UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-3808

WILLIE S. JOHNSON, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 24, 2018 (Decided September 19, 2018)

Raymond J. Kim, with whom Barton F. Stichman, and Patrick A. Berkshire, all of

Washington, D.C., were on brief for the appellant.

Sara E. Wolf, with whom Meghan Flanz, Interim General Counsel; Mary Ann Flynn, Chief

Counsel; and Selket N. Cottle, Deputy Chief Counsel, all of Washington, D.C., were on the brief

for the appellee.

Before DAVIS, Chief Judge, and SCHOELEN and ALLEN, Judges.

DAVIS, Chief Judge, filed the opinion of the Court. ALLEN, Judge, filed a concurring

opinion.

DAVIS, Chief Judge: U.S. Marine Corps veteran Willie S. Johnson suffers from headaches. 

He appeals through counsel an August 10, 2016, decision of the Board of Veterans' Appeals that 

denied an initial disability rating in excess of 30% for mixed headaches. Mr. Johnson argues that 

he meets all the criteria for a 50% rating, which requires "very frequent completely prostrating and 

prolonged attacks productive of severe economic inadaptability." 38 C.F.R. § 4.124a, Diagnostic 

Code (DC) 8100 (2018). He attacks the Board's reasons or bases for finding otherwise, faulting 

the Board for not defining "very frequent," and he challenges the evidentiary bases for the Board's 

finding that his headaches were neither prolonged nor completely prostrating. 

In this appeal, the panel is principally concerned with whether DC 8100 contains 

"successive rating criteria" throughout the regulation, which would require Mr. Johnson to satisfy

each and every criterion listed for a 50% disability rate. The concept of successive rating criteria

is a limited exception to the general regulatory structure, in which "it is not expected . . . that all 

cases will show all the findings specified [in the applicable DC]." 38 C.F.R. § 4.21 (2018). 
2

Moreover, as a general matter when considering rating criteria, "the higher evaluation will be 

assigned if the disability picture [of the claimant] more nearly approximates the criteria required 

for that rating." 38 C.F.R. § 4.7 (2018) (emphasis added). Additionally, when a "reasonable doubt 

arises regarding the degree of disability such doubt will be resolved in favor of the claimant." 38 

C.F.R. § 4.3 (2018).

In Pierce v. Principi, 18 Vet.App. 440 (2004), a veteran suffering from headaches was 

seeking a 50% disability rating under DC 8100. He argued that the Board erred when it failed to 

address these general regulatory provisions, namely § 4.3 (reasonable doubt), § 4.7 (higher of two 

ratings), and § 4.21 (all elements of rating schedule need not be present). The Court agreed and 

remanded the case for the Board to discuss the interplay among §§ 4.3, 4.7, and 4.21 with respect 

to the disability rating under DC 8100.

Subsequently, however, the Court held that this general regulatory framework does not 

apply to all DCs. In Camacho v. Nicholson, 21 Vet.App. 360, 366 (2007) the Court held that § 4.21, 

and presumably §4.7, does not apply to DC 7913, the DC for diabetes. In Tatum v. Shinseki, 23 

Vet.App. 152, 156 (2009), the Court explained that the DC for diabetes involved successive rating 

criteria, such that each incremental rating included the requirements of the next lower rating, with 

the result that all requirements must be met to attain the higher rating. Since Tatum and Camacho, 

various Board decisions have asserted, as the Board did in this case, that the rating criteria for DC 

8100 (migraine headaches) are successive, rendering § 4.7 (and likely § 4.21) inapplicable. The 

Court has not considered this matter in a precedential decision. 

For reasons discussed below, the Court concludes that the Board was correct that DC 8100's

rating criteria are successive, rendering 38 C.F.R. §§ 4.7 and 4.21 inapplicable. In contrast, we 

conclude that § 4.3 remains applicable to DC 8100. Because the Board's analysis lacks definitions 

of the terms in that DC, however, the Court's review is frustrated, requiring a remand for an 

adequate statement of reasons or bases. 

I. PARTIES' ARGUMENTS

A. Mr. Johnson challenges the sufficiency of evidence and reasoning in the Board's 

decision.

In his primary brief, Mr. Johnson argued that the Board's reasons or bases are inadequate 

to facilitate review in this Court. He pointed first to the Board's summary of his symptoms as 

reflected in the medical evidence of record. The Board noted that an October 2010 VA examiner
3

stated that Mr. Johnson experienced headaches two or three times per month, with each headache 

lasting from minutes to hours, and that after Mr. Johnson took medication for a headache he had 

to stop what he was doing. Record (R.) at 6. The examiner also stated that Mr. Johnson was 

"[u]nable to perform any task with prostrating headaches, 3 per month, lasting hours." R. at 525.

Based on this summary, Mr. Johnson vigorously challenged the Board's finding that 

"[w]hile three times a month may be deemed frequent, the Board finds that it does not equal very

frequent." R. at 7. He argued that the Board failed to explain how it had reached that conclusion

and offered no reason for departing from the VA Adjudication Procedures Manual (M21-1), which 

defines "very frequent" as follows: "Duration of characteristic prostrating attacks, on average, are 

less than one month apart over the last several months." M21-1, pt. III, subpt. iv. 4.G.7.f. (June 

15, 2015) (emphasis added).

Mr. Johnson further faulted the Board for failing to explain its finding that his headaches 

were not "prolonged." He observed that the Board neither defined "prolonged" nor explained why 

headaches lasting hours were not prolonged. Additionally, Mr. Johnson challenged the Board's use 

of his description of his headaches as "prostrating" rather than "completely prostrating." R. at 368. 

He pointed to the October 2010 VA examination report stating that he was unable to perform "any 

task" while suffering from his headaches, R. at 525, and faulted the Board for parsing the words 

of a legally unsophisticated veteran while ignoring the medical evidence of record.

Further, he argued that the Board did not appropriately consider evidence that he took 

unpaid leave under the Family Medical Leave Act (FMLA), R. at 368, 489, reflecting that the 

headaches were sufficiently prolonged to require leave from work. He reasoned that if the 

headaches were only for short periods of time, there would be no reason to resort to FMLA leave 

and thus, this evidence is relevant to whether the attacks are prolonged. R. at 368.

B. The Secretary asserts that the Board's reasoning and assessment of the evidence of 

record are sufficient.

 

The Secretary argued for affirmance of the Board decision, asserting that the Board's 

statement of reasons or bases was adequate to support its determination of a 30% disability rating. 

He noted that the M21-1 provision defining "very frequent" does not bind the Board. See DAV v. 

Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017). The Secretary did not suggest, 

however, what alternative definition of "very frequent" the Board may have employed. 

The Secretary noted that the Board employed "utter physical exhaustion or helplessness"
4

as the nonmedical definition of "prostrating." WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN 

ENGLISH 1080 (3d ed. 1986), and a medical definition "extreme exhaustion or powerlessness,"

Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007), but the Secretary did not explain

how the Board may have construed "characteristic prostrating attacks," as distinguished from 

"completely prostrating attacks." 

The Secretary further defended the Board's determination that the attacks were not 

prolonged, noting that the Board's relied on medical evidence revealing that the attacks lasted from 

minutes to hours. The Secretary did not suggest what definition of "prolonged" the Board may 

have employed. The Secretary further argued that Mr. Johnson has not established that the use of 

FMLA leave pertained to the duration of his attacks, as opposed to their frequency. 

C. The parties disagree on whether DC 8100 contains successive rating criteria.

In a supplemental briefing order, the Court directed the parties to discuss whether DC 8100 

contains successive ratings. The Court further sought briefing whether a conclusion that DC 8100 

did contain successive ratings would create a conflict with Pierce, requiring an en banc decision.

In response, Mr. Johnson stated that "rating criteria are successive where the criteria for 

different rating percentages overlap or share the same criteria such that entitlement to a higher 

rating necessarily establishes entitlement to a lower rating precisely because of the overlap 

between the criteria." Appellant's Amended Supplemental Brief (Br.) at 2. With respect to DC 

8100, he stated that the criteria for 10% and 30% disability ratings are successive, and conceded

that, with respect to those ratings an analysis of the interplay among §§ 4.3, 4.7, and 4.21 would 

not be required. Id. at 5.

But Mr. Johnson concluded that it is "debatable" whether the criteria for 30% and 50% are 

successive. Id. at 8. He pointed out that the terminology used in the 50% rating differs from that 

of the lower ratings, and argued that, had the Secretary intended the rating criteria to be successive, 

he could have repeated the "characteristic prostrating attacks" language in the 50% disability 

rating. Nevertheless, Mr. Johnson acknowledged that the "very frequent" attacks in the 50% rating 

might subsume the "once a month" frequency of the 30% rating, and that "completely prostrating" 

may be intended to "encompass and exceed the 'characteristic prostrating attacks' required for a 

30% rating." Id. at 5-6.

The Secretary stated that rating criteria are successive if "'the evaluation for each higher 

disability rating include(s) the criteria of each lower disability rating, such that if a component was 
5

not met at any one level, the veteran could only be rated at the level that did not require the missing 

component.'" Secretary's Supplemental Br. at 3 (quoting Tatum, 23 Vet.App. at 156). The 

Secretary concluded that DC 8100's rating criteria are successive and conjunctive, requiring a 

claimant to demonstrate all the requirements of a given disability rating. He reasoned that "very 

frequent" in the 50% rating must mean frequency greater than the once-a-month frequency the

30% rating requires. He further reasoned that "an attack cannot be completely prostrating without 

it also being prostrating, and an attack cannot be prolonged without it having first occurred." Id. at 

8 (emphasis in original). He concluded that §§ 4.7 and 4.21 are inapplicable to DC 8100. The 

Secretary further noted, however, that the applicability of § 4.3, concerning the resolution of 

reasonable doubt in the veteran's favor, did not depend on whether the rating criteria were 

successive, but that there would be no reasonable doubt to resolve if the claimant did not meet all 

the requirements of a successive rating criterion. 

Finally, the parties agreed that a decision that DC 8100 involves successive criteria would 

not conflict with Pierce. The parties assert that Pierce may be distinguished on the basis that the 

Board in that case did not discuss the requirements of §§ 4.3. 4.7, and 4.21, but the Board in Mr. 

Johnson's case considered these regulations, and found them inapplicable because the rating 

criteria were successive.

II. ANALYSIS

The central legal question in this appeal is whether DC 8100 sets forth successive rating 

criteria. We conclude that it does. Before explaining why we reach this conclusion, we canvass the 

state of the law concerning successive rating criteria.

A. Caselaw establishes distinct requirements for successive rating criteria.

In Camacho, the Court rejected the appellant's contention that he need not demonstrate all 

the requirements (insulin + restricted diet + regulation of activities) for a 40% disability rating 

under DC 7913, the DC for diabetes. The Court stated that "[in] light of the conjunctive 'and' in 

the criteria for a 40% disability rating under DC 7913, all criteria must be met to establish 

entitlement to a 40% rating," and held that § 4.21 was inapplicable. 21 Vet.App. at 366. The Court 

further reasoned that "if taking insulin and having a restricted diet were sufficient to support a 40% 

disability rating without restriction of activities, then there would be no reason for 'insulin and 

restricted diet' to be one of the two ways to qualify for a 20% disability rating." Id. at 366-67. The 
6

Court concluded that the appellant's argument must be rejected because it would render part of the 

regulation superfluous. Id. at 367.

In Tatum, the appellant, who was rated 10% and was seeking a 30% disability rating for 

hyperthyroidism under DC 7903, argued that he met two of the three requirements for a 30% 

disability rating, and that the Board erred when it failed to consider whether he was entitled to the 

higher of two ratings under § 4.7. The Secretary, citing Camacho, asserted that the conjunctive 

"and" in the 30% disability rating similarly required fulfillment of all the rating criteria. But the 

Tatum Court made clear that the Secretary's reliance on the use of the conjunctive "and" as 

discussed in Camacho was misplaced. 23 Vet.App. at 155. The Court explained that DC 7913 

contained "successive rating criteria," where "the evaluation for each higher disability rating 

included the criteria for each lower disability rating, such that if a component was not met at any 

one level, the veteran could only be rated at the level that did not require the missing component." 

Id. at 156. The Court contrasted DC 7913 with DC 7903, under which "a veteran could potentially 

establish all of the criteria required for a 30% or a 60% disability rating without establishing any 

of the criteria for a lesser disability rating." Id. (emphasis in original). The Court warned that 

requiring a claimant to demonstrate all the rating requirements "when the criteria for a higher 

disability rating are variable and not merely cumulative" would "eviscerate the meaning" of §§ 4.7 

and 4.21. Id. Thus, Tatum illustrates that the use of the conjunctive "and" does not automatically 

mean that a claimant must demonstrate all the rating criteria in a DC.

The U.S. Court of Appeals for the Federal Circuit considered DC 7913 and successive 

criteria in Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013): "We agree that the enumerated 

elements of DC 7913 required for a 40% rating are part of a structured scheme of specific, 

successive, cumulative, criteria for establishing a disability rating: each higher rating includes the 

same criteria as the lower rating plus distinct new criteria." Id. at 1178 (emphasis added). The 

Federal Circuit further discussed the conjunctive "and" in DC 7913, concluding that "[f]or the 

distinction between the ratings in this successive code to have any significance, we must give 

meaning to the 'and' in the higher rating." Id. 

Viewing the cases discussed above, the Court concludes that to determine whether a DC

contains successive rating criteria the Court must consider three factors. The first factor is the 

degree to which the criteria in lesser disability ratings are repeated or incorporated into the higher 

disability rating under consideration. The second is whether awarding a disability rating on less 
7

than all the rating criteria would render a lesser disability rating superfluous. Stated another way, 

the Court must consider whether a claimant can fulfill the criteria of the higher rating without 

fulfilling those of the next lower rating. The third factor is whether the higher rating employs a 

conjunctive "and" in a manner that signals bundling of all the rating factors in that disability rating. 

The Court must consider these factors in assessing whether the Secretary's regulation is a 

"structured scheme of specific, successive, cumulative, criteria."

B. The Court concludes that DC 8100 contains successive rating criteria throughout the 

regulation. 

DC 8100 is structured differently than the DC this Court and the Federal Circuit determined 

to be successive, DC 7913. See Middleton, 727 F.3d at 1178; Camacho, 21 Vet.App. at 366. That 

DC can be thought of as constructed of identical building blocks so that at 10% one must establish 

A, at 20% A and B, at 30% A, B, and C, and so forth. Such a construction—in which the language 

corresponding to a lower rating also appears verbatim in the next higher rating, with the higher 

rating using the conjunctive "and" to join the added language of the higher rating—certainly is the 

most direct means by which to construct successive rating criteria. It may even be the best practice. 

But we see no reason to find successive ratings only where each higher rating incorporates and 

repeats verbatim the language from all lower ratings. Instead, we believe that the general principles 

we have set out above may be used to assess whether any given DC is successive. 

DC 8100 provides the following disability schedule:

With very frequent completely prostrating and prolonged attacks productive 50[%]

of severe economic inadaptability 

With characteristic prostrating attacks occurring on average once a month 30[%]

 over last several months

With characteristic prostrating attacks averaging one in two months 10[%]

 over last several months 

 

With less frequent attacks 0[%]

 

38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100 (2018).

The challenge we confront in assessing DC 8100 is that several words and phrases are not 

defined and at various rating levels different terms are used to label similar concepts. For example, 
8

in terms of severity, DC 8100 does not define "characteristic prostrating attacks" or "completely 

prostrating and prolonged attacks." Similarly, with respect to frequency, the DC does not define 

"frequent" or "very frequent," or otherwise distinguish those concepts. These definitional 

challenges do not, however, mean DC 8100 is ambiguous with respect whether its ratings are

successive. These challenges mean only that making this determination is more complex than it 

otherwise would be. See Atencio v. O'Rourke, 2018 U.S. App. Vet. Vet. Claims LEXIS 890, at *14 

(July 6, 2018) (noting that complexity and ambiguity are distinct concepts in regulatory 

interpretation).

The Court reviews the interpretation of regulations de novo. See Tropf v. Nicholson, 

20 Vet.App. 317, 320 (2006). The Court begins by examining the language of the regulation. See 

Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) ("The starting point in interpreting a 

statute [or regulation] is its language."); Goodwin v. Shulkin, 870 F.3d 1383, 1386 (Fed. Cir. 2017)

(stating that the rules of statutory construction apply to interpretation of regulations); Petitti 

v. McDonald, 27 Vet.App. 415, 422 (2015) ("Regulatory interpretation begins with the language 

of the regulation, the plain meaning of which is derived from its text and its structure."). If the 

plain meaning of the regulation is clear from its language, then that meaning controls, and "that is 

'the end of the matter.'" Tropf, 20 Vet.App. at 320 (quoting Brown v. Gardner, 513 U.S. 115, 120, 

(1994)). A fundamental canon of regulatory construction is that when interpreting a regulation, the 

words of the regulation are given "their ordinary, contemporary, common meaning," absent an 

indication that the words "bear some different import." Williams v. Taylor, 529 U.S. 420, 431, 435 

(2000); Perrin v. United States, 444 U.S. 37, 42 (1979) (stating that "words [in a regulation], 

unless otherwise defined, will be interpreted as taking their ordinary, contemporary, common 

meaning"); Prokaryn v. McDonald, 27 Vet.App. 307, 310 (2015) ("In the absence of an express 

definition words are given their ordinary meaning.").

Applying to DC 8100 these garden-variety principles of interpretation and our caselaw on 

successive rating criteria, the Court holds DC 8100's rating criteria are successive. DC 8100 

governs migraine headaches and provides a 10% disability rating for "characteristic prostrating 

attacks averaging one in [two] months over last several months" and a 30% rating for 

"characteristic prostrating attacks occurring on an average once a month over last several months."

The words "characteristic" and "prostrating" are used in both the 10% and 30% rating levels. 

However, neither term is defined in the regulation. 
9

"Characteristic" is "a trait, quality, or property or a group of them distinguishing an 

individual, group, or type." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH 

LANGUAGE UNABRIDGED 376 (1966) [hereinafter " WEBSTER'S"]. "Prostrating" means "lacking in 

vitality or will: powerless to rise: laid low." Id. at 1822. Because DC 8100 specifically governs 

migraine headaches, the phrase "characteristic prostrating attacks" plainly describes migraine 

attacks that typically produce powerlessness or a lack of vitality. The distinction between the 10% 

and 30% disability levels is the frequency of the headaches. A 10% disability rating is warranted 

when the prostrating headaches occur once every 2 months and 30% is warranted when the 

prostrating headaches occur once a month. Therefore, under DC 8100, headaches that are more 

frequent are associated with the higher rating.1 This regulatory structure fits quite comfortably into 

the three factors relevant to the successiveness inquiry: (1) "Prostrating headaches required by the 

lower disability levels are also required by the higher ones; (2) a claimant cannot fulfill a higher 

level without establishing everything required by lower levels; and (3) there is a conjunctive "and" 

that signals the bundling of the factors employed at each level. This conclusion holds as we 

consider the highest rating available, 50%.

A 50% disability rating is warranted for "very frequent completely prostrating and 

prolonged attacks productive of severe economic inadaptability." At oral argument, the appellant 

argued that because the terminology in the 50% rating level differs from that of the 10% and 30% 

levels, DC 8100 is not wholly successive.2In his brief, he argued that if the Secretary had used 

"characteristic prostrating attacks" in the 50% rating criteria, then there would be overlapping 

criteria throughout the DC." Appellant's Supplemental Br. at 3. But the appellant fails to recognize 

that "prostrating headaches" is a common phrase that is used throughout the DC. Notably, the 

difference between the 50% disability rating and the lower disability ratings is that "completely" 

modifies "prostrating headaches" in the 50% rating while "characteristic" modifies "prostrating 

headaches" in the lower ratings. "Completely" is defined as "to complete degree: entirely." 

 

1 At oral argument, Mr. Johnson's counsel distinguished between headaches occurring once a month on 

average, which he pointed out could include months with no headaches, and "very frequent" headaches, which he 

apparently interpreted to mean a pattern of headaches in excess of once a month, each month, without variation. The 

Court discerns no basis in the language of the regulation for distinguishing an intermittent pattern of headaches and a 

consistent pattern, so long as the frequency requirements are met. 

2 At oral argument, the Secretary conceded the possibility that a DC could be partially but not completely 

successive. Although that is a possibility for consideration in future cases, given our conclusion that DC 8100 is fully 

successive, we need not consider that possibility with respect to DC 8100.
10

WEBSTER'S at 465. This change signals that the nature of the headaches for the 50% criteria is more 

severe than that for the lower ratings. The salient feature of the 50% rating is that the headache 

attacks must be "completely prostrating." In other words, the headaches must render the veteran 

entirely powerless. Because headaches that are "completely" prostrating necessarily subsume

headaches that are "characteristically prostrating," the higher 50% rating includes the same criteria 

as the lower ratings. 

The 50% rating level also includes additional distinct criteria that are not found elsewhere 

in the DC. To satisfy the 50% rating criteria, the headache attacks must occur "very" frequently. 

Though the 10% and 30% ratings specify the number of headaches that must occur within a 

specific period, the 50% rating does not provide this level of detail. Yet, the phrase "very frequent" 

connotes a frequency greater than once a month, which is enumerated in the 30% rating level, and 

once every 2 months, which is enumerated for the 10%. Additionally, because the 50% rating 

requires "very frequent completely prostrating and prolonged attacks productive of severe 

economic inadaptability," the use of the conjunctive "and" makes clear that the headaches must be 

long in duration. (emphasis added). See Comacho, 21 Vet.App. at 366 (use of the conjunctive 

"and" in a DC means that "all criteria must be must to satisfy" a particular rating). "Prolong" is 

defined as "to lengthen in time: extend duration: draw out: continue, protract." WEBSTER'S at 1815. 

Finally, the 50% rating criteria requires the headaches to produce or be capable of producing 

"severe economic inadaptability." See Pierce, 18 Vet.App. at 445 (adopting the Secretary's 

interpretation of the phrase "productive of severe economic inadaptability" as meaning either 

"producing" or capable of producing" severe economic inadaptability).

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. And because this is the 

case, §§ 4.7 and 4.21 do not apply to this regulation. However, we agree with the Secretary that § 

4.3 concerning the resolution of reasonable doubt does apply to a DC even when its rating criteria 

are successive. There is no reason why VA would not resolve reasonable doubt in favor of a veteran 

just because a given DC is successive. Unlike §§ 4.7 and 4.21, § 4.3 presents nothing that is 

incompatible with the nature of successive rating criteria.

Further, the Court agrees with the parties that this holding does not conflict with Pierce, 

which only required that the Board discuss the applicability of §§ 4.7 and 4.21 and their interplay 
11

with § 4.3. That discussion was obviated in this case by the Board's finding, which the Court now

affirms, that DC 8100 contains successive rating criteria.

These conclusions do not end the matter. We must still address the appellant's arguments 

that the Board's decision is deficient even if DC 8100 has successive rating criteria.

C. The Board's statement of reasons or bases is inadequate because it lacked definitions 

of key terms.

As with any finding on an issue of material fact or law, the Board must support its 

assignment of a disability evaluation with a statement of reasons or bases that enables a claimant 

to understand the precise basis for its decision and facilitates review in this Court. See 38 U.S.C. 

§ 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). The statement of reasons or bases 

must explain the Board's reasons for discounting favorable evidence, Thompson v. Gober, 

14 Vet.App. 187, 188 (2000), discuss all issues raised by the claimant or the evidence of record, 

Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 

1335 (Fed. Cir. 2009), and discuss all provisions of law and regulation where they are made 

"potentially applicable through the assertions and issues raised in the record." Schafrath v. 

Derwinski, 1 Vet.App. 589, 593 (1991). In this case, the Board's statement of reasons or bases is 

inadequate in several respects. 

First, the Board did not explain how some of its conclusions were consistent with the 

evidence of record. The Board found that "[t]he [v]eteran's headaches manifest as characteristically 

prostrating that occur on average once a month." R. at 3. A review of the record does not support

this finding. Specifically, the report of the September 2012 examination noted some recent 

decrease in frequency of headaches, but stated that "[u]sual occurrences range from once every 6-

21 days." R. at 417. Neither end of this range results in an average of once a month. The October 

2010 examination report stated that the frequency was 2 to 3 times per month over the previous 12 

months. See R. at 524. Furthermore, there appears to be another inconsistency between the Board's 

discussion and the report of the September 2012 examination. Compare R. at 8 ("The examiner 

noted that the [v]eteran did not have characteristic prostrating headaches.") (emphasis added) with 

R. at 419-20 (examiner responded in the affirmative to the question: "Does the [v]eteran have 

characteristic prostrating attacks of migraine headache pain?"). The Court is unable to assess how 

this discrepancy might have affected the Board's determinations. 
12

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." See Cantrell 

v. Shinseki, 28 Vet.App. 382, 392 (2017) (citing Hood v. Brown, 4 Vet.App. 301, 303 (1993)).

The Court also rejects the Board's reasoning that it can employ Mr. Johnson's statement 

that his headaches were "prostrating" rather than "completely prostrating" as evidence pertaining 

to the degree of severity of his headaches. There has been no showing that, as a layperson, he was 

aware of the legal distinction between those terms or used the term "prostrating" advisedly. "[A] 

sympathetic reading of [a veteran's] pleadings cannot be based on a standard that requires legal 

sophistication beyond that which may be expected of a lay claimant." Ingram v. Nicholson, 

21 Vet.App. 232, 256 (2007).

The foregoing deficiencies require remand. See Allday v. Brown, 7 Vet.App. 517, 527

(1995); see also Tucker v. West, 11 Vet.App. 369, 374 (1998). Given this conclusion, the Court 

 

3

In his reply brief, Mr. Johnson points to his statement concerning FMLA leave in his Form 9 appeal as 

demonstrating that he currently invokes the FMLA. See R. at 368. It is unclear from that document, however, whether 

he continues to use the FMLA in his latest position as a correctional officer. 
13

will not now address appellant's other arguments focused on the adequacy of the Board's statement 

of reasons or bases.4See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order). On 

remand, Mr. Johnson is free to submit additional evidence and argument, and the Board is required 

to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 

(2002); see also Clark v. O'Rourke, 30 Vet.App. 92, 99 (2018).

III. CONCLUSION

On consideration of the foregoing, the Court AFFIRMS the Board's August 10, 2016, 

determination that DC 8100 contains successive criteria; SETS ASIDE the decision denying

entitlement to a disability rating of 50% for headaches; and REMANDS that matter for 

readjudication that addresses the evidentiary and definitional problems discussed in this decision.

ALLEN, Judge, concurring: I join the opinion of the Court in full. I write separately to 

underscore a disturbing agency practice this appeal illustrates. That practice is both unacceptable 

and unlawful.

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. The Court correctly holds that the Board's failure to define such terms rendered its statement 

of reasons and bases inadequate. See ante at II C. I fully agree. I expound on this point because an 

adjudicatory system cannot abide the way the Board proceeded in this case.

The law that frames this matter is clear. Under the Due Process Clause, a claimant has a 

constitutionally protected property interest in VA benefits from the moment of application. 

Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009). "Many controversies have raged about 

the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a 

minimum they require that deprivation of life, liberty or property by adjudication be preceded by 

 

4 As noted above, the appellant also argued that the Board's reasons and bases are inadequate because the 

Board did not discuss the definition of "very frequent" set forth in M21-1. Given the Court's resolution of the appeal, 

the Court need not explore here the scope of the Board's obligations to consider potentially relevant provisions of 

M21-1.
14

notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Cent. Hanover 

Bank & Trust Co., 339 U.S. 306, 313 (1950).

The Board's refusal to define "very frequent" and "prolonged" is inconsistent with the 

Constitution's promise of due process in at least two respects. First, without a definition a veteran 

will have no means of knowing what he or she must establish in order to receive a benefit. It cannot 

possibly be the case that a claimant can be told he or she "loses" when the claimant is not first told 

what he or she must do to "win." There is no meaningful notice, making the right to be heard 

illusory. Second, without the Board defining the critical terms it uses to deny a benefit to a 

claimant, this Court cannot provide meaningful judicial review. Such review was a cornerstone of 

what Congress sought to create with the passage of the Veterans Judicial Review Act (VJRA) 

nearly 30 years ago. The Board's actions undermine the very system of judicial review Congress 

created in the VJRA to protect veterans' rights.

A simple illustration drives these points home. Assume that I asked an observer this 

question: "Am I tall?" The observer responds: "No, you are not tall." It is only possible to assess 

whether the observer is correct – or perhaps more aptly, not clearly erroneous – if the observer 

tells us what he or she understands "tall" to be. If the observer says the definition of "tall" is the 

height of my best friend (who is over 6 feet), the answer is not clearly erroneous (I'm just over 5 

feet, 9 inches). If, on the other hand, the observer said "tall" meant the height of my best friend's 

9-year old daughter (who is about 4 feet, 5 inches), the conclusion that I was not "tall" is clearly 

wrong. You can't tell whether the observer is correct, or not clearly erroneous, without knowing 

how the observer defined "tall."

Moreover, we know for certain that our fictional observer must have defined the term "tall" 

in order to have answered the question. If the observer did not do so, the answer "no" would have 

been standard-less. In the vocabulary of administrative law, the observer's actions would have been 

arbitrary and capricious. See 5 U.S.C. § 706(2)(A).

What the Board did here is akin to the hypothetical observer who would not tell us what 

"tall" means. Let's just consider the Board's conclusion about frequency. The Board's entire 

explanation for its conclusion that three headaches per month did not qualify was as follows: 

"While three times a month may be deemed frequent, the Board finds it does not equal very 

frequent." R. at 7. Why is this so? There is no one who knows other than the Veterans Law Judge 

(VLJ) who decided the case, and he isn't telling. There is no scenario under which this conundrum 
15

leads to any conclusion other than that the Board proceeded unlawfully. On the one hand, the VLJ 

could have had a definition of "very frequent" but didn't provide it to the appellant (or the Court). 

In that case, there is a due process violation because there is no notice. See, e.g., Armstrong v. 

Manzo, 380 U.S. 545, 551-52 (1965); Mullane, 339 U.S. at 313. Or perhaps the Board had no 

definition after all, something that would make its decision arbitrary and capricious. As I noted, 

an adjudicatory system cannot run in this manner, especially one designed to be pro-claimant. The 

Board must do better.5

 

5

I note that there is a further constitutional issue the lack of clear definitions raises. Even if individual VLJs

provided definitions for undefined terms, there is no guarantee that those definitions would be consistent. Board 

decisions are not binding except in connection with a specific claim. See 38 C.F.R. § 20.1303 (2018). Thus, it could 

be that one VLJ defines "very frequently" to be more than three headaches in a month while another determines that 

it is more than five. This is independently problematic. The Court today does not face that issue, but I fear it will need 

to address it someday.