Citation Nr: 1629288 Decision Date: 07/22/16 Archive Date: 08/01/16 DOCKET NO. 12-06 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent prior to September 30, 2014, in excess of 50 percent from September 30, 2014 to June 18, 2015, and in excess of 70 percent since June 18, 2015 for posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 30 percent for migraine headaches. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to August 1979, February 1991 to August 1991, October 2001 to July 2002, and August 2008 to February 2009 in the United States Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and December 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. FINDINGS OF FACT 1. In June 2016, after certification of the case to the Board and prior to the promulgation of a decision in the appeal, the Veteran requested that the claim for entitlement to higher ratings for PTSD be withdrawn from appeal. 2. The Veteran's migraine headaches are manifested by very frequent completely prostrating and prolonged attacks capable of producing severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for higher ratings for PTSD by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for a maximum disability rating of 50 percent for migraine headaches are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.124a, Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS PTSD The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a June 2016 letter, the Veteran withdrew the claim for entitlement higher ratings for PTSD from appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim, and it is dismissed. Migraine Headaches Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, entitlement to service connection has already been established and an increase in the disability ratings is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the July 2015 rating decision on appeal, the RO continued the 30 percent rating assigned to the Veteran's migraine headaches pursuant to 38 C.F.R. § 4.124a, DC 8100. Headaches are assigned disability ratings based on the frequency of prostrating attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. In a September 2014 VA treatment record, the Veteran that she had been out of work for 2 days for migraines, stating, "I am starting to get to the point that I need to leave my job. I have tried for years to stay. Now, things are getting worse for me." VBMS Entry 6/18/15, p. 41/125. In a November 2014 VA neurological treatment record, the Veteran reported having headaches every day, made worse by light. The provider's assessment was "increasing headaches." VBMS Entry 6/18/15, p. 32/125. In May 2015, the Veteran's supervisor at work, L.J., submitted a letter. In the letter, L.J. described that over the past three years, the Veteran's headaches had severely worsened. She opined that the Veteran is now "scarcely" able to perform her duties as a freight supervisor, which requires supervision of over 20 employees. In the past year, the Veteran had missed work over six or seven times, for three or more days each time, due to headaches. The supervisor elaborated that the Veteran's job performance has been declining, and that her frequent absences cause a hardship on the organization due to having to find coverage for her frequent absences. L.J. stated that the Veteran's headaches cause poor concentration, an avoidance of stressful situations, irritability, problems with accomplishing tedious tasks, and difficulty in performing administrative tasks at the computer. She stated that the Veteran's migraine headache disability "renders her noncompetitive for advancement and promotion opportunities, while also limiting her economic growth and adaptability." As her supervisor for over 10 years, she stated that it was her personal and professional opinion that the Veteran should "seriously consider not working," and that she should "seek more medical help for her conditions which I consider to be very severe." On VA examination in July 2015, the headaches were noted to cause nausea, vomiting, sensitivity to light, and sensitivity to sound. Headaches lasted for 1-2 days. The examiner found the Veteran did not have prostrating attacks, but that the headaches caused her to miss work at least 7 days in the past 12 months. In a December 2015 VA treatment record, the Veteran sought treatment for her migraines. The migraines were occurring weekly and lasting 2-3 days at a time. They caused vision loss, blurred vision, and nausea. VBMS Entry 3/23/16, p.12/92. On VA examination in April 2016, the headaches were noted to cause pulsating or throbbing pain on both sides of the head. The headaches caused nausea, vomiting, sensitivity to light, and sensitivity to sound. The duration was less than one day. The examiner stated the Veteran has prostrating attacks less than once every two months, but did not have very frequent and prolonged attacks. The examiner checked a box indicating that there was no impact on employment. The Board finds the evidence in equipoise as to whether the Veteran experiences very frequent completely prostrating and prolonged attacks. While the VA examiners found she does not, evidence to the contrary includes the May 2015 letter from her supervisor, who interacts with the Veteran on a near-daily basis and has done so for more than ten years, as well the Veteran's own statements. L.J. stated that in the past year, headaches have caused the Veteran to miss work more than six or seven times, at three or more days each time. The Veteran and her supervisor's statements in this regard are both admissible and believable. Moreover, VA treatment records have documented weekly headaches lasting two to three days at a time and causing visual problems with nausea. The record further shows that the headaches cause light sensitivity, sound sensitivity, and vomiting. Resolving any doubt in favor of the Veteran, the portion of the 50 percent rating criteria requiring evidence of very frequent completely prostrating and prolonged attacks is met. Diagnostic Code 8100 also requires that the headaches are productive of severe economic inadaptability. The term "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. However, the United States Court of Appeals for Veteran's Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to a TDIU. Id. at 446; see also 38 C.F.R. § 4.16 (2015). However, the headaches must, at minimum, be capable of producing "severe" economic inadaptability. The Board again finds the evidence at least in equipoise as to whether the Veteran's headaches are productive of severe economic inadaptability. While the April 2016 VA examiner found they did not impact employment, the July 2015 VA examiner found to the contrary. The Board further finds the Veteran's supervisor's letter highly probative, particularly as to her opinions that the headache disability "renders her noncompetitive for advancement and promotion opportunities, while also limiting her economic growth and adaptability," and that the Veteran should "seriously consider not working." Again resolving any doubt in favor of the Veteran, the portion of the 50 percent rating criteria requiring evidence that the headaches are productive of severe economic inadaptability is met. Fifty percent is the maximum rating available for migraine headaches pursuant to Diagnostic Code 8100. No other diagnostic code is applicable and the Board cannot identify a diagnostic code which would afford a rating higher than 50 percent disabling for the Veteran's headaches. The Board has considered whether referral for consideration of an "extraschedular evaluation" is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The lay and medical evidence of record fails to show unique or unusual symptomatology regarding the Veteran's service-connected migraine headaches that would render the schedular criteria inadequate. As discussed above, symptoms (prostrating attacks of pain, sensitivities to light and sound, nausea, and vomiting, as well as interference with work) are contemplated in the assigned schedular rating. Thus, the application of the Rating Schedule is not rendered impractical. Moreover, the Veteran has not argued that her symptoms are not contemplated by the rating criteria; rather, she has merely disagreed with the assigned disability rating for her level of impairment. In other words, she does not have any symptoms from her service-connected migraine headaches that are unusual or different from those contemplated by the schedular criteria. Finally, she has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, referral for consideration of an extraschedular evaluation is not warranted. The Board has also considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Basically, a TDIU award permits for the assignment of a total rating even when an individual service-connected disability or disabilities are rated as less than total. However, as the Veteran has reported, and the evidence shows, that she is fully employed, no discussion of compensation for unemployability is necessary. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. Given the award of a maximum 50 percent rating for the Veteran's migraine headaches, and the dismissal of the claim involving PTSD at her request, all notification and development actions needed to fairly adjudicate these claims have been accomplished. ORDER The appeal as to the claim of entitlement to initial disability rating in excess of 30 percent prior to September 30, 2014, in excess of 50 percent from September 30, 2014 to June 18, 2015, and in excess of 70 percent since June 18, 2015 for PTSD is dismissed. A maximum disability rating of 50 percent for migraine headaches is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs