Citation Nr: A22022577 Decision Date: 11/09/22 Archive Date: 11/09/22 DOCKET NO. 200822-105528 DATE: November 9, 2022 ORDER The appeal for entitlement to special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) prior to December 14, 2019 and since July 1, 2020 has been withdrawn. Entitlement to an initial evaluation in excess of 10 percent for transient ischemic attack (TIA) from July 1, 2020 to the present is denied. Entitlement to a 30 percent evaluation for tension headaches including photophobia is granted. Entitlement to a 10 percent evaluation for hypertension is granted. FINDINGS OF FACT 1. During an October 2021 Board hearing and in October 2021 written correspondence from the Veteran's attorney, and prior to the promulgation of a Board decision, the Veteran stated that he wished to withdraw his appeal for entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) prior to December 14, 2019 and since July 1, 2020. 2. From July 1, 2020 to the present, the Veteran did not manifest any residuals of TIA which were not contemplated by the currently assigned minimum schedular rating. 3. Resolving all reasonable doubt in favor of the Veteran, his tension headaches including photophobia more closely approximate migraine with characteristic prostrating attacks occurring on an average once a month over last several months. 4. Resolving all reasonable doubt in favor of the Veteran, his hypertension more closely approximates diastolic pressure predominantly 100mm or more. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) prior to December 14, 2019 and since July 1, 2020 by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for entitlement to an initial evaluation in excess of 10 percent for TIA from July 1, 2020 to the present have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8007. 3. The criteria for entitlement to a 30 percent evaluation for tension headaches including photophobia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8100. 4. The criteria for entitlement to a 10 percent evaluation for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from May 1980 to May 2004. The rating decision on appeal was issued in July 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for TIA and assigned a 100 percent evaluation, effective December 14, 2019, and a 10 percent evaluation, effective July 1, 2020; granted SMC based on housebound criteria being met from December 14, 2019 to June 30, 2020; denied a compensable evaluation for tension headaches including photophobia; and denied a compensable evaluation for hypertension. The Veteran appealed for higher evaluations and SMC at the housebound rate prior to December 14, 2019 and since July 1, 2020. In the August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the appellant elected the Hearing option; therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the appellant or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an October 2021 Virtual hearing. A transcript of this hearing is of record. Evidence was added to the claims file during a period of time when new evidence was not allowed. Therefore, the Board may not consider this evidence. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Withdrawal 1. The appeal for entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) prior to December 14, 2019 and since July 1, 2020 A substantive appeal may be withdrawn on the record at a hearing. Acree v. O'Rourke, 891 F.3d 1009, 1013-14 (Fed. Cir. 2018). A withdrawal on the record at a hearing must be explicit, unambiguous, and done with full knowledge of the consequences. Id.; see also DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). In this case, at the October 2021 Board hearing, the presiding VLJ stated that during the pre-hearing conference, the Veteran had withdrawn the appeal for entitlement to SMC at the housebound rate prior to December 14, 2019 and since July 1, 2020. 38 C.F.R. § 19.55. The presiding VLJ further stated that the remaining issues on appeal were for entitlement to a higher rating for TIA from July 1, 2020, entitlement to a compensable rating for tension headaches with photophobia, and entitlement to a compensable rating for hypertension. The Veteran then explicitly and unambiguously agreed that he wished to withdraw the appeal for entitlement to SMC at the housebound rate prior to December 14, 2019 and since July 1, 2020; thus reaffirming his withdrawal with the knowledge that the issues would no longer be part of his appeal. Further, in October 4, 2021 written correspondence from the Veteran's attorney, it was stated that the Veteran withdrew his claim and appeal for special monthly compensation (SMC). As the Veteran has explicitly and unambiguously withdrawn his appeal with full knowledge of the consequences, the Board no longer has appellate jurisdiction and can take no further action on this matter. 38 C.F.R. § 19.55; Acree, 891 F.3d at 1013-14. Accordingly, the appeal of the issue of entitlement to SMC at the housebound rate prior to December 14, 2019 and since July 1, 2020 is dismissed. Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. As the instant claim for an increased rating was received in December 2019, the period for consideration will include evidence one year prior to the receipt of claim. 