Citation Nr: 18160347
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 13-09 789
DATE:	December 28, 2018
ORDER
Service connection for sleep apnea is denied.
An initial rating of 10 percent, but no more, for service-connected migraine headaches prior to May 9, 2016 is granted.
A rating in excess of 50 percent for service-connected migraine headaches from May 9, 2016 is denied.
An initial rating in excess of 10 percent for service-connected plantar fasciitis of the left foot with calcaneal spurs (hereinafter, “left foot disorder”) prior to May 14, 2016 is denied (excluding the period where a temporary total evaluation was in effect pursuant to 38 C.F.R. § 4.30).
A rating in excess of 30 percent for the service-connected left foot disorder from May 14, 2016, is denied.
An initial rating in excess of 10 percent for service-connected plantar fasciitis of the right foot with calcaneal spurs (hereinafter, “right foot disorder”) prior to May 14, 2016 is denied (excluding the period where a temporary total evaluation was in effect pursuant to 38 C.F.R. § 4.30).
A rating in excess of 30 percent for the service-connected right foot disorder from May 14, 2016 is denied.
FINDINGS OF FACT
1. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran’s sleep apnea was incurred in or otherwise the result of active service.
2. Prior to May 14, 2016, the record does not reflect that the Veteran’s service-connected left and right foot disorders were manifested by moderately severe impairment.
3. Prior to May 9, 2016, the record reflects the Veteran’s service-connected migraine headaches more nearly approximated the criteria of recurring prostrating attacks averaging one in two months over the last several months.  
4. The Veteran has been in receipt of the maximum schedular rating available for his service-connected foot disorders for the period from May 14, 2016; as well as the maximum schedular rating available for headaches for the period from May 9, 2016.
5. The record reflects that the symptomatology associated with the service-connected foot disorders and headaches are adequately addressed by the applicable schedular criteria.
CONCLUSIONS OF LAW
1. The criteria for an award of service connection for sleep apnea have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.
2. The criteria for an initial rating in excess of 10 percent for the Veteran’s service-connected left foot disorder prior to May 14, 2016 have not been met (excluding the period where a temporary total evaluation was in effect pursuant to 38 C.F.R. § 4.30).  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284.
3. The criteria for an initial rating in excess of 10 percent for the Veteran’s service-connected right foot disorder prior to May 14, 2016 have not been met (excluding the period where a temporary total evaluation was in effect pursuant to 38 C.F.R. § 4.30).  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284.
4. The criteria for an initial 10 percent rating, but no more, for service-connected migraine headaches prior to May 9, 2016 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100.
5. The criteria for a rating in excess of 30 percent for the Veteran’s service-connected left foot disorder from May 14, 2016 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284.
6. The criteria for a rating in excess of 30 percent for the Veteran’s service-connected right foot disorder from May 14, 2016 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284.
7. The criteria for a rating in excess of 50 percent for service-connected migraine headaches from May 9, 2016 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8100.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Air Force from December 1975 to December 1979, and from January 1980 to August 1994.
This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).
The Board notes that during the pendency of this appeal, the Veteran was assigned a rating of 30 percent for both of his service-connected right and left foot disorders, effective from May 14, 2016; as well as a 50 percent rating for his service-connected headaches from May 9, 2016.  The Board has construed the issues on appeal to reflect this development.
The Veteran provided testimony at a hearing before a Veterans Law Judge (VLJ) in April 2016.  A transcript of that hearing is of record.  However, the VLJ who conducted that hearing has since retired.
Under VA regulations, a claimant is entitled to have the final determination of his or her claim made by the VLJ who conducted the hearing.  38 C.F.R. § 20.707.  Here, the Veteran was sent correspondence in September 2018 informing him of this fact, and inquiring whether he desired a new hearing.  He was informed that if he did not respond within 30 days, the Board would assume that he did not desire a new hearing.  As no response was received, the Board will proceed to address the merits of his appeal.
In April 2017, the Board remanded this case for further development to include new medical examinations.  That development has been substantially accomplished, and the case has been returned to the Board for additional appellate consideration.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).
In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of 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 v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (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 Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C. § 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  
As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996).  
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  
1. Entitlement to service connection for sleep apnea
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  
Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).
Initially, the Board notes that there was no diagnosis of sleep apnea in the Veteran’s service treatment records, or on an October 1994 VA general medical examination.  The first competent medical evidence of the disorder came years after service.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (The normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for years after service, can be probative evidence against the claim.).
The Board notes that a December 2012 VA medical opinion is unfavorable to the Veteran's claim in terms of sleep apnea being etiologically related to service.  That opinion focused upon whether the sleep apnea was related to the Veteran's documented in-service respiratory problems. 
The Board further notes that records from 1996 and 1997 reflect the Veteran had originally requested sleep studies be conducted because his wife related that he stopped breathing in his sleep and would snore loudly.  At the April 2016 hearing, the Veteran's wife indicated such symptoms developed while he was still on active duty.  In addition, the Veteran indicated he had trouble sleeping during this period.
In the April 2017 remand, the Board found that the Veteran's wife was competent to describe symptoms such as breathing impairment and snoring, and that such developed while on active duty.  However, the Board also found that competent medical evidence was required to determine whether the in-service symptoms were a manifestation of the sleep apnea first diagnosed years after separation from service.  As the December 2012 VA medical opinion did not address that matter, the Board remanded this claim for a new examination.
The record reflects that a July 2017 VA examiner opined that the Veteran’s sleep apnea was less likely than not related to military experience.  
The Board notes that the Veteran submitted a statement in which he made comments with respect to the examiner’s findings, as well as the concurrent examination of his service-connected foot disorders.  However, he did not question the qualifications of the VA examiner to provide a competent medical opinion.  See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009).  
In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.
The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  A review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”).  
Here, the July 2017 VA examiner was familiar with the Veteran’s medical history from review of the claims folder, and noted pertinent aspects of this history in the examination report.  In pertinent part, the examiner noted the Veteran’s account that he began having shortness of breath, snoring, daytime somnolence, and fatigue during military service; and continued to have symptoms after discharge.  The examiner also noted the results of an October 1994 VA general medical examination, as well as a December 1996 sleep study which diagnosed severe obstructive sleep apnea.
The Board further notes the VA examiner did not express his opinion in speculative or equivocal language.  Moreover, the examiner supported the opinion with a stated rationale, to include there was no documented evidence of symptomatology which could be related to sleep apnea or airway obstruction while in service.  The examiner also noted that while medically untrained individuals (e.g., friends, family members, …) were competent to provide statements of personal observation, they were not competent to offer medical opinions or medically assess the level of disability.  As such, it appears the examiner found that the Veteran’s account of his in-service symptoms, as well as the supporting lay evidence to include from the Veteran’s spouse, were not consistent with being manifestations of sleep apnea.
In view of the foregoing, the Board finds that the July 2017 VA examiner’s opinion is adequate, persuasive, and entitled to significant probative value.  
The Board acknowledges the Veteran emphasized the recurrent symptoms he maintained developed during active service, including snoring, in addressing the July 2017 VA examiner’s opinion.  However, the Board has already concluded that competent medical evidence is required to resolve this case based, in part, on the fact that the first competent medical diagnosis was after service.  Moreover, as indicated above, specific medical testing – a sleep study – is required to diagnose this condition.  No competent medical evidence is of record which explicitly refutes the opinion of the July 2017 VA examiner.
For these reasons, the Board concludes that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran’s sleep apnea was incurred in or is otherwise the result of active service.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  No other basis for establishing service connection for this disability is otherwise demonstrated by the evidence of record, to include the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 or as secondary to a service-connected disability pursuant to 38 C.F.R. § 3.310.  Accordingly, the benefit sought on appeal with respect to this claim must be denied.
Increased Rating
Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of a rating assigned in connection with an initial award of service connection.  Rather, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings.  More recently, the Court held that “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the Veteran has already been assigned such “staged” ratings for his service-connected foot disorders and headaches.
2. Entitlement to a rating in excess of 10 percent for service-connected left foot disorder prior to May 14, 2016.
3. Entitlement to a rating in excess of 10 percent for service-connected right foot disorder prior to May 14, 2016.
Under Diagnostic Code 5284, moderate residuals of foot injuries warrant a 10 percent evaluation.  A 20 percent rating requires moderately severe residuals.  Severe residuals of foot injuries warrant a 30 percent evaluation.  38 C.F.R. § 4.71a.
The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of the issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.
The Board does note, for reference and illustrative purposes, that the definitions of "mild" include not very severe.  WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995).  In addition, a synonym for "mild" is "slight" and definitions for "slight" include small in size, degree, or amount.  Id at 1038.  The definitions for "moderate" include of average or medium quantity, quality, or extent.  Id. at 704.  Finally, definitions for "severe" include extremely intense. Id.  at 1012.  It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe."
The record reflects that both of the Veteran’s service-connected foot disorders have been manifested by pain throughout the pendency of this case.  In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.  Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement.  38 C.F.R. § 4.45.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  See also DeLuca v. Brown, 8 Vet. App. 202 (1995).
In this case, the Board notes that the Veteran has reported he has limited standing and walking due to his bilateral foot pain.  For example, a September 2009 VA examination noted that he was able to stand for 15 to 30 minutes, and was able to walk a quarter (1/4) mile.  At his April 2016 hearing, he reported he was able to stand and/or walk for a maximum of 45 minutes.  However, these complaints and other evidence of record reflect that these problems result in no more than moderate impairment of both feet; i.e., the impairment is of medium quantity, quality or extent.  He does not meet or nearly approximate the criteria of moderately severe impairment for either foot prior to May 14, 2016.
In pertinent part, the September 2009 VA examination found evidence of tenderness of the soles of both feet; but that examination also found there was no evidence of painful motion, swelling, instability, weakness, or abnormal weight bearing.  In addition, the examiner found that these disabilities had no effect on chores, shopping, feeding, bathing, dressing, toileting, grooming, or driving; mild impairment in recreation and traveling; and moderate impairment of exercise.  Although the Board is not bound by the description by the VA examiner as to the level of functional impairment due to the service-connected foot disorders, it is evidence to be taken into consideration.  Further, the level of impairment noted on this examination indicates neither foot had moderately severe impairment.  There was also no evidence of muscle atrophy or foot deformity; and his gait was found to be normal.
The Board acknowledges the Veteran underwent a bilateral fasciotomy of his feet in September 2009 due to his service-connected foot disorders.  Initial follow-up records indicate some improvement, but subsequent records continue to note complaints of bilateral foot pain.  The record also reflects that he used pain medication for his feet, with mixed results.  See Jones v. Shinseki, 26 Vet. App.  56 (2012) (holding that the Board, in assigning a disability rating, may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria).  Nevertheless, a thorough review of the treatment records and other evidence for the period prior to May 14, 2016, reflects the Veteran had moderately severe impairment of either foot; or that he would have such impairment but for the use of medication and other treatment.
In view of the foregoing, the Board must find the Veteran does not warrant a rating in excess of 10 percent for either of his service-connected foot disorders under Diagnostic Code 5284 prior to May 14, 2016.  Further, the Board notes that no other Diagnostic Code for evaluating disabilities of the feet appears to be applicable to this case.  For example, the September 2009 VA examination found no evidence of hammertoes, hallux valgus or rigidus, vascular foot abnormality, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, or flatfoot.  Therefore, the Board finds that ratings in excess of 10 percent for the service-connected foot disorders are not warranted prior to May 14, 2016, to include as “staged” rating(s) in accord with Fenderson, supra, and Hart, supra (excluding the period where the temporary total evaluation was in effect pursuant to 38 C.F.R. § 4.30).
4. Entitlement to a compensable rating for service-connected migraine headaches prior to May 9, 2016
The Veteran's service-connected headaches has been evaluated as analogous to migraine headaches pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100.  Under this Code, a 0 percent disability rating is assigned for less frequent attacks than for a 10 percent rating.  A 10 percent disability evaluation is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent disability rating is assigned for migraine 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 migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.
The Court recently held in Johnson v. Wilkie, No. 16-3808 (U.S. Vet. App. September 19, 2018) that Diagnostic Code 8100 contain 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.
In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define "prostrating," nor has the Court.  Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (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), 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."
Here, the Board acknowledges that the September 2009 VA examination found the Veteran did not experience prostrating attacks due to his service-connected headaches.  However, other evidence during this period indicates otherwise.  As with the foot disorders, there is evidence of mixed results from the use of medication.  See Jones, supra.  For example, records dated in July 2008 note the Veteran’s condition was stable on current medications, but subsequent records in July 2009 note that it was not stable and the medications were changed.  Subsequent records note the headaches as worsened in February 2013.  Although records in August 2013 noted that the headaches were usually 5/10 in severity, there were times they were 10/10.  Records dated in January 2014 indicate that the Veteran continued to have headaches that were incapacitating at times.  
In view of the foregoing, the Board finds that, prior to May 9, 2016, the record reflects the Veteran’s service-connected migraine headaches more nearly approximated the criteria of recurring prostrating attacks averaging one in two months over the last several months.  See 38 C.F.R. §§ 4.3, 4.7.  Thus, he is entitled to a 10 percent rating under Diagnostic Code 8100 for this period.  However, it is not factually ascertainable that he experienced characteristic prostrating attacks occurring on an average of once a month over the last several months.  The records during this period do not document prostrating attacks occurred at such frequency, nor is there a competent medical opinion which supports such a finding for this period.  Consequently, the Board concludes that a rating in excess of 10 percent is not warranted prior to May 9, 2016, to include on the basis of “staged” ratings.
5. Entitlement to a rating in excess of 30 percent for service-connected left foot disorder from May 14, 2016
6. Entitlement to a rating in excess of 30 percent for service-connected right foot disorder from May 14, 2016
7. Entitlement to a rating in excess of 50 percent for service-connected migraine headaches from May 9, 2016
The Veteran has been in receipt of the maximum schedular rating available for his service-connected foot disorders for the period from May 14, 2016; as well as the maximum schedular rating available for headaches for the period from May 9, 2016.  In short, there is no legal basis to assign higher schedular ratings during this period.
The Veteran has indicated, to include in a November 2018 appellate brief submitted by his accredited representative, that his service-connected foot disorders and headaches warrant consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321.
The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  
Here, the Veteran has emphasized pain and the resulting functional impairment regarding his foot disorders.  As discussed above, such symptomatology was taken into account when assigning the schedular rating in accord with 38 C.F.R. §§ 4.40, 4.45, and 4.59.  Further, Diagnostic Code 5284 requires the Board to consider the overall functional impairment from foot symptomatology and make a determination as to whether it is moderate, severe, etc.  
Similarly, Diagnostic Code 8100 criteria focus on the frequency and severity of headaches, to include whether a claimant experiences prostrating attacks as a result of his or her headache symptomatology.  Implicit in this criteria is the determination that recurrent headaches that do not result in recurrent prostrating attacks of at least a certain regularity do not warrant a compensable rating regardless of other specific symptomatology.  As such, it appears the rating criteria contemplate the overall manner and impact of the Veteran’s headache symptoms.
In view of the foregoing, the Board finds that the record reflects that the symptomatology of the service-connected foot disorders and headaches are adequately addressed by the applicable schedular criteria.  Therefore, none of these disabilities warrant referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321.
 
DAVID A. BRENNINGMEYER 
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	John Kitlas, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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.