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January 21, 2022

Single Judge Application; the Board’s finding that the appellant did not experience prostrating attacks is unsupported by any application of the Board’s identified definition of the term “prostrating” to the evidence of record. Compare R. at 8 (defining “prostration”), with R. at 8-9 (Board’s analysis); Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (“The Board must explain, in the context of the facts presented, the rating criteria used in determining the category into which a claimant’s symptoms fall; it is not sufficient to simply state that a claimant’s degree of impairment lies at a certain level without providing an adequate explanation.”;

Filed under: Uncategorized — veteranclaims @ 11:48 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-7737
DAVID A. WOOD, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, David A. Wood, through counsel appeals an
August 18, 2020, Board of Veterans’ Appeals (Board) decision that denied entitlement to an initial
compensable disability rating for headaches prior to June 21, 2018, and to a disability rating in
excess of 30% thereafter. Record (R.) at 4-13. 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. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
following reasons, the Court will vacate the Board’s decision and remand the matters for further
proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the Army National Guard from August 1988 to
January 1989 and from May 1997 to January 1998. R. at 1308, 1347, 1403. The record reflects
that he suffered a head and neck injury while serving in Bosnia. R. at 777-81.
The appellant filed a claim for benefits for neck pain and headaches in February 2013.
R. at 1401-02. During a July 2013 VA examination, the examiner determined that it was at least
as likely as not that the appellant’s headaches were secondary to his neck injury, R. at 675, which
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the examiner concluded was also related to service, R. at 672. The appellant described his
headaches as “a dull pain behind his right eye” and stated that the pain sometimes kept him awake.
R. at 673. The examiner marked “no” in response to whether the appellant experienced
“characteristic prostrating attacks of migraine headache pain.” R. at 674.
In August 2013, a VA regional office (RO) granted the appellant’s claim for benefits for a
cervical spine disability and for headaches, secondary to the cervical spine condition. R. at
1305-08. The RO assigned a noncompensable disability rating for headaches, effective
February 6, 2013, finding that a 10% rating was not warranted in the absence of “characteristic
prostrating attacks averaging one in 2 months over [the] last several months.” R. at 1307. The
appellant filed a Notice of Disagreement with the disability rating assigned for headaches,
asserting that his headaches had become more severe, persistent, and frequent, and that they
affected his sleep, the loss of which often affected his “day[-]to[-]day routine and abilities.” R. at

  1. In his Substantive Appeal, the appellant stated that he experienced “painful symptoms on a
    monthly basis” and that the increased frequency of his headaches had begun to interfere with his
    “ability to focus on academic and work[-]related tasks.” R. at 1260-61.
    During a September 2016 VA neurology consultation, the appellant reported “experiencing
    constant pain 7/10 in [the] right side of [the] upper c[ervical] spine[, with] pain radiating into [his]
    head and affecting [his] vision, that does not respond to ibuprofen.” R. at 61. He stated that the
    pain was sometimes so severe that he could “barely open” his eye. Id. The treatment provider
    noted that the appellant suffered a blast injury to his head and neck in service and had been
    “experiencing the headache[s] constantly since the injury.” Id.
    The appellant underwent a VA cervical spine examination in November 2016. R. at
    850-58. He described flare-ups of his neck condition as including “shooting pain across [his] head
    and into [his] eye.” R. at 851. At a June 2018 hearing before a Board member, the appellant’s
    nonattorney representative reported that, several months earlier, the appellant’s headaches had
    increased to three or four a week and that they affected the right side of his face, causing
    “[d]ripping eyes, slight paralysis or feeling like slight paralysis or like droopy face, going down to
    his neck.” R. at 328-29. Further, the appellant’s representative stated that, during headaches, the
    appellant was sensitive to light, R. at 329, and the appellant clarified that he was also sensitive to
    noise, R. at 330, 331. The appellant’s representative noted that the appellant had been “missing
    work, leaving work, or coming in late” because of his headaches, R. at 329, and the appellant
    3
    testified that he had missed work seven or eight times in the prior 6 months, R. at 330. Finally,
    the appellant’s representative asserted that the appellant’s headaches disrupted his sleep pattern and
    that sleeping pills no longer worked because “the headaches are so bad.” R. at 329.
    In a January 2019 decision, the Board noted the appellant’s assertions that his headache
    condition had worsened and remanded the claim, finding that a new examination was required to
    determine the appellant’s current disability picture. R. at 281-84. The appellant underwent a VA
    headaches examination in September 2019. R. at 114-23. At that time, the appellant reported that
    he experienced headaches 8 to 10 times per month and that they lasted 1 to 4 days. R. at 117. He
    described pain—which he rated a 9 on a scale of 1 to 10—that radiated “from the occipital lobe to
    the back of his eye on the right side of his head.” Id. He reported associated effects of blurred
    vision, lightheadedness, phonophobia, and a “generalized feeling of being unwell.” Id. He also
    stated that, when his headaches occur, he needs to lie down in a dark, quiet room until they pass.
    Id. Finally, he reported that he lost 2 to 4 weeks of work in the past 12 months as a result of his
    headaches. R. at 120. The examiner indicated that the appellant experienced “characteristic
    prostrating attacks” of headache pain approximately once a month. R. at 119. The examiner
    responded “no” to whether the appellant had “very prostrating and prolonged attacks of
    migraines/non-migraine pain productive of severe economic inadaptability.” Id. She further
    opined that the appellant “would have moderate to severe difficulty completing any work tasks or
    activities of daily living when experiencing a headache,” noting that the appellant reported
    struggling in his recent return to school “due to decreased concentration when experiencing
    headaches.” R. at 120.
    The RO, in June 2020, increased the appellant’s disability rating for headaches to 30%,
    effective June 21, 2018, the date of the Board hearing. R. at 32-34. In the August 2020 decision
    on appeal, the Board denied entitlement to a compensable initial disability rating for the appellant’s
    headaches and to a disability rating in excess of 30% for the period beginning June 21, 2018. R. at
    7-11. This appeal followed.
    II. ANALYSIS
    The appellant argues first that, for the period prior to June 21, 2018, although the Board
    defined the term “prostrating,” the Board failed to apply its definition to the evidence to determine
    whether his headaches were prostrating. Appellant’s Brief (Br.) at 10-19. Moreover, the appellant
    4
    asserts that the Board failed to consider and discuss a relevant provision of the VA Adjudication
    Procedures Manual (M21-1) regarding the meaning of “prostrating.” Id. at 16-17. He also argues
    that the Board overlooked favorable evidence of the frequency of his headaches that would warrant
    at least a 10% rating for this period, if not a 30% rating. Id. at 17-18. For the period beginning
    June 21, 2018, the appellant contends that the Board erred by adopting the September 2019 VA
    examiner’s opinion without reconciling it with contradictory evidence of record. Id. at 19-24.
    For his part, the Secretary urges the Court to affirm that part of the Board decision that
    denied entitlement to an initial compensable disability rating for the period prior to June 21, 2018,
    arguing that the Board decision is not clearly erroneous and is supported by adequate reasons or
    bases. Secretary’s Br. at 5-10. He concedes, however, that vacatur of that part of the Board’s
    decision that denied entitlement to a disability rating in excess of 30% from June 21, 2018, is
    warranted. Id. at 10-12. In that regard, the Secretary agrees with the appellant that “the Board
    uncritically adopted the [September 2019 VA] examiner’s opinion without reconciling it with the
    conflicting evidence of record as to the frequency of the headaches and whether they were
    productive of severe economic inadaptability.” Id. at 11 (citing Delrio v. Wilkie, 32 Vet.App. 232,
    243 (2019); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994)). He therefore asks the Court to
    remand that matter. Id. at 11-12.
    A. Law
    The appellant’s headache disability is rated under 38 C.F.R. § 4.124a, Diagnostic Code
  2. Under that diagnostic code, a noncompensable rating is warranted for migraines “[w]ith
    less frequent attacks”; a 10% disability rating is warranted where the condition results in
    “characteristic prostrating attacks averaging one in 2 months over last several months”; a 30%
    disability rating is warranted for headaches “[w]ith characteristic prostrating attacks occurring on
    an average once a month over last several months”; and a 50% disability rating is warranted for
    headaches “[w]ith very frequent completely prostrating and prolonged attacks productive of severe
    economic inadaptability.” 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2021).
    The Board is tasked with determining the proper disability rating in the first instance. See
    Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate
    fora for initial fact finding.”); see also 38 U.S.C. § 7261(c) (“In no event shall findings of fact
    made by the Secretary or the [Board] be subject to trial de novo by the Court.”). The Board’s
    determination of the proper disability rating is a finding of fact that the Court reviews under the
    5
    “clearly erroneous” standard of review. See 38 U.S.C. § 7261(a)(4); Buckley v. West, 12 Vet.App.
    76, 81 (1998). 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 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
    B. Discussion
  3. Prior to June 21, 2018
    The Board first outlined the rating criteria of Diagnostic Code 8100, including the
    requirement of “characteristic prostrating attacks” of varying frequency for successive disability
    levels. R. at 7-8. The Board stated that neither VA nor the Court had defined the term “prostrating”
    and then referred to two dictionaries: one defined “prostration” as “‘complete physical and mental
    exhaustion,'” R. at 8 (quoting MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th ed.
    2007)), and the other similarly defined the term as “‘extreme exhaustion or powerlessness,'” id.
    (quoting DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007)).
    The Board then reviewed the evidence of record, noting that the July 2013 VA examiner
    stated that “there were no characteristic prostrating attacks of migraine headache pain or nonmigraine
    headache pain,” and that the November 2016 VA cervical spine examiner recorded the
    appellant’s assertion that he had shooting pain across his head and into his eye. R. at 8. The Board
    also acknowledged the appellant’s assertions that his headaches had become more frequent and
    severe, affecting his ability to sleep and focus on tasks, and that they caused blurred vision. R. at
  4. The Board reached the following conclusion:
    [T]he evidence does not indicate that the nature of the [appellant’s] headaches were
    manifested by prostrating attacks averaging at least once every two months over
    the last several months, an average of once a month over the last several months,
    or attacks productive of severe economic inadaptability. Furthermore, the July
    2013 VA examiner indicated that there w[ere] no characteristic prostrating
    migraine or non-migraine headaches. The November 2016 VA examination for the
    neck condition does not indicate the duration and frequency of his flare ups to
    include shooting head pains. VA treatment records and private medical records do
    not support that the [appellant] experienced, complained of, or sought treatment for
    6
    characteristic prostrating attacks during this part of the appeal period. At best, the
    evidence reflects headaches with less frequent attacks.
    Id.
    The Court agrees with the appellant that the Board provided inadequate reasons or bases
    for denying entitlement to a compensable initial disability rating for the period prior to June 21,
  5. First, the Board’s finding that the appellant did not experience prostrating attacks is
    unsupported by any application of the Board’s identified definition of the term “prostrating” to the
    evidence of record. Compare R. at 8 (defining “prostration”), with R. at 8-9 (Board’s analysis);
    see Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (“The Board must explain, in the context
    of the facts presented, the rating criteria used in determining the category into which a claimant’s
    symptoms fall; it is not sufficient to simply state that a claimant’s degree of impairment lies at a
    certain level without providing an adequate explanation.”
    ). The appellant cites evidence of record
    during this period that, when a headache began, he had to avoid light, noise, and activity, R. at
    330-31; that his headaches disrupted his sleep, resulting in concentration difficulties, R. at 673,
    1261, 1290; and that his head pain was sometimes so severe that he could barely open his eye and
    his sleeping pills were rendered ineffective, R. at 61, 329. Appellant’s Br. at 11.
    Although the Board acknowledged some of this evidence in its recitation of the facts, it did
    not in its analysis discuss whether any of this evidence could satisfy the definition of “prostrating”
    for the purposes of Diagnostic Code 8100. See R. at 8-9. Instead, with respect to the severity of
    the appellant’s headaches, the Board found only that “the July 2013 VA examiner indicated that
    there was no characteristic prostrating migraine or non-migraine headaches.” R. at 9. In doing so,
    the Board failed to assess potentially favorable evidence postdating the 2013 examination as to the
    severity of the appellant’s condition. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding
    that the Board must analyze the credibility and probative value of the material evidence, account
    for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its
    rejection of any material evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed.
    Cir. 1996) (table).
    Next, as the appellant contends, Appellant’s Br. at 16, the Board did not discuss a
    potentially relevant provision of the M21-1, which provides that the term “[p]rostrating, as used in
    38 C[.]F[.]R[.] [§] 4.124a, [Diagnostic Code] 8100, means ‘causing extreme exhaustion,
    powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary
    7
    activities,'” M21-1, pt. V., subpt. iii., ch. 12., sec. A.3.b. Additionally, the M21-1 provides that
    prostration may include “severe head pain, blurred vision, . . . being unable to tolerate light or
    noise, worsened by most activities including . . . physical activities,” and that, “[w]hen
    experiencing these symptoms, the patient only sleeps or rests.” Id.
    Although the Secretary maintains that “the VA Manual is a procedural manual, and the
    Board is not bound by VA manuals,” Secretary’s Br. at 8 (citing Disabled Am. Veterans v. Sec’y of
    Veterans Affs., 859 F.3d 1072, 1077 (Fed. Cir. 2017)), the appellant does not contend that the
    Board was bound by the M21-1 provision, only that, in accordance with Court precedent, “[t]he
    Board [cannot] ignore such a relevant provision” of the M21-1, Overton v. Wilkie, 30 Vet.App.
    257, 264 (2018); see Appellant’s Br. at 16. Further, the Court finds unpersuasive the Secretary’s
    argument that “the Board adequately explained the basis of its findings and conclusions without
    need to reference the M21-1″ because the Board “disclosed the standard under which it was
    operating to rate [the a]ppellant’s headache disability and determined the record did not satisfy that
    definition of prostrating attacks.” Secretary’s Br. at 8. As noted above, the Board did not apply
    the standard it set forth to the evidence of record.
    Turning to the question of the frequency of the appellant’s headaches, the appellant
    contends that the Board failed to account for evidence that he experienced at least one headache
    attack per month, which he notes meets the frequency element of the 30% rating. Appellant’s Br.
    at 17-18 (citing R. at 1260). The Board did not discuss this evidence before concluding that, “[a]t
    best, the evidence reflects headaches with less frequent attacks,” which is the criteria for a
    noncompensable rating. R. at 9.
    In sum, the Court’s review is frustrated in light of these inadequacies in the Board’s
    decision. See 38 U.S.C. § 7104(d)(1); Caluza, 7 Vet.App. at 506. Remand is thus warranted. See
    Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the Board . . . failed to provide an adequate
    statement of reasons or bases for its determinations, . . . a remand is the appropriate remedy.”).
  6. From June 21, 2018
    The Board made the following finding regarding the proper rating for the period beginning
    June 21, 2018:
    The medical evidence of record does not show the [appellant] to have migraines
    with very frequent completely prostrating and prolonged attacks productive of
    severe economic inadaptability. Although the September 2019 VA examiner
    indicated the [appellant] had prostrating and prolonged attacks of migraine pain,
    8
    the examiner also noted that they were not productive of severe economic
    [in]adaptability and the frequency of headaches occurred once a month. There is
    no other evidence contrary to this finding.
    R. at 11. The parties agree that the record contains relevant, contradictory evidence regarding the
    frequency, severity, and debilitating nature of the appellant’s headache condition that the Board
    did not reconcile. See Appellant’s Br. at 19-22 (citing R. at 117, 119, 120, 330); Secretary’s Br. at
    10-11 (citing R. at 117, 328). The Court accepts the Secretary’s concession and will vacate that
    part of the Board decision that denied entitlement to a disability rating in excess of 30% for the
    period beginning June 21, 2018, and remand this matter for the Board to consider all the evidence.
    C. Remedy
    Given this disposition, the Court will not now address the remaining arguments and issues
    raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (“[T]he Court will
    not ordinarily consider additional allegations of error that have been rendered moot by the Court’s
    opinion or that would require the Court to issue an advisory opinion.”); Best v. Principi,
    15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to submit additional
    evidence and argument on the remanded matters, including the specific arguments raised here on
    appeal, and the Board is required to consider any such relevant evidence and argument. See Kay
    v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider
    additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky
    v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board 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), and the Board must proceed expeditiously, in
    accordance with 38 U.S.C. § 7112.
    III. CONCLUSION
    After consideration of the parties’ pleadings and a review of the record, the Board’s
    August 18, 2020, decision is VACATED, and the matters are REMANDED for further
    proceedings consistent with this decision.
    DATED: December 6, 2021
    9
    Copies to:
    Zachary M. Stolz, Esq.
    VA General Counsel (027)

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