Case A25110750

T. V. CASEY · 2025 · Case ID: A25110750

MIXED

Summary

The veteran, who served in the United States Marine Corps from September 1988 to August 1992, appeals decisions concerning his claims for disability benefits. The Board granted entitlement to an effective date of May 17, 2019, but no earlier, for a 70 percent disability rating for posttraumatic stress disorder (PTSD). The Board found that the veteran continuously pursued his claim for a higher rating and an earlier effective date, and that the evidence supported the 70 percent rating from the date of the initial intent to file. The Board found the VA examiner's assessment of occupational and social impairment to be an incomplete assessment of the veteran's symptoms, and gave limited weight to the VA examination report due to the examiner's failure to provide a rationale for the lower rating and failure to identify all pertinent symptoms. The Board also considered the veteran's lay statements and headache log, but found them less compelling than other evidence. The Board denied entitlement to an earlier effective date prior to March 12, 2020, for service connection for bilateral hearing loss and tinnitus, as the veteran failed to file a timely notice of disagreement or provide new and material evidence within one year of the initial denial, and the subsequent supplemental claim was incomplete. The Board also denied an increased rating for posttraumatic headaches with dizziness, finding the evidence did not support the criteria for a 50 percent rating due to inconsistent statements regarding frequency and severity, lack of evidence for severe economic inadaptability, and the potential beneficial effects of medication. The Board remanded issues concerning a left shoulder surgical scar for an advisory medical opinion to determine the nature, etiology, and pain status of the scar, and to identify any additional scar-related symptoms and functional limitations.

Rationale

VA examiner's assessment of occupational and social impairment was incomplete.; Limited weight given to VA exam due to lack of rationale and failure to identify all symptoms.; Veteran's lay statements and headache log considered probative but less compelling than other evidence.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210924-560515

Full Decision Text

Citation Nr: A25110750
Decision Date: 12/30/25 Archive Date: 12/30/25

DOCKET NO. 210924-560515
DATE: December 30, 2025

ORDER

Entitlement to an effective date of May 17, 2019, but no earlier, for a 70 percent disability rating for posttraumatic stress disorder (PTSD) is granted.

Entitlement to an effective date prior to March 12, 2020, for service connection for bilateral hearing loss is denied.

Entitlement to an effective date prior to March 12, 2020, for service connection for tinnitus is denied.

Entitlement to a disability rating in excess of 30 percent for posttraumatic headaches with dizziness is denied.

REMANDED

The appeal as to whether the removal of a 10 percent disability rating for painful surgical scar (left shoulder) separate from a noncompensable (zero percent) rating for left shoulder surgical scar was clearly erroneous is remanded.

Entitlement to a compensable disability rating for the left shoulder scar, other than under Diagnostic Code (DC) 7804, is remanded.

FINDINGS OF FACT

1. May 17, 2019, is the date the Department of Veterans Affairs (VA) received an intent to file followed by a July 2019 application for compensation benefits, which the Veteran continuously pursued when he submitted the May 2020 supplemental claim; additionally, the evidence shows that his PTSD symptoms more nearly approximated the criteria for an occupational and social impairment with deficiencies in most areas during the appeal period.

2. A June 2013 rating decision denied the claims of service connection for hearing loss and tinnitus. The Veteran did not file a notice of disagreement (NOD), nor did VA actually or constructively receive new and material evidence within 1 year of the June 2013 rating decision.

3. The Veteran was informed that he filed the incorrect form as to his claims of service connection for hearing loss and tinnitus in July 2019, and VA did not receive a complete supplemental claim to readjudicate these issues until March 2020.

4. The evidence persuasively weighs against finding the posttraumatic headaches with dizziness resulted in very frequent completely prostrating and prolonged attacks that were productive of severe economic inadaptability during the appeal period.

CONCLUSIONS OF LAW

1. The criteria for an effective date of May 17, 2019, but no earlier, for a 70 percent disability rating for PTSD have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.126, 4.130, Diagnostic Code (DC) 9411.

2. The criteria for an effective date prior to March 12, 2020, for the award of service connection for hearing loss have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.400, 3.2500.

3. The criteria for an effective date prior to March 12, 2020, for the award of service connection for tinnitus have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.400, 3.2500.

4. The criteria for entitlement to a disability rating in excess of 30 percent for posttraumatic headaches with dizziness have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.20, 4.124a, DC 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from September 1988 to August 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2021 and August 2021 Higher-Level Review (HLR) decisions, following May 2020 and September 2020 rating decisions, by a VA regional office, which is the Agency of Original Jurisdiction (AOJ).

The Veteran elected the Board's Direct Review docket. See September 2021 VA Form 10182. This restricts the Board's review to the evidence of record at the time of the respective rating decisions on appeal. 38 C.F.R. § 20.301.

The Board notes that evidence was associated with the claims file after the respective rating decisions, which was during a period of time that is
2.

The Board notes that evidence was associated with the claims file after the respective rating decisions, which was during a period of time that is outside the applicable evidentiary window. Therefore, the Board has not considered this evidence in its present decision. 38 C.F.R. § 20.300(a). However, as to the issues being remanded, the AOJ will consider them in light of the entire claims file upon remand.

If the Veteran would like VA to consider the additional evidence that the Board could not consider with respect to the issues decided herein, the Veteran may file a supplemental claim (VA Form 20-0995) and identify the evidence that the AOJ should consider. 38 C.F.R. § 3.2501. Specific instructions for filing a supplemental claim are included following this decision.

As a final preliminary matter, the Board has considered the arguments raised and finds no explicit or implied argument as to a clear and unmistakable error (CUE) of a final rating decision. If the Veteran wishes to raise a CUE motion, the pleading of which must contain specific allegations, he must file such with the AOJ to adjudicate in the first instance. 38 C.F.R. § 3.105.

Effective Dates

The law regarding effective dates of an award of disability compensation provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented in the regulations, which provides that the effective date of an evaluation and award of compensation based on an original claim, or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400.

In general, an intent to file can be submitted by saving an electronic application, VA receipt of a VA Form 20-0966, or a written record of the veteran's oral intent to file an application by a VA employee. 38 C.F.R. § 3.155(a)(1).

Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or a claimant's representative, may be considered an informal claim, provided that it identified the benefit sought. 38 C.F.R. § 3.155(a) (prior to March 24, 2015). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id.

Reports of examination or hospitalization from VA, private physicians, or state or other institutions, may be accepted in certain circumstances as an informal claim. 38 C.F.R. § 3.157 (removed as of March 24, 2015).

Since March 24, 2015, all claims must be filed on a prescribed form. 38 C.F.R. § 3.151. A veteran may indicate an intent to file a claim by saving an electronic application, submitting an intent to file claim form, or communicating the intent orally to designated VA personnel that is then recorded in writing. 38 C.F.R. § 3.155(b). The VA will consider the first new claim (VA Form 21-526EZ) or supplemental claim (VA Form 20-0995) received within one year from receipt of the intent to file as filed on the date the intent to file was received. Id.; see also 38 C.F.R. §§ 3.2500, 3.2501.

The Federal Circuit Court held in Military-Veterans Advocacy v. Secretary of Veterans Affairs, 7 F.4th 1110 (Fed. Cir. 2021), that the
an intent to file claim form, or communicating the intent orally to designated VA personnel that is then recorded in writing. 38 C.F.R. § 3.155(b). The VA will consider the first new claim (VA Form 21-526EZ) or supplemental claim (VA Form 20-0995) received within one year from receipt of the intent to file as filed on the date the intent to file was received. Id.; see also 38 C.F.R. §§ 3.2500, 3.2501.

The Federal Circuit Court held in Military-Veterans Advocacy v. Secretary of Veterans Affairs, 7 F.4th 1110 (Fed. Cir. 2021), that the exclusion of supplemental claims from the intent-to-file framework in 38 C.F.R. § 3.155(d)(1)(i) was arbitrary and capricious because it squarely contradicted other provisions within the same regulation that indicate the effective date of a supplemental claim can be earlier than the date VA receives a complete supplemental claim. Military-Veterans Advocacy, 7 F.4th at 1147.

1. Entitlement to an effective date of May 17, 2019, but no earlier, for a 70 percent disability rating for PTSD.

Of note, the Veteran did not appeal the assignment of the 70 percent disability rating. Thus, this decision focuses only on whether an earlier effective date for the 70 percent rating is warranted and, if so, the correct effective date.

Additionally, the Board takes administrative notice that the AOJ did not combine the service-connected PTSD with the already existing service-connected TBI (to include irritability and anger) and post concussive disorder until it issued the September 2020 rating decision. The Board has thus elected not to amend the issue on appeal to reflect the change that followed the rating decision on appeal.

In May 2017, VA received an intent to file. In July 2019, VA received an application for compensation benefits, which included a claim of service connection for an acquired psychiatric condition to include PTSD (and depression). See July 2019 VA Form 21-526EZ. An October 2019 rating decision awarded service connection for PTSD and assigned a 30 percent disability rating with an effective date of May 17, 2019 (the date VA received the intent to file). 38 C.F.R. § 4.130, DC 9411.

In March 2020, VA received a single submission that contained multiple applications, including an application for compensation benefits that contained a request for a higher disability rating for the service-connected PTSD awarded about 5 months earlier. The May 2020 rating decision awarded a 70 percent disability rating for the PTSD with an effective date of March 10, 2020, "the date the claim was received." 38 C.F.R. § 4.130, DC 9411.

Of note, VA also received a request for a HLR of the October 2019 rating decision regarding "[e]ntitlement to a higher evaluation of at least 50 percent for PTSD." See March 2020 VA Form 20-0996. Although no formal letter was sent, the claims file as a whole indicates that the AOJ rejected this portion of the HLR request as a concurrent election. 38 C.F.R. § 3.2500.

In September 2020, VA received a request for a HLR of the May 2020 rating decision regarding "[e]ntitlement to earlier effective date for grant of 70% for PTSD effective May 17, 2019." See September 2020 VA Form 20-0996. Following the HLR request, a June 2021 rating decision denied an earlier effective date. The AOJ "denied entitlement to an earlier effective date for your [PTSD] because March 10, 2020 which is the date we received your claim, is the earliest date that can be used to assign your 70% rating."

In this case, the Board finds an earlier effective date for the 70 percent disability rating is warranted. VA defines a supplemental claim as "any claim for a VA benefit on an application form prescribed by the Secretary where an initial or supplemental claim for the same or similar benefit on the same or similar basis was previously decided." 38 U.S.C. § 101(36). A claimant is considered to be continuously pursuing a claim so long as he or she pursues an administrative review (supplemental claim, request for HLR, or appealing the matter to the Board) of the claim within the prescribed period. 38 C.F.R. § 3.2500(c). For claims that are continuous pursued, the effective date will be fixed based on the original claim that was continuously pursued, or the date entitlement
disability rating is warranted. VA defines a supplemental claim as "any claim for a VA benefit on an application form prescribed by the Secretary where an initial or supplemental claim for the same or similar benefit on the same or similar basis was previously decided." 38 U.S.C. § 101(36). A claimant is considered to be continuously pursuing a claim so long as he or she pursues an administrative review (supplemental claim, request for HLR, or appealing the matter to the Board) of the claim within the prescribed period. 38 C.F.R. § 3.2500(c). For claims that are continuous pursued, the effective date will be fixed based on the original claim that was continuously pursued, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.2500(h)(1). If a supplemental claim is received more than 1 year after the notice of a decision (rating decision or HLR decision) or Board decision, the effective date is fixed in accordance with the date entitlement arose but no earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2).

Here, the claims file clearly shows that the Veteran filed a supplemental claim on a VA Form 21-526EZ within 1 year of the rating decision that awarded service connection, assigned a disability rating and effective denied a disability rating higher than the assigned rating, and assigned the initial effective date of the award. Thus, the March 2020 supplemental claim was not a new claim but rather a continuous pursuit of the denial of a higher disability rating and/or earlier effective date for the service-connected PTSD following the October 2019 rating decision.

Moreover, the Board finds the evidence in the claims file supports a 70 percent disability rating to the effective date of service connection in general. Here, the VA medical records show that the Veteran resumed mental health treatment in June 2019, about a month after the May 2019 intent to file and a month prior to his application for compensation benefits, due to worsening psychiatric symptoms. See November 2019 CAPRI.

The Veteran was afforded a VA initial PTSD examination in October 2019. The examiner found the only mental disorder was PTSD. The Veteran reported, in part, a history of suicidal ideations without any attempts. He reported problems with road rage and that he had been involved in physical altercations. He had thrown and broken things and punched holes in walls.

The examiner stated that the Veteran met the criteria for PTSD, which included the following: recurrent, involuntary, and intrusive distressing memories; recurrent distressing dreams; intense or prolonged psychological distress at exposure to internal or external cues; marked physiological reactions to internal or external cues; avoidance of or efforts to avoid distressing memories, thoughts, or feelings; avoidance of or efforts to avoid external reminders; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hypervigilance; exaggerated startle response; problems with concentration; and sleep disturbance. See id. The examiner identified the Veteran's symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficult establishing/maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideations, and obsessional rituals which interfere with routine activities. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (i.e., criteria consistent with a 30 percent rating).

The Board finds the October 2019 VA examination report and medical opinion probative and gives it limited weight. The criteria and symptoms that the examiner identified appear reasonable in light of the evidence in the claims file as a whole. However, the symptoms identified appear to be an incomplete assessment when reviewing the Veteran's history in the examination report and lay statements as well as the clinical findings elsewhere in the claims file. The examiner opined that the Veteran had only an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is the rating criteria language for a 30 percent rating, but identified symptoms VA has specifically listed for ratings of 50 and 70 percent. The examiner provided no rationale as to why the lower rating best reflected the Veteran's disability picture. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The Board has given due consideration to all pertinent lay evidence when evaluating this claim. 38 U.S.C. § 1154(a); Layno v. Brown, 6 Vet. App. 465,
and intermittent periods of inability to perform occupational tasks, which is the rating criteria language for a 30 percent rating, but identified symptoms VA has specifically listed for ratings of 50 and 70 percent. The examiner provided no rationale as to why the lower rating best reflected the Veteran's disability picture. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The Board has given due consideration to all pertinent lay evidence when evaluating this claim. 38 U.S.C. § 1154(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran and his wife's account of his mental health symptoms in general probative in light of the evidence as a whole. See, e.g., July 2019 Buddy Statement; July 2019 VA Form 28-1902b; September 2019 VA Form 21-0781; Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

For the above reasons, the Board finds that an effective date of May 17, 2019, but no earlier, for an initial 70 percent disability rating is warranted. The claim is granted to this extent. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400.

2. Entitlement to an effective date prior to March 12, 2020, for service connection for bilateral hearing loss.

3. Entitlement to an effective date prior to March 12, 2020, for service connection for tinnitus.

The claims file shows that VA received an informal application for compensation benefits in April 2011, which included claims of service connection for hearing loss and tinnitus. See April 2011 VA Form 21-4138. A June 2013 rating decision denied the claims. The claims file shows that VA did not receive an NOD nor new and material evidence within 1 year of the rating decision. 38 C.F.R. §§ 3.156(b), 3.160(d), 19.52.

In May 2017, VA received an intent to file. VA did not receive an application within 1 year of this intent to file.

In May 2019, VA received a second intent to file. In July 2019, VA received an application for compensation benefits, which included claims of service connection for hearing loss and tinnitus. See July 2019 VA Form 21-526EZ. In a July 2017 letter, the AOJ informed the Veteran (and the Veteran's authorized representative) that the proper form was needed. See July 2019 Correspondence.

On March 12, 2020, VA received a single submission that contained multiple applications, including a supplemental claim requesting it readjudicate the claims of service connection for hearing loss and tinnitus. See March 2020 VA Form 20-0995. The September 2020 rating decision awarded service connection for hearing loss (noncompensable) and tinnitus (10 percent) with an effective date of March 12, 2020. 38 C.F.R. § 4.130, DC 9411.

In this case, there is no legal authority for the Board to assign an earlier effective date for the grants of service connection because the September 2020 rating decision already assigned the earliest effective date.

The pertinent legal authority governing effective dates in this case is clear and specific, and the Board is bound by this authority. The Veteran failed to file an NOD within 1 year of the June 2013 rating decision. The claims file shows that VA received no new information nor added any documentation to the claims file within 1 year of the June 2013 notice of decision. Of note, the claims file shows that official service department records (Military Personnel Records) were added to the claims file in January 2018 and August 2019. The Board reviewed these records and found no relevant information that would warrant reconsideration of the earlier rating decision. 38 C.F.R. § 3.156(c)(1)(i).

The Board considered but cannot award an earlier effective date based on the July 2019 VA Form 21-526EZ. The regulations state that that a complete claim is required for all types of claims, including supplemental claims. 38 C.F.R. § 3.155(d)(1). Furthermore, if VA receives an incomplete supplemental claim, it must notify the veteran (and his
Of note, the claims file shows that official service department records (Military Personnel Records) were added to the claims file in January 2018 and August 2019. The Board reviewed these records and found no relevant information that would warrant reconsideration of the earlier rating decision. 38 C.F.R. § 3.156(c)(1)(i).

The Board considered but cannot award an earlier effective date based on the July 2019 VA Form 21-526EZ. The regulations state that that a complete claim is required for all types of claims, including supplemental claims. 38 C.F.R. § 3.155(d)(1). Furthermore, if VA receives an incomplete supplemental claim, it must notify the veteran (and his representative) of the information necessary to complete the application and, if a complete claim is received within 60 days of the notice, it will be considered as having been filed on the date the incomplete claim was received. 38 C.F.R. § 3.155(d)(1)(i).

Here, on July 23, 2019, VA notified the Veteran and his representative that he needed to file the proper form. See July 2019 Correspondence. VA did not receive a complete supplemental claim relating to service connection for hearing loss or tinnitus until March 20, 2020, which is well more than 60 days after the July 2019 VA Form 21-526EZ. See March 2020 VA Form 20-0995.

The Board, thus, finds that an effective date prior to March 12, 2020, is not warranted for the awards of service connection for hearing loss and tinnitus. The claims are denied. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400.

Increased Rating

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R., Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Id. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. "Staged ratings" are, however, 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).

The evaluation of the same disability under several DCs, known as "pyramiding," must be avoided. 38 C.F.R. § 4.14. However, separate ratings may be assigned for distinct disabilities resulting from the same injury, so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id.

For non-initial increase rating claims, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, it shall be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2).

The veteran will be afforded the benefit of the doubt when the evidence is in approximate balance regarding the merits of an issue material to the determination, but such rule is not applicable if the evidence persuasively favors one side. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed.
claim is received within one year from such date; otherwise, it shall be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2).

Entitlement to a disability rating in excess of 30 percent for posttraumatic headaches with dizziness.

The appeal period in this matter goes back to March 2019, to include the one-year "look back" period from March 2020 application for a higher rating. 38 C.F.R. §§ 3.155, 3.400(o). The evidentiary record is limited to the evidence in the claims file at the time of the September 2020 rating decision on appeal. 38 U.S.C. § 7113; 38 C.F.R. § 20.301.

A June 2013 rating decision awarded service connection for "post traumatic headaches, dizziness, irritability, and anger issues (claimed as traumatic brain injury)" and assigned a 30 percent disability rating under DC 9411-8045 with an effective date of April 7, 2011. See also June 2013 Rating Decision - Codesheet; 38 C.F.R. § 4.124a, 3.130, DCs 8100, 9411. The AOJ stated that the rating was not based on evaluation criteria in the rating schedule but rather a "non-schedular evaluation [was] assigned [] because we granted you a combined evaluation based on the residual symptoms of TBI and a mental condition."

A September 2020 rating decision continued the disability rating. Of note, the corresponding codesheet shows that the post-concussive disorder was combined with the service-connected PTSD and the posttraumatic headaches with dizziness was reassigned and evaluated under DC 8100 (Migraines).

VA evaluates migraines/headaches under the DC 8100, which outlines successive rating criteria. 38 C.F.R. §§ 4.20, 4.124a; Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). A noncompensable (zero percent) rating is assigned for migraines with less frequent attacks. A 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one every 2 months over the last several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating (maximum schedular rating) is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

Of note, a migraine is defined as "an often familiar symptom complex of periodic attacks of vascular headache, usually temporal and unilateral in onset, commonly associated with irritability, nausea, vomiting, constipation or diarrhea, and often photophobia." See Dorland's Illustrated Medical Dictionary, 1149 (33rd 2020). Thus, the Board finds the terms migraine and headache interchangeable and there is no need to rate by analogy. 38 C.F.R. § 4.20.

In Johnson, the United States Court of Appeals for Veterans Claims (Court) addressed key words and phrases not defined in the rating criteria, a statute, or a regulation in general. The Court held "characteristic" to refer to "a trait, quality, or property or a group of them distinguishing an individual, group, or type." Johnson, 30 Vet. App. at 252, citing Webster's Third New International Dictionary of The English Language Unabridged (Webster's), 376 (1966). "'Prostrating' means 'lacking in vitality or will: powerless to rise: laid low.'" Id., citing Webster's, 1822. The "phrase 'characteristic prostrating attacks' plainly describes migraine attacks that typically produce powerlessness or a lack of vitality." Id.

With respect to the criteria for a 50 percent rating, the Court held that the phrase "very frequent" implies a frequency at least greater than once a month as is required for a 30 percent rating. Johnson, 30 Vet. App. at 253. "Completely" means "to complete degree: entirely." Id., citing Webster's,
of The English Language Unabridged (Webster's), 376 (1966). "'Prostrating' means 'lacking in vitality or will: powerless to rise: laid low.'" Id., citing Webster's, 1822. The "phrase 'characteristic prostrating attacks' plainly describes migraine attacks that typically produce powerlessness or a lack of vitality." Id.

With respect to the criteria for a 50 percent rating, the Court held that the phrase "very frequent" implies a frequency at least greater than once a month as is required for a 30 percent rating. Johnson, 30 Vet. App. at 253. "Completely" means "to complete degree: entirely." Id., citing Webster's, 465. The use of "completely" to modify "prostrating attack" requires the migraines render the individual entirely powerless. Id. "Prolong" means "to lengthen in time: extend duration: draw out: continue, protract." Id., citing Webster's, 1815. "[T]he use of the conjunctive 'and' makes clear that the headaches must be long in duration." Id., citing Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (use of the conjunctive "and" in a DC means that all criteria must be present to satisfy a particular rating).

Furthermore, in Pierce v. Principi, the Court adopted the Secretary's interpretation of "productive of severe economic inadaptability" to mean "producing" or "capable of producing" severe economic inadaptability. Pierce, 18 Vet. App. 440, 445 (2004). However, there is no requirement that an individual be unable to work to qualify for a 50 percent rating. Id. at 446.

However, VA nor the Court has defined the phrase "severe economic inadaptability." The Board recognizes that severe is defined to mean "of a great degree" and, alternatively, "causing discomfort or hardship." See Merriam-Webster Dictionary online, available at https://www.merriam-webster.com/dictionary/ severe. The definition of economic includes "of, relating to, or based on the production, distribution, and consumption of goods and services," "having practical or industrial significance or uses: affecting material resources," and "of or relating to a household or its management." See id., available at https://www.merriam-webster.com/dictionary/economic. Inadaptability is defined as "the quality or state of being inadaptable." See id., available at https://www.merriam-webster.com/dictionary/inadaptability. Inadaptable is defined as "incapable of adaptation: belonging to a fixed type." See id., available at https://www.merriam-webster.com/dictionary/inadaptable. In light of these definitions, the Board has interpreted the phrase severe economic inadaptability as requiring the migraines/headaches impose a hardship or change related to the veteran's employment (to include pursuit of an education for future employment) or ability to manage home or familial responsibilities.

After careful review of the probative evidence, the Board finds that the evidence persuasively weighs against awarding a rating in excess of the currently assigned 30 percent disability rating for the posttraumatic headaches with dizziness. The Veteran's military personnel and service treatment records show that he was involved in a single-vehicle motor vehicle accident in April 1991. See July 1994 STRs; January 2018 & August 2019 Military Personnel Records. Prior to separating from active service in August 1992, he reported no issue related to on-going headaches. See generally STRs. He denied any history of headaches or dizziness in his Report of Medical History completed at the time of his separation examination.

The VA medical records show that the Veteran generally denied a problem related to headaches when reviewing his systems during various appointments. See generally CAPRI. In September 2016, he did report that he had been followed privately by a neurologist outside of the VA health system but had stopped. See November 2019 CAPRI. He reported that an ENT had recommended he stop chewing gum and that he was "[n]ot having any headaches now." A March 2020 medicine note shows that he reported a headache and rating the pain at "7." See April 2020 CAPRI. No examination was performed. There are no other recorded complaints in the VA medical treatment during the appeal period.

The claims file shows that the Veteran provided private medical records for two encounters in November 2018 and December 2018; he denied headaches during each encounter. See August 2019 Medical Treatment Record.

Of note, the Board recognizes that the Veteran's private medical records were not obtained for the
of the VA health system but had stopped. See November 2019 CAPRI. He reported that an ENT had recommended he stop chewing gum and that he was "[n]ot having any headaches now." A March 2020 medicine note shows that he reported a headache and rating the pain at "7." See April 2020 CAPRI. No examination was performed. There are no other recorded complaints in the VA medical treatment during the appeal period.

Of note, the Board recognizes that the Veteran's private medical records were not obtained for the record but finds no duty to assist error. He was asked to provide copies of evidence that might support his claim or return VA Forms 21-4142 and 4142a so that the AOJ could assist him. See June 2020 Standard 5103 Notice.

The Veteran was originally afforded an initial VA examination to evaluate him for any residuals of a traumatic brain injury (TBI) in May 2013. See also April 2020 CAPRI. The diagnosis was post concussive disorder with posttraumatic headaches, dizziness, and irritability/anger issues. He reported an onset of headaches following the 1991 motor vehicle accident and that they had "continued unchanged" since. The pain was localized at the top of his head. The headaches occurred 1 to 2 times a week and lasted for 1 hour; they were prostrating only "once in a few months." He also noted nausea with intermittent dizziness, further described as being unsteady during postural changes for a few seconds. The examiner noted that there was no frank vertigo or tinnitus. The claims file does not include a Disability Benefits Questionnaire (DBQ) specifically addressing the headaches.

The Veteran was afforded a VA headache examination in September 2020. At this examination, he recalled having a headache when EMS arrived at the scene of the April 1991 motor vehicle accident; the bright lights in the ambulance made the headache worse and he felt like the room was spinning when he closed his eyes. He initially self-treated with over-the-counter medication and did not see anyone "until years later" after his symptoms got worse. He reported "severe and frequent headaches" and getting dizzy when getting up too fast. He reported vision changes. He was currently working and attending school but behind and "just has to work at his own pace or he won't remember anything that he is trying to learn." The examiner stated that the headache symptoms were associated with pain (pressure) on both sides of the head. The only additional symptom was dizziness. The typical duration of the headaches were less than 1 day. The examiner opined that the Veteran did not have characteristic prostrating attacks of headache pain. The headaches also did not result in very prostrating and prolonged attacks productive of severe economic inadaptability.

The Board finds the September 2020 VA examination report and medical opinion probative and gives it limited weight. The examiner was a qualified medical professional who conducted an in-person examination. The examiner appears to have considered the Veteran's lay statements about the severity of his symptoms when completing the reports even though the examiner failed to identify all of the Veteran's pertinent symptoms noted elsewhere in the record. Regardless, the medical opinion that the headaches with dizziness have not resulted in very prostrating and prolonged attacks productive of severe economic inadaptability is not inconsistent with the evidence as a whole. Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124.

Of note, when identifying the Veteran's pertinent symptoms, the VA examiner stated only that the Veteran's symptoms were head pain/pressure and dizziness. The symptoms did not include nausea, vomiting, light/sound sensitivity, or vision changes, symptoms which the examiner referenced in the medical history and the Veteran identified in his headache log. See March 2020 Medical Treatment Record. The Board has considered but finds it unnecessary to remand this matter so that a new VA examiner can clearly mark all of the Veteran's pertinent symptoms. The evidence currently in the record, which includes the Veteran's headache log, are adequate for adjudication. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Board gave no weight to the May 2013 VA examination report because it documents the Veteran's remote lay statements, and the examiner completed the report without reviewing information in the claims file at the time. Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124.

Additionally, the Board has considered the lay evidence. 38 U.S
and this matter so that a new VA examiner can clearly mark all of the Veteran's pertinent symptoms. The evidence currently in the record, which includes the Veteran's headache log, are adequate for adjudication. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

Additionally, the Board has considered the lay evidence. 38 U.S.C. § 1154(a); Layno, 6 Vet. App. at 470. Specifically, the Veteran provided a headache log that detailed the date, severity, associated symptoms, medication he used and degree of symptom relief, and additional comments between January 2013 and March 2020. See March 2020 & May 2020 Medical Treatment Records. The log shows that he at times experienced a single headache lasting multiple days or that he had separate headaches on consecutive days. However, the treatment notes show that he voiced no complaints related to headaches during this period. The only recorded complaint relating to headaches was documented about 2 weeks after he first submitted the log to VA. See April 2020 CAPRI.

Although the headaches might not have coincided with a date he sought medical care, the Board would expect to see some degree of complaints in treatment notes leading up to the appeal period and thereafter. In 2016, he reported the headaches had fully resolved though his log indicates his last headache was just 12 days earlier. See November 2019 CPARI. In 2018, he denied any issue with headaches during a visit with his private physician though his log indicates he had a headache(s) over a 5-day period the week prior to being seen in November 2018 and a headache(s) over a 4-day period the same week he was seen in December 2018. See August 2019 Medical Treatment Record. Though competent to provide testimony about his headaches and related symptoms, including as to the frequency and severity of such symptoms, the Board finds the Veteran's log specifically advanced for the purpose of supporting, and bolstering, this claim to be less compelling and less probative than evidence elsewhere in the claims file. Jandreau, 492 F.3d at 1377; Kahana, 24 Vet. App. at 435; see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (pecuniary interest in benefits may affect credibility of claimant's testimony); Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements).

Having considered the evidence in the claims file, including that summarized above, a disability rating higher than 30 percent is not warranted at this time. 38 C.F.R. § 4.124a. The record contains inconsistent statements regarding the frequency and severity of the headaches. Focusing on the appeal period, he indicated in the headache log that he missed multiple days of work at times due to the headaches. He, however, noted only that he had to "Lay down several times" on the following dates: May 11, July 6, August 4, September 15, November 16, 2019, and February 9 and March 7, 2020. Even if the headaches resulted in prolonged attacks, which the Board considers more consistent with a headache lasting no less than 2 days at a time, he did not average more than one prostrating attack a month. The present facts do not suggest his disability picture was consistent with the "prolonged" requirement for a 50 percent disability rating.

There is also no evidence of severe economic inadaptability. The claims file fails to show that the Veteran has changed occupations or received workplace or school accommodations because of the headaches, or dizziness. He provided no evidence to support his statements that he regularly missed work, such as provide copies of paystubs showing leave he used during the appeal period. The Board also found nothing in the claims file that suggests the headaches limited the Veteran's ability to manage his personal or family obligations during the appeal period.

Still, the Board must consider the Veteran's use of medication and whether
than one prostrating attack a month. The present facts do not suggest his disability picture was consistent with the "prolonged" requirement for a 50 percent disability rating.

Still, the Board must consider the Veteran's use of medication and whether such medication provided any beneficial effects when evaluating the service-connected headaches. Ingram v. Collins, 38 Vet. App. 130 (2025); Jones, 26 Vet. App. 56, 61 (2013). The Veteran reported using over-the-counter medications and identified the degree of symptom relief. The Board finds it plausible that the Veteran's use of over-the-counter medication may have reduced the length and the number of prostrating attacks he experienced over the course of the appeal period. However, the Board is not fully persuaded that the Veteran's description of his headaches without medication would have resulted in very frequent, prostrating attacks needed to meet the first part of the rating criteria for a 50 percent rating. Thus, a disability rating in excess of 30 percent rating is still not warranted even when excluding the beneficial effects of medication.

Additionally, the Board considered if there is another DC that could avail the Veteran of a higher rating. There is no competent or credible evidence that the dizziness has affected his gait. See, i.e., 38 C.F.R. § 4.87, DCs 6204, 6205.

For the reasons above, the Board finds that the evidence persuasively weighs against granting a disability rating in excess of 30 percent for the posttraumatic headaches with dizziness during the appeal period. The claim is denied.

REASONS FOR REMAND

1. The appeal as to whether the removal of a 10 percent disability rating for painful surgical scar (left shoulder) separate from the noncompensable (zero percent) rating for left shoulder surgical scar was clearly erroneous is remanded.

2. Entitlement to a compensable disability rating for the left shoulder scar, other than under Diagnostic Code (DC) 7804, is remanded.

The Board finds it necessary to remand this matter to satisfy a regulatory duty. 38 C.F.R. § 20.802.

The Board finds an advisory medical opinion is needed before it can adjudicate the merits of these claims. A review of the claims file shows that, in September 1994, the Veteran reported "pain + discomfort" associated with his left shoulder. See September 1994 VA Form 21-4138. The AOJ awarded service connection for a left shoulder disability status post left clavicle and scapula fractures without a VA examination or medical opinion. There was no mention of a surgical scar.

In response to the Veteran's application for a higher rating for the left shoulder disability, he was afforded a VA shoulder and arm conditions examination in November 2011. See December 2011 C&P Exam. He reported "pain and numbness in the area." The VA examiner acknowledged that there was localized tenderness or pain on palpation though did not clarify if one or both were present. The examiner stated that the left shoulder scar was not painful nor unstable. The examiner provided no statement reconciling the lay statement and the clinical findings.

In August 2019, the Veteran was afforded a second VA shoulder and arm conditions examination. The documented medical history included "sensory change at surgical site." The examiner pointed out that a May 2011 treatment note included a reference that the Veteran reported "chronic left shoulder pain, always felt numbness" and an October 2017 treatment note references "pain in the left shoulder and left shoulder blade and numbness." See also November 2019 CAPRI. The examiner noted the following: "Pain type: dull pain more of a deltoid numbness some days worse than other tingling dull pain and rub across scar sensation of medial arm." The examiner (incorrectly) stated that the Veteran had no scars related to the left shoulder.

In September 2020, the Veteran was afforded a VA scars/disfigurement examination. His current symptoms were described as "still some numbness about the scar, but his shoulder motion [in] time has deteriorated."

The Board recognizes that 38 C.F.R. Part 4 identifies rating criteria to include pain and numbness as separate symptoms but does not specifically define either term here or elsewhere in the regulations. See also VA Adjudication Procedures Manual (M21-1), Part V. The definition of pain includes "a more or less localized sensation of discomfort, distress, or agony, resulting from the stimulation of specialized nerve ending" and that "[i]t serves as a protective mechanism insofar as it induces the sufferer to remove or withdraw from the source." See Dorland's Illustrated Medical Dictionary, 1343. The definition of numbness sends the reader to anesthesia, which is defined as "loss of sensation, usually by damage to a nerve or receptor; called as numbness." See Dorland's Illustrated Medical Dictionary, 79.

As noted in Section V.iii.10.3.a of the M21-1, a separate disability evaluation for a painful scar under DC 7804 is proper only if the functional impairment is distinct and separate from the functional impairment related to another assigned DC and is not duplicative of or overlaps with symptomology addressed in another assigned DC. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259 (1994); Jones v. Principi, 18 Vet. App. 248 (2004).

Upon remand, the AOJ will request an advisory medical opinion that specifically addresses whether the Veteran's lay statements are consistent with a painful surgical scar (DC 7804) and, if so, the examiner is asked to provide an opinion as to when the scar became painful. Additionally, whether or not the examiner finds the lay statements consistent with a painful scar, the examiner should identify any additional scar-related symptoms and discuss whether the additional symptom(s) causes a functional impairment so that the Board can consider whether the functional impairment is distinct and does not overlap with another DC.

The matters are REMANDED for the following action:

Obtain an advisory medical opinion from an appropriate clinician to determine the nature and etiology of the left shoulder surgical scar since June 1994. The need for an in-person examination is left to the discretion of the examiner. The examiner must review the entire claims file, including a copy of this remand, and note such in the accompanying report.

The medical opinion should clearly discuss the Veteran's lay statements as to his left shoulder surgical scar symptoms and whether the lay statements are generally consistent with a "painful" scar and, if so, provide an opinion as to when the scar became painful. Additionally, whether or not the examiner finds the scar has been painful at any point since June 1994, the examiner is asked to identify if the Veteran has any additional scar-related symptoms, including related to sensation, and, if so, identify the functional limitation(s) associated with each symptom.

Because the Veteran is competent to attest to factual matters of which he has first-hand knowledge, the examiner should provide a well-reasoned explanation if there is a medical basis that supports or calls into doubt the history of any symptom.

(Continued on the next page)

If the examiner is unable to provide an opinion, the examiner should indicate whether there is any additional evidence that would facilitate an opinion, or whether the examiner's inability to opine is based on the limits of the examiner's medical knowledge.

T. V. Casey

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board T. Burden, 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.

Analyze in VA Law Explorer