Veteranclaims’s Blog

January 13, 2022

Single Judge Application; in Holmes v. Wilkie, 33 Vet.App. 67, 72-73 (2020), the Court held that the rating criteria for migraines included all symptoms a veteran experienced and not just head pain, and on remand VA should consider the frequency, duration, and severity, and the economic impact of all symptoms;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-3775
GLENN L. COLEMAN, APPELLANT,
V.
DENIS MCDONOUGH,
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: The appellant, Glenn L. Coleman, appeals that part of a February 4,
2019, Board of Veterans’ Appeals (Board) decision that denied a disability rating higher than 10%
for migraine headaches, effective before August 9, 20161. The appeal is timely and the Court has
jurisdiction over this matter pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition
is appropriate when the issues are of “relative simplicity” and “the outcome is not reasonably
debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the
Court will vacate the February 2019 decision and remand the matter for readjudication consistent
with this decision.
1 The Board granted Mr. Coleman’s claim for tinnitus and this is a favorable factual finding the Court may
not disturb on appeal. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007), aff’d in part, dismissed in part sub
nom. Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009). The Board also remanded claims for service connection
for bilateral upper and lower extremities and a total disability rating based on individual unemployability. Because
these remanded claims are not final Board decisions, the Court lacks jurisdiction to address them. See Breeden v.
Principi, 17 Vet.App. 475, 478 (2004) (stating that a Board remand decision is not a final decision over which this
Court has jurisdiction). Finally, Mr. Coleman presents no argument regarding the denial of service connection for an
acquired psychiatric disability, the denial of a rating for migraines higher than 50% effective after August 9, 2016,
and dismissal of an earlier-effective-date claim for his 10% disability rating for migraines. The Court considers those
claims abandoned and will not address them further. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en
banc) (holding that, where an appellant abandons an issue or claim, the Court will not address it); Grivois v. Brown,
6 Vet.App. 136, 138 (1994) (holding that issues or claims not argued on appeal are considered abandoned).
2
I. BACKGROUND
Mr. Coleman served on active duty in the U.S. Army from July 1981 to June 1983. See
Record (R.) at 5388. In 2006, VA awarded him service connection for migraines and assigned a
10% disability rating effective August 31, 2004. Mr. Coleman did not appeal this decision and it
became final.
In July 2014, he filed a claim for an increased rating and underwent a VA headaches
examination in September 2014. The examiner found Mr. Coleman had migraines with symptoms
of pulsating or throbbing head pain, pain on both sides of his head, loss of concentration and
memory, nausea, and sensitivity to light and sound. The examiner noted that Mr. Coleman had
characteristic prostrating attacks of migraine headache pain and documented that the frequency of
the attacks was “with less frequent attacks.” R. at 1120. The examiner explained that Mr.
Coleman’s migraines did not produce severe economic inadaptability, but that his headaches had
affected his ability to work, because on average he experienced one to two severe migraines a year
and during these episodes was incapacitated. Id. In a February 2015 decision, the regional office
(RO) denied a disability rating higher than 10% for Mr. Coleman’s migraines. He filed a Notice of
Appeal and VA issued a Statement of the Case (SOC) in March 2016. Mr. Coleman perfected an
appeal.
On August 9, 2016, he underwent another VA headaches examination and reported
experiencing headaches approximately three to four times per week. These headaches often caused
twitching in his left eye, occasionally caused lightheadedness, and caused blurred vision or
flashing lights. R. at 977. The examiner noted that Mr. Coleman had characteristic prostrating
attacks of migraine headache pain on average once a month, and these prostrating and prolonged
attacks resulted in severe economic inadaptability. Id. The examiner noted that Mr. Coleman had
not worked since 1991.
In an August 12, 2016, decision, the RO granted Mr. Coleman a 50% disability rating for
migraines effective August 9, 2016. The RO explained that the August 2016 medical examination
report showed a worsening of Mr. Coleman’s symptoms, and that he had experienced very frequent
completely prostrating and prolonged attacks on average of once a month over the last several
months.
In September 2017, Mr. Coleman testified before the Board, stating that since July 2014
he had experienced prostrating attacks of headache pain approximately twice a week. See R. at
3

  1. During a month, he stated, he could have three, four, and maybe five migraine headaches,
    and that this period was difficult to endure. period was a rough period. R. at 164-67.
    In 2019, the Board issued the decision now on appeal, denying a disability rating higher
    than 10% for migraines effective before August 9, 2016. The Board reasoned that before August 9,
    2016, the evidence of record did not establish that Mr. Coleman’s headaches were productive of
    characteristic prostrating attacks that occurred on average once a month over a several-month
    period.
    II. ANALYSIS
    The Board’s determination of the proper disability rating is a finding of fact that the Court
    reviews under the “clearly erroneous” standard of review. See 38 U.S.C. § 7261(a)(4); Smallwood
    v. Brown, 10 Vet.App. 91, 97 (1997). A finding of fact is “clearly erroneous” when the Court, after
    reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been
    committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski,
    1 Vet.App. 49, 52 (1990). As with any material issue of fact or law, the Board must provide a
    statement of the reasons or bases for its determination “adequate to enable a claimant to understand
    the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday v.
    Brown, 7 Vet.App. 517, 527 (1995); see also 38 U.S.C. § 7104(d)(1).
    Mr. Coleman is rated for migraines under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100
    (2020). Under DC 8100, a 0% disability rating is warranted when a veteran has “less frequent
    attacks.” 38 C.F.R. § 4.124a, DC 8100. For migraines “[w]ith characteristic prostrating attacks
    averaging one in 2 months over the last several months,” a veteran is entitled to a 10% disability
    rating is warranted. Id. And for migraines “[w]ith characteristic prostrating attacks occurring on
    an average once a month over last several months,” a veteran receives a 30% disability rating. Id.
    Finally, for a veteran “[w]ith very frequent completely prostrating and prolonged attacks
    productive of severe economic inadaptability,” a 50% disability rating is warranted. Id.
    In denying a rating higher than 10% effective before August 2016, the Board found that
    the evidence did not show that Mr. Coleman has “characteristic prostrating attacks occurring on
    an average once a month over a several-month period,” the necessary criteria for a 30% disability
    rating. R. at 12. The Board discussed the September 2014 VA examination and noted that the
    examiner found that with respect to the duration of Mr. Coleman’s migraines, the migraines lasted
    4
    less than 1 day, and that his “characteristic prostrating attacks of migraine head pain” were “less
    frequent over the prior several months.” See R. at 13; see also R. at 1119-20. The Board noted that
    the 2014 examiner found that Mr. Coleman did not have “very prostrating and prolonged attacks
    of migraine pain productive of severe economic inadaptability.” R. at 13; see also R. at 1120. The
    Board, however, noted that the examiner found Mr. Coleman’s headaches affected his ability to
    work because he had severe migraines one to two times a year that incapacitated him. Based on
    the September 2014 VA examination and VA treatment records from April 2014, September 2014,
    October 2014, January 2015, December 2015, and January 2016, the Board denied a higher
    disability rating. See R. at 13.
    Mr. Coleman argues that the Board provided an inadequate statement of its reasons or bases
    for denying a disability rating higher than 10% effective before August 9, 2016. Specifically, he
    asserts that the September 2014 VA headaches examination report was “internally inconsistent”
    and “insufficiently descriptive.” See Appellant’s Brief at 8-11. Because the report was inadequate
    for rating, Mr. Coleman contends that it did not support the Board’s factual conclusion that he was
    not entitled to a higher disability rating.
    Mr. Coleman alleges that the 2014 VA examiner’s report contained an internal
    inconsistency, rendering it inadequate to support the Board’s denial of a higher disability rating.
    The examiner found that Mr. Coleman did not have “very prostrating and prolonged attacks of
    migraine headache pain” that produced severe economic inadaptability. See R. at 1120. At the
    same time, the examiner found that his headache condition affected his ability to work. Reading
    the medical report as a whole, we find no internal inconsistency. See Acevedo v. Shinseki,
    25 Vet.App. 286, 294 (2012) (noting that VA examination reports must be read as a whole).
    Because Mr. Coleman’s severe migraines, which rendered him unable to work, occurred only once
    or twice a year, the examiner’s conclusion that his headaches were not productive of severe
    economic inadaptability is logical and not inconsistent. Furthermore, the examiner’s conclusion
    that Mr. Coleman did not have “very prostrating and prolonged attacks” of migraine headache pain
    producing severe economic inadaptability, supports the Board’s conclusion that he was not entitled
    to a 50% disability rating. See 38 C.F.R. § 4.124a, DC 8100 (requiring “very frequent completely
    prostrating and prolonged attacks productive of severe economic inadaptability” for a 50%
    disability rating); Johnson v. Wilkie, 30 Vet.App. 245, 252 (2018) (finding that the rating criteria
    in DC 8100 are successive); Pierce v. Principi, 18 Vet.App. 440, 445 (2004) (noting that under
    5
    DC 8100 the four factors to be considered for a 50% rating for migraine attacks are “very frequent,”
    “completely prostrating,” “prolonged attacks,” and “productive of economic inadaptability”).
    On the other hand, Mr. Coleman’s argument, that the 2014 VA headaches examination
    report is insufficiently descriptive to support the Board’s denial of a higher rating, is persuasive.
    Under section three of the examination report, entitled “symptoms,” the examiner characterized
    the duration of Mr. Coleman’s “typical head pain” as less than 1 day. See R. at 1120. In section
    four, entitled “Prostrating attacks of headache pain,” the examiner found that Mr. Coleman had
    “characteristic prostrating attacks of migraine headache pain,” but reported that on average, Mr.
    Coleman suffered “with less frequent attacks.” Id. The “with less frequent attacks” phrase is found
    in DC 8100 and associated with a 0% disability rating. The phrase does not indicate the frequency,
    on average, with which Mr. Coleman experienced prostrating migraines over the last several
    months of 2014. The examiner noted that Mr. Coleman stated that on average he experienced one
    to two “severe” migraines a year, during which he was incapacitated. Id.
    In Johnson, the Court defined the language “‘characteristic prostrating attacks’ in the 10%
    and 30% disability levels of DC 8100, as describing ‘migraine attacks that typically produce
    powerlessness or a lack of vitality.'” 30 Vet.App. at 252. The Court stated that “[t]he distinction
    between the 10% and 30% disability levels is the frequency of the headaches.” Id. (emphasis
    added). Thus, the frequency of prostrating attacks is critical in determining whether a 10% or 30%
    disability rating is warranted.
    In denying Mr. Coleman a higher disability rating, the Board relied on the September 2014
    VA headaches examination report and VA treatment records. The September 2014 VA
    examination report, however, did not state the frequency, on average, of Mr. Coleman’s headaches
    over the prior months. Although the Secretary interprets the 2014 examination report as finding
    that Mr. Coleman had only one to two migraines a year, the report stated that he had on average
    one to two severe migraines a year, during which he was incapacitated. See Secretary’s Br. at 9. It
    is not clear from the report whether the one to two severe migraines a year, during which he was
    incapacitated, also represented the number of characteristic prostrating attacks of migraine pain
    described under section four of the report.
    As to VA treatment records, the Board simply states that Mr. Coleman denied experiencing
    “severe headaches to his medical providers in April 2014, September 2014, October 2014, January
    2015, September 2015, December 2015, and January 2016. See R. at 13. However, the Board does
    6
    not define “severe headaches” and these VA treatment reports did not address Mr. Coleman’s
    migraine headaches or otherwise elaborate on headaches. Rather, the brief notes about headaches
    were part of a general review of the neurological system. For example, the January 2016 cardiology
    outpatient note states: “Neuro: denies severe headache, loss of balance, paresthesia[]s, weakness,
    history of CVA/TIA seizures.” R. at 452 (Jan. 1, 2016, cardiology outpatient report). The other
    VA treatment reports referenced by the Board contained similar if not identical entries, with no
    discussion of headaches. See R. at 462-64 (Dec. 2015 primary care note), 483 (Sept. 2015
    cardiology note), 499 (Oct. 2014 primary care note), 511-12 (Apr. 2014 primary care note).
    Absent evidence of the frequency of Mr. Coleman’s headaches in the 2014 VA headaches
    examination report, the Board’s decision does not explain why Mr. Coleman received a 10% rather
    than a 30% disability rating and frustrates judicial review. See Allday, 7 Vet.App. at 527.
    Accordingly, remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that
    remand is warranted “where the Board . . . failed to provide an adequate statement of reasons or
    bases for its determinations”).
    Mr. Coleman identified evidence in his 2017 testimony before the Board stating that in
    2014 he had experienced prostrating attacks once or twice a week, with each attack lasting from
    20 to 40 minutes or longer, and that these attacks occurred approximately 5 times a month, causing
    pain in his left eye. See R. at 14; see also R. at 164-65; 38 C.F.R. § 4.124a, DC 8100 (assigning a
    30% disability rating for characteristic prostrating migraine attacks occurring on average once a
    month). Although the Board afforded greater probative weight to the September 2014 VA
    examiner’s report, which the Court finds inadequate, and to the VA treatment reports, the Court
    will not speculate on how the reasons-or-bases error affected the Board’s weighing the competing
    evidence of record. See Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) (“Where
    the effect of an error on the outcome of a proceeding is unquantifiable, however, we will not
    speculate as to what the outcome might have been had the error not occurred.”); Southall-Norman
    v. McDonald, 28 Vet.App. 346, 356 (2016) (remanding the case where the Court was unable to
    conclude that a reasons-or-bases error was harmless); Arneson v. Shinseki, 24 Vet.App. 379, 389
    (2011) (finding prejudice when an error “could have altered” the Board’s determination); see also
    Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (noting that “the evaluation and
    weighing of evidence are factual determinations committed to the discretion of the factfinder,” i.e.,
    the Board).
    7
    Given the remand, the Court will not address Mr. Coleman’s reasons-or-bases argument as
    to the Board’s failure to explicitly make a finding on the competence and credibility of Mr.
    Coleman’s testimony. 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”). Recently, in Holmes v. Wilkie, 33 Vet.App. 67, 72-73 (2020), the Court held that the rating criteria for migraines included all symptoms a veteran experienced and not just head pain, and on remand VA should consider the frequency, duration, and severity, and the economic impact of all symptoms.
    III. CONCLUSION
    On consideration of the parties’ briefs and the record on appeal, the Court VACATES that
    part of the February 4, 2019, Board decision denying a disability rating for migraines no greater
    than 10% before August 9, 2016, and REMANDS the matter for readjudication consistent with
    this opinion.
    DATED: February 22, 2021
    Copies to:
    Sean A. Ravin, Esq.
    VA General Counsel (027)

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