Citation Nr: 24017331
Decision Date: 04/23/24	Archive Date: 04/23/24

DOCKET NO. 191106-42410
DATE:  April 23, 2024

ORDER

Entitlement to a disability rating in excess of 10 percent for a lumbar spine disability is denied.

Entitlement to a disability rating of 10 percent for a hernia scar is granted.

Entitlement to a compensable disability rating for a traumatic brain injury (TBI) is denied.

Entitlement to a separate 10 percent rating for a headache disorder due to a service connected TBI is granted. 

FINDINGS OF FACT

1. Throughout the entire period on appeal, the Veteran's lumbar spine disability did not manifest as forward flexion greater than 30 degrees but not greater than 60 degrees; or, a combined range of motion not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

2. Granting reasonable doubt to the Veteran, his hernia scar causes functional limitations due to pain which is analogous to having one painful scar.

3. The Veteran's manifestations of TBI are limited to headaches which is rated under a separate diagnostic code.

4. Granting reasonable doubt to the Veteran, his TBI caused him to develop a headache disorder resulting in characteristic prostrating attacks averaging one in two months over the last several months.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 10 percent for a lumbar spine disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5237.

2. The criteria for a disability rating of 10 percent for a hernia scar are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804.

3. The criteria for entitlement to a compensable evaluation for a TBI are not met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.156, 3.400, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8045.

4. The criteria for a separate 10 percent disability rating for a headache disorder as secondary to a service connected TBI are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1987 to December 1996, from September 2001 to January 2003, from August 2004 to January 2005, and from January 2008 to July 2008. 

This case is being reviewed according to the appellate process set forth under the Appeals Modernization Act (AMA). 38 C.F.R. § 19.2. 

This appeal is before the Board of Veterans' Appeals (Board) from an October 2019 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran submitted a VA Form 10182 Notice of Disagreement and selected the Direct Review Docket. Under this Docket, the Board may consider the evidence of record at the time of the rating decision on appeal. 38 C.F.R. §§ 19.2(d), 20.301. Here, the Board may only consider the evidence of record at the time of the October 17, 2019, rating decision on appeal. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board notes, in September 2020, the Board issued a decision which granted service connection for a pulmonary embolism and an acquired psychiatric disorder, and denied service connection for PTSD. However, the September 2020 Board decision did not address issues within the Board's jurisdiction; thus, a supplemental Board decision is appropriate in this case. Accordingly, this supplemental decision is being issued. 38 C.F.R. §§ 20.904, 20.1000-1001, 20.1102, 20.1400-1411. Specifically, the Board sought clarification of several issues listed on the November 2019 VA Form 10182, and within the prescribed time for response, the Veteran submitted a new VA Form 10182 clarifying the issues on appeal. The Board notes that although the Veteran sought to appeal "increased ratings" for pulmonary embolism and adjustment disorder, the Board granted service connection for these disabilities in its September 2020 decision. As those rating issues were not addressed in the October 2019 rating decision on appeal, they will not be addressed herein. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).

Increased Rating

Lumbar Spine

The Veteran seeks entitlement to a disability rating in excess of 10 percent for his lumbar spine disability; however, the Veteran has not provided the Board any argument or evidence as to why an increased rating is warranted. 

In this case, the Board finds the evidence of record does not indicate a disability rating in excess of 10 percent for the lumbar spine disability is warranted. In rating a disability of the musculoskeletal system, a number of factors are considered. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

The Veteran's lumbar spine is currently rated as 10 percent disabling under Diagnostic Code 5237. A 20 percent disability rating is assigned for forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 

Intervertebral disc syndrome (IVDS) is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher disability rating. A 20 percent evaluation is awarded for a disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243.

An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1).

Here, the only VA examination of record indicated his forward flexion was 90 degrees, his combined range of motion was 240 degrees, and he denied experiencing flare-ups and functional loss or impairment. See September 2019 Examination. Moreover, the VA treatment records only document routine treatment for his lumbar spine. Indeed, the evidence of record does not include any evidence of record indicating a disability rating in excess of 10 percent is warranted.

The Board has also considered whether a higher disability rating is warranted if his lumbar spine disability more closely resembled the criteria contemplated by a 20 percent rating as a result of additional functional loss due to pain, weakness, fatigability, incoordination, and other factors. DeLuca, 8 Vet. App. at 204-07. Here, the Veteran's forward flexion was never determined to be less than 90 degrees and his total range of motion was never less than 240 degrees. Furthermore, he was able to perform repetitive use testing and denied experiencing flare-ups or functional impairments. Moreover, the evidence of record does not contain any competent or credible medical evidence to support a disability rating in excess of 10 percent under DeLuca. As such, the Board finds the evidence weighs against a finding of the functional equivalent of the limitation in range of motion contemplated by a 20 percent rating. Id. For these reasons, the Board finds that an evaluation in excess of 10 percent is not warranted under the General Rating Formula pertinent to the lumbar spine.

The Board has also considered whether the Veteran might be entitled to a higher evaluation under the ratings criteria for IVDS found in Diagnostic Code 5243. To receive a 20 percent disability rating requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 38 C.F.R. § 4.71a. However, the evidence of record does not indicate the Veteran has been diagnosed with IVDS, or experienced an incapacitating episode consistent with the symptomatology for IVDS at any point during the appeal period. As such, a higher rating is not warranted for IVDS under Diagnostic Code 5243.

Additionally, the Board acknowledges that the General Rating Formula for the Spine notes that VA should "[e]valuate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code." See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1); Chavis v. McDonough, 34 Vet. App. 1, 15-16 (2021) (holding that the Board did not err in considering a claimant's lower extremity radiculopathy ratings as part of the claim seeking higher compensation for the lumbar spine disability). However, in this case, there is no evidence that the Veteran suffered any objective neurologic abnormalities associated with the spine. Therefore, separate ratings are not warranted.

In sum, the Board finds the evidence of record is against the assignment of an evaluation in excess of 10 percent for the Veteran's service-connected lumbar spine disability. To the extent that any higher or separate ratings are sought, as the weight of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the claim is denied.

Hernia Scar

The Veteran seeks entitlement to a compensable disability rating for his hernia scar; however, the Veteran has not provided the Board any argument or evidence as to why an increased rating is warranted.

The Board notes initially that the claim was received after the August 13, 2018, effective date for application of the most recent amendments to the rating schedule for skin disabilities. Thus, the Board will only consider the most recent amendments. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

In this case, the Board finds that granting reasonable doubt to the Veteran his hernia scar warrants a 10 percent rating under DC 7804, as analogous to a painful scar throughout the entire period on appeal. The Veteran's hernia scar is rated under 38 C.F.R. § 4.118, Diagnostic Code 7802 for scars not of the head, face, or neck. Diagnostic Code 7804 however, provides a 10 percent rating for one or two painful or unstable scars. Diagnostic Code 7804 also contains the following notes: (1) An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. (2) If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. (3) Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Here, the September 2019 VA examination objectively documented one scar and subjectively documented complaints of pain while lifting. The Board finds these subjective complaints sufficient to rate the Veteran's single scar as analogous to a painful scar. Moreover, there is no lay or medical evidence to suggest that the hernia scar is unstable and, as such, an additional 10 percent rating based on an unstable scar is not warranted. Accordingly, the Board finds that a single 10 percent rating is warranted for pain associated with lifting and movement.

The Board has also considered the applicability of other diagnostic codes for rating the Veteran's skin condition; however, DC 7800 involves scars to the head, face, or neck and is not applicable here; DC 7801 requires scars to be of a size greater than the Veteran's hernia scar to warrant a rating greater than 10 percent; DC 7802 does not provide for a rating higher than 10 percent and, in any case, involves scars of greater size than the Veteran's hernia scar. Accordingly, the Board does not find any other DC that more closely approximates the Veteran's symptoms.

In conclusion, granting reasonable doubt to the Veteran, the Board finds his hernia scar warrants a 10 percent rating throughout the entire period on appeal. To the extent that any higher or separate level of compensation is sought, the weight of the evidence is against the claim and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

TBI Rating

Separate Headache Rating

The Veteran seeks entitlement to a compensable disability rating for his TBI; however, the Veteran has not provided the Board any argument or evidence as to why an increased rating is warranted. As an initial matter, the Board notes the Veteran is independently rated for an acquired psychiatric disorder and any residual psychiatric symptoms due to his TBI would be included in his current rating. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders; see also Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, the Board will not be addressing those symptoms. 

Under 38 C.F.R. § 4.124a DC 8045, there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38C.F.R. §4.124a, DC 8045.

Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. VA is to evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified."

Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified." However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table.

VA is to evaluate emotional/behavioral dysfunction under 38C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified."

VA is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions.

The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed in 38C.F.R. §4.124a, Diagnostic Code 8045, that are reported on an examination, VA is to evaluate under the most appropriate diagnostic code. Each condition is to be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.

The table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" addresses 10 facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." Not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet.

In this case, a September 2019 VA examination subjectively noted headaches. Ultimately, other than headaches, the examiner determined the Veteran did not experience any other impairment related to his TBI. Moreover, the VA treatment records do not include any other treatment or complaints related to his TBI symptoms that he is not already compensated for or were not contemplated in the September 2019 VA examination. Therefore, the Board finds that a compensable rating for TBI under SC 8045 is not warranted. No further impairment from the TBI has been found on examination or noted by the Veteran. Therefore, in light of the other ratings assigned and discussed herein, the Board finds that a compensable rating for TBI is not warranted.

As to headaches, DC 8045, residuals of TBI, notes that any residuals with a distinct diagnosis that may be evaluated under another DC should be separately evaluated, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table.

As such, the Board has considered whether a separate compensable rating is warranted for headaches.

Headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100, for migraine. Migraine headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. See 38 C.F.R. §§ 4.20, 4.27. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensable. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. 38 C.F.R. § 4.124a, DC 8100.

"?Prostrating' means 'lacking in vitality or will: powerless to rise: laid low.'" Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018) (citing Webster's Third New International Dictionary of the English Language Unabridged 1822 (1966)). The phrase 'characteristic prostrating attacks' plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. Johnson, at 252. Moreover, "[t]he modifier 'completely,' as used before 'prostrating' in the 50 percent criteria, means that the veteran must be rendered entirely powerless and... 'productive of severe economic inadaptability' means either producing or capable of producing severe economic inadaptability." Holmes v. Wilkie, 33 Vet. App. 67, 70 (2020) citing Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018); Pierce v. Principi, 18 Vet. App. 440, 446 (2004).

Moreover, the Court of Appeals for Veterans Claims (the Court) has held that DC 8100 contemplates more than just headache symptoms and requires that VA consider all the symptoms the veteran experiences as a result of migraine attacks, and then rate those symptoms based on the frequency, duration, severity, and economic impact of the attacks. Holmes v. Wilkie, 33 Vet. App. 67, 73 (2020). Thus, symptoms other than headaches, such as various non-headache symptoms like dizziness, nausea, vertigo, mood swings, sleep impairment, etc., are adequately contemplated by the migraine headache rating criteria under DC 8100. Id.

The Court has held that the rating criteria under DC 8100 are successive, and therefore require that a veteran rated at a higher level must satisfy all the requirements of the lower levels. Johnson v. Wilkie, 30 Vet. App. 245, 253-254 (2018). As such, §§ 4.7 and 4.21 do not apply to this regulation. Id. However, § 4.3 concerning the resolution of reasonable doubt does apply. Id. at 254.

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?

In this case, a September 2019 VA headache examination report subjectively noted headaches from "time to time" and last for an hour and he tried to "relax" and his headaches result in changes in vision. Moreover, a corresponding VA TBI examination report determined his headaches were a residual of his TBI. Furthermore, the evidence also includes a VA treatment record documenting complaints for headaches. See 2014 Record. Considering the above, the Board finds a separate rating for headaches is warranted throughout the entire period on appeal. Specifically, the Board finds the subjective reports of headaches commensurate with the 10 percent rating criteria contemplated under 38 C.F.R. § 4.124a, DC 8100 for characteristic prostrating attacks averaging one in two months over the last several months. To the extent any higher ratings are sought, the evidence does not indicate his headaches occurred once a month over last several months. Id. Moreover, the evidence of record is devoid of any competent or credible evidence to include lay statements indicating such a rating is warranted. Considering the entirety of the evidence of record, the Board finds the effects of his headaches are commensurate with the criteria of a 10 percent rating. To the extent that any higher level of compensation is sought during this period, the weight of the evidence is against the claim and the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

 

 

Tracie N. Wesner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Masters, Tyler

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.