Veteranclaims’s Blog

February 25, 2020

Single Judge Application; headaches associated with a traumatic brain injury (TBI); 38 C.F.R. § 4.124a, DC 8100 (2019); frequency of headaches is the only distinction in DC 8100 between a 10% and 30% disability rating;

Filed under: Uncategorized — veteranclaims @ 1:45 pm

Excerpt from decision below:

“The Board assigned Mr. Davidson a 10% disability rating for his headaches by applying the rating criteria found in 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. Under that provision, a 10% disability rating is warranted for headaches with “characteristic prostrating attacks averaging one in 2 months over the last several months.” 38 C.F.R. § 4.124a, DC 8100 (2019). A 30% disability rating is warranted under that DC for headaches “[w]ith characteristic prostrating attacks occurring on average once a month over last several months.” Id. A 50% disability rating is warranted for headaches “[w]ith very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” Id.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 18-4655
HEDLEY V. DAVIDSON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

PIETSCH, Judge: Hedley V. Davidson appeals through counsel an August 6, 2018, Board
of Veterans’ Appeals (Board) decision that denied an initial disability rating in excess of 10% for tension headaches associated with a traumatic brain injury (TBI). This appeal is timely and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
Single-judge disposition is appropriate as the issue is of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the August 6, 2018, Board decision on appeal and remand the matter for readjudication consistent with this decision.
I. FACTS
Mr. Davidson served on active duty in the U.S. Marine Corps from April 1968 to February
1976 and later in the Marine Corps Reserve and the Army National Guard. Record (R.) at 1906-

  1. He reported suffering two traumatic brain injuries, one during a 1969 rocket attack and one
    during a hard parachute landing in 2005. R. at 684.
    Mr. Davidson filed his initial claim for VA benefits for a concussion in June 2010. R. at
    2072-73. At an April 2011 VA examination, he reported experiencing headaches once every 2
    months, which he described as aggravating, but not debilitating. R. at 1397. The examiner opined
    2
    that Mr. Davidson’s headaches were moderate and occasionally included some of the features of
    migraines, including nausea, vomiting, throbbing pain, and light sensitivity. R. at 1400.
    In June 2011, a VA regional office (RO) granted Mr. Davidson entitlement to VA benefits
    for residuals of a TBI and assigned a 0% disability rating, effective March 29, 2010. R. at 1340-
    46, 1348-53. After he disagreed with the disability rating, he underwent another VA examination
    in August 2013. R. at 686. At that time, he reported experiencing headaches with dizziness twice
    a month. Id. A disability benefits questionnaire completed that same day noted that he had pain in
    the front of his head with nausea that usually lasted 1 to 2 days. R. at 714. The examiner reported
    that Mr. Davidson did not have prostrating attacks of migraine headache pain, but that he did have
    prostrating attacks of non-migraine headache pain less than once every 2 months. R. at 714-15.
    In February 2014, the RO granted Mr. Davidson VA benefits for tension headaches
    secondary to residuals of a TBI and assigned a 0% disability rating, effective August 15, 2013. R.
    at 311.
    At a March 2015 VA examination, Mr. Davidson reported having headaches twice a
    month, with each lasting 2 to 3 hours or less if he took medication. R. at 402. The examiner noted
    that the headache pain was knife-like and throbbing, located above his left eye. Id. The examiner
    also noted that Mr. Davidson’s headaches also involved light and noise intolerance and changes in
    his vision, including his occasionally seeing flashing lights. Id. The examiner responded “No” to
    the question, “Does the Veteran have characteristic prostrating attacks of migraine / non-migraine
    headache pain?” Id.
    The Board issued a decision in June 2017, recognizing March 29, 2010, as the effective
    date for Mr. Davidson’s award of benefits for tension headaches, but continuing to deny him a
    compensable disability rating. R. at 234-47. After he appealed to this Court, the parties filed a joint
    motion for a partial remand in December 2017, agreeing that the Board had failed to adequately
    consider the evidence, including the frequency of Mr. Davidson’s headaches. R. at 206-07.
    On August 6, 2018, the Board issued the decision on appeal, granting Mr. Davidson an
    initial 10% disability rating for tension headaches associated with TBI residuals. R. at 4. The Board
    found that his “migraine headaches are most closely characterized as prostrating attacks averaging
    one in two months over the last several months.” R. at 9.
    3
    Mr. Davidson argues that the Board erred when it found him entitled to “at least” a 10%
    disability rating without explaining why a higher disability rating was not appropriate. He states
    that the Board conceded that he experiences prostrating migraine headaches and that the evidence
    demonstrates that, since August 2013, he experiences these headaches about twice a month,
    thereby entitling him to a 30% disability rating. He also argues that the Board failed to consider
    whether his headaches were completely prostrating, very frequent, prolonged, and capable of
    producing severe economic impairment, which would entitle him to a 50% disability rating.
    In response, the Secretary argues that Mr. Davidson has not demonstrated that the Board
    erred by denying him entitlement to a 30% disability rating because he fails to point to sufficient
    evidence that such a rating is warranted. In support, the Secretary cites evidence demonstrating
    that Mr. Davidson’s headaches varied in severity. The Secretary also argues that, because the rating
    criteria are successive in nature, the Board was not required to discuss entitlement to a 50%
    disability rating where Mr. Davidson did not meet the criteria for a 30% disability rating.
    II. ANALYSIS
    The Board assigned Mr. Davidson a 10% disability rating for his headaches by applying the rating criteria found in 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. Under that provision, a 10% disability rating is warranted for headaches with “characteristic prostrating attacks averaging one in 2 months over the last several months.” 38 C.F.R. § 4.124a, DC 8100 (2019). A 30% disability rating is warranted under that DC for headaches “[w]ith characteristic prostrating attacks occurring on average once a month over last several months.” Id. A 50% disability rating
    is warranted for headaches “[w]ith very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” Id.

    The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate
    review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995);
    Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board
    must analyze the credibility and probative value of the evidence, account for the evidence it finds
    persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence
    4
    favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d
    604 (Fed. Cir. 1996) (table).
    Mr. Davidson argues that, in awarding him a 10% disability rating, the Board recognized that his headaches were prostrating, but failed to adequately explain why a higher disability rating was not required given the frequency of those headaches. The Secretary asserts that Mr. Davidson has failed to show that the evidence warrants a 30% disability rating. In doing so, the Secretary cites evidence reflecting that Mr. Davidson’s headaches have been variously characterized as
    severe, moderate, and mild, which the Secretary contends does not meet the criteria of once
    monthly prostrating headaches, which a 30% disability rating requires. In making this argument,
    the Secretary notes that the Board did not specifically discuss this evidence or make this finding,
    but asks the Court to consider this reasoning under its prejudicial-error analysis.
    In its decision, the Board found that Mr. Davidson had consistently reported experiencing
    “frontal migraine headaches ranging once every month to once every two months.” R. at 8. The
    Board found him competent to report these headaches and awarded a 10% disability rating based
    on his reports. However, it is unclear why the Board seemingly accepted his statements regarding experiencing headaches once every month, but did not assign a 30% disability rating. The frequency of headaches is the only distinction in DC 8100 between a 10% and 30% disability rating. 38 C.F.R. § 4.124a, DC 8100. Although the Board acknowledged that Mr. Davidson had reported headaches once every month and once every other month, the Board did not explain why it relied on his reports of experiencing headaches once every other month over his reports of experiencing headaches every month.
    Further, the Board acknowledged, but did not directly address, Mr. Davidson’s August 2013 report of having headaches twice a month. The Board also did not address Mr. Davidson’s March 2018 statement that he wakes up with a headache “a couple of days a week.” R. at 97.
    Although the Secretary more thoroughly discusses this evidence in an attempt to frame Mr. Davidson’s headaches as being less severe at times, the Board made no such finding, and the Court will not accept the Secretary’s post hoc rationalization. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced
    for the first time in the reviewing court.”).
    5
    Based on the evidence of record and the decision on appeal, the Court finds the Board’s
    discussion of the appropriate disability rating for Mr. Davidson’s headaches is inadequate. 38
    U.S.C. § 7104(d)(1); see Gilbert, 1 Vet.App. at 56-57. Although Mr. Davidson requests reversal,
    the evidence in the record does not support such an outcome. Reversal is the appropriate remedy
    only in cases in which the only permissible view of the evidence is contrary to the Board’s decision.
    Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996).
    Remand is appropriate where the record is inadequate or VA must make further factual
    determinations. See Byron v. Shinseki, 670 F.3d 1202 (Fed. Cir. 2012) (affirming the Court’s
    decision to remand a matter). Here, because there is conflicting evidence regarding the frequency
    of Mr. Davidson’s headaches and the Court has determined that the Board provided an inadequate
    discussion of that evidence, remand, not reversal, is required. See Tucker v. West, 11 Vet.App.
    369, 374 (1998) (holding that remand is the appropriate remedy where the Board has provided
    inadequate reasons or bases for its decision).
    The Court need not at this time address the other arguments raised by Mr. Davidson. See
    Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision
    preserves for the appellant an opportunity to argue those claimed errors before the Board at the
    readjudication, and, of course, before this Court in an appeal, should the Board rule against him

“). On remand, he is free to submit additional evidence and argument on the remanded
matters, and the Board is required to consider any such relevant evidence and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam order). The Court has held that “[a] remand is meant to entail a critical examination of
the justification for the decision.” Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). The Board
must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary to
provide for “expeditious treatment” of claims remanded by the Court).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the August 6, 2018, Board decision on appeal is VACATED and the
matter is REMANDED for readjudication consistent with this decision.
6
DATED: February 24, 2020
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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