Citation Nr: 1751844 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-35 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 30 percent for migraines. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Matta, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1999 to May 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). At her request, the Veteran was scheduled for a Central Office hearing in March 2017. She failed (without providing cause) to report for the hearing. Accordingly, her hearing request is deemed withdrawn. The Board notes that additional evidence, including VA examination reports, was received after the March 2010 statement of the case (SOC) without a waiver of RO consideration. However, given the favorable nature of the decision herein, there is no prejudice to the Veteran in the Board so proceeding. The Board notes that the Veteran did not timely perfect her appeal with respect to these claims; however, action by the Agency of Original Jurisdiction (AOJ) indicates that the submission of a timely VA Form 9 in these matters has been waived. Accordingly, the Board accepts jurisdiction in these matters. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The issues of service connection for a psychiatric disability secondary to service-connected disabilities and entitlement to an increased rating for fibromyalgia have been raised by the record in May and July statements, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. During the period on appeal, it is reasonably shown that the Veteran's migraine headaches have caused very frequent, completely prostrating, and prolonged attacks, and that these attacks have caused severe economic inadaptability. 2. It is reasonably shown that, by virtue of her service-connected disabilities, the Veteran is precluded from maintaining regular substantially gainful employment. CONCLUSIONS OF LAW 1. For the period on appeal, an increased (maximum) disability rating of 50 percent is warranted for migraine headaches. 38 C.F.R. § 4.124, Diagnostic Code (Code) 8100 (2017). 2. The schedular requirements for a TDIU rating are met, and a TDIU rating is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA applies to these claims. However, inasmuch as this decision grants the benefits sought, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. Increased Ratings for Migraines Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Under Code 8100, migraine headaches with very frequent completely prostrating and prolonged attacks that produce severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a, Code 8100. The 50 percent rating is the maximum allowed under VA law and regulations for this Code. On June 2009 VA examination, the Veteran reported headaches five times per week, each lasting four hours. She described her headaches as sharp and throbbing, accompanied by nausea, photophobia, and odor intolerance. She is confined to her bed and unable to do anything during a headache; she described herself as intermittently incapacitated. During a separate June 2009 VA examination, the Veteran reported that she was let go from her most recent job because of frequently missing work as a result of her doctors' appointments and pain. She last worked in January 2007. On December 2015 VA headaches examination, the Veteran reported having approximately 20 headaches per month: eight headaches a month are improved with medication and 12 headaches a month are not improved with medication. The examiner determined that the Veteran has very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The Veteran and her support system, including her mother, spouse, and friends, have submitted numerous statements attesting to the Veteran's debilitating and very frequent completely prostrating and prolonged migraine attacks. The Veteran specifically stated that she was worked for a temporary agency for two months in 2005 but was often unable to go to her assigned locations, at least in part due to her migraines. From August to November 2005, she worked part-time as an office assistant but was unable to work the required hours due to her migraines. In December 2005, she worked as a receptionist and would often have to miss work or lay down in the office due to her migraines. She was eventually let go as the company "needed someone that could be at the office every day and when there be able to work the entire [eight] hours." In light of the foregoing, the Board finds that the Veteran's competent and credible statements and her reports of symptomatology during VA examinations establishes that the criteria for a 50 percent rating are met. The Veteran reports that her migraine headaches occur twenty times per month (i.e., very frequently). The June 2009 VA examiner noted that the Veteran is confined to her bed and unable to do anything during a headache (i.e., they are completely prostrating). She reported that some attacks are alleviated with some medication while some are not (i.e., they are prolonged). The Board also finds that the very frequent, completely prostrating, and prolonged attacks brought on by the Veteran's migraine headaches cause severe economic inadaptability (and have done so since the current 30 percent rating was granted) because the Veteran's reports (supported by evidence from her employer) establishes that she stopped working, at least in part due to the migraine headaches and that, even before she stopped working, the migraine headaches were so severe that she was absent from work or unable to perform her abilities while at work because of the migraine headaches. Accordingly, the criteria for a 50 percent rating for migraine headaches have been met. See 38 C.F.R. § 4.124a, Code 8100. As indicated above, the assigned 50 percent evaluation is the maximum available under Diagnostic Code 8100. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.16. A TDIU rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or if there are two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Entitlement to TDIU requires an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran's service-connected disability(ies) alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In making this determination, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Service connection has been established for migraines, rated 50 percent (pursuant to the above decision), from July 26, 2007; fibromyalgia, rated 40 percent from May 16, 2005; temporomandibular joint dysfunction (TMJ), rated 20 percent, from May 16, 2005, and residual nerve damage of the right gastric muscle, rated 0 percent from May 16, 2005. As the schedular rating requirements for consideration of TDIU in 38 C.F.R. § 4.16(a) are met, the question remaining is whether the Veteran has been unable to engage in substantially gainful employment because of her service-connected disabilities. According to a June 2009 VA examination report, the Veteran reported aches and pains throughout her body, practically on a daily basis. She was let go from her most recent job because of frequently missing work as a result of her doctor appointments and pain. She last worked in January 2007. Although the examiner specifically opined that the effect of the Veteran's disabilities on usual occupation is pain with prolonged walking, lifting, and occasional incapacitation with migraines, he determined earlier that the Veteran's service-connected irritable bowel syndrome (considered as part of her fibromyalgia) occurs intermittently, as often as two to three times a week, with each occurrence lasting four the six hours; the ability to perform daily functions during flare-ups is compromised as she needs to stay close to the bathroom. During a separate June 2009 VA examination, the Veteran reported that she was attempting to receive her associate's degree; she was able to pass all of her course work but one due to multiple absences as a result of her physical problems. On December 2015 VA headaches examination, the examiner opined that, due to the Veteran's significant amount of intractable migraine headaches, she should not engage in significant physical labor; however, she was not restricted to light office work, sedentary employment, or employment at home in which she would be "allowed to return to her home in the case of an intractable migraine." On December 2015 VA fibromyalgia examination, the Veteran's symptoms included widespread musculoskeletal pain, stiffness, fatigue, sleep disturbances, paresthesia, headache, irritable bowel syndrome, and Raynaud's-like symptoms on a constant or nearly constant basis. The Veteran specifically reported one flare per month, which causes incapacitation for four to five days. In a September 2017 private opinion, an associate professor in neuroradiology opined that the Veteran's migraines and fibromyalgia make it impossible for her to work considering that the combination of attacks means that she has incapacitations almost every day of the month (20 migraine attacks and five fibromyalgia attacks per month based on earlier reports) and would therefore affect her ability to be gainfully employed. Based on the foregoing, the Board finds that the Veteran is no longer employed and the record supports the finding that gainful employment is precluded due to her service-connected disabilities, to specifically include fibromyalgia and migraine headaches. Accordingly, resolving reasonable doubt in her favor, as required, a TDIU rating is warranted. ORDER A 50 percent (maximum) rating is warranted for the Veteran's migraines throughout, subject to the regulations governing payment of monetary awards. A TDIU rating is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs