Citation Nr: 23042167
Decision Date: 08/01/23	Archive Date: 08/01/23

DOCKET NO. 19-21 593
DATE: August 1, 2023

ORDER

Service connection for cerebral infarction also claimed as stroke is granted.

From November 15, 2016, an increased 50 percent rating for migraine headaches is granted, subject to regulations governing payment of monetary awards. 

From July 29, 2017 to October 19, 2021, special monthly compensation (SMC) at the housebound rate is granted, subject to regulations governing the payment of monetary awards.

FINDINGS OF FACT

1. The evidence is persuasively in favor of finding the Veteran's cerebral infarction also claimed as stroke is caused by his service-connected hypertension.

2. From November 15, 2016, the Veteran's migraine headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

3. From July 29, 2017 to October 19, 2021, the Veteran is in receipt of a 100 percent rating for PTSD and with the Board's grant of an increased 50 percent rating for migraine headaches he now has additional service-connected disabilities that are independently ratable at 60 percent during that period.?

CONCLUSIONS OF LAW

1. The criteria for service connection for cerebral infarction also claimed as stroke have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2022).

2. From November 15, 2016, the criteria for an increased 50 percent rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2022).

3. From July 29, 2017 to October 19, 2021, the criteria for an award of SMC are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(1).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 2004 to January 2006 and had an earlier period of active duty for training (ACDUTRA) from March 1989 to July 1989. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

These matters were previously before the Board in September 2019 when they were remanded for further development.

In a January 2022 rating decision, the RO increased the Veteran's disability rating for his migraine headaches to 10 percent, effective October 20, 2021. As the increased rating is less than the maximum under the applicable criteria, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The September 2019 Board decision also remanded matters seeking service connection for insomnia and an increased rating for posttraumatic stress disorder (PTSD). In a November 2021 rating decision, the RO increased the Veteran's disability rating for his PTSD to 100 percent, effective July 29, 2017. As the 100 percent rating (which is the maximum schedular benefit) has been granted for the entire period on appeal, the Veteran's claim for an increased rating for PTSD is moot. Additionally, the November 2021 rating decision determined that the Veteran's insomnia disorder was secondary to his service-connected PTSD and awarded service connection for insomnia, including it as part of the service-connected PTSD disability. As this award of service connection fully resolves the appeal seeking service connection that was previously on appeal before the Board it will not be further discussed herein.

Entitlement to TDIU, when reasonably raised by the record, is part of any claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the issue of TDIU has been raised by the record in the context of the Veteran's claim for an increased rating for migraine headaches. As noted above, the Veteran has been assigned a 100 percent rating from July 29, 2017 for his service-connected PTSD. However, assignment of a total schedular rating does not automatically render a TDIU claim moot. In Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) held that the issue of entitlement to TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where SMC could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). The Court's decision in Bradley recognized that a separate award of a TDIU predicated on a single disability may form the basis for an award of SMC. The instant Board decision is awarding the Veteran SMC under 38 U.S.C. § 1114(s) based on a 100 percent schedular rating for his service-connected PTSD and additional disabilities that are independently rated at 60 percent or more from July 29, 2017. Because the Veteran is being awarded SMC at the rate under 38 U.S.C. § 1114(s) (the only remaining benefit for which the assignment of a TDIU evaluation would be beneficial), entitlement to TDIU is moot and will not be further addressed by the Board. Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008).

?

Service Connection 

Service connection for cerebral infarction also claimed as stroke is granted.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury, or event. 38 C.F.R. § 3.303(a). 

Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current chronic disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the claimant prevailing in either event, or whether the weight of the evidence is persuasively against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

The Veteran contends that he is entitled to service connection for cerebral infarction (also claimed as stroke). As service connection is being granted on a secondary basis, the Board will not further address direct service connection.

The record shows the Veteran has a current disability as an April 2017 VA treatment record notes a diagnosis of unspecified cerebral infarction. Additionally, October and December 2021 VA examination reports note a diagnosis of a central nervous condition, diagnosed specifically as a status post cerebrovascular accident (or stroke). Private and VA treatment records document residuals of the stroke, including right-sided face and arm numbness, decreased facial sensation, asymmetric facial activation upon smile, reduced sensation to light touch in distal fingertips, ataxia on finger-to-nose, issues with balance, dizziness, neuropathic pain in leg, right-sided facial drop, and slurred speech.

The record also shows the Veteran was granted service connection for hypertension in a November 2008 rating decision. 

Thus, the remaining issue is whether his service-connected hypertension caused or aggravated his cerebral infarction. 

In October 2021, a VA examiner opined that the Veteran's condition was not caused by any service-connected disabilities. In support of the opinion, the examiner noted that the Veteran was service-connected for PTSD, migraines, and sleep apnea and had a medical history of diabetes, obesity, hypertension, and hyperlipidemia. The examiner indicated that risk factors for stroke included diabetes, hyperglycemia, hyperlipidemia, and uncontrolled hypertension. Lastly, the examiner noted that the Veteran has a history of diabetes, hypertension, and hyperlipidemia, but indicated that the Veteran has not been granted service connection for those conditions. 

The examiner also opined that the Veteran's condition was not aggravated by any service-connected disabilities but did not provide any rationale in support of the opinion. In December 2021, an addendum opinion was provided, and the examiner opined that the Veteran's condition was not aggravated by any service-connected disabilities. The examiner provided a baseline level of severity of the condition, noting that there was mild slurred speech and right eye droop, and indicated that the current severity of the Veteran's condition was not greater than the baseline. 

After review of the evidence, the Board concludes that service connection for cerebral infarction (claimed as stroke) is warranted. Although the examiner essentially provided a negative nexus opinion with regard to whether the Veteran's stroke is caused by any service-connected disability, the examiner incorrectly indicated that the Veteran was not service-connected for hypertension. As noted above, the Veteran was granted service connection for hypertension by a November 2008 rating decision. In addition, in the opinion, the examiner stated that uncontrolled hypertension is a risk factor for stroke and the Veteran's private treatment records, including a September 2016 note, reflects that the Veteran's hypertension is uncontrolled. In light of this, the Board places great probative weight on the examiner's statement and concludes that the Veteran's cerebral infarction (claimed as stroke) was caused by his service-connected hypertension. Accordingly, service connection for cerebral infarction (claimed as stroke) is warranted. 

Increased Rating

1. An increased 50 percent rating for migraine headaches is granted. 

The Veteran generally contends that he is entitled to an increased rating for his migraine headaches.

Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

On July 28, 2017, VA received VA Form 21-526b, Veteran's Supplemental Claim for Compensation, seeking in part an increased rating for his service-connected migraine headaches. The Veteran's migraine headaches have been assigned a noncompensable rating for the period on appeal prior to October 20, 2021 and a 10 percent rating for the period thereafter under Diagnostic Code (DC) 8100.

Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating (which is the maximum schedular rating available under Code 8100) is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a.

The Rating Schedule does not define "prostrating." "Prostration" has been defined as "complete physical or mental exhaustion." MERRIAM-WEBSTER'S NEW COLLEGIATE DICTIONARY 999 (11th ed. 2007). "Prostration" has also been defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MED. DICTIONARY 1534 (32nd ed. 2012). According to Stedman's Med. Dictionary 1461 (27th ed. 2000), "prostration" is defined as "a marked loss of strength, as in exhaustion."

The phrase "completely prostrating" (which is required for a 50 percent rating) is defined as "completely lacking in vitality or will" and "powerless to rise." See Johnson v. Wilkie, 30 Vet. App. 245 (2018). The United States Court of Appeals for Veterans Claims (Court) has indicated this phrase means the headaches "must render the veteran entirely powerless." Id. at 253 (emphasis in original). This differs from "characteristic prostrating" (which is required for a 30 percent rating), which means that the migraine attacks "typically produce powerlessness or a lack of vitality." Further, prolonged has been defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. "[P]roductive of severe economic inadaptability" has been defined as either "'producing' or 'capable of producing' severe economic inadaptability." Id. (citing Pierce v. Principi, 18 Vet. App. 440 (2004)).

Turning to the evidence, the record reflects that the Veteran receives VA treatment for his migraine headaches. In April 2017, the Veteran attended a neurology consult. During the consultation, the Veteran described two phenotypes of headaches. The first was described as a sharp pain (which the Veteran reported feels like needles) that begins bi-occipitally and radiates into the bifrontal areas and behind his eyes. The headaches typically last about 15 to 20 minutes and the longest duration was a couple hours. The second type of headache was described as a throbbing/pulsating pain that begins bi-occipitally and radiates into the bifrontal areas. This type of headache is longer-lasting (usually about two to four hours but as long as ten hours) and is associated with symptoms including nausea, vomiting, photophobia, and sensitivity to pinging sounds. It was noted that the Veteran does not experience any autonomic symptoms and that there is no change based on position. It was also noted that the frequency of headaches had worsened since he suffered a stroke in October 2016, that he experiences sharp headaches about seven times per month, that he experiences the pulsating headaches about five times per month, and that he described 10 to 15 headache-free days per month in total. The Veteran indicated that he had not tried any preventative medication besides Gabapentin and that he was currently taking about three to four tablets of Fioricet about four days per week, along with Tylenol and Motrin. He reported he had previously been prescribed Sumatriptan, but the medication did not alleviate his pain. Lastly, it was noted that Botox injections were recommended but the Veteran declined.

Private treatment records also provide evidence of the Veteran's symptoms. For example, a December 15, 2016 record indicates that the Veteran reported experiencing more severe daily headaches that were occipital and throbbing. It was noted that he had experienced these headaches daily for about a month. In a March 2017 record, it was noted that the Veteran reported daily headaches for two weeks. The headaches were occipital and throbbing. Symptoms included photophobia, phonophobia, and cutaneous allodynia and were aggravated with movement. The clinician noted that the headaches last for hours; that the Veteran experienced headaches 15 days per month; that the headaches are triggered by stress; and that relieving factors include sleeping in a dark, quiet place and taking the medication Sumatriptan. It was noted that over-the-counter pain medications did not alleviate his headaches. In an April 2021 record, it was noted that the Veteran experiences headaches that occur three to five times per week and can last for hours. The headaches are located in the occipital and bifrontal area; affect balance and speech; and are associated with nausea, photophobia, phonophobia, and occasional blurred vision. It was noted that the Veteran described the headaches as feeling like needles poking in the brain and rated the pain a level 10 out of 10. 

In September 2017, the Veteran underwent a VA examination. He was diagnosed with migraines including migraine variants. During the examination, the Veteran reported that his migraine headaches begin in the back of the head and radiate to the front of the forehead on both sides. He described a pressure feeling and needle sticking feeling. He indicated that the migraine headaches normally last three to four hours but can sometimes last overnight. He reported experiencing noise and light sensitivity, nausea, and vomiting; mild headache daily, which does not interfere with daily activities; and migraines every other day. The examiner indicated that the Veteran's migraine headaches require continuous medication for treatment, including Cymbalta and Acetaminophen. The examiner also reported that the Veteran's symptoms included headache pain, nausea, vomiting, and sensitivity to light and sound, and that typical head pain lasts one to two days. It was noted that the Veteran did not have any characteristic prostrating attacks of migraine or nonmigraine headache pain. 

On a December 2017 Notice of Disagreement, the Veteran reported regularly having debilitating migraines that often render him unable to leave his home or sustain regular employment. He reported that the migraines are unresolved and are poorly treated with recommended methods of treatment. 

In October 2021, the Veteran underwent another VA examination. During the examination, he reported experiencing sensitivity to light and sound, blurry vision, and throbbing head pain. He reported that the headache pain is so severe he cries at times. He also reported that his symptoms had increased and worsened after he contracted COVID and that he needs complete darkness when he experiences a headache. The examiner reported that continuous medication (Etodolac) was required to treat the Veteran's condition. The examiner also reported that the Veteran's symptoms included pulsating or throbbing head pain, pain localized to one side of head, and sensitivity to light and sound. It was noted that the head pain usually lasts less than one day and that he experiences frontal and occipital migraines. The examiner reported that the Veteran experiences characteristic prostrating attacks once every two months but did not experience any very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner opined that the Veteran's migraine headaches impact his ability to work, noting that the Veteran is limited in activities that require focus and concentration during migraine episodes, such as using a computer. Additionally, it was noted that the Veteran's migraine headaches prevent him from interacting normally with co-workers and customers and that fluorescent lights, strong smells, stress, weather changes, and physical activity can trigger migraines interfering with attendance and productivity. Lastly, the examiner indicated that the Veteran's migraine headaches can be well controlled with medication.  

Finally, in December 2021, the Veteran underwent an additional VA examination. During the examination, the Veteran reported that his symptoms included painful chronic migraines, sensitivity to light, difficulty communicating, nausea, and difficulty concentrating. The examiner indicated that continuous medication (Topiramate) was required for treatment. The examiner reported that symptoms include pulsating or throbbing head pain, pain on both sides of head, nausea, and sensitivity to light and sound. It was noted that the head pain lasts less than one day and occurs on both sides of the head. The examiner indicated that the Veteran experiences characteristic prostrating attacks of headache pain once in two months and that he did not experience any very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner opined that the Veteran's migraine headache condition impacts his ability to work and provided the same rationale as noted on the October 2021 VA examination report. 

After review of the evidence of record, the Board concludes that a 50 percent rating is warranted throughout the period on appeal for the Veteran's service-connected migraine headaches. The evidence is in approximate balance as to whether the Veteran experiences very frequent completely prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The evidence of record, including medical records and the Veteran's competent and credible statements, establishes that throughout the period on appeal the Veteran's migraine headaches occur several times per month (sometimes several times per week) and thus would more nearly approximate the "very frequent" criteria of DC 8100. Additionally, the record reflects that the Veteran has credibly reported experiencing completely prostrating and prolonged attacks as he indicated that the migraine headache pain can be so severe he cries and requires sleep or going into a dark and quiet place to alleviate the pain. He has also reported that the typical headache pain can last one to two days and that he only has a few headache-free days per month.  

Furthermore, the October and December 2021 VA examiners indicated that the Veteran's migraine headaches affect his ability to work. As explained above, the definition of "productive" does not require that the headaches actually produce severe economic inadaptability, but that they are capable of producing such. Here, in resolving all reasonable doubt in the Veteran's favor, the Board concludes that the nature of the Veteran's migraine headaches, particularly the fact that they are associated with sensitivity to light and sound and require being in a dark room, make them capable of producing severe economic inadaptability.

The Board acknowledges VA examiners' opinions that the Veteran did not experience very frequent completely prostrating and prolonged attacks of headache pain. However, it does not appear the examiners considered the Veteran's reports regarding the frequency and duration of his migraine headaches, as well as his statements that he has to go into a dark and quiet room or sleep to alleviate the pain. Additionally, the Board notes that medical examiners are responsible for providing a full description of the effects of disability upon the Veteran's ordinary activity; however, it is the responsibility of the adjudicator to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2. Here, the Board concludes that the VA examiners' conclusions regarding prostrating attacks are inconsistent with the rest of the record during the applicable appeal period.

Therefore, the Board finds the evidence more nearly approximates the assignment of an increased 50 percent rating for the entire period on appeal for the Veteran's migraine headaches. The Board further finds that the increased 50 percent rating should be made effective from November 15, 2016. This date is within a year prior to the Veteran's July 2017 claim for an increased rating and is when it first became factually ascertainable that the Veteran was experiencing more severe headaches at an increased rate. 38 C.F.R. § 3.400(o)(2). Specifically, a December 15, 2016 private treatment record reflects that the Veteran had been having more severe daily headaches for the last 30 days. As there is no higher schedular rating that can be assigned for migraine headaches by regulation, an evaluation of 50 percent, but no higher, is warranted.

2. SMC based on housebound criteria is granted.

VA has a duty to maximize benefits and to consider entitlement to SMC where applicable. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008); see also 38 C.F.R.§ 3.103(a) (noting VA's obligation to "render a decision which grants every benefit that can be supported in law"). Therefore, in light of the instant Board decision awarding an increased 50 percent rating for the Veteran's service-connected migraine headaches, the Board will properly take jurisdiction of the derivative issue of entitlement to SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i)(1).

Under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i)(1), SMC is payable if a Veteran has a single service-connected disability rated as 100 percent disabling, and he has additional service-connected disability or disabilities independently ratable at 60 percent or more, separate, and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems.

A January 2022 rating decision awarded the Veteran SMC at the housebound rate from October 20, 2021. Thus, the period for consideration is for the period from July 29, 2017 to October 19, 2021. From July 29, 2017, the Veteran has been in receipt of a 100 percent rating for his service-connected PTSD. The instant Board decision grants a schedular 50 percent rating for the Veteran's service-connected migraine headaches, including during the period from July 29, 2017 to October 19, 2021. He is also separately service connected for sleep apnea, evaluated as 50 percent disabling during this period. Thus, his service-connected migraines and sleep apnea are independently ratable at more than 60 percent, in accordance with the Combined Ratings Table under 38 C.F.R. § 4.25, as the combined rating for sleep apnea and migraine headaches is 80 percent. 38 C.F.R. § 4.25. Thus, they meet the criteria of disabilities independently ratable at 60 percent or more that are separate and distinct from the service-connected PTSD and involve different bodily systems.

Therefore, the Board finds that entitlement to SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) is warranted from July 29, 2017 to October 19, 2021.

 

 

M. SORISIO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S.J.

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.