reduce to physical weakness or exhaustion, or to reduce to helplessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time, extend duration, draw out, continue, protract." Id. Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Entitlement to an initial rating of 50 percent for tension headaches. By way of history, the Veteran initially filed a claim for entitlement to service connection for headaches in November 2017. A January 2018 rating decision granted service connection for tension headaches with a noncompensable rating effective November 8, 2017. The Veteran filed a notice of disagreement in February 2018 and following the issuance of a statement of the case, perfected his appeal in September 2019 when he filed a VA Form 9. The Veteran contends that he is entitled to an initial compensable rating for his service-connected migraine headaches. At his Board hearing, the Veteran testified that despite his prescribed medication, he experiences headaches a few times a week characterized by head pain and stomach sickness. The Veteran testified that when he experiences a headache, he has to go into a dark quiet room to rest. He also testified that his headaches last anywhere from hours at a time to half a day. The Veteran reported that when he was employed, his headaches impacted his ability to work. He further testified that his headaches resulted in him being unable to maintain employment. Consistent with his contentions, the Veteran's fiancé testified that when the Veteran experiences headaches she will provide him with his prescribed medication, turn the lights off, get him comfortable and shut the door. She further asserted that during the Veteran's headaches she has to try and keep the house quiet. The Veteran's fiancé also reported that during his headaches the Veteran is unable to help cook, clean or care for their child. She reported that he experiences these symptoms two to three times per week. After the hearing, the Veteran's mother submitted a statement in January 2021. She asserts that the Veteran has constant headaches that prevent him from getting out of bed and require him to lay down in a quiet dark place with no interruptions. She further asserted that the Veteran's headaches last for hours at a time. Lay persons are competent to testify to regarding information to which they have knowledge of facts or circumstances and matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Here, the Veteran is competent to testify as to his headache symptoms. Further, the Veteran's significant other and mother are competent to testify as to their observations when the Veteran experiences a headache as well as their observations as to the nature and frequency of the Veteran's headaches. The Board finds these lay statements to be both competent and credible, and affords them probative weight. Turning to the medical evidence of record, VA treatment records throughout the period at issue note the Veteran's ongoing complaints of headaches. Further, treatment records show that the Veteran has been prescribed Zolmitriptan for his headaches. In May 2020, VA treatment records note that the Veteran called in and requested to reschedule an appointment due to the onset of a headache. He reported that he had awaken with a severe headache, went to the bathroom and upon return from the bathroom became dizzy, lost consciousness and fell on the bed. This evidence further supports the Veteran's contentions regarding the severity of his headaches. The Veteran was afforded a VA examination in August 2019. The Veteran reported getting headaches at least three to four times a week lasting a couple hours with medication and lasting four to five hours without medication. He reported that his headache pain results in pain on both sides of the head as well as the top of his head. The examiner reported that the Veteran does not experience characteristic prostrating attacks and the Veteran's headaches do not impact his ability to work. The Board affords probative weight to the Veteran's subjective statements during the VA examination and to the examiner's indication that the Veteran's headaches result in pain on both sides of the Veteran's head as well as the top of his head. Less weight is afforded to the examiner's contentions that the Veteran does not experience prostrating attacks and that it does not impact the Veteran's ability to work, as this is not supported by the evidence of record including lay statements which note headaches multiple times per week which require rest in a quiet dark space. Ultimately, based on the evidence of record which shows that the Veteran experiences headaches multiple times a week resulting in pain on the tops and sides of his head, lasting for hours at a time and requiring the Veteran to sit in a quiet dark room, the Board finds that these symptoms constitute very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability and a rating of 50 percent is warranted for the entire period on appeal. Entitlement to an initial rating of 50 percent for tension headaches is granted. REASONS FOR REMAND Entitlement to service connection for left shoulder disability to include impingement syndrome, tendinopathy and rotator cuff tendonitis is remanded. Remand is warranted for an adequate VA examination. The September 2019 VA examiner did not take into account the Veteran's lay testimony concerning in-service events regarding his shoulder. Additionally, shoulder pain being indicated at his separation examination in April 2016 was identified by the Regional Office in the examination request, but yet the examiner apparently called that entry "an error" as there was an "X" over the positive indication of shoulder problems. Be that as it may, the examiner still must consider the Veteran's lay statements regarding an in-service injury and pain. The matters are REMANDED for the following action: 1. Associate update VA and private treatment records with any required assistance from the Veteran. 2. Schedule the Veteran for a VA examination for his left shoulder disability with a physician. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's left shoulder disability related to service, including the Veteran's contentions that he fell on his shoulder while in service and has had ongoing left shoulder pain since service? Why or why not? Did the Veteran's left shoulder disability (1) begin during active service, (2) manifest within one year after discharge from service, or (3) has symptomatology which began during service which has continued and manifested in a current diagnosis? Why or why not? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. (Continued on the next page) The examiner is informed that a positive opinion indicating a nexus to service does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a nexus to service, the examiner should make a determination favorable to the Veteran. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.