Citation Nr: 1736654	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  06-17 467	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for residuals of cerebrovascular accident (CVA) or stroke, to include as secondary to residuals of traumatic brain injury (TBI) with cephalgia.  

2.  Entitlement to an initial disability rating in excess of 10 percent for residuals of traumatic brain injury (TBI) with cephalgia prior to April 3, 2009, and a compensable disability rating thereafter.  

3.  Entitlement to an initial disability rating in excess of 30 percent for tension headaches associated with residuals of traumatic brain injury (TBI).  

4.  Entitlement to an initial disability rating in excess of 20 percent for degenerative disease of the lumbosacral spine prior to October 21, 2010, and in excess of 40 percent thereafter.  



REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Chad Johnson, Associate Counsel


INTRODUCTION

The Veteran had active service from February 1978 to August 1983.  

These matters come to the Board of Veterans' Appeals (Board) from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  

During the pendency of the appeal, a December 2009 RO decision granted a 30 percent disability rating, effective April 3, 2009, for the Veteran's tension headaches associated with residuals of TBI.  Additionally, an April 2012 RO decision granted an increased 40 percent disability rating for the Veteran's lumbar spine disability, effective October 21, 2010.  However, as these decisions do not represent a total grant of benefits sought on appeal, the respective claims remain before the Board.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  

Similarly, a July 2014 rating decision granted service connection for a residual lumbar scar, effective May 25, 2005, and a November 2014 RO decision granted service connection for right lower extremity radiculopathy and a total disability rating based upon individual unemployability (TDIU), each effective July 26, 2014.  However, as the Veteran has not appealed these grants or the disability ratings or effective dates assigned, they are not currently before the Board as part of the current appeal.  38 C.F.R. §§ 20.200-02 (2016).  

The Veteran's claims on appeal were previously remanded by the Board in September 2010, September 2012, and most recently in September 2016 for additional development; as the requested development has since been completed, the matters are now properly returned to the Board for further adjudication.  See Stegall v. West, 11 Vet. App. 268 (1998).  

Finally, the issue of entitlement to service connection for a cervical spine disability has been raised by the record in an April 2016 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016).  


FINDINGS OF FACT

1.  The Veteran has not had a current disability of residuals of cerebrovascular accident (CVA) or stroke for any period on appeal.  

2.  Prior to April 3, 2009, the Veteran's residuals of TBI with cephalgia were manifested by no worse than subjective complaints of headaches, dizziness, and insomnia, recognized as symptomatic of brain trauma, and no worse than level 1 impairment for any of the facets according to the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table.  

3.  From April 3, 2009, the Veteran's residuals of TBI with cephalgia have been manifested by tension headaches, which are separately service connected under an appropriate diagnostic code, without other compensable residuals.  

4.  For the entire period on appeal, the Veteran's tension headaches associated with residuals of TBI have been manifested by no worse than headaches with characteristic prostrating attacks occurring on an average once a month over the last several months, without very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  

5.  Prior to March 18, 2010, the Veteran's degenerative disease of the lumbosacral spine was manifested by no worse than subjective pain with limitation of motion including forward flexion of the thoracolumbar spine 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, without abnormal gait or spinal contour, thoracolumbar spine ankylosis, or incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  

6.  From March 18, 2010, the Veteran's degenerative disease of the lumbosacral spine was manifested by no worse than subjective pain with limitation of motion including forward flexion of the thoracolumbar spine to 30 degrees or less, without any ankylosis of the thoracolumbar spine or incapacitating episodes of IVDS having a total duration of at least 6 weeks during the past 12 months.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for residuals of cerebrovascular accident (CVA) or stroke, to include as secondary to residuals of TBI with cephalgia, have not been met.  38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).  

2.  The criteria for an initial disability rating in excess of 10 percent for residuals of TBI with cephalgia prior to April 3, 2009, and a compensable disability rating thereafter, have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8045 (2008, 2016).  

3.  The criteria for an initial disability rating in excess of 30 percent for tension headaches associated with residuals of TBI have not been met for any period on appeal.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8100 (2016).  

4.  The criteria for an initial disability rating in excess of 20 percent for degenerative disease of the lumbosacral spine is denied prior to March 18, 2010; however, the criteria for an increased 40 percent disability rating, but no higher, have been met from March 18, 2010.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237, 5242, 5243 (2016).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process  

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).  

II.  Service Connection - CVA/Stroke  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016).  "To establish a right to compensation for a present disability, a Veteran must show:  '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

Service connection may also be granted on a secondary basis for a disability which is "proximately due to or the result of a service-connected disease or injury".  38 C.F.R. § 3.310(a) (2016).  Where a service-connected disability aggravates a nonservice-connected disability, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(b).  

The Court of Appeals for Veterans Claims (Court) has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability.  "In the absence of proof of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

The Veteran claims entitlement to service connection for residuals of cerebrovascular accident (CVA) or stroke, to include as secondary to residuals of traumatic brain injury (TBI) with cephalgia.  

The Board acknowledges that private treatment records from May 2005 document a medical history including transient ischemic attack (TIA); similarly, VA treatment records from July 2007 document an assessment of TIA.  Significantly, however, upon VA examination in February 2013, the examiner acknowledged the Veteran's reports of a past TIA in 2005 without any current symptoms, but ultimately opined that there was no objective clinical evidence of residuals of stroke or TIA.  

Indeed, to the extent that private and VA treatment records contain references to TIA, such assessments appear to be no more than a recording of the Veteran's own subjective medical history.  Accordingly, such evidence of a no probative weight.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (holding that medical evaluation that is merely a recitation of a veteran's self-reported and unsubstantiated history has no probative value); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value).  

Given the above, the Board finds there is no competent and probative evidence that the Veteran has been diagnosed with a current residuals of cerebrovascular accident (CVA), TIA, or stroke during the pendency of the appeal.  See Brammer, 3 Vet. App. at 225; see also McClain, 21 Vet. App. at 321.  

Although the Veteran's reports are competent insofar as they report observable symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994); to the extent that the Veteran asserts a current CVA disability which is related to active service or service-connected TBI, such statements are less probative, as the Veteran lacks the medical expertise to diagnose a complex condition such as a CVA or to render a nexus opinion relating such condition to active service or a service-connected disability.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

In sum, there is no probative evidence of record to support the Veteran's claim of entitlement to service connection for residuals of CVA or stroke, to include as secondary to residuals of TBI with cephalgia.  Accordingly, the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

III.  Initial Ratings - Generally  

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2016).  

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2016).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2016).  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2016).  

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2016).  

In every instance where the schedule does not provide a zero percent disability rating for a diagnostic code, a zero percent disability rating shall be assigned when the requirements for a compensable disability rating are not met.  38 C.F.R. § 4.31 (2016).  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40 (2016).  With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes.  Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse.  Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations.  38 C.F.R. § 4.45.  Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2016).  However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when the current appeal arises from the initial rating assigned, consideration must be given to the evidence since the effective date of the claim as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Board has, therefore, considered the Veteran's initial rating claims from their assigned effective dates, as well as any currently assigned staged rating periods.  

III.A.  Initial Rating - TBI  

The Veteran also claims entitlement to an initial disability rating in excess of 10 percent for residuals of traumatic brain injury (TBI) with cephalgia prior to April 3, 2009, and a compensable disability rating thereafter, pursuant to DC 8045.  38 C.F.R. § 4.124a, DC 8045 (2008, 2016).  As discussed further in the following section, his tension headaches associated with residuals of TBI have been properly rated under an associated diagnostic code from April 3, 2009.  

Prior to October 23, 2008, DC 8045 provided that purely subjective complaints such as headache, dizziness, insomnia, recognized as symptomatic of brain trauma, warranted a 10 percent disability rating but no higher; additionally, the 10 percent disability rating for subjective disabilities could not be combined with any other disability rating for a subjective disability due to brain trauma, except where for multi-infarct dementia was diagnosed.  38 C.F.R. § 4.124a, DC 8045 (prior to October 23, 2008).  

DC 8045 was amended by VA effective October 23, 2008 to authorize separate disability ratings for separate TBI residuals resulting in different types of impairment.  38 C.F.R. § 4.124a, DC 8045 (2016).  A Veteran whose residuals of TBI were rated under DC 8045 prior to the 2008 regulatory revision is permitted to request review under the amended criteria, and the Veteran's submissions during the pendency of his appeal have properly been interpreted as a request for review under the revised criteria.  

Effective October 23, 2008, pursuant to DC 8045, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, which is common in varying degrees after TBI; emotional/behavioral; and physical; each of those areas of dysfunction may require rating.  Id.  

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.  Cognitive impairment is evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."  Id.  

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

Emotional/behavioral dysfunction is evaluated under 38 C.F.R. § 4.130 (2016) when there is a diagnosis of a mental disorder.  When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."  

Physical (including neurological) dysfunction is evaluated 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.  Id.  

The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI; residuals not listed that are reported on an examination are to be evaluated under the most appropriate diagnostic code, with each condition rated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combined under 38 C.F.R. § 4.25 (2016).  The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.  Id.  

An additional consideration is the potential need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc.  Id.  

The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI 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 level 5, the highest level of impairment, labeled total.  However, 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 rating if total is the level of evaluation for one or more facets.  If no facet is evaluated as total, assign the overall percentage rating 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 rating if 3 is the highest level of evaluation for any facet.  Id.  

There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, do not assign more than one rating based on the same manifestations.  If the manifestations of two or more conditions cannot be clearly separated, assign a single rating under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  However, if the manifestations are clearly separable, assign a separate rating for each condition.  Id., Note (1).  

Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation.  Id., Note (2).  

Instrumental activities of daily living refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone.  Those activities are distinguished from activities of daily living, which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet.  Id., Note (3).  

The terms mild, moderate, and severe TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning.  That classification does not affect the rating assigned under diagnostic code 8045.  Id., Note (4).  

Based on a review of the evidence, and as discussed further below, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for residuals of TBI with cephalgia prior to April 3, 2009, and a compensable disability rating thereafter, pursuant to DC 8045.  

Upon VA neurological examination in September 2005, the Veteran reported recurrent generalized headaches occurring two to three times per week.  Upon physical examination, he appeared alert and oriented, without impairment of speech, memory, or thinking.  Cranial nerve function was intact, and motor strength, reflexes, and sensory examinations were normal.  The examiner diagnosed a closed head injury with history of cephalgia, mild fascial in type with no resulting neurologic disability.  

In April 2009, the Veteran reported ongoing headaches, impaired double vision, and impaired memory and recall.  Upon VA examination in May 2009, he reported worsening headaches which occurred at least weekly, but not daily, and limited ordinary activity.  He further reported dizziness and light sensitivity with his headaches, which were relieved with Naprosyn medication and sleep.  There was no history of psychiatric symptoms, memory impairment, other cognitive symptoms, neurobehavioral change, or associated neurologic impairment other than his reported headaches.  Physical examination revealed normal motor, reflex, and sensory evaluations.  

Upon VA neurological examination in October 2010, the Veteran reported worsening headaches, which occurred daily, with related dizziness, nausea, and light sensitivity, with more than half of such attacks being prostrating.  To the extent that the Veteran reported additional symptoms including sleep impairment, fatigue, decreased visual acuity, and memory impairment, the Board affords more probative weight to the examiner's finding that such reported symptoms were not due to his moderate TBI condition.  Notably, the examiner diagnosed a closed head injury in-service with residuals of tension headaches but with no other residuals.  

Most recently, upon VA TBI examination in February 2013, the Veteran's memory, judgment, social interaction, orientation, motor activity, and visual spatial orientation were all normal.  The Veteran reported subjective symptoms that did not interfere with activities of daily living or work, family, or other close relationships, including mild or occasional headaches and mild anxiety.  There were no related neurobehavioral effects, and communication and consciousness were normal.  

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for residuals of TBI with cephalgia prior to April 3, 2009, and a compensable disability rating thereafter under DC 8045.  

As discussed above, the Veteran has consistently reported symptoms of headaches related to his service-connected residuals of TBI with cephalgia.  Under the relevant rating criteria prior to October 23, 2008, his subjective complaints warranted a 10 percent disability rating but no higher.  38 C.F.R. § 4.124a, DC 8045 (prior to October 23, 2008).  Additionally, prior to April 3, 2009, the Veteran's subjective reports of headache symptoms warrant the assignment of a level 1 of impairment under the subjective symptoms facet of cognitive impairment and the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified," as such, a disability rating of 10 percent is likewise warranted under the revised criteria.  See id. (2016).  

From April 3, 2009, the Veteran's residuals of TBI with cephalgia have been limited to his complaints of tension headaches with related symptomatology, and as discussed below, this has been separately rated under an appropriate diagnostic code which allows the better assessment of overall impaired functioning.  Significantly, there are no other subjective or objective residuals of the Veteran's TBI from April 3, 2009, and an additional disability rating for the same headache symptoms is expressly prohibited.  38 C.F.R. § 4.14.  

Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for residuals of TBI with cephalgia prior to April 3, 2009, and a compensable disability rating thereafter under DC 8045.  As such, there is no reasonable doubt to be resolved, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2016); Gilbert, 1 Vet. App. 49.  

III.B.  Initial Rating - Headaches  

The Veteran's tension headaches associated with residuals of a TBI, are currently rated as 30 percent disabling from April 3, 2009 under DC 8100.  38 C.F.R. § 4.124a, DC 8100 (2016).  

In relevant part, DC 8100 provides for a 30 percent disability rating for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months.  Id.  A maximum schedular 50 percent disability rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Id.  

The Board notes that the criteria for a 50 percent rating are written in the conjunctive; thus, all criteria must be met.  See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met).  Additionally, the rating criteria do not define "prostrating" attacks.  "Prostration" is defined as "extreme exhaustion or powerlessness."  See Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012).  This is consistent with medical guidance used by the VA Compensation Service which suggests that "[a] prostrating migraine may be described as a condition that causes lack of strength to the point of exhaustion."  See VA Compensation Service's Medical Electronic Performance Support System (2015).  Likewise, the rating criteria also do not define "severe economic inadaptability."  However, nothing in DC 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent disability rating.  See Pierce v. Principi, 18 Vet. App. 440 (2004).  

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against an initial disability rating in excess of 30 percent for tension headaches associated with residuals of TBI for the entire period on appeal.  

As discussed above, in April 2009, the Veteran reported ongoing headaches, impaired double vision, and impaired memory and recall.  Upon VA examination in May 2009, he reported worsening headaches which occurred at least weekly, but not daily, and limited ordinary activity, and further reported dizziness and light sensitivity with his headaches, which were relieved with Naprosyn medication and sleep.  The examiner diagnosed headaches status post an in-service fascial type head injury, with no significantly resulting functional effects upon the Veteran's usual occupation or usual daily activities.  

Upon VA neurological examination in October 2010, he reported worsening headaches which occurred daily, with related dizziness, nausea, and light sensitivity, with more than half of such attacks being prostrating.  The examiner diagnosed a closed head injury during active service with residuals of moderate facial/tension headaches associated with nausea, light sensitivity, and mild dizziness, with functional impact upon the Veteran's usual occupation in that he was assigned different work duties.  

Upon VA headache examination in February 2013, the Veteran reported ongoing headaches about three to four times per week, lasting less than one day in duration, and relieved with prescription medication, with additional symptoms including light sensitivity, sound sensitivity, and dizziness.  The examiner noted there were characteristic prostrating attacks of non-migraine headache pain occurring, on average, once in 2 months, without very frequent prostrating and prolonged attacks of non-migraine pain or resulting functional impact upon the Veteran's ability to work.  

The Board has also considered Social Security Administration (SSA) disability records which document that the Veteran has been found disabled from April 2011; however, such records clearly document that the Veteran is disabled per SSA due to disability of his back, rather than his claimed tension headaches.  

In sum, the preponderance of evidence does not document that the Veteran's tension headaches associated with residuals of TBI have resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for any period on appeal; as such, an increased disability rating in excess of 30 percent is not warranted for any period on appeal.  38 C.F.R. § 4.124a, DC 8100.  As such, there is no reasonable doubt to be resolved, and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra.  

III.C.  Initial Rating - Spine  

The Veteran's service-connected degenerative disease of the lumbosacral spine is rated as 20 percent disabling prior to October 21, 2010, and as 40 percent disabling thereafter, under the General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DCs 5237, 5242 (2016).  

The General Rating Formula for Diseases and Injuries of the Spine provides the following, in pertinent part:  a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine 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.  Id.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Id.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine.  Id.  These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  Id.  

The Board acknowledges that IVDS may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS).  See 38 C.F.R. § 4.71a, DC 5243, Formula for Rating IVDS (2016).  For the purposes of evaluations under the Formula for Rating IVDS, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Id. at Note 1.  

The General Rating Formula for Diseases and Injuries of the Spine also provides further guidance in rating diseases or injuries of the spine.  Relevant to the issue on appeal, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  Id.  Note (4) provides that each range of motion measurement is to be rounded to the nearest five degrees.  Id.  

Following a review of the evidence of record, the Board finds that an increased 40 percent disability rating is warranted from March 18, 2010.  However, the preponderance of evidence weighs against the Veteran's claim of entitlement to an initial disability rating in excess of 20 percent prior to March 18, 2010, and in excess of 40 percent thereafter.  

Significantly, the evidence of record prior to March 18, 2010 does not document that the Veteran's lumbar spine disability was manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  Indeed, upon VA examination in September 2009, the Veteran exhibited forward flexion of the thoracolumbar spine to 45 degrees also without noted ankylosis, related neurological deficiency, or IVDS with incapacitating episodes.  Similarly, VA examination in December 2007 revealed forward flexion to 65 degrees without noted ankylosis, related neurological deficiency, or IVDS with incapacitating episodes.  

However, upon VA examination in March 18, 2010, the Veteran displayed forward flexion of the thoracolumbar spine to 30 degrees, without noted ankylosis, related neurological deficiency, or IVDS with incapacitating episodes.  As such, an increased 40 percent disability rating is warranted from March 18, 2010.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, DCs 5237, 5242.  

Upon VA examination in October 2010, forward flexion was limited to 30 degrees, without noted ankylosis, related neurological deficiency, or IVDS with incapacitating episodes.  A VA spine examination in February 2013 revealed forward flexion limited to 65 degrees, without noted ankylosis, related neurological deficiency, or IVDS with incapacitating episodes.  

Most recently, upon VA examination in July 2014, the Veteran was unable to complete range of motion testing due to acute pain.  The examiner noted functional loss or impairment including less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing and/or weight-bearing, and lack of endurance.  Additionally, there were noted incapacitating episodes of IVDS with a total duration of at least one week but less than two weeks during the past 12 months.  To the extent that the Veteran reported that his lumbar spine would lock upon squatting or bending, the Board affords more probative weight to the examiner's concurrent objective finding that there was no spinal ankylosis.  Additionally, to the extent that the examiner noted the Veteran's reported problems with bowel and bladder impairment, the Board affords more probative weight to the same examiner's January 2015 addendum opinion that the pattern reported by the Veteran was not likely secondary his lumbar spine condition.  

Significantly, the evidence of record from March 18, 2010 does not document that the Veteran's service-connected lumbar spine disability has resulted in unfavorable ankylosis for any period on appeal, or incapacitating episodes of IVDS having a total duration of at least 6 weeks during the past 12 months.  As such, an increased disability rating in excess of 40 percent for the Veteran's lumbar spine disability is not warranted from March 18, 2010.  38 C.F.R. § 4.71a, DCs 5237, 5242, 5243.  

To the extent that the evidence of record documents that the Veteran's lumbar spine disability is manifested by ongoing pain with physical activity with results in limited motion, the Board finds that such pain and functional limitation are adequately contemplated by the Veteran's assigned disability ratings for the entire period on appeal.  The criteria for evaluating spine disorders specifically contemplate pain.  38 C.F.R. § 4.71a (specifically noting that it is rated "with or without symptoms such as pain"); see also 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202; Mitchell, 25 Vet. App. 32.  

In conclusion, the Board has considered all potentially applicable provisions of the rating schedule, see Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  As discussed above, an increased 40 percent disability rating is warranted from March 18, 2010, and to that extent only, the Veteran's claim is granted.  However, the preponderance of evidence weighs against the Veteran's claim of entitlement to an initial disability rating in excess of 20 percent prior to March 18, 2010, and in excess of 40 percent thereafter.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra.  


ORDER

Service connection for residuals of CVA or stroke, to include as secondary to residuals of TBI with cephalgia, is denied.  

An initial disability rating in excess of 10 percent for residuals of TBI with cephalgia prior to April 3, 2009, and a compensable disability rating thereafter, is denied.  

An initial disability rating in excess of 30 percent for tension headaches associated with residuals of TBI is denied.  

An initial disability rating in excess of 20 percent for degenerative disease of the lumbosacral spine is denied prior to March 18, 2010; however, an increased 40 percent disability rating, but no higher, is granted from March 18, 2010.  



____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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