Citation Nr: 1736683	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-13 992A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to a separate compensable rating for headaches as a residual of the Veteran's service-connected meningococcal meningitis.  


REPRESENTATION

Appellant represented by:	Scott Sexton, Attorney


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel






INTRODUCTION

The Veteran had active service with the United States Army from March 1944 to May 1946, including in the European Theater of Operations in World War II.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  In February 2016, the Veteran withdrew his hearing request. 

In a June 2016, the Board granted the Veteran a combined 60 percent rating for meningococcal meningitis (meningitis) and its residual neurological impairments as well as granted him a total rating based on individual unemployability (TDIU).  To date, the Board's grants have not been implemented.  In fact, in an April 2017 rating decision, the RO again denied the Veteran's entitlement to a TDIU.  , to date, the agency of original jurisdiction (AOJ) has not implemented the above awards.  In fact, a review of the record on appeal reveals that in an April 2017 rating decision the AOJ continued to deny his claim for a TDIU.  Therefore, the Board directs the AOJ to take corrective action as to this matter as soon as possible.

The Board also remanded for additional development the claim for a separate compensable rating for headaches as a residual of his meningitis.  Therefore, the Board finds that the only issue remaining in appellate status is the above claim for separate compensable ratings for headaches.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The most probative evidence of record shows that the Veteran's meningitis does not cause headaches.

CONCLUSION OF LAW

The criteria for separate compensable ratings for headaches as a residual of the Veteran's service-connected meningitis have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8100 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran claims, in substance, that he is entitled to a separate compensable rating for headaches because they are a residual of his service-connected meningitis.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27.  When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Regulations require that where there is a question as to which of two evaluations is to 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.

The Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

The Veteran is service-connected for meningitis rated as 60 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8019.  Moreover, the Veteran claims that he is entitled to a separate compensable rating for headaches as a residual of his service-connected meningitis.  

In this regard, in Esteban v. Brown, 6 Vet. App. 259, 261 (1994), the United States Court of Appeals for Veterans Claims (Court) held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings.  The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions.  Id.  VA's General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004).  The basis for the opinion was a finding that a limitation in planes of movement were each compensable.  Id.  VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disorder includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 23-97 (July 1, 1997).

Moreover, under 38 C.F.R. § 4.124a, Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months warrants a 10 percent disability rating; with characteristic prostrating attacks occurring on an average once a month over last several months warrants a 30 percent disability rating; and with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent disability rating. 

The post-remand record shows that VA obtained a medical opinion as to whether the Veteran's service-connected meningitis residuals included headaches in October 2016.  Moreover, that examiner opined that the Veteran's headaches were not residuals of his service-connected meningitis and this medical opinion is not contradicted by any other medical evidence of record.  Although the Veteran and other lay persons may claim otherwise, the Board does not find these lay claims probative because the question of whether headaches are a residual of meningitis is a complex medical question and they do not have the required medical training.  See Davidson.

Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected meningitis residuals do not include headaches.  Thus, the Board finds that the criteria for a separate compensable rating for headaches has not been met at all times during the pendency of the appeal regardless of the nature any severity of any headaches and the claim is denied.  See Hart; Fenderson. 


ORDER

A separate compensable rating for headaches as a residual of the Veteran's service-connected meningitis is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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