Citation Nr: 22018366
Decision Date: 03/29/22	Archive Date: 03/29/22

DOCKET NO. 16-42 583
DATE: March 29, 2022

ORDER

Entitlement to an initial evaluation in excess of 0 percent for tension headaches prior to May 6, 2019, is denied.

Entitlement to an initial evaluation of 10 percent disabling, but no higher, for tension headaches, from May 6, 2019, to September 2, 2019, but no earlier is granted.

Entitlement to an initial evaluation of 50 percent disabling for tension headaches as of September 3, 2019, but no earlier is granted.

FINDINGS OF FACT

1. Prior to May 6, 2019, the Veteran's tension headaches manifested with less frequent attacks. 

2. Prior to May 6, 2019, the Veteran's tension headaches did not manifest with characteristic prostrating attacks averaging one in 2 months over the last several months.

3. As of May 6, 2019, to September 2, 2019, the Veteran's tension headaches manifested with characteristic prostrating attacks averaging one in 2 months over the last several months. 

4. As of May 6, 2019, to September 2, 2019, the Veteran's tension headaches did not manifest to characteristic prostrating attacks occurring on an average once a month over the last several months.

5. As of September 3, 2019, but no earlier, the Veteran's tension headaches manifested with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

CONCLUSIONS OF LAW

1. The criteria to establish entitlement to an initial compensable evaluation for tension headaches prior to May 6, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.124a, Diagnostic Code (DC) 8100.

2. The criteria to establish entitlement to an evaluation of 10 percent, but no higher, for tension headaches from May 6, 2019, to September 2, 2019, but no earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.124a, DC 8100.

3. The criteria to establish entitlement to an evaluation of 50 percent disabling for tension headaches as of September 3, 2019, but no earlier have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.124a, DC 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had honorable active-duty service with the United States Marine Corps from September 2010 to September 2014.

This matter is before the Board of Veteran's Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied an increased rating for the Veteran's tension headaches.

The Veteran's claims were remanded by the Board in February 2020 and August 2021 for addendum opinions that considered the Veteran's testimony, development of additional headache details from the Veteran, and for the Board to consider the Veteran's tension headaches without use of medications. The requested actions have been undertaken. Although the Board notes the Veteran did not provide additional details as to his frequency, duration, nor severity of his tension headaches. Accordingly, there has been substantial compliance with the prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

The Veteran testified in a video conference hearing in September 2019. The Veterans Law Judge who conducted the hearing is now no longer with the Board. In correspondence sent to the Veteran in January 2022, VA offered the Veteran the option for a new hearing under 38 C.F.R. §§ 20.106, 20.604. The correspondence indicated if a response was not received within 30 days of the date of the letter the Board would proceed with adjudication. To date, the Board has not received any correspondence from the Veteran indicating a request for a new hearing. As such, the Board will proceed with adjudication of the Veteran's claim.

In a November 2021 rating decision, the RO granted an initial 30 percent rating for migraine headaches, effective August 5, 2021.

The Board notes that the increase from 0 to 30 percent for the migraine headaches disability did not constitute a full grant of the benefits sought. Accordingly, the issues of entitlement to an initial rating in excess of 30 percent for migraine headaches for the period since August 5, 2021remain in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

Laws and Regulations

The Veteran contends he is entitled to an initial compensable evaluation for his tension headaches.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. 

Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that 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 concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, as in this case.

The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping, such as pyramiding, with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). 

The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of 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, 128-30 (2000).

When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Under 38 C.F.R. § 4.124a , Diagnostic Code 8100, a noncompensable evaluation is warranted for migraines with less frequent attacks; a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent evaluation is appropriate in cases of characteristic prostrating attacks occurring on an average of once a month over the last several months; and, a 50 percent rating is appropriate with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

Significantly, the use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Here, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria in the 50 percent rating must be met in order to warrant such a rating. The Board notes that § 4.7 is not applicable to Diagnostic Codes that apply successive rating criteria, such as Diagnostic Code 8100. It is successive because the criteria of each lower disability rating are included in the higher disability rating.

Though the Diagnostic Code does not provide a definition for "prostrating," prostration is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007).

Additionally, the term "productive of severe economic inadaptability" is also not defined in veterans' law. However, the Court has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 44647 (2004) (stating that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating").

September 19, 2014, to May 5, 2019 (0%)

Considering the pertinent facts in light of applicable rating criteria, the Board finds that an initial compensable evaluation for the Veteran's headaches is not warranted for the period from September 19, 2014, to May 5, 2019.

The Veteran received a VA examination for his tension headaches in December 2014 that noted his tension headache condition diagnosis. The Veteran described his current symptoms as recurrent headaches usually occurring once a week, with no identified trigger, starting at the front of his head and radiating to the back. He indicated they consisted of dull to pulsating pain with an intensity of 4 out of 5, lasting up to an hour. The Veteran noted he took over the counter medication for treatment. Along with throbbing head pain on both sides of his head the Veteran noted sensitivity to sound and light. The examiner found the Veteran did not have characteristic prostrating attacks and found no functional impact.

The Veteran's VA treatment records prior to May 6, 2019, hold no indications of prostrating attacks averaging one in 2 months. Additionally, prior to May 2019 the Veteran denies any headache upon evaluations of his neurological systems and provides no indications of continued or worsening headaches.

The Board finds that prior to May 6, 2019, the Veteran's disability picture more closely resembles a noncompensable disability rating of his tension headaches. The Veteran reports no consistent or regular headaches. His treatment records are silent as to any frequency, severity, or duration of headaches. The Veteran submitted no statements indicating more or less frequent attacks of more than one headache every 2 months and was silent as to any prostrating attacks. As such the Board finds there is no competent medical evidence nor any lay statement from the Veteran in the record to indicate his tension headaches manifested to a higher disability rating prior to May 6, 2019. 

The Board finds a lack of competent medical evidence of the Veteran's tension headaches manifesting to a compensable degree prior to May 6, 2019. Since, the Veteran's record is completely silent as to any manifestation of a compensable disability picture for his tension headaches prior to May 6, 2019, the Board finds the Veteran's tension headaches did not manifest to a compensable disability rating during this time. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002). In this case, the absence of any medical evidence of a worsening of the Veteran's tension headaches is the deciding factor that the Veteran's tension headaches prior to May 6, 2019, were not entitled to a compensable rating.

When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the evidence persuasively favors one side or the other, here against the claims of the Veteran the claim will be denied on its merits. In this case the evidence is persuasively against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir., Dec. 17, 2021) (en banc). Therefore, prior to May 6, 2019, the Veteran's tension headaches did not manifest to a compensable disability rating and his claim is denied.

May 6, 2019, to September 2, 2019 (10%)

The Veteran on May 6, 2019, in his VA treatment records indicated that he had stopped a medication, Depakote for about 6 weeks, and he began to experience more tension headaches. The doctor's note indicated the medication was most likely a prescribed low dose for migraine treatment and decreased irritability and helped with overall mood. The Veteran indicated he began experiencing an exacerbation of tension headaches.

The Board finds that with the exacerbation of headaches and experiencing more headaches the Veteran's tension headaches more closely resembles a 10 percent disability rating. The indication of an exacerbation and experiencing more tension headaches more closely resembles characteristic prostrating attacks averaging one in 2 months over the last several months versus less frequent attacks as expressed by the Veteran in his VA examination in December 2014 which he noted occurred weekly.

The Board notes the Veteran in his VA treatment records does not specify how often these tension headaches occur nor the severity or duration of the attacks he suffers. Additionally, the Board notes the Veteran does not describe how the tension headaches affect him or his employment. As such, the Board is resolving the evidence of record during this period of time in favor of the Veteran to find that his tension headaches manifested to a compensable degree of 10 percent disabling.

However, the Board finds that the Veteran's tension headaches, prior to September 3, 2019, did not result in characteristic prostrating attacks which occurred on an average of once per month. The Board finds the Veteran's tension headaches more closely resemble a 10 percent disability rating and not a 30 percent disability rating. In consideration of the lack of competent evidence as to the severity, duration, and frequency of the Veteran's tension headaches the Board finds the Veteran's tension headaches manifested to a 10 percent disability rating from May 6, 2019, to September 2, 2019, and no earlier and no higher.

The Board notes the Veteran did not receive a VA examination during this period nor did he submit any lay statements as to his headaches during this period of time. As such, the VA treatment records are the only competent medical evidence of record noting a worsening of his tension headaches and as such it is the deciding factor. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Therefore, the Board can only reasonably grant a 10 percent disability rating. Without further details, of which the record is silent, the Board finds in favor of the Veteran's claim for an increased rating 10 percent disabling but no higher.

When there is an approximate balance between positive and negative evidence, or equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. The evidence before the Board here indicates that the Veteran's claims must be resolved in favor of the Veteran, as the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran is entitled to an initial 10 percent disability rating, but no higher, for his tension headaches from May 6, 2019, to September 2, 2019, but no earlier.

September 3, 2019 (50%)

The Veteran testified at a hearing on September 3, 2019. He described his tension headaches occurred sometimes weekly and sometimes bi-weekly. The Veteran described his headaches as crippling, "If I'm at home, yes, I would put an ice pack or a cool cloth on my head, turn the lights off, turn the television off, and have it quiet with no lights at all." The Veteran confirmed he took medications that helped with both pain and his headaches. Upon further questioning the Veteran noted there were no known precipitating factors that triggered his headaches but confirmed that when he was under stress they would appear and he would need to get out of the light and lay down in silence.

The Veteran submitted a statement dated September 4, 2019, that indicated his tension headaches left him almost paralyzed at times. He noted he was not able to do anything when they occurred like work or watch television. He had been given medications that he noted helped but did not resolve the tension headaches entirely.

The Veteran in his VA treatment records received a neurological consult for a traumatic brain injury (TBI) in August 2021 where he described his headaches occurred with light and sound sensitivity, increased pain, and having to sit in a dark room with a towel over his head for relief. The Veteran also reported that he had headaches 3 times per month with increased pain, light and sound sensitivity, and noting a 7 out of 10 pain scale. The Veteran indicated that his headaches were worse since his deployment.

The Veteran received a headache VA examination in November 2021 that noted his diagnosed tension headaches. The Veteran's symptoms were noted with pulsating or throbbing head pain, pain on both sides, light and sound sensitivity, lasting for less than 1 day with characteristic prostrating attacks of migraines and non-migraine pain productive of severe economic inadaptability. The functional impact was noted with experiencing a headache he must retreat to a quiet and dark space for relief. The examiner was asked to comment on the Veteran's September 2019 hearing testimony and lay statements pertaining to his headaches. The examiner found, "little relevance in testimony about a headache condition 2 years ago." The examiner found that the Veteran's recent neuropsychological evaluation of August 2021 summarized the current severity of his headache pain.

In considering the Veteran's competent and credible testimony and lay statements of early September 2019 the Board finds the Veteran's tension headaches more closely resembled a disability picture of 50 percent disabling as of September 3, 2019. The Board notes the Veteran's submitted lay statement and testimony confirmed his frequency of tension headaches of weekly or biweekly and paralyzing in severity requiring a silent dark room with no light and requiring him to lie down. Additionally, the VA treatment records and VA examination noting the Veteran's tension headaches occurring 3 times per month and the finding by the VA examiner that his tension headaches were productive of economic inadaptability. The Board notes the 50 percent disability rating is the maximum rating for this disability.

The Board finds that prior to September 3, 2019, the Veteran's tension headaches did not manifest to 50 percent rating as the record is silent as to his headaches causing him to miss work, the frequency of his headaches, or the severity of his tension headaches. As such the Board finds the Veteran's tension headaches do not reach a 50 percent disability rating until September 3, 2019.

Neither the Veteran nor his representative, has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

After reviewing all the evidence of record the Board finds it is appropriate for a staged rating as from the evidence of record it is clear the Veteran's tension headaches worsened over time. When the evidence persuasively favors one side or the other, here weighs for the claims of the Veteran the claim will be granted on its merits. In this case the evidence persuasively favors the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir., Dec. 17, 2021) (en banc). Therefore, the Veteran is entitled to a 50 percent disability rating for his tension headaches as of September 3, 2019, but no earlier. 

 

 

James A. DeFrank

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C.A. Teich, 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.