2. Entitlement to an initial evaluation in excess of 10 percent for TIA from July 1, 2020 to the present The Veteran asserts that his TIA is worse than his current evaluation reflects. At the October 2021 Board hearing, the Veteran testified that after his TIA, he had been hindered by his ability to move around, exercise, and perform activities around the house. He was unable to do yard work, mow the lawn, trim the bushes, and clean his pool. Since the TIA, he had to hire people to perform those tasks for him. His son had to come to his house and cut the bushes, because after 10 minutes, he was just exhausted being in the sun. He said that he started to sweat profusely, and he ran out of breath. When he went down stairs, he had to hang onto the handrail, because he could not trust that his left leg would not give out, as it had in the past. He became winded going up stairs. He said that he had to pace himself to do anything. He said that he issues with tachycardia, where he had pain on the right side of his chest while he slept. He only slept comfortably in the lounge chair, instead of the bed, and only for about four hours at night. He also described having difficulty moving his left arm and that it became totally numb. He said that a VA examiner told him the numbness in his left arm and leg was not related to a stroke. From July 1, 2020, the Veteran's TIA has been currently evaluated as 10 percent disabling, effective July 1, 2020, under 38 C.F.R. § 4.124a, Diagnostic Code 8007 for embolism of vessels of the brain. Vascular conditions under Diagnostic Codes 8007 through 8009 are rated at 100 percent for six months. Thereafter, ascertainable residuals of the vascular condition are rated under the applicable diagnostic code with a minimum 10 percent rating. A Note pertaining to these rating criteria provides that it is required for the minimum ratings for residuals under Diagnostic Codes 8000-8025, that there be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as bases of evaluation be cited, in addition to the codes identifying the diagnoses. Based on a careful review of all the subjective and clinical evidence, the Board finds that from July 1, 2020, the Veteran's TIA does not warrant a higher than the minimum evaluation for residuals under Diagnostic Code 8007. VA treatment records document that following the Veteran's stroke in December 2019, where he received TPA (tissue plasminogen activator), he had no reported residual effects and returned to baseline. See December 2019, January 2020, and February 2020 VA treatment records. At a July 2020 VA examination, the VA examiner noted that the Veteran took Plavix for control and reported having issues with his left arm, where the left arm fell asleep really fast when left arm was at rest. Following an objective evaluation, the July 2020 VA examiner found no abnormal findings and no conditions, signs, or symptoms, which were attributable to TIA. Accordingly, the Board concludes that there is no legal basis upon which to award a higher than the minimum 10 percent evaluation for residuals of TIA under Diagnostic 8007. Therefore, from July 1, 2020, the Veteran's TIA is no more than 10 percent disabling. The Board is sympathetic to the Veteran's reports that since his TIA, he has had symptoms of left leg and arm numbness, tachycardia, and chest pain and experienced a significant decline in his ability to perform chores outdoors, walk up and down stairs, and move around generally. However, while the Veteran is competent to report his symptoms, he is not competent to attribute his symptoms to TIA. Accordingly, the Board finds that the clinical evidence is the most persuasive evidence as whether any of his symptoms are residuals of a TIA. In summary, the evidence is neither evenly balanced or approximately so with regard to whether the Veteran's claim for higher than 10 percent initial evaluation for TIA from July 1, 2020 is warranted. Rather, the evidence persuasively weighs against a higher initial evaluation for TIA. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Accordingly, the higher initial evaluation claim for TIA is denied. 3. Entitlement to a compensable evaluation for tension headaches including photophobia The Veteran asserts that his headaches are worse than his current evaluation reflects. Specifically, the Veteran testified that since 2009, he had been experiencing migraine headaches. The migraines occurred three to four times a week and sometimes lasted all day. He described the migraines as starting in his temple, moving across his eyes and then throughout his head. The stabbing pain would worsen over time. He had daily tension headaches, but he could continue to remain at work. He would have to call in sick from work when he felt a migraine developing. As recommended by his physician, he took Excedrin migraine. Looking directly at fluorescent lighting triggered his headaches, so he had difficulty driving at night. Because sunlight hitting the snow also triggered headaches, the Veteran said that he wore sunglasses almost every day. Inside his home, he had placed tinfoil on the windows and slept in a back bedroom where it was darker, because bright lights, especially fluorescents, bothered him as well. When the Veteran had severe migraines, he described how he had to find a calm, relaxing spot until the headaches subsided. He also said that he meditated during that time. At times, his migraines were so severe that he had to stay in bed all day. At the October 2021 Board hearing, the Veteran said that earlier last month he had a migraine while he was at home, and he tried to stand up and almost fell down. He was nauseated and his head hurt when he laid down on the pillow. After sleeping for a few hours, he woke up, but still had the headache and felt as if he would pass out, while siting on the edge of the bed. During the relevant appeal period, the Veteran's tension headaches including photophobia have been currently evaluated as noncompensable, effective April 1, 2016, under 38 C.F.R. § 4.124a, Diagnostic 8100. Under Diagnostic Code 8100, a noncompensable evaluation is warranted for migraines with less frequent attacks. A 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The U.S. Court of Appeals for Veterans Claims (Court) has defined characteristic prostrating attacks as migraine attacks that typically produce powerlessness or lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). Neither the Court, nor the rating criteria, defines "severe economic inadaptability." However, nothing in Diagnostic Code 8100 requires that the Veteran be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440 (2004). Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, a higher 30 percent evaluation for tension headaches including photophobia under Diagnostic Code 8100 is warranted. Viewing the evidence in the light most favorable to the Veteran, the Board finds that the Veteran's subjective reports of the frequency, severity and duration of his headaches are both competent and credible and provide the most persuasive evidence to evaluate his symptomatology. On that basis, the Board finds that the Veteran's description of having migraines, which were triggered by bright lights impacting his ability to drive at night, requiring that he regularly wear sunglasses, and causing him to cover the windows in his home and sleep in a back darker bedroom, to be significant evidence of the debilitating nature of his headaches. Also, based on the reported triggers for his headaches, the Veteran's reports of the frequency of severe migraines to be consistent with those reports. Further, the Veteran's reports of how his headaches would require him to find a calm and relaxing place, where he could meditate, and that sometimes, his headaches would not resolve even after sleeping for hours, also appeared consistent with the reports of the severity and duration of his headaches. The Board recognizes that at a July 2020 VA examination, the VA examiner found that the Veteran did not have any associated symptoms and did not have any characteristic prostrating attacks of migraine or non-migraine headache pain. However, the Board finds that the Veteran's subjective reports are more persuasive given the totality of the evidence of record. Accordingly, the Board finds that during the relevant appeal period, the Veteran's tension headaches including photophobia more closely approximate migraine with characteristic prostrating attacks occurring on an average once a month over last several months. Nevertheless, the evidence does not show that during the relevant appeal period, the Veteran's tension headaches including photophobia more closely approximate migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In that regard, the Board notes that the Veteran reported being able to continue working when he had tension headaches and only had to miss work when migraines developed. He did not indicate that he had missed a significant amount of time from work due to his headaches, that his productivity or work product had been impacted by his headaches, or that his employers had expressed any concerns with his performance at work due to his headaches. Therefore, the Board concludes that the evidence does not demonstrate that the Veteran's tension headaches including photophobia is more consistent with a 50 percent evaluation under Diagnostic Code 8100. Thus, during the relevant appeal period, the Veteran's tension headaches including photophobia are no more 30 percent disabling. In summary, resolving all reasonable doubt in favor of the Veteran, a 30 percent evaluation, but no higher, for tension headaches including photophobia is warranted. Therefore, the Veteran's compensable evaluation claim for tension headaches including photophobia must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to a compensable evaluation for hypertension The Veteran asserts that his hypertension is worse that his current evaluation reflects. Specifically, the Veteran said that VA was not accurately recording his blood pressure (BP) readings in his treatment records. He said that only the lowest BP readings were being documented, and when he asked the VA provider about recording his BP readings properly, he said that he was told that they were not recording readings taken while he was upset. He said that he wanted his BP readings to be recorded accurately, so that he could receive the proper treatment. Usually, the Veteran said that he had high BP, which was as high as 180 over 110. He said that his medications were not helping, and that he had recently been placed on a third medication. Prior to being on the third medication, the Veteran said that his BP was 168 over 98. He said that his high blood pressure was debilitating, that he could not think at times, and that he became very irritated and could not be around people at all. During the relevant appeal period, the Veteran's hypertension has been currently evaluated as noncompensable, under 38 C.F.R. § 4.104, Diagnostic Code 7101, effective June 1, 2004. The Board notes that VA has amended the rating criteria for cardiovascular system disabilities effective from November 9, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after November 9, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Diagnostic Code 7107 was not changed by the November 9, 2021 amendments. Under Diagnostic Code 7107, a minimum10 percent rating is assigned for diastolic pressure (the lower number in a blood pressure reading) predominantly 100mm or more, or the systolic pressure (the higher number) is predominantly 160mm or more, or; a minimum 10 percent rating is assigned for an individual with a history of diastolic pressure predominantly 100mm or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110mm or more or when systolic pressure is predominantly 200mm or more. A 40 percent rating is assigned for diastolic pressure predominately 120mm or more. A maximum 60 percent rating is assigned for diastolic pressure predominantly 130mm or more. Note 1 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Note 2 directs to evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note 3 directs to evaluate hypertension separately from hypertensive heart disease and other types of heart disease. In a recent U.S. Court of Appeals for Veterans Claims (Court) decision, under Wilson v. McDonough, 35 Vet. App. 75 (2021), the Court held that under Diagnostic Code 7107, the 10 percent rating criteria language, "a history of diastolic pressure predominantly 100 or more [that] requires continuous medication for control," refers to blood pressure readings taken before a veteran began medication to control hypertension, and therefore may require analyzing blood pressure readings prior to the period on appeal. At the outset, the Board finds that the Veteran's history of medication for hypertension is complicated by his treatment for tension headaches. A review of the record shows that the Veteran was initially prescribed propanolol for his tension headaches. However, at some point, the Veteran's VA providers indicated that propanolol was also being used to treat his hypertension. Given the use of the same medication for two separate disabilities, the Board finds that it is unclear when the Veteran's use of continuous medication to control his hypertension began. Nevertheless, the Board has determined that the available evidence is still sufficient to evaluate the Veteran's claim for a compensable evaluation for hypertension. VA treatment records from December 2018 to February 2020 show that the Veteran had regular VA clinic visits, which monitored his BP and continued to treat his hypertension with medication. The records also included BP readings taken by the Veteran at home. In December 2018, the Veteran had BP readings at 167/99, 149/89, 150/96, and 136/86. BP readings recorded in December 2019 showed the Veteran's BP at 174/88, 144/84, 151/87, 114/89, 120/85, 129/94, 144/90, 128/86, 142/92, 146/98, 142/102, 141/99, 136/102, 131/92, 132/96, 134/96, 151/109, 149/103, 130/93, 175/108, 154/96, 170/95, 161/105, 169/104, 167/94, 145/95; 153/104, and 154/100. BP readings recorded in January 2020 showed the Veteran's BP at 146/82, 149/101, 158/93, 139/88, 127/92, 121/78, 120/83, 143/85, 154/101, 161/101, 145/93, 151/91, 150/85, 154/91, 152/88, 135/86, 169/92, 150/91, 158/92, 123/79, 164/90, 158/97, 170/90, 168/92, 144/95, 163/95, 172/97, and 167/93. BP recordings in February 2020 showed the Veteran's BP at 166/94, 153/92, and 157/95. VA providers in January 2020 and February 2020 VA treatment records also note that the Veteran's BP remained high. At a July 2020 VA examination, the VA examiner noted that the Veteran was currently being treated with three medications for control of his hypertension. During the examination, the Veteran's current BP readings were 155/92, 152/91, and 156/94. The July 2020 VA examiner found that the Veteran's hypertension did not impact his ability to work. Based on a careful review of all the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, during the relevant appeal period, a higher 10 percent evaluation under Diagnostic Code 7107 for hypertension is warranted. Viewing the evidence in light most favorable to the Veteran, the Board finds that the clinical evidence tends to support that the Veteran's BP readings more closely approximate diastolic pressure predominately at 100mm or more. Significantly, the Veteran's VA providers found that the Veteran's BP remained high, the treatment records showed that his medications were changed and a third medication needed to be prescribed to control his hypertension. Moreover, the Veteran explained that his diastolic pressure was regularly high, that he recorded BP as high as 110mm diastolic, and prior to taking his third medication, he had a 98mm diastolic pressure. Based on the Veteran's competent and credible reports that his BP readings were not always accurately documented, the Board finds that his subjective reports are persuasive to evaluate his symptomatology. Overall, taking into consideration the totality of the evidence, the Board concludes that during the relevant appeal period, the evidence supports the assignment of a 10 percent evaluation for hypertension under Diagnostic Code 7101. However, a higher 20 percent evaluation for hypertension is not warranted, as none of the records or the subjective reports demonstrate that the Veteran's hypertension is characterized by diastolic pressure predominantly 110mm or more, or; systolic pressure predominantly 200 or more. Therefore, during the relevant appeal period, the Veteran's hypertension is no more than 10 percent disabling. In summary, resolving all reasonable doubt in favor of the Veteran, a 10 percent evaluation, but no higher, for hypertension is warranted. Therefore, the Veteran's compensable evaluation claim for hypertension must be granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.