Citation Nr: 1711623 Decision Date: 04/11/17 Archive Date: 04/19/17 DOCKET NO. 12-36 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 30 percent for headaches prior to November 1, 2009. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to March 1995. He also had 3 years, 10 months and 19 days of prior active service. This case originally came before the Board of Veterans' Appeals (the Board) on appeal from November 2008 and February 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied this appeal in an April 2015 decision. In that same decision, the Board also granted a 50 percent rating for headaches and granted a total disability rating based on individual unemployability due to service-connected disability (TDIU) from November 1, 2009. The Board also denied an increased rating claim for a lumbar spine disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which issued a memorandum decision in July 2016. The Court's decision vacated and remanded the issue remaining on appeal. The Court did not address the Board's favorable determinations to grant a 50 percent disability rating for headaches along with his request for a TDIU, both from November 1, 2009. In footnote 1, the Court deemed abandoned the increased rating claim for the lumbar spine. FINDINGS OF FACT For the period from February 13, 1997, to October 31, 2009, the Veteran's service-connected headaches did not produce, and were not capable of producing, a severe economic inadaptability. CONCLUSION OF LAW For the period from February 13, 1997, to October 31, 2009, the criteria for an initial rating in excess of 30 percent for the Veteran's headaches were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Board previously denied this appeal in April 2015. The Board determined, in relevant part, that for the period from February 13, 1997, to October 31, 2009, the Veteran's headaches were manifested by prostrating attacks occurring less than once a month. The Board explained that his headaches may fairly be characterized as occurring quite often, from every few days to weekly, although not always prostrating, but there was no showing of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. On appeal, the Court concluded that the Board conflated the schedular diagnostic criteria for a 50 percent evaluation for headaches with the standard for a TDIU. The Court remanded the matter to the Board on this basis. The Court also found that the issue of entitlement to an extraschedular evaluation for headaches should be considered upon remand as it is inextricably intertwined with the claim for an increased rating for headaches and a claim for an increased disability rating for a lumbar spine disability, which, according to the Court on page 5 of the memorandum decision, was remanded by the Board. In a January 2017 brief, the Veteran's attorney argued that the headaches were productive of severe economic inadaptability because it indicated a certain level of interference with employment during this time period. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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 after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. B. Rating Schedule The Veteran's headaches have been assigned disability ratings under DC 8100 of 38 C.F.R. § 4.124a. The applicable rating schedule is set forth as follows: 8100 Migraine: With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability 50 With characteristic prostrating attacks occurring on an average once a month over last several months 30 With characteristic prostrating attacks averaging one in 2 months over last several months 10 With less frequent attacks 0 Medical reports may not use the word "prostration." However this is an adjudicative determination based on the extent to which the facts meet the definition of the term. See M21-1, III.iv.4.G.7.c. Accordingly, "prostrating," as used in 38 CFR 4.124a, DC 8100, means "causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities." See M21-1, III.iv.4.G.7.a. Completely prostrating as used in 38 CFR 4.124a, DC 8100, means extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. See M21-1, III.iv.4.G.7.b. Prostration is substantially defined by how the disabled individual subjectively feels and functions when having migraine headache symptoms. See M21-1, III.iv.4.G.7.c. However, examples of prostrating symptoms include 1) experiencing severe headaches and vomiting when exposed to light; 2) not engaging in any activities when this occurs; and 3) must rest or sleep during these episodes. See M21-1, III.iv.4.G.7.d. "Productive of economic inadaptability" can be read as having either the meaning of "producing" or "capable of producing," and nowhere in DC 8100 is "inadaptability" defined, nor can a definition be found elsewhere in title 38 of the Code of Federal Regulations. But, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Severe economic inadaptability denotes a degree of substantial work impairment. It does not mean the individual is incapable of any substantially gainful employment. Evidence of work impairment includes, but is not necessarily limited to, the use of sick leave or unpaid absence. VBA Manual M21-1, III.iv.4.G.7.e. DC 8100 Terminology: Severe Economic Inadaptability. C. Application of the Rating Schedule In this case, after further consideration of all evidence of record, the Board again finds that a 50 percent rating is not warranted as the evidence does not show a disability picture producing, or capable of producing severe economic inadaptability. As an initial matter, the evidence prior to November 1, 2009, shows that the Veteran reported varying frequency of his headaches. In April 1997, for instance, the Veteran complained of headaches off and on for several weeks. At an April 1998 VA examination, he complained of headaches occurring at least twice a week and lasting up to two days. At a May 1998 VA examination, he complained of "mild" headaches, twice per month, and lasting 24 hours. He then complained of headaches with increased frequency for the prior two weeks in January 2002, which he associated with increased holiday stress. Again at an April 2002 VA examination, he complained of an average of two to three headaches per month. In October 2002, he had "more frequent" headaches, which he associated with a shift change at work. In November 2002, he reported headaches worsening over the past few years, which he reported as occurring at a rate of one to three times per week, lasting all day, but occasionally lasting several days. In June 2003, he reported frequently awakening with headaches, which he again associated with a change in shifts at work. At a May 2003 VA examination, he complained of headaches that seemed to be getting worse "lately," and he reported losing approximately two to three days of work. At a May 2004 VA examination, he complained of typical headaches that were four out of ten in severity, and these headaches occurred on ten out of thirty days per month; he had headaches rising to a level of ten out of ten in severity three to four times per month, and he remembered missing perhaps two to three days of work over the past year secondary to headaches. He also reported at that time that his headaches had been stable for a significant period of time. Although not during the appeal period, a September 2010 Neurology consultation further informs this decision. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (a veteran's disability must be evaluated in light of its whole recorded history) At that time, he complained of two to three headaches per week for many years without change; they lasted four hours to all day, typically eight hours. Overall, the Veteran has complained of headaches occurring from as few as two to three times per month from as many as to two or three times per week. The Veteran's own characterization of the frequency of these headaches varied at different times. Nonetheless, as the Board previously found, these headaches may fairly be characterized as occurring quite often, from every few days to every other week. Some of these headaches may be considered prostrating. For instance, at the April 1998 VA examination, he reported resting in a quiet dark room due to such symptoms as nausea. However, not all of the headaches may be considered prostrating. For instance, he reported at the May 2004 VA examination that his "typical" headaches (four out of ten in severity) occurred ten out of thirty days, and his maximum headaches (ten out of ten in severity) occurred only three to four times per month. See M21-1, III.iv.4.G.7.c ("prostration" is an adjudicative determination). Nor does the evidence show that the headaches were productive of severe economic inadaptability. At the April 1998 VA examination, he reported that "at times" his headaches were so severe that he had to leave his work early or not work at all, but if the headache was not that severe he could work but with some discomfort. Of note, a leave tracking record from his employer for the year 1998 shows that he used sick leave on approximately 14 days during the year. It is not clear whether he took any of this leave due to the headaches. For instance, he reported at an April 2002 VA spine examination he reported missing approximately two to three days of work per year due to his back. Then, at the April 2002 VA examination, he reported calling in sick only two to three times per month due to headaches. At subsequent VA examinations in September 2003 and May 2004, he again reported losing only two to three days of work due to headaches. Such evidence presents a picture of an individual who appeared to miss no more than three days from work in any given month due to his headaches. In this regard, while his headaches required him to take sick leave on occasion, he was able to work on other occasions despite his headaches. Moreover, he has not presented evidence showing that his use of leave caused substantial work impairment, and the Board does not find that the use of leave alone to this degree equates with substantial work impairment. See M21-1, III.iv.4.G.7.e, DC 8100 Terminology: Severe Economic Inadaptability. Because the Veteran was able to adapt to a work environment in this way, his disability is not capable of producing a "severe economic inadaptability," as required for a 50 percent rating. See Pierce, 18 Vet. App. at 444-45. Therefore, an initial schedular rating in excess of 30 percent for headaches prior to November 1, 2009 is not warranted. To afford justice in exceptional situations, an extraschedular rating may also be assignable. 38 C.F.R. § 3.321(b). The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See id.; Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, referral for extraschedular consideration is not warranted. The Veteran's service-connected headaches are manifested by signs and symptoms such as characteristic prostrating headaches involving the need to rest. These signs and symptoms, and their resulting functional impairments, are expressly contemplated by the rating schedule, which provides for disability ratings based on a broad and non-exclusive continuum pertaining to the severity, frequency, and duration of the characteristic prostrating attacks of headaches. See 38 C.F.R. § 4.124a, DC 8100. Therefore, the rating schedule was purposely designed to compensate for all symptoms of his headaches. The Veteran is service connected for other disabilities, including a lumbar spine disability. To this extent, the Court's discussion incorrectly noted that the Board's prior decision remanded an increased rating claim for the lumbar spine. In footnote 1 of the memorandum decision, the Court correctly noted that the Board had denied an increased rating for the lumbar spine disability. The Court made clear that the issue was abandoned. As the issue is no longer on appeal, the Board lacks jurisdiction to consider whether referral is warranted for a combination of the disabilities. See Yancy v. McDonald, 27 Vet. App. 484, 495-96 (2016). In conclusion, from February 13, 1997 to October 31, 2009, the preponderance of the evidence is against a higher rating than 30 percent for service-connected headaches both on a schedular and extraschedular basis. Therefore, the benefit-of-the-doubt doctrine is not applicable and a higher initial rating for that time period is not warranted. ORDER An initial rating in excess of 30 percent for headaches prior to November 1, 2009, is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs