MIGRAINE

Summary

The veteran, who served from December 1982 to June 1988, appeals the denial of service connection for headaches and an increased rating for his service-connected thoracolumbar degenerative joint disease and lumbosacral strain. The Board denied service connection for headaches, noting that while the veteran claimed they began in service and were self-treated, his service treatment records were negative for headaches, and he denied frequent headaches on separation. Post-service records showed daily headaches starting in May 2017. The case was remanded for a VA examination to determine the nature and etiology of the headaches, but the veteran failed to report for the scheduled examination in April 2022, and did not request rescheduling, thus the claim was denied based on the available evidence and failure to cooperate. For the increased rating claim, the Board found the evidence against granting a higher rating. While the veteran testified to muscle spasms and pain, the April 2017 VA examination showed full range of motion without abnormal gait or spinal contour, and pain did not cause functional loss. The Board also noted the veteran's failure to cooperate with a rescheduled examination in April 2022, which could have addressed claimed inadequacies in the prior exam. The Board concluded that the existing 10 percent rating, which accounts for painful motion, was appropriate, and a higher rating was not warranted.

Rationale

No competent medical opinion linking headaches to service; Veteran failed to attend scheduled VA examination; Service treatment records negative for headaches

Full Decision Text

Citation Nr: 22061108
Decision Date: 11/01/22	Archive Date: 11/01/22

DOCKET NO. 18-33 053
DATE: November 1, 2022

ORDER

Entitlement to service connection for a headache disability is denied.

Entitlement to a rating higher than 10 percent for thoracolumbar degenerative joint disease and lumbosacral strain is denied.

FINDINGS OF FACT

1. Chronic headaches were not shown in service and there is no probative evidence linking the condition to service or service-connected disability.

2. The Veteran did not cooperate in the scheduling of VA examinations in April 2022. 

3. The evidence of record shows full forward flexion, extension, lateral rotation and lateral flexion, and there is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, nor objective evidence of incapacitating episodes having a total duration of at least four weeks.

CONCLUSIONS OF LAW

1. The criteria for service connection for headaches have not been met.  38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.310.

2. The criteria for an initial rating higher than 10 percent for thoracolumbar degenerative joint disease and lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1982 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2021, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is of record.

This matter was last before the Board in November 2021, when it was remanded for further development.

Service Connection

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

Service connection may 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.  Secondary service connection may also be granted for the degree of aggravation of a disease or injury by a service-connected disability. Id.  

1. Entitlement to service connection for severe headache

The Veteran contends that he has headaches that are related to his active service and/or to his service-connected back disability.  The Veteran testified that his headaches began in service and were self-treated with aspirin. The question for the Board is whether the Veteran's a chronic headache is related to service or caused   or aggravated by a service-connected disability. Following careful review of the record on appeal, the Board finds the weight of the evidence is against the claim.

The service treatment records are negative for complaints or diagnosis of headaches. On his separation report of medical history in May 1988, the Veteran denied having frequent headaches.

Post-service treatment records show that the Veteran reported daily headaches in May 2017. 

The matter was remanded to obtain a VA examination to determine the nature of any headache condition and to obtain an opinion on whether the condition is related to service.

In accordance with the remand directives, the RO attempted to schedule a VA examination in April 2022. The examination was cancelled because the Veteran indicated he was unavailable.  The Veteran has not thereafter indicated his willingness or ability to report for the examination.  Moreover, in the September 2022 appellant's post-remand brief, the Veteran's representative has conceded     that the agency of original jurisdiction (AOJ) has "attempted to comply with the remand directives to the best of its ability."  

When a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original
 a VA examination to determine the nature of any headache condition and to obtain an opinion on whether the condition is related to service.

In accordance with the remand directives, the RO attempted to schedule a VA examination in April 2022. The examination was cancelled because the Veteran indicated he was unavailable.  The Veteran has not thereafter indicated his willingness or ability to report for the examination.  Moreover, in the September 2022 appellant's post-remand brief, the Veteran's representative has conceded     that the agency of original jurisdiction (AOJ) has "attempted to comply with the remand directives to the best of its ability."  

When a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of    an immediate family member. 38 C.F.R. § 3.655(a). Any evidence expected to be obtained as a result of the VA examination, to include a potentially favorable nexus opinion, cannot be considered.

Based on the evidence in the record on appeal, the Board concludes that service connection for severe headaches is not warranted. The evidence shows that the Veteran had a diagnosis of chronic headaches during the appeal period. However, there is no medical opinion addressing the relationship between that disability     and service or a service-connected condition. While the Veteran is competent to testify to observable symptomatology, as lay persons, he is not shown to possess the requisite training to diagnose chronic headaches or determine the etiology       of such. In this regard, the diagnosis and etiology of headaches is a matter that requires medical training and expertise to determine. Accordingly, his opinion is not competent medical evidence.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).   

The Veteran has not submitted any medical evidence to support the contention that his headaches are related to service or his service connected disabilities, and the medical evidence of record does not provide a link between his chronic headaches and service or service-connected disability. Moreover, he did not cooperate with the attempt to schedule him for an examination to obtain relevant findings and an opinion. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.").

In sum, there is no competent and probative evidence linking the current chronic headaches to service or a service-connected disability, and the Veteran did not cooperate with attempts to schedule an examination on this claim. Accordingly,  the evidence of record is against the claim, and service connection is denied.  

As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Increased Rating

2. Entitlement to a rating higher than 10 percent for thoracolumbar degenerative joint disease and lumbosacral strain 

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent   the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements       of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown,           8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59.  Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where
 or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled.  See DeLuca v. Brown,           8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59.  Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Service connection for thoracolumbar degenerative joint disease and lumbosacral strain was granted in the June 2017 rating decision that is the subject of this appeal. A 10 percent rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5237, effective January 10, 2017.  The RO clearly noted that the provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or    lack of endurance, incoordination, and flare-ups, as cited in DeLuca, had been considered and applied under 38 C.F.R. § 4.59. 

Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness,         or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not   limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). 

Ratings in excess of 10 percent pertinent to the lumbar spine are provided 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 (20 percent); forward flexion of the thoracolumbar spine     30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent).

Note (2) of the General Rating Formula 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 normal combined range of motion of the thoracolumbar spine is 240 degrees.  See also Plate V, 38 C.F.R. § 4.71a.

Alternatively, intervertebral disc syndrome can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 20 percent rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). 

 

The rating criteria for the spine were amended on February 7, 2021. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease
 rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). 

 

The rating criteria for the spine were amended on February 7, 2021. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. These changes do not impact the outcome of this decision. 

The Veteran contends a rating higher than 10 percent for his lumbar spine disability is warranted. He asserts that he cannot sit for any length of time, and cannot stand because of weakness, fatigue and general tiredness. He testified that he gets muscle spasms several times a day, generally in the mid back and sometimes up between the shoulder blades. He stated the pain starts out dull, but becomes sharp or stabbing if he lifts things or moves around. During the hearing, the Veteran's representative challenged the adequacy of the VA examination and noted that the range of motion testing did not address where pain began and may be inaccurate. 

In light of the testimony during the hearing, the matter was remanded to obtain a new examiner to comply with the United States Court of Appeals for Veterans Claims (Court) holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017).  

In accordance with the remand directives, examination scheduling was attempted in April 2022. The examination was cancelled because the Veteran reported he was unavailable. He was notified in the supplemental statement of the case that VA was notified of his unavailability to report for an examination. The Veteran has not thereafter indicated his willingness or ability to report for the examination.  Moreover, in the September 2022 appellant's post-remand brief, the Veteran's representative acknowledged the cancellation of the examination due to the Veteran's unavailability and that the agency of original jurisdiction (AOJ) has "attempted to comply with the remand directives to the best of its ability."  The representative did not ask for the examination to be rescheduled or indicate the Veteran was willing and able to report.

 

As noted above, because the Veteran failed to cooperate with the scheduling of an examination in conjunction with this claim, the claim must be rated based on the evidence of record. 38 C.F.R. § 3.655(b). 

Thus, the only medical evidence showing range of motion of the back is the April 2017 VA examination, at which time range of motion testing of the thoracolumbar spine revealed full flexion to 90 degrees, full extension to 30 degrees, and full     left and right lateral flexion and rotation to 30 degrees.  There was no additional limitation of motion after repetition.  X-ray evidence of degenerative arthritis was noted. There was evidence of pain noted on examination, but pain did not result     in or cause functional loss.  Additionally, there was no evidence of ankylosis or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.

VA treatment records note he complained of low back pain and that he was treated with acupuncture.

Upon review of the record, the Board finds the weight of the evidence is against the assignment of an initial rating higher than 10 percent for the thoracolumbar degenerative joint disease and lumbosacral strain. 

To the extent the Veteran and representative argue the 2017 VA examination         was inadequate, his failure to cooperate in scheduling an examination to cure the claimed defects in the examination could not be accomplished. Thus, based on the evidence available for consideration, the weight of the evidence is against a rating higher than 10 percent. The 10 percent rating contemplates painful motion and any radiating pain, despite objective findings of full range of motion. Moreover, while the Veteran has testified to having muscle spasms, the evidence does not reflect that these spasms result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Rather, gait was normal during the April 2017 examination, and the examiner found no guarding or muscle spasm. Thus, a rating in excess of 10 percent is not warranted under the General Rating Formula. 

Consideration has been given to any
 accomplished. Thus, based on the evidence available for consideration, the weight of the evidence is against a rating higher than 10 percent. The 10 percent rating contemplates painful motion and any radiating pain, despite objective findings of full range of motion. Moreover, while the Veteran has testified to having muscle spasms, the evidence does not reflect that these spasms result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Rather, gait was normal during the April 2017 examination, and the examiner found no guarding or muscle spasm. Thus, a rating in excess of 10 percent is not warranted under the General Rating Formula. 

Consideration has been given to any functional impairment and any effects of    pain on functional abilities due to the Veteran's service-connected thoracolumbar degenerative joint disease and lumbosacral strain. The Board acknowledges the Veteran's subjective complaints related to functional loss and functional impairment made in written statements and during the April 2017 VA examination. The Board also acknowledges the objective evidence during that examination of pain with passive and active range of motion testing and localized tenderness. In this case, however, the Board does not find any additional functional loss that is not contemplated by the currently assigned 10 percent rating.  The Veteran has described additional motion loss or functional impairments and flare-ups during    the April 2017 VA examination, and that examiner indicated that the Veteran was able to perform repetitive use testing without loss of motion due to pain, fatigue, weakness, or lack of endurance and that there was no additional loss of function on examination. Considering the foregoing, the Board finds that a rating higher than the 10 percent rating assigned for the Veteran's thoracolumbar degenerative joint disease and lumbosacral strain is not warranted based on functional impairment. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. The Board also reiterates that the initial 10 percent rating was based on functional impairment due to pain.

Moreover, the Veteran denied having incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician, and the record does not suggest such. Thus, a higher rating is not warranted under the IVDS Formula. 

As noted above, the Veteran failed to report for an April 2022 VA examination which could have provided evidence relevant to his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Thus, evidence that could have supported his claim for a higher rating could not be obtained. Based on the evidence of record, the weight of the evidence is against a rating in excess of 10 percent for thoracolumbar degenerative joint disease and lumbosacral strain must be denied.

As a final matter, the 2017 examination revealed no radiculopathy or neurological abnormalities associated with the thoracolumbar spine, and straight leg raising was negative. Thus, a separate rating for neurological impairment is not warranted.

As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 

 

K. A. BANFIELD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Asare, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.