Citation Nr: 18140330 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 16-26 646 DATE: October 3, 2018 ORDER 1. Entitlement to a 50 percent rating for migraine headaches is granted. REMANDED 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s migraine headaches are reasonably shown to throughout have been manifested by very frequent, prostrating, and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW A 50 percent rating for migraine headaches is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4,3, 4.124a, Diagnostic Code (Code) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1998 to October 2006. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision. Entitlement to a 50 percent rating for migraine headaches is granted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Migraine headaches are rated under Code 8100, which provides for a 30 percent rating when there are characteristic prostrating attacks occurring on an average once a month over the last several months; a higher (50 percent, maximum schedular) rating is warranted for migraines with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. §4.124a. Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). On December 2013 VA examination it was noted that the Veteran took Topamax, daily at bedtime. Symptoms included pulsating/throbbing head pain on both sides of the head (that worsened with physical activity), nausea, vomiting, sensitivity to sound, and visual changes. The duration of the migraines was less than a day, and the frequency of very frequent prostrating and prolonged attacks of migraine headache pain was more than once a month. It was noted that the Veteran missed work one to two times per week due to migraine headaches and low back pain, and was terminated from her position at a trucking dispatch company due to missing work too much. A December 2013 primary care record notes the Veteran was seen with complaints of three to eight headaches per month while on Topamax with three mild headaches in the prior month. Triggers for migraines included stress, lack of sleep, certain smells and traffic. In a December 2013 lay statement, the Veteran’s mother noted that she has observed the Veteran having migraines weekly. A January 2014 Neurology Consultation report notes a history of migraine headaches with a duration of 24-45 hours almost twice a week with associated photophobia, nausea, and vomiting. Relieving factors included warm compresses, sleep, Tylenol and Lortab. She was on Topamax 75 mg daily (since October 2013). A December 2014 Neurology treatment record notes some improvement in migraine headaches with increased doses of Inderal at 20 mg three times a day, and 100 mg Sumatriptan at the onset of a migraine headache. On April 2016 VA examination it was noted that the Veteran took Imitrex. Symptoms included constant pulsating or throbbing head pain radiating to the occipital area, nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The duration of the migraines was from a few hours to a day two to three times per week. Prostrating migraine attacks occurred monthly. The functional impact was that the Veteran was unable to work during prostrating attacks, and only worked part time as a substitute teacher. On April 2016 correspondence the Veteran stated that she experiences weekly migraines with accompanying nausea, vomiting, and sensitivity to light. To obtain relief from migraines required that she take two Imitrex, recline, and go to sleep. The next higher (50 percent) rating for headaches is warranted when there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The December 2013 VA examination found the headaches to be of such nature and severity. It was noted that the Veteran was terminated from her employment due to frequent absences due to migraines. The disability picture presented approximates the criteria for a 50 percent rating, and warrants assignment of such rating (see 38 C.F.R. § 4.7. While an April 2016 VA examination noted only one prostrating headache a month, the disability picture presented by the overall record, including the treatment and medication reports and the lay statements reporting frequency and nature of symptoms and economic suggests that the overall disability picture still more closely approximates the criteria for a 50 percent rating under Code 8100. Accordingly, a 50 percent rating for migraine headaches is warranted throughout. REASONS FOR REMAND Entitlement to a TDIU rating is remanded. The Veteran contends that she is unable to maintain substantially gainful employment due to her service connected disabilities. There is conflicting evidence in the record regarding employment. On a November 2013 VA Form 8940 she indicated that she was last employed in 2012. However, in an April 2016 VA Form 9 she indicated that she was employed (part time) as a substitute teacher (she apparently felt that such employment was not substantially gainful). Clarification is necessary for. The matter is REMANDED for the following: 1. Ask the Veteran to submit an updated completed VA Form 21-8940 listing all employment she has held since her discharge from active duty, and to submit authorizations for VA to obtain for the record information from all employers regarding: the dates and extent of employment (including whether she is currently employed and hours worked); the nature of her duties (whether the employment was sheltered, what accommodations were required for service-connected disabilities); and her annual income. Arrange for all further development suggested by her response. 2. Review the expanded record, and implement the award of a 50 percent rating for migraine headaches before readjudicating the claim for a TDIU rating. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel