Citation Nr: 1521195 Decision Date: 05/18/15 Archive Date: 05/26/15 DOCKET NO. 08-21 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased disability rating for service-connected migraine headaches, currently evaluated as 10 percent disabling prior to October 22, 2013 and as 50 percent disabling from October 22, 2013. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to October 11, 2013. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In February 2012, the Veteran presented sworn testimony during a personal hearing in Atlanta, Georgia, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In a June 2012 Board decision, the claims were remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a December 2014 rating decision, the RO increased the assigned disability rating for service-connected migraine headaches to 50 percent, effective October 22, 2013. The Veteran has not expressed satisfaction with the increased disability rating; this case thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in December 2014. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. As noted in the June 2012 Board Remand, the Court has held that a claim for a TDIU is an element of a claim for an increased rating when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue will be considered herein. The Board notes that the Veteran is now in receipt of a TDIU from October 11, 2013. See the rating decision dated December 2014. Therefore, the Board must consider the Veteran's entitlement to a TDIU based upon her migraine symptomatology prior to October 11, 2013. See Rice, supra. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's migraine headaches have been characterized by very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. 2. The Veteran's migraine headaches do not present a disability picture so exceptional or unusual as to render impractical the application of the schedular rating standards. 3. Prior to May 22, 2010, the Veteran's service-connected migraine headaches did not preclude her from securing or following substantially gainful employment consistent with her education and occupational experience. 4. From May 22, 2010 to October 11, 2013, the Veteran's service-connected migraine headaches have precluded her from securing or following substantially gainful employment consistent with her education and occupational experience. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the criteria for an increased disability rating of 50 percent, but no higher, for migraine headaches have been met since the date of the increased rating claim. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2014). 2. The requirements for referral of the Veteran's claims for increased rating for her service-connected migraine headaches to the appropriate VA authority for extraschedular consideration have not been met. 38 C.F.R. § 3.321(b) (2014). 3. Prior to May 22, 2010, the criteria for entitlement to a TDIU based on migraine headaches are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2014). 4. From May 22, 2010 to October 11, 2013, the criteria for entitlement to a TDIU based on migraine headaches are met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA); Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107. To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (April 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) As to the pending claims, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. Through letters dated in June 2006 and May 2008, the RO notified the Veteran of the information and evidence needed to substantiate her claims, and the division of responsibility between the Veteran and VA for obtaining evidence, as well as the process by which disability ratings and effective dates are assigned. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issues on appeal. The evidence in the claims file includes VA and private treatment records, service treatment records (STRs), and lay statements. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of her claims on appeal that need to be obtained. Thus, the Board finds that VA has properly assisted the Veteran in obtaining any relevant evidence. The Veteran was afforded VA examinations in July 2006 and November 2013, the reports of which are of record. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examination reports summarized herein are sufficient relative to the claims, as they are predicated on consideration of the private and VA treatment records in the Veteran's claims file, as well as specific examination findings. The June 2006 and November 2013 VA examiners provided findings sufficient to apply the rating criteria, considered the statements of the Veteran, and provided a rationale for the findings made, relying on and citing to the records reviewed. In short, the Board has considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of these claims has been consistent with said provisions. II. Increased rating claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran is assigned a 10 percent evaluation for her service-connected migraine headaches prior to October 22, 2013 and a 50 percent from October 22, 2013. As discussed below, the Board concludes that a 50 percent disability evaluation is warranted for the entire appeal period. Thus, a staged rating is not appropriate for the Veteran's service-connected migraine headaches. The Veteran's migraine headaches have been rated under Diagnostic Code (DC) 8100. Under DC 8100, which addresses migraines, a 10 percent rating is assigned with characteristic prostrating attacks averaging one in two months, over the last several months. A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average of once a month over the last several months. Finally, a 50 percent rating is assigned when migraines with very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define "prostrating." The Board additionally observes that the Court has not undertaken to define "prostrating." See Fenderson v. West, 12 Vet. App. (1999), in which the Court quoted DC 8100 verbatim but did not specifically address the matter of what is a prostrating attack. By way of reference, the Board notes that according to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), "prostration" is defined as "extreme exhaustion or powerlessness;" and according to STEDMAN'S MEDICAL DICTIONARY 1461 (27th Ed. 2000), "prostration" is defined as "a marked loss of strength, as in exhaustion." The Veteran was afforded a VA examination in July 2006 in order to address her migraine headaches. The examiner noted that the Veteran suffers from two to three headaches per week, which last for one to two hours at a time. She must take a pill and lie down in order for the headaches to resolve. The Veteran's headaches are treated with several prescription medications, which can reduce the duration of her headaches to 45 minutes, but result in sluggishness and sleepiness. She has photosensitivity with some nausea during her migraines. The Veteran reported that she is currently going to school and, only "very occasionally" do her headaches affect her school work. She "has not missed any school work or school time due to these headaches." Treatment records dated in April 2006 document the Veteran's report of throbbing, often unilateral, headaches without nausea and vomiting. The treatment provider noted, "[t]here is photophobia, phonophobia, and worsening of the pain with movement." In a May 2006 treatment record, it was noted that the Veteran is tolerating an adjustment in her Topamax prescription well, "and has had large improvement in the frequency of her headaches." Private treatment records dated in April 2006 noted that the Veteran had migraine headaches two to three times per week. In May 2006, it was reported that Topamax "has had large improvement in the frequency of her headaches. She has only had one headache since April 10, 2006, which was approximately one month ago." In a July 2006 statement, the Veteran reported that she suffers from migraine headaches two to three times per week, even with the use of prescription medications. Private treatment records dated in August 2008 indicated that the Veteran experiences an average of three to four migraines per week. In October 2008, the treatment provider stated that the Veteran is "still averaging approximately two to three headaches a week despite being on 100mg. of Topamax B.I.D." An increase in frequency and severity of headaches was noted in December 2008. In April 2009, the Veteran was treated for migraine symptomatology at the emergency room. In May 2009, it was reported that the Veteran "was [previously] place on Topamax with reduction in the headache frequency and severity. Because of some breakthrough headaches, we introduced Zonegran and weaned her off of Topamax. Unfortunately, the headaches returned." Private treatment records dated in October 2009 indicated that the Veteran had no more than four to five migraines per month. However, in March 2010, it was noted that the headaches had "steadily increased in severity" and the Veteran now had four to five migraines per week. Private treatment records dated in May 2010 and January 2011 documented the Veteran's fluctuating migraine frequency. At the February 2012 Board hearing, the Veteran testified that she suffers from an average of four to six headaches per month. She stated that, if her medication does not work, she must lie in bed with the drapes closed and wait for the migraine to resolve. See the February 2012 Board hearing transcript, pgs. 3-4. She stated that during her migraines, "it even hurts to move." Id. The Veteran described all of her headaches as incapacitating, stating that they can last from four to five hours at a time. Id. at pg. 5. She has sought emergency treatment "several times" for migraine symptoms. Id. at pg. 8. She reported that, "[t]he times that I have actually worked [during a migraine], I found myself actually getting off earlier or actually calling in." Id. at pg. 10. She stated that she can no longer work due to problems with migraines, "I found myself spending more time there at the doctor's office than I would've actually spent in an actual office." Id. Private treatment records dated in February 2012 noted that the Veteran now experienced one headache every six weeks. In June 2013, the Veteran reported experiencing approximately three headaches per month; it was further noted that her headaches had decreased in severity. However, in September 2013, the Veteran's migraine headaches had again increased to a frequency of two to three per week. Notably, in October 2013, it was noted that the Veteran is "experiencing approximately fifteen headaches per month with the duration often being greater than eight hours." In an October 2013 letter, the Veteran's private treatment provider reported, "[m]ultiple headache preventative medications have been attempted in the past with little change to her headache picture." It was further noted that the Veteran is "currently experiencing approximately fifteen headaches per month with two per week being prostrating headaches that often last in excess of eight hours." The treatment provider further stated that due to a recent medication adjustment, "the patient may also experience migraines which would necessitate time out of work." Pursuant to the June 2012 Board remand, the Veteran was afforded another VA examination in November 2013. The examiner noted that the "[r]ecord shows frequent headaches since 1979 with photophobia, phonophobia, and nausea. Migraine headache frequency has been increasing over the years." The Veteran described her migraine headaches as pulsating/throbbing with pain localized to one side of the head. Her pain is worse with physical activity. The Veteran averages three to four headaches per week. The examiner stated that the Veteran has characteristic prostrating attacks of migraine headache pain with a frequency of more than once per month. Her headaches are very frequently prostrating and prolonged attacks. The examiner stated that the Veteran has prostrating headaches at least twice a week that last six to eight hours in which "she feels miserable, exhausted, and helpless." The examiner noted that the Veteran's migraine headaches impact her ability to work. Specifically, the Veteran "stopped working last month due to frequency and severity of headaches. She has difficulty [holding] a job due to frequent and severe headaches." In a February 2014 disability benefits questionnaire, the treatment provider reported that the Veteran "is not working since October 2013, she had to quit working mainly because she had bad migraine headaches." Treatment records dated in March 2014 documented a continued frequency of fifteen headaches per month. She underwent an occipital nerve block in March 2014, but continued to have migraine headaches with increased nausea. See the treatment records dated April 2014. In weighing the clinical evidence of record, the Board finds that, with resolution of doubt in the Veteran's favor, an evaluation of 50 percent for the Veteran's migraine headaches is warranted throughout the appeal period. The record demonstrates that the Veteran does experience chronic, prostrating headaches that occur anywhere from two to four times per week lasting hours. The Board notes that the frequency, duration, severity, and impairment caused by the disorder are based on lay statements by the Veteran. The Veteran is competent to report these observable symptoms and their effects, and the Board concludes that her reports are essentially credible because they have been consistent and accepted by VA and private treatment providers. This is the maximum evaluation that may be assigned under Diagnostic Code 8100; therefore, the Board has also considered the propriety of a referral for extraschedular consideration. However, for the reasons set forth below, the Board finds that the Veteran's migraine headache symptomatology does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. Id. If the disability picture is not adequately contemplated by the rating schedule, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Here, the rating criteria specifically address the Veteran's migraine headache symptomatology. Thus, the Board finds that the Veteran's disability picture is contemplated by the rating schedule, and the currently assigned disability ratings are appropriate. See Thun, 22 Vet. App. at 115. Accordingly, a referral for extraschedular consideration is not warranted because her migraine symptoms are contemplated by the rating schedule. Under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, there are no symptoms caused by service-connected disability that have not been attributed to and accounted for by a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed to the combined effect of multiple conditions. III. TDIU TDIU may be granted where the schedular rating is less than total and the service-connected disability precludes the Veteran from obtaining or maintaining substantially gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014). By this decision, the Veteran's service-connected migraine headaches are found to be 50 percent disabling throughout the appeal period. Thus, it is undisputed that the Veteran meets the percentage requirements for consideration of TDIU under 38 C.F.R. § 4.16(a) (2014). As noted in the introduction, the Veteran is in receipt of a TDIU from October 11, 2013. Thus, the question is whether her service-connected migraine headaches precluded gainful employment for which her education and occupational experience would otherwise qualify her prior to October 11, 2013. The Veteran has reported that she last worked full-time on May 21, 2010. See the Veteran's TDIU claim dated April 2014. She asserted that she stopped working as a result of her migraine symptomatology. Id. Notably, in the VA Form 21-4192 submitted by the Veteran's former employer, it was documented that the Veteran stopped working as an office manager on May 21, 2010 as a result of her frequent migraine headaches. Accordingly, the evidence does not show, nor does the Veteran assert, that she was unable to obtain or maintain substantially gainful employment prior to May 22, 2010. Crucially, the evidence of record from May 22, 2010, supports the Veteran's credible testimony that she could no longer work due to migraine problems. See the February 2012 Board hearing transcript, pg. 10. Notably, as described above, the medical evidence shows that the Veteran regularly suffered from prostrating migraine headaches, an average of two to four times a week, which caused her to seek relief by lying in her darkened bedroom until the symptoms resolved. See the private treatment records dated March 2010, May 2010, January 2011, June 2013, and September 2013. The Board notes that the Veteran worked part-time (two and a half days per week) from June 2013 to October 2013. See the VA Form 21-4192 dated May 2014. The Board further recognizes that substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before." Faust v. West, 13 Vet. App. 342, 356 (2000). However, 38 C.F.R. § 4.18 specifically states that consideration is to be given to the circumstances of employment in individual claims, and, if the employment was only occasional, intermittent, tryout or unsuccessful, or eventually terminated on account of the disability, present unemployability may be attributed to the static disability. To this end, it is undisputed that the Veteran's brief period of part-time employment from June 2013 to October 2013 was unsuccessful and abbreviated as a result of her migraine headache disability. Thus, based on the foregoing, and resolving reasonable doubt in her favor, the Board finds that the medical evidence regarding the severity of her migraine headaches supports an award of TDIU from May 22, 2010 to October 11, 2013. 38 U.S.C.A. § 5107(b). ORDER An increased disability rating of 50 percent for the service-connected migraine headaches is granted throughout the appeal period, subject to controlling regulations applicable to the payment of monetary benefits. A disability rating in excess of 50 percent for service-connected migraine headaches is denied. Entitlement to a TDIU is denied prior to May 22, 2010. Entitlement to a TDIU is granted from May 22, 2010 to October 11, 2013. ____________________________________________ MARJORIE AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs