Citation Nr: 1623340 Decision Date: 06/10/16 Archive Date: 06/21/16 DOCKET NO. 08-32 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for migraine headaches for the time period prior to July 13, 2015. 2. Entitlement to an evaluation in excess of 50 percent for migraine headaches. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to October 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The appeal was later transferred to the jurisdiction of the RO in Denver, Colorado. The Veteran had a hearing before the undersigned Veterans Law Judge in November 2014 and the transcript is of record. The issue of entitlement to TDIU is raised by the record and is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeal period the service-connected migraine headaches more nearly approximated weekly prostrating headaches requiring continuous medication to manage, which are productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent disability rating, and not in excess thereof, for migraine headaches, have been met effective August 25, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.7, 4.124a and Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2015). 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.A. § 1155; 38 C.F.R. § 4.1 (2015). If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's claim for an increased rating for his service-connected migraine headaches was received by VA on August 25, 2006. At that time his service-connected migraine headaches were rated at a 30 percent disability rating. During the appeal an increased rating of 50 percent was assigned for his migraine headaches effective July 13, 2015, which is the date of his most recent Compensation and Pension examination. Migraine headaches are rated under Diagnostic Code 8100. A 30 percent disability rating contemplates migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent disability rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The 50 percent rating is the highest disability rating assigned for migraine. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A large volume of VA medical treatment records have been obtained. These records confirm that the Veteran is prescribed medication to treat his service-connected migraine headaches and that he requires regular refills of his medication. A March 2006 VA outpatient note indicates that the Veteran reported having headaches 3 to 4 times a month. In January 2007 a VA examination of the Veteran was conducted. The Veteran reported having an average of one migraine headache each week. Symptoms included photophobia, nausea, and vomiting. Treatment with medication helped, but headache still persisted between 4 and 24 hours. The Veteran reported that he was currently employed at the VA Medical Center in housekeeping and that he missed about 2 days of work each month due to headaches. He also reported he lost his prior job in construction due to the frequency and severity of his headache symptoms. A November 2007 VA treatment record notes that the Veteran "suffers migraines one per week for which he misses work, has aura of spots or eye twitching prior to event, [he takes his prescription medication] which shortens duration but does not abort it." An October 2008 VA medical telephone contact note indicates that the Veteran reported that "he lost his last job with the VA due to migraine headaches. He had to be off work every week. He's working on disability paperwork." A November 2008 letter from the Veteran's treating VA physician states that the Veteran "suffers from migraines approximately once a week. During the time of a migraine, he may be incapacitated and unable to work secondary to pain and nausea." A September 2009 VA emergency department treatment note reveals that the Veteran reported the frequency of migraine headache being up to twice a week. A December 2009 treatment note shows that the Veteran reported that his "migraines have affected his ability to keep jobs in the past; he's been unemployed for about the past 1 year." In July 2015, the most recent VA Compensation and Pension examination of the Veteran was conducted. The examination report noted a history of prostrating headaches approximately 40 times a year, which were suboptimally managed with medication. However documented frequency was reported being 2 to 3 times a week for periods up to 4 hours. Symptoms included: photophobia, noise sensitivity, nausea, vomiting, dizziness, and visual aura. The Veteran reported missing 40 days of school in the past year due to migraine symptoms. The evidence of record supports the assignment of a 50 percent disability rating for the Veteran's service-connected migraine headaches for the entire appeal period, effective from the date of claim August 25, 2006. The evidence of record establishes that he has weekly prostrating migraine headaches which are not entirely successfully treated with prescribed medication. The evidence also establishes that his headache lost time from work and school because of the frequency and severity of his migraine symptoms. There is also evidence of record that the Veteran's migraines have affected his ability to maintain employment in certain jobs. This establishes that the frequency and severity of the service-connected migraine headaches are productive of severe economic inadaptability. Accordingly, the evidence of record supports a grant of the maximum assignable disability rating of 50 percent for migraine headaches effective August 25, 2006. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2015). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's migraine headache disability picture is not so unusual or exceptional in nature as to render the disability rating assigned above inadequate. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by 50 percent disability rating for his migraine headaches, and that this is the maximum disability rating assignable for migraine. Evaluations in excess of currently assigned ratings are provided for certain other neurologic disabilities manifested by such severe symptoms frequent grand mal seizures which are not present in this case. The criteria for the ratings currently assigned reasonably describe the Veteran's migraine headache disability level and symptomatology. Consequently, the Board concludes that the schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Codes 5259, 5003, 5257; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). While there may have been fluctuations in the manifestations of the Veteran's service-connected migraine headache, the evidence shows no distinct periods of time during the appeal period, when the manifestations of the Veteran's service-connected migraine did not warrant the assignment of a 50 percent disability rating, so ratings greater or less than that currently assigned are not warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER A disability rating of 50 percent, and not in excess thereof, is granted for migraine headaches effective August 25, 2006, subject to the law and regulations governing the payment of monetary awards. REMAND The issue of TDIU is part of an increased rating claim when that issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). This issue is raised by the record as various VA treatment records note time lost from work, and a possible loss of a job due to migraine symptoms. However, the record is not complete enough to adjudicate this issue. It is unclear if the Veteran is currently unemployed or left employment to become a full time student. Accordingly, the Board has added this issue and remand for development related to the TDIU claim is necessary. See, Rice. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with the appropriate claim form for TDIU. Tell the Veteran provide all necessary information with respect to his periods of employment. Request that the Veteran indicate if he is receiving disability benefits from the Social Security Administration (SSA). 2. Based upon the Veteran's response, conduct any necessary development with respect to the claim for TDIU. Such development may include: verification of the Veteran's employment status, and/or obtaining records from SSA. 3. If the record indicates that the Veteran may be unemployable due to his service-connected disabilities, then he should be scheduled for an evaluation by a vocational specialist to address the functional effects that his service-connected disabilities have on his ability to secure or follow a substantially gainful occupation. When addressing the functional effects, the vocational specialist should consider the Veteran's education and occupational history but must not consider the Veteran's age or any non-service connected disabilities. 4. Thereafter, readjudicate the issue of entitlement to TDIU. If the claim remains denied, provide the Veteran and representative with a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs