Citation Nr: 18144623 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-19 342A DATE: October 25, 2018 ORDER An evaluation in excess of 50 percent for migraine headaches including on an extraschedular basis is denied. REMANDED Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT During the appeal period, the Veteran’s migraine headaches have been rated 50 percent, the maximum schedular rating available; and the schedular criteria have been adequate to evaluate his disability. CONCLUSION OF LAW The criteria for a rating, in excess of 50 percent, to include on an extraschedular basis, for migraine headaches are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.124, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2010 to August 2012 in the United States Army. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA). 1. Entitlement to an evaluation in excess of 50 percent for migraine headaches, including on an extraschedular basis. The Veteran contends that his migraine headaches are more severe than the 50 percent evaluation he is assigned. In a May 2018 correspondence, the Veteran’s representative argued that the Veteran’s migraine headaches disability should be considered on an extraschedular basis. The Board concludes that the Veteran’s migraine headaches are rated at the maximum schedular level and that referral for consideration of a higher evaluation on an extraschedular basis is not warranted. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.124, Diagnostic Code 8100. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation 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. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran’s migraine headaches have been assigned a maximum 50 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100, for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100; Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Although there is no basis for a higher schedular evaluation, an extraschedular disability rating is warranted if a case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008) (Three-part analysis for determining whether an extraschedular rating under § 3.321 is warranted—first, does the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate; second, if not, does the claimant’s exceptional disability picture exhibits other related factors such as “marked interference with employment” and “frequent periods of hospitalization;” and third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating) In this case, March 2013 and April 2016 VA examinations reflect the presence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. However, in a May 2018 correspondence, the Veteran’s representative argued for extraschedular consideration for migraine headaches noting that that the Veteran’s reported symptomatology and functional impairment is not reasonably contemplated by the relevant diagnostic code and suggesting that the Veteran experienced the inability to work at all due to service-connected migraine headache disability. To the extent that the Veteran contends that unemployability is a valid basis for an extraschedular rating, the Board disagrees. Diagnostic Code 8100 contemplates “severe economic inadaptability.” Also, the 50 percent rating contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The term “completely prostrating,” as used in the rating schedule contemplates the complete scope of all symptoms to the extent they result in extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. See M21-1, III.iv.4.G.7.b. Therefore, the severity of the symptoms associated with his headaches is contemplated by the rating schedule’s use of a broad and non-exclusive continuum. See Grassa v. McDonald, No. 14-1925, 2015 U.S. App. Vet. Claims LEXIS 715, at *11-12 (Vet. App. May 29, 2015) (nonprecedential) (addressing the diagnostic code applicable to hemorrhoids). Otherwise, there is no indication of any symptoms or functional effects that might not be contemplated by the rating schedule. See, e.g., Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (the rating schedule for hearing loss does not contemplate ear pain, dizziness, recurrent loss of balance, or social isolation due to difficulties communicating). Accordingly, the claim is denied. REASONS FOR REMAND 2. Entitlement TDIU is remanded. In the May 2016 substantive appeal, the Veteran’s attorney raised the issue of TDIU due to migraine. Following certification of the appeal, in January 2017, VA received the Veteran’s VA TDIU application (VA Form 21-8940). Hence, the issue of entitlement to TDIU is raised and added to the issues on appeal since it is considered part-and-parcel of a claim for increase. See Rice v. Shinseki, 22 Vet. Ap. 447 (2009). As that TDIU claim has not been developed or adjudicated in the first instance by the originating agency, the matter is remanded to ensure due process of law. Also, in May 2018 correspondence, it is noted that the Veteran’s attorney expressed that he sought consideration of TDIU by the originating agency in conjunction with other matters. See Power of Attorney (May 24, 2018). The matter is REMANDED for the following action: 1. Conduct any appropriate development deemed necessary as to the claim for TDIU, taking into account the attorney statement of May 24, 2018. 2. Adjudicate the claim for TDIU. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel