Citation Nr: A25035761 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240328-429351 DATE: April 17, 2025 ORDER An initial compensable rating for headaches is denied. REMANDED Entitlement to service connection for erectile dysfunction is remanded. FINDING OF FACT During the period on appeal, the evidence is persuasively against a finding that the Veteran's headache disability was manifested by characteristic prostrating attacks averaging one in two months over the last several months. CONCLUSION OF LAW The criteria for an initial compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from August 2019 to August 2023, to include service in Qatar and Kuwait. His decorations include the Global War on Terrorism Expeditionary Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2023 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed to the Board by filing a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement (NOD))) in March 2024, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ). 38 C.F.R. §§ 20.201, 20.202(b)(1). Under the direct review option, the Board may only consider the evidence of record at the time of issuance of the AOJ rating decision on appeal. 38 C.F.R. § 20.301. The Board cannot consider evidence submitted after that decision was promulgated. As set out below, the Board is entering a decision denying the Veteran's claim for an initial compensable rating for headaches. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on that claim. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As to the claim of entitlement to service connection for erectile dysfunction, the Board is remanding that claim to the AOJ for correction of a pre-decisional duty to assist error. The AOJ will consider any additional evidence that has been submitted when that claim is readjudicated. 38 C.F.R. § 3.103(c)(2)(ii). As a final introductory matter, the Board notes that the Veteran also indicated in his March 2024 VA Form 10182 that he wanted to appeal the ratings assigned for disabilities of his knees in the August 2023 rating decision. However, he had already appealed those issues in a prior NOD filed in September 2023. The Board separately docketed those issues and has since addressed them in a January 2025 disposition. As such, they are not properly before the Board in the present appeal stream. An initial compensable rating for headaches is denied. The Veteran is in receipt of an initial 0 (zero) percent (noncompensable) rating for his service-connected headache disability, effective August 5, 2023. On appeal, he seeks a higher initial rating. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. The law mandates resolving reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's service-connected headache disability has been evaluated under DC 8100. Under that diagnostic code, a 0 percent rating is assigned for less frequent attacks than for a 10 percent rating. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for 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 headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The United States Court of Appeals for Veterans Claims (Court) held in Johnson v. Wilkie, 30 Vet. App. 245 (2018), that DC 8100 contains 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, DC 8100. In determining whether the Veteran experiences the type and frequency of prostrating attacks of headaches necessary for a higher rating under DC 8100, the Board observes that the rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson, 12 Vet. App. at 119 (in which the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), page 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28th Ed. 1994), page 1367, in which "prostration" is defined as "extreme exhaustion or powerlessness." 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). The Veteran's service treatment records (STRs) show no complaints or treatment for headaches prior to June 2023. Treatment records from May 2020, July 2020, and January 2023 show no headaches under review of systems. Additionally, the Veteran denied having ever had frequent or severe headaches in a March 2023 report of medical history. In a June 2023 separation health assessment, the Veteran reported having pounding headaches in the back of the head and bilateral front of the head. He indicated that they occurred once per month, that they lasted two hours, and that he used Motrin as needed. The Veteran was afforded a VA examination in connection with the current claim in June 2023. The examiner diagnosed the Veteran with an unspecified headache disability. The Veteran reported that the disability had its onset in 2020 with symptoms of pounding in the back of the head and bilateral front of the head. He indicated that they occurred once per month, that they lasted two hours, and that he used Motrin as needed. It was also noted that he had sensitivity to light with his headaches, in addition to pulsating or throbbing head pain and pain on both sides of his head, with the typical location of head pain being both sides of the head. The examiner indicated that the duration of the Veteran's typical head pain was less than one day, and that he did not have any characteristic prostrating attacks of migraine or non-migraine headache pain of any duration or any frequency, nor did he have any completely prostrating and prolonged attacks of migraine or non-migraine pain. The examiner noted that the Veteran's headache disability impacted his ability to work in that he had missed 0 to 1 week of work time in the last 12 twelve months, and noted the Veteran's report of having to stop working until his headaches resolved when shooting machine guns. In light of the foregoing, the Board must find that the Veteran's headache symptoms were most consistent with the criteria for a noncompensable rating throughout the period on appeal. In short, the evidence available for review does not show that he then experienced characteristic prostrating attacks that occurred on an average of once every two months over the last several months. The contemporaneous medical evidence does not support that he suffered from the "extreme exhaustion or powerlessness," or symptoms indicative of the same, so as to qualify for a compensable rating. As the evidence weighs persuasively against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.§ 5107(b); 38 C.F.R. § 4.3. The appeal of this issue must be denied. REASONS FOR REMAND Entitlement to service connection for erectile dysfunction is remanded. The Veteran seeks to establish service connection for erectile dysfunction. He has reported that the condition began during service, after his first deployment. The Veteran underwent a VA examination in connection with his claim in June 2023. After examining the Veteran and reviewing the record, the examiner concluded that a diagnosis of erectile dysfunction could not be confirmed. The examiner noted that the Veteran had never been seen for erectile dysfunction up to that point, that the claims file was otherwise negative for the condition, and that there was no objective finding to support a diagnosis. On review, the Board finds that the forgoing examination report is inadequate for purposes of adjudication. In arriving at her conclusion as to the presence of a current disability, the examiner did not discuss an April 2023 statement from the Veteran's spouse to the effect that the Veteran began experiencing trouble with sexual intimacy during service, and that when she and the Veteran were intimate, it was rare for "everything to happen properly . . . . we had about a 1:4 success rate." Nor did the examiner explain why the Veteran's self-report of erectile dysfunction, without more, was insufficient to support a diagnosis. Under the circumstances, the AOJ should have obtained a new or addendum medical opinion before entering a decision on the Veteran's claim. The failure to do so constitutes a pre-decisional duty to assist error that must be corrected. This matter is REMANDED for the following action: Arrange to have the Veteran scheduled for a VA examination pertaining to erectile dysfunction. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran suffers from erectile dysfunction that had its onset in, or is otherwise attributable to, his period of active service. In so doing, the examiner must consider the lay statements from the Veteran and his spouse to the effect that the Veteran developed erectile dysfunction during service. If the examiner finds that the lay statements are insufficient to support a diagnosis of erectile dysfunction and/or a link to service, the examiner should explain with specificity why that is so. A complete medical rationale for all opinions expressed must be provided. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moody, Kenneth R. 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.