Johnson: Headaches and DC 8100 Explained

Johnson v. Wilkie, Case Number 16-3808, decided September 19, 2018 addresses DC 8100 and defines it as a successive rating.

A successive rating is one which requires the veteran satisfy each and every criteria listed for a higher rating.  A successive rating criteria is a limited exception to the general regulatory structure, which states it is not expected that all claims must satisfy every single criteria in a DC.  As a general matter, a higher evaluation will be assigned if the veteran’s disability picture more nearly approximates the criteria required for the higher rating.

The Court concluded DC 8100 was a successive rating criteria, which means that  higher rating will not be assigned unless the veteran meets every criteria for the higher rating.  The Court reasoned that “DC 8100 has all the hallmarks required of successive rating criteria under the law.  In sum, each disability level builds on another in terms of duration and frequency, requiring that a veteran rated at a higher level to satisfy all the  requirements of the lower levels.”  Id. at *10.

The Court then turned to whether the Board actually gave proper reasons for its refusal to deny a higher rating.  Id. at *11.  The Court concluded some of the conclusions of the Board were not consistent with the actual evidence—for instance, the Board said the veteran had headaches on average of once per month whereas the examination noted them more frequently.  But, the Court really focused on problems of the actual Diagnostic Code.  It stated

            More fundamentally, DC 8100 is rife with subjective terms of degree, the standards for which are undefined in the Board's discussion or anywhere in the regulatory structure. The Board stated that "[w]hile three times a month may be deemed frequent, the Board finds it does not equal very frequent." R. at 7. The Board also found that the headaches were not "completely prostrating" despite the October 2010 report stating that he is "unable to perform any task with prostrating attacks." R. at 524. Finally, the Board concluded that the headaches were not "prolonged" when the evidence stated that they lasted from 15 minutes to "hours," R. at 417, 524, and that he took leave under the FMLA, at least through 2011.3  R. at 489.

            Without a standard for comparing and assessing terms of degree, such conclusory findings are unreviewable in this Court. Furthermore, a Board member's dogmatic pronouncement of bare conclusions for a decision denying a claim for a rating increase under DC 8100 prevents a veteran from assessing what his or her evidence must demonstrate, and virtually guarantees inconsistent results. At oral argument, the Secretary maintained that the Board may determine whether the "very frequent" requirement is met without disclosing what benchmark it employed to reach that conclusion. The Court rejects the Secretary's position that the Board may make such determinations without any obligation to disclose the standard under which it is operating. It is unacceptable for the Court to be placed in the position of accepting the Board's determination that Mr. Johnson's headaches do not meet the requirements of DC 8100 "because I say so."

Id. at *12.

Judge Allen wrote a concurrence where he focused on the VA’s failure to define terms.  Specifically he wrote: “I write separately to underscore a disturbing agency practice this appeal illustrates. That practice is both unacceptable and unlawful.”  Id. at *13. 

Judge Allen continued to explain:

In this case, the Board denied the appellant's claims, in part, because it concluded that his headaches were neither "very frequent" nor "prolonged." R. at 7. Both of these concepts are important to the assignment of an appropriate rating for headaches, see 38 C.F.R. § 4.12a, Diagnostic Code (DC) 8100 (2018). But neither is defined in statute or VA regulation. The absence of such definitions is troubling alone. More concerning still, however, is that despite the centrality of these terms to the Board's decision in the appellant's case, the Board itself did not define either term.

Id. at *12.

This decision takes away the opportunity for a veteran to argue that he deserves a higher rating even if he does not meet every element. However, it also shows how subject to attack decisions to deny a higher rating under DC 8100 are in cases where there is evidence of severity.  It will be interesting to see how the Board and the VA react in their decisions.

The decision was by Chief Judge Davis and joined in by Judge Schoelen with a concurring opinion by Judge Allen.

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