Citation Nr: 1516687 Decision Date: 04/17/15 Archive Date: 04/24/15 DOCKET NO. 07-18 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for migraine headaches, currently rated as 30 percent disabling. 2. Entitlement to a total disability based upon individual unemployability due to service connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from March 2002 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran's claim for an increased rating for migraine headaches was remanded by the Board for additional development in November 2009 and June 2011. In the June 2011 decision, the Board took jurisdiction of the TDIU claim and remanded that claim for additional development. Specifically, the claim for TDIU was remanded in order to assure that all notice and development was accomplished and to obtain additional evidence with regard to the increased rating claim. The directed development was completed, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). In a December 2010 statement, the Veteran filed a claim for fibromyalgia. This claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ), and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The Veteran's migraine headaches have not been shown to be productive of severe economic inadaptability. 2. The Veteran is currently service-connected for migraine headaches rated as 30 percent disabling, irritable bowel syndrome rated as 30 percent disabling, and idiopathic thrombocytopenia purpura rated as noncompensably (0 percent) disabling. The combined rating was 30 percent since May 18, 2006; and 50 percent since July 20, 2006. 3. The Veteran is not shown to be unable to secure and/or follow a substantially gainful occupation by reason of her service-connected disabilities. CONCLUSIONS OF LAW 1. Criteria for a rating in excess of 30 percent rating for migraine headaches are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2014). 2. Criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided. Additionally, neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of her claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records, private treatment records, and records from the Social Security Administration (SSA) have been obtained. The Veteran was also offered the opportunity to testify at a hearing before the Board, but she declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded their opinions in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor her representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). Of note, the Veteran was also sent several requests to complete a VA Form 21-8940 regarding her employment and was asked to explain how and if her headaches caused severe economic impairment. Unfortunately, the Veteran failed to ever complete the form. The Board acknowledges that the form was initially returned as undeliverable, but VA then took additional efforts to send it to the last known address of record. The form was also sent to the Veteran's representative. The Board wishes to emphasize that, "[t]he duty to assist in the development and adjudication of a claim is not a one way street." See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, [s]he cannot passively wait for it in those circumstances where [s]he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran was asked to complete and return a form that could have potentially provided information that could have assisted in the adjudication of her claim. She failed to do so, and the Board will therefore proceed with the adjudication of her appeal. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Rating For historical purposes, in July 2006, the Veteran submitted a claim asserting that her service connected migraine headaches had increased in severity. In an October 2006 rating decision, a 10 percent rating was assigned effective July 20, 2006. The Veteran disagreed with the rating assigned. In a January 2011 rating decision, the Veteran's disability rating was increased to 30 percent effective September 28, 2007. In a June 2011 decision, the Board granted a rating of 30 percent effective May 18, 2006. At a September 2006 VA examination, the Veteran reported that she had three to four migraines per month lasting several hours to all day. Her symptoms included vomiting, light sensitivity, and noise sensitivity. She reported having to lie down in a dark, quiet room when a headache developed. She also noted residual blurred vision and dizziness for a few days after the headache. She noted that she had missed work due to her headaches and she was unable to take care of her kids or do any work when she has a headache. The examiner assessed the Veteran with migraines with worsening symptoms. At an April 2010 VA examination, the Veteran reported headaches once or twice a week lasting two days. She indicated that she had periods of time where she had no headaches and then periods of time where she had one headache after another. She noted that she had tried migraine medications but none were effective. Imaging, including a computed tomography (CT) scan and a magnetic resonance imaging (MRI), was unremarkable. The Veteran indicated that she had been employed at fifteen jobs since her discharge from service due to frequent absenteeism. The examiner assessed the Veteran with weekly prostrating headaches lasting one to two days. The examiner diagnosed the Veteran with complicated migraine headaches (an attack associated with neurologic signs or symptoms that persist beyond the head pain). At the time of the VA examination, the Veteran was noted to be unemployed but the headaches were noted to be prostrating when present but had no effects when not present. The Veteran reported that she missed two to four days of work per week at her last job. At a June 2013 VA examination, the Veteran reported that her headaches lasted for days but there were periods when she had no headache. Her symptoms included nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, and muscle/eyelid twitches. The examiner assessed the Veteran with prostrating attacks of migraine headache pain more frequently than once per month. The examiner noted that the Veteran's headaches impacted her ability to work in that she had to avoid bright lights and loud noises. The examiner reported that in a normal eight hour work day the Veteran occasionally worked less than one-third of the work day, frequently worked between one-third and two-thirds of a work day, and constantly worked more than two-thirds of a work day. No restrictions for job activities were required. VA outpatient treatment reports dated from January 2006 to July 2013 reflect treatment for migraines. At times the Veteran's headaches were worse than others. For example, in February 2006, the Veteran's headaches were reported to be "not as bad" and in November 2006 the headaches were described as "mild." In October 2009, the Veteran was noted to have migraines with failed management on Depakote and Topamax. Her headaches were reported to be "recurrent." In February 2010, she reported that her migraines occurred daily. She indicated that she worked as a medical receptionist often working 65 hours per week. In March 2010, at a mental health evaluation, she indicated that she had recently been fired for missing too much work. In May 2012, she was seen for a severe headache and treated with Zofran and Toradol. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's service connected migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. That Diagnostic Code provides a 0 percent rating for migraine headaches which are characterized by less frequent attacks. A 10 percent rating is assigned for migraine headaches which are characterized by prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Having reviewed the relevant evidence, the Board finds that the evidence does not show that the Veteran's migraine headaches have been productive of severe economic inadaptability. While the Veteran has experienced frequent headaches and has missed some work, the Board finds that the evidence does not show severe economic inadaptability due solely to headaches. The Board acknowledges the VA medical record reflecting that the Veteran was fired from her job in March 2010 for missing too much work. However, there is no evidence that this was due solely to the service connected headaches. Moreover, when examined by VA in 2013, the examiner noted that during a headache the Veteran had to avoid bright lights and loud noises. However, there are times when the Veteran has no headache and the examiner found that the Veteran had no work restrictions. The examiner noted that in a normal eight hour work day the Veteran occasionally worked less than one-third of the work day, frequently worked between one-third and two-thirds of a work day, and constantly worked more than two-thirds of a work day. These findings are not tantamount to severe economic inadaptability. Consequently, the Board finds that a schedular rating in excess of 30 percent for migraine headaches is not warranted. Of note, the Veteran was requested to complete and return VA form 21-8940. The Veteran was requested in a December 2012 letter to explain how her headaches had caused severe economic inadaptability, but she failed to complete the form or advance additional argument. In sum, the evidence of record does not show that the Veteran's migraine headaches warrant more than the 30 percent schedular rating that is currently assigned. As the preponderance of the evidence is against the claim for any higher rating, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2014). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court of Appeals for Veteran Claims clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Here, the Veteran's reported symptomatology primarily included severe prostrating headaches weekly which is fully contemplated by the schedular rating criteria. As noted, the schedular rating criteria allows a higher rating if all of the Veteran's headache related symptomatology causes severe economic inadaptability. As such, in assigning the schedular rating, the Board necessarily considered all of the Veteran's headache symptomatology. Thus, the Board finds that the rating assigned reasonably describe the Veteran's disability at issue. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. III. TDIU The Veteran contends that her service-connected migraine headaches render her unemployable. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. §§ 3.341, 4.16, 4.19. As noted above, during the relevant appeal period, service connection has been in effect for migraine headaches rated as 30 percent disabling, irritable bowel syndrome rated as 30 percent disabling, and idiopathic thrombocytopenia purpura rated as noncompensably (0 percent) disabling. The combined rating was 30 percent since May 18, 2006; and 50 percent since July 20, 2006. Consequently, the Veteran does not met the schedular criteria for a total rating for compensation purposes based on individual unemployability under the provisions of 38 C.F.R. § 4.16 at any time during the relevant appeal period. As the Veteran does not meet the schedular criteria for a total rating for compensation purposes based on individual unemployability, the Board has considered referral of the Veteran's claim to the VA Director, Compensation and Pension Service, for extraschedular consideration under the provisions of 38 C.F.R. § 4.16(b). However, the probative documentation of record does not establish that such a referral is in order. In this case, none of the examiners of record have concluded that the Veteran's service-connected disabilities render her unemployable. VA treatment records dated in February 2010 indicate that the Veteran was working 65 hours per week at times. In March 2010, she noted that she had been fired due to missing too much time from work. At the time of the April 2010 VA examination, the Veteran was noted to be unemployed but the headaches were noted to be prostrating when present but resulted in no effects when not present. The Veteran reported that she missed two to four days per week at her last job. An August 2010 decision from the SSA indicates that the Veteran's claim for disability benefits was denied because while the Veteran's impairments, including headaches, imposed restrictions on her ability to engage in certain work activities, she still retained the ability to perform her past work as a deli clerk. At the most recent VA examination in June 2013, the examiner noted that during a headache the Veteran had to avoid bright lights and loud noises. However, there are times when the Veteran has no headache. The examiner specifically found that the Veteran had no work restrictions and in a normal eight hour work day the Veteran occasionally worked less than one-third of the work day, frequently worked between one-third and two-thirds of a work day, and constantly worked more than two-thirds of a work day. Having reviewed the evidence of record, the Board finds that referral for consideration of a total rating for compensation purposes based on individual unemployability on an extraschedular basis is not appropriate. 38 C.F.R. § 4.16(b). Aside from the Veteran's contentions, there is no objective evidence indicating that the Veteran's service connected migraine headaches or any other service connected disability renders her unemployable. The Board does not wish to minimize the nature and extent of the Veteran's overall disability picture. The Veteran currently has a combined evaluation of 50 percent (since July 20, 2006) which contemplates significant impairment in earning capacity. 38 C.F.R. § 4.1. However, notwithstanding the high degree of disability, the Veteran is not shown to have been or be unemployable solely by reason of her service-connected disabilities. In summary, for the reasons and bases set forth above, the Board concludes that a total rating for compensation purposes based on individual unemployability is not warranted. ORDER An increased rating for migraine headaches, currently rated as 30 percent disabling, is denied. A total disability based upon individual unemployability due to service-connected disability is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs