Citation Nr: 18123974
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 16-43 813
DATE:	August 6, 2018
ORDER
Entitlement to an effective date earlier than December 18, 1997 for chronic fatigue syndrome (CFS) is dismissed.
Entitlement to an initial rating in excess of 10 percent for conjunctivitis is denied.
Entitlement to an initial rating in excess of 0 percent from December 18, 1997 and 60 percent from August 18, 2015 for CFS is denied.
Entitlement to an initial rating in excess of 10 percent for migraines is denied.
FINDINGS OF FACT
1. In a signed December 2017 statement, prior to the promulgation of a decision in the appeal, the Veteran indicated that he did not intend to claim for an effective date earlier than December 18, 1997 and that he was fully satisfied with such as the effective date.  Rather, the Veteran indicated that he intended to claim for an increased evaluation retroactive to December 18, 1997, which is already a part of the increased rating claim for CFS that is adjudicated in this decision.  This statement is, therefore, taken to be a withdrawal of this claim.
2. Throughout the appeal period, the Veteran’s service-connected conjunctivitis has not been manifested by any visual field defect, muscular defect, disfigurement, or incapacitating episodes and has been shown to only have a bilateral corrected distance visual acuity to 20/40 and active conjunctivitis.
3. Throughout the period of appeals, prior to August 18, 2015, the Veteran’s service-connected CFS has not been manifested by any debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms resulting in incapacitation or continuous medication, and from August 18, 2015, the Veteran’s service-connected CFS has not been manifested by debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care.
4. Throughout the period of appeals, the Veteran’s service-connected migraines have not been manifested by any prostrating attacks, but rather by frequent non-prostrating headaches.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the appeal for claim for entitlement to an effective date earlier than December 18, 1997 for chronic fatigue syndrome (CFS) by the appellant have been met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).
2. The criteria for an initial evaluation in excess of 10 for service-connected conjunctivitis have not been met.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.79, Diagnostic Code 6018 (2017).
3. The criteria for an initial evaluation in excess of 0 percent prior to August 18, 2015 and in excess of 60 percent thereafter for service-connected CFS have not been met.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.88b, Diagnostic Code 6354 (2017).
4. The criteria for an initial evaluation in excess of 10 for service-connected migraines have not been met.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8100 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty with the United States Army from October 1990 to March 1993.
This case initially came before the Board of Veterans’ Appeals (Board) from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.
This case was previously before the Board in February 2017, at which time it was remanded for additional development.  That development having been completed, this case is once again before the Board.
The Veteran submitted a signed statement in May 2018 indicating that he would be unwilling to submit any additional evidence or submit to any further VA examinations and that he desires his claim to be adjudicated based upon the evidence already of record.  Despite the fact that the Veteran and his representative have previously raised issues with the adequacy of his most recent VA examinations, the Board finds that any attempt to remand to cure any potential deficiencies would be futile due to the Veteran’s indicated lack of cooperation.  Therefore, the Board shall proceed with adjudication of these matters based upon the evidence currently of record notwithstanding any previously alleged inadequacies.
Dismissal
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (2012).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 
In the present case, the Veteran, through his signed December 2017 statement, has withdrawn the appeal with regard to his claim for an effective date earlier than December 18, 1997, and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.
Increased Ratings
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries 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 (2017). 
Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Board notes, however, that where, as here, the current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence ‘used to decide whether an original rating on appeal was erroneous.’  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, ‘staged’ ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126.  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).
When a question arises as to which of two ratings applies under a diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran.  38 C.F.R. § 4.3.
In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”).
The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  The Board shall consider all information and lay and medical evidence of record.  38 U.S.C. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Conjunctivitis
The Veteran’s service-connected conjunctivitis is rated as 10 percent disabling in accordance with the General Rating Formula for the Eyes.  38 C.F.R. § 4.79, Diagnostic Code 6018.
Impairment of vision under title 38 C.F.R. includes an examination of the visual acuity (§ 4.75), field of vision (§ 4.76) and muscle function (§ 4.77).  The regulations direct that evaluation of visual impairment is to be rated based on the consideration of three factors: (1) impairment of visual acuity (excluding developmental errors of refraction), (2) visual field, and (3) muscle function.  38 C.F.R. § 4.75(a).  However, examinations of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with a visual field defect or impaired muscle function.  38 C.F.R. § 4.75(b). 
Subject to the provisions of 38 C.F.R. § 3.383(a), if visual impairment of only one eye is service-connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of evaluating the service-connected visual impairment.  38 C.F.R. § 4.75(c).  The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye.  38 C.F.R. § 4.45(d).  However, combine the evaluation of visual impairment of one eye with evaluations for other disabilities of the same eye that are not based on visual impairment (such as disfigurement under diagnostic code 7800).  Id. 
Under 38 C.F.R. § 3.383(a)(1), compensation is payable for the combinations of service-connected and nonservice-connected disabilities, as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the veteran’s own willful misconduct.  This applies with respect to vision impairment when there is impairment of vision in one eye as a result of service-connected disability and impairment of vision in the other eye as a result of nonservice-connected disability, and (i) the impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or (ii) the peripheral field of vision for each eye is 20 degrees or less.  Id. 
Diagnostic Code 6018 directs that, for an active disability (with objective findings, such as red, thick conjunctivae, mucous secretion, etc.), an evaluation of 10 percent is warranted.  Id.  For an inactive disability, evaluate based on residuals, such as visual impairment and disfigurement.  Id.
Diagnostic Codes 6061-6066 contain the criteria to evaluate impairment of central visual acuity.  38 C.F.R. § 4.79 (2017).
Visual acuity is rated based upon the best distant vision obtainable after correction by glasses.  When the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye, the evaluation of the poorer eye should be done using either its uncorrected or corrected visual acuity, whichever results in the better combined visual acuity.  38 C.F.R. § 4.76 (2017). 
Diagnostic Code 6066 establishes that a 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is 20/100 in one eye and 20/40 in the other eye; (2) corrected visual acuity is 20/70 in one eye and 20/40 in the other eye; (3) corrected visual acuity is 20/50 in one eye and 20/40 in the other eye; (4) or corrected visual acuity is 20/50 in both eyes.  38 C.F.R. § 4.79, DC 6066 (2017).  A 20 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is 15/200 in one eye and 20/40 in the other eye; (2) corrected visual acuity is 20/200 in one eye and 20/40 in the other eye; (3) corrected visual acuity is 20/100 in one eye and 20/50 in the other eye; or (4) corrected visual acuity is 20/70 in one eye and 20/50 in the other eye.  Id.
Visual field defects are rated under Diagnostic Codes 6080 and 6081.  See 38 C.F.R. § 4.77. 
To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service-connected, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity), and combine them under the provisions of § 4.25.  38 C.F.R. § 4.77(c)
The Veteran contends that his service-connected conjunctivitis is worse than reflected by his current 10 percent evaluation.  In this regard, the Veteran has provided that his condition causes chronic eye infections, sticky and crusting eyelids, with redness and watering and interference with vision.
A review of the Veteran’s service treatment records was absent for a discussion of symptoms or diagnoses of any eye disabilities.
A review of the Veteran’s outpatient treatment records throughout the period of appeal show that he received regular check-ups and treatment for his eyes.  He has been treated for a bilateral eye skin condition with conjunctivitis, which has been found to be mild and manifested by chronic crusting, redness, and watering in the eyes.  
The Veteran was provided with a VA examination in August 1997.  Upon a review of the claims file, subjective interview, and objective testing, the Veteran was diagnosed with a history of blepharitis.  The Veteran complained of chronic eye infections, sticky and crusting eyelids, with redness and watering.  
The Veteran was provided with an additional VA examination in January 1998.  Upon a review of the claims file, subjective interview, and objective testing, the Veteran was diagnosed with conjunctivitis.  The Veteran reported eye pain and use of artificial tears.  The Veteran’s conjunctivitis was found to be of an overall moderate severity.
The Veteran was provided with an additional VA examination in April 2001.  Upon a review of the claims file, subjective interview, and objective testing, the Veteran was diagnosed with bilateral blepharitis.  The Veteran reported eye pain and use of artificial tears.  Visual acuity was found to be 20/20 bilaterally at corrected distance.  There was no visual field defect, muscular defect, disfigurement, or incapacitating episodes noted.
The Veteran was provided with an additional VA examination in April 2012.  Upon a review of the claims file, subjective interview, and objective testing, the Veteran was found to have no currently diagnosed eye disabilities.  The Veteran reported no current eye problems.  Visual acuity was found to be 20/40 bilaterally at corrected distance.  There was no visual field defect, muscular defect, disfigurement, or incapacitating episodes noted.
The Veteran was provided with an additional VA examination in July 2015.  Upon a review of the claims file, subjective interview, and objective testing, the Veteran was diagnosed with conjunctivitis and conjunctival conditions, including benign conjunctival melanosis.  Eye testing showed corrected distance acuity bilaterally as 20/40.  There was no visual field defect, muscular defect, disfigurement, or incapacitating episodes noted.
The Veteran was provided with an additional VA examination in February 2018.  Upon a review of the claims file, subjective interview, and objective testing, the Veteran was diagnosed with bilateral conjunctivitis.  The Veteran stated that he has chronic symptoms of bilateral watering of the eyes along with itching.  The Veteran stated that he was given some eye drops (ketotifen), which he uses once a day in both eyes.  Eye testing showed corrected distance acuity bilaterally as 20/40.  There was no visual field defect, muscular defect, disfigurement, or incapacitating episodes noted.
Based on the above, the Board finds that the Veteran’s conjunctivitis does not warrant an evaluation in excess of 10 percent during the relevant appeal period.  To warrant higher evaluations, the Veteran must show worsened visual acuity, visual field, or muscle function than is currently reflected, and specifically related to his service-connected conjunctivitis.  A review of the medical evidence of record does not show these criteria to be met.
The Veteran is shown to already have been afforded the maximum evaluation of 10 percent for an active disability under the rating schedule.  However, because there have been periods in which the Veteran’s disability has been inactive, consideration of deficiencies in visual acuity, muscle function, and visual field, as well as disfigurement, is warranted.  In this regard, there is no indication of any visual field defect, muscular defect, or disfigurement associated with the Veteran’s eyes.
Therefore, at no time during the relevant appeal period did the Veteran’s service-connected conjunctivitis manifest a severity more than 10 percent.  As such, the Veteran’s claim for an evaluation in excess of 10 percent for his service-connected conjunctivitis is, thus, denied.
As the preponderance of the evidence is against the Veteran’s claim for increased ratings, the benefit-of-the-doubt doctrine is inapplicable and the claim must be denied.  38 U.S.C. § 5107.
CFS
The Veteran’s service-connected CFS is rated as 0 percent disabling prior to August 18, 2015 and 60 percent disabling thereafter in accordance with the General Rating Formula for Infectious Disease, Immune Disorder, and Nutritional Deficiencies.  38 C.F.R. § 4.88b, Diagnostic Code 6354.
That Diagnostic Code provides for a 10 percent evaluation when CFS causes debilitating fatigue, cognitive impairment, or a combination of other signs and symptoms that wax and wane, but result in periods of incapacitation of at least one but less than two weeks total duration per year or when symptoms are controlled by continuous medication.  Id.  A 20 percent evaluation is assigned when CFS-related symptoms are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level.  This evaluation is also assigned when symptoms result in periods of incapacitation of at least two but less than four weeks total duration per year.  Id.  A 40 percent evaluation is warranted when symptoms are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or when symptoms wax and wane and result in periods of incapacitation of at least four but less than six weeks total duration per year.  Id.  The criteria for a 60 percent evaluation are satisfied when symptoms are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level or when symptoms wax and wane and result in periods of incapacitation of at least six weeks total duration per year.  Id.  Finally, a total rating is assigned for CFS pursuant to Code 6354 when its symptoms are nearly constant and so severe as to restrict routine daily activity almost completely and which may occasionally preclude self-care.  Id.
The Veteran contends that his service-connected CFS is worse than reflected by his noncompensable and 60 percent evaluations.  In this regard, the Veteran contends that his fatigue has been nearly constant and causes significant functional impairment in most activities of daily living.
In an April 2018 statement from the Veteran’s wife, it was indicated that the Veteran spends most of his time in bed.
A review of the Veteran’s service treatment records was absent for any discussion of treatment for CFS.  However, throughout the Veteran’s time in service, he frequently complained of fatigue, dizziness, and diarrhea: in May 1990, the Veteran complained of chronic fatigue.  In April 1991, he complained of dizziness; in June 1991, he complained of dizziness and a rash lasting five days; in October 1992, he twice complained of diarrhea.
In February 1993, the Veteran reported for his exit examination and reported that his health was “fair”.  He said he had spent three months in Kuwait City-months in which he breathed in lots of smoke and contaminants which made him sick.  The Veteran contended he had blotches and blemishes on his neck and shoulders, and documented that he suffered from frequent/severe headaches; dizziness and fainting spells; eye trouble; ear, nose, or throat trouble; hearing loss; chronic or frequent colds; shortness of breath; pain or pressure in chest; chronic cough; heart trouble; palpation or pounding heart; cramps in legs; stomach, liver, or intestinal trouble; tumor, growth, cyst, or cancer; frequent or painful urination; depression; and fatigue.
In March 1993, the Veteran complained of suffering from skin discoloration on his neck, chest, and shoulders for the past three months. 
The Board notes that the Veteran submitted a statement saying that he did not report all instances of fatigue, dizziness, or diarrhea while in service.
Post-service outpatient treatment records have variously showed assessments of CFS since the Veteran left service.
In a May 1995 treatment record, the Veteran was shown to have a diagnosis of CFS.  However, the diagnostic criteria for such assessment were not provided.
In August 1996, the Veteran’s mother submitted a statement saying that the Veteran was healthy before his deployment, but during his service, she frequently received letters from him in which he complained about chronic coughs, chronic fatigue, breathing problems, and dizzy spells.  She confirmed that the Veteran continued to suffer from those symptoms once he returned home.
In a November 1996 treatment record, the Veteran was shown to have a diagnosis of CFS.  However, the diagnostic criteria for such assessment were not provided.
In a January 1997 treatment records, the Veteran was noted to have been in good health prior to military service and developed chronic fatigue, coughing, diarrhea, and dizziness sometime thereafter.
In a March 1997 psychiatric examination, an Axis III diagnosis of chronic fatigue was provided.  However, the diagnostic criteria for such assessment were not provided.
A May 1997 form requesting discharge of a loan due to hardship filled out by the Veteran’s doctor indicated that the Veteran suffered from CFS that had onset in May 1995.  However, the diagnostic criteria for such assessment were not provided.
The Veteran was provided with a VA examination in August 1997.  At the examination, upon a review of the claims file, subjective interview, and objective testing, the examiner diagnosed the Veteran with a history of CFS-like symptoms, but fell short of providing an actual diagnosis.  The Veteran’s symptoms included diarrhea, dizziness, headaches, pain behind the eyes, and bronchitis.
The Veteran was provided with an additional VA examination in April 2012.  Upon a review of the claims file, subjective interview, and objective testing, the examiner found that there was no evidence of record to substantiate a diagnosis of CFS.  The rationale provided that the Veteran was muscular and had good muscle tone and strength, but he ambulated with difficulty and assistance.  The examiner also stated that the Veteran had no significant complaints of pain.
The Veteran was provided with an additional VA examination in January 2015.  At that examination, upon a review of the claims file, subjective interview, and objective testing, the examiner opined that the Veteran’s previous diagnoses of CFS could not be substantiated and did not meet the criteria for such diagnosis.
The Veteran was provided with an additional VA examination in August 2015.  At that examination, upon a review of the claims file, subjective interview, and objective testing, the examiner opined that the Veteran did not suffer from CFS.  The examiner addressed all of the instances in which the Veteran suffered from fatigue or other symptoms possibly associated with CFS, and explained all of those symptoms could be attributed to the Veteran’s various service-connected diseases. CFS, the examiner wrote, is a diagnosis of exclusion, meaning that the symptoms suffered by the patient cannot be attributed to any other diagnosis.  The examiner believed the Veteran’s past diagnoses of CFS were misdiagnosed because the Veteran’s symptoms could be traced to many other diseases.  The Veteran’s 1995 CFS diagnosis, for example, was made because of the Veteran’s fatigue.  The examiner, however, felt the Veteran’s fatigue in 1995 was more likely attributed to the Veteran’s chronic diarrhea, as chronic diarrhea causes fatigue.  This examiner also noted the Veteran’s muscular frame and exercise habits, and opined that an individual suffering from CFS would be unable to exercise to the extent necessary to develop the muscles the examiner observed on the Veteran.  It was further noted that the Veteran’s fatigue, despite not clearly being related to CFS, was debilitating, reducing the Veteran’s routine daily activities to less than 50 percent of the pre-illness level.
The Veteran was provided with an additional VA examination in February 2018.  At this examination, upon a review of the claims file, subjective interview, and objective testing, the Veteran was found to have never had a valid diagnosis of CFS.  It was noted that the Veteran had complained in military service of dizziness, sore throats, and headaches.  The Veteran stated that, currently, he is constantly fatigued and tired.  He gets a sore throat not as often as he used to, maybe 3 times a month, and he does not go to doctor for this.  He just takes some cough syrup.  He gets dizziness 3 to 4 times per week, even when lying down.  He also gets a feeling like he is off balance like the room is shifting or moving that lasts for 10 to 15 minutes.  The examiner opined that the Veteran does not meet diagnostic criteria for CFS.  Diagnosis was made in error in the past.  The Veteran has other conditions that can cause fatigue.  CFS is a diagnosis of exclusion and therefore he does not have CFS.
Based on the above, the Board finds that the Veteran is not entitled to evaluations in excess of 0 percent prior to August 18, 2015 or 60 percent thereafter at any time during the period of appeals.  
Prior to August 18, 2015, the Veteran’s CFS, although not confirmed, has been attributed to symptoms of debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms that result in incapacitation if not controlled by continuous medication.  Rather, his symptoms during that time period of diarrhea, dizziness, and fatigue appeared to be recurrent, but not resulting in any doctor ordered bedrest.  The Veteran’s headaches and skin condition have already been separately rated and are not included in consideration of the Veteran’s CFS.
In order to warrant a higher evaluation, the Veteran would need to show symptoms of debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms that result in incapacitation or the requirement of continuous medication.  As the evidence has not shown such, an evaluation in excess of 0 percent during this time period is not warranted.
From August 18, 2015, the Veteran continued to have complaints of diarrhea, dizziness, and fatigue.  However, the Veteran’s fatigue began to be characterized as debilitating from this time period, reducing the Veteran to less than 50 percent of the pre-illness level daily activities.  As such, a 60 percent evaluation was warranted. 
However, in order to warrant a higher evaluation, the Veteran must show debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care.  These symptoms have not been shown at any time during the appeals period as the Veteran has still been shown to engage in some routine daily activities and care for himself.
	
The Board has considered whether staged ratings higher than 0 and 60 percent are warranted but finds that they are not, as the evidence, including the Veteran’s credible and probative statements, does not show that there are distinct periods of time where a evaluations in excess of 0 and 60 percent are warranted.  The evidence of record does not warrant ratings in excess of those assigned for the Veteran’s CFS at any time during the period pertinent to this appeal.  38 U.S.C. § 5110.
Last, although the Veteran has alleged that the VA examiners who conducted his CFS examinations were biased against him, providing a list of diagnostic discrepancies over the years, as mentioned in the Introduction, the Veteran has indicated an unwillingness to undergo any further examinations in pursuit of his appeal.  Rather he has indicated a preference to have his claim adjudicated based upon the evidence currently of record.  Therefore, to the extent that the Veteran is challenging the adequacy of the VA examinations used in the adjudication of this claim, the Board finds such challenges to be moot in light of the Veteran’s current desires for expediency in his appeal.
In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim for evaluations higher than 0 and 60 percent, the doctrine is not for application.  Gilbert, 1 Vet. App. at 49.
Migraines
The Veteran’s service-connected migraine headaches are rated as 10 percent disabling in accordance with the General Rating Formula for Neurological Conditions and Convulsive Disorders.  38 C.F.R. § 4.124a, Diagnostic Code 8100.
A 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months.  Id.  A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months.  Id.  A 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Id.
	
The rating criteria do not define “prostrating,” nor has the Court.  See Fenderson v. West, 12 Vet. App. 119 (1999) (quoting Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.).  According to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.”  A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.”
“Productive of economic inadaptability” can be read as having either the meaning of “producing” or “capable of producing,” and nowhere in Diagnostic Code 8100 is “inadaptability” defined, nor can a definition be found elsewhere in title 38 of the Code of Federal Regulations.  But, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating.  Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).
The Veteran contends that his service-connected migraines are worse than currently reflected by his 10 percent evaluation.  In this regard, the Veteran has indicated that he has experienced frequent prostrating attacks for which he has to regularly take medication.
The Veteran’s spouse submitted a statement in April 2018 indicating that the Veteran experiences severe headaches 3 to 4 times per week.  There was no indication provided that the Veteran’s spouse possesses the medical expertise necessary to ascertain the severity of the Veteran’s headaches. 
A review of the Veteran’s service treatment records show that the Veteran was treated on several occasions in 1992 for tension headaches and prescribed Motrin.
A review of the Veteran’s post-service outpatient treatment records reveals that the Veteran has been followed for complaints of frequent headaches and treated with pain medication since 2000.  There have been no medical findings showing that the Veteran’s headaches are prostrating.
The Veteran was provided with a VA examination in August 1997.  Upon a review of the claims file, subjective interview, and objective testing, the Veteran was diagnosed with migraine headaches.  The Veteran reported headaches associated with vomiting, eye pain and flashing lights.  He further reported that he has headaches about 3 times per week and that “they are not particularly disturbing” in terms of lifestyle.  He also reported that he rests and takes Tylenol as needed when he has headaches.
At an April 2012 VA examination for the Veteran’s CFS, it was noted that the Veteran did not complain of headaches.
At a January 215 VA examination for the Veteran’s CFS, it was noted that the Veteran did not complain of headaches.
The Veteran was provided with an additional VA examination in February 2018.  Upon a review of the claims file, subjective interview, and objective testing, the Veteran was diagnosed with tension headaches.  It was noted that the Veteran takes Tylenol as need to treat.  The headaches were manifested by pain on both sides of the head without characteristics of prostrating migraines.
Based on the above, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent at any time during the appeal period.  
The Veteran’s headaches appeared to regularly occur weekly or more frequently.  However, they were not found to be prostrating at any point during the period of appeal by any of the probative medical evidence of record, thereby only warranting a noncompensable evaluation during this time period.  
In order to warrant a higher evaluation, the Veteran would need to show migraines that are prostrating and occur monthly or more frequently.  As the evidence has not shown such, an evaluation in excess of 10 percent is not warranted.
The Board has considered whether staged ratings higher than 10 percent are warranted but finds that they are not, as the evidence, including the Veteran’s credible and probative statements, does not show that there are distinct periods of time where a evaluations in excess of 10 percent are warranted.  The evidence of record does not warrant ratings in excess of those assigned for the Veteran’s migraine headaches at any time during the period pertinent to this appeal.  38 U.S.C. § 5110.
In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim for evaluations higher than 10 percent, the doctrine is not for application.  Gilbert, 1 Vet. App. at 49.
 
L. M. BARNARD
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Dodd, Counsel 
Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.