Citation Nr: 18147674 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-35 263 DATE: November 6, 2018 ORDER Entitlement to an initial compensation rating in excess of 30 percent for muscle contraction headaches, claimed as migraine headaches, is denied. Entitlement to an increased rating of 50 percent for muscle contraction headaches, claimed as migraine headaches from August 3, 2015, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) beginning August 3, 2015, is granted. FINDINGS OF FACT 1. For the period of August 31, 2014 to August 2, 2015, the Veteran’s muscle contraction headaches, claimed as migraine headaches, had more nearly approximated prostrating attacks occurring on an average of once per month over the last several months. 2. For the period from August 3, 2015, the Veteran’s muscle contraction headaches, claimed as migraine headaches, has more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. For the period at issue, the Veteran is service connected with multiple disabilities collectively rated at least at 80 percent, including posttraumatic stress disorder (PTSD) rated at 50 percent from August 31, 2014 to May 5, 2015 and 70 percent from May 6, 2015. 4. For the period beginning August 3, 2015, the Veteran’s service-connected disabilities have precluded him from obtaining and securing substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensation rating in excess of 30 percent for muscle contraction headaches, claimed as migraine headaches, have not been met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for entitlement to an increased rating for muscle contraction headaches, claimed as migraine headaches, from August 3, 2015, have been met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.124a, DC 8100. 3. Affording the Veteran the benefit of the doubt, the criteria for entitlement to TDIU have been met for the period beginning August 3, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from November 2008 until his honorable discharge in August 2014. During his service, the Veteran was awarded the Combat Action Ribbon (Afghanistan), Navy Unit Commendation, Marine Corps Good Conduct Medal, Afghanistan Campaign Medal with 2 stars, Global War on Terrorism Service Medal, Sea Service Deployment Ribbon (2nd Award), NATO Medal-ISAF Afghanistan, Letter of Appreciation, and Sharpshooter Rifle Qualification Badge. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Miscellaneous diseases are rated pursuant to a general rating formula, which for migraines range from 0 to 50 percent disability rating. 38 C.F.R. § 4.124a, DC 8100. Under 38 C.F.R. § 4.124a, a 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating is warranted for prostrating attacks occurring on an average once a month over the last several months; a 10 percent rating is warranted for prostrating attacks averaging one in 2 months over the last several months; and a non-compensable rating is warranted for less frequent attacks. 1. Entitlement to an initial compensation rating in excess of 30 percent for muscle contraction headaches, claimed as migraine headaches. The Veteran contends that he is entitled to an initial compensation rating in excess of 30 percent for his muscle contraction headaches, claimed as migraine headaches because the current assigned rating does not adequately represent the severity of his condition. See May 2015 Fully Developed Clam, p. 9. The Veteran was service-connected for muscle contraction headaches, claimed as migraine headaches in an October 2014 rating decision, effective August 31, 2014. The Veteran filed a new claim in May 2015 requesting an increased rating for his muscle contraction headaches, claimed as migraine headaches. Because the new claim was filed within 1 year of the original October 2014 rating decision, the Board has decided to treat the claim as a notice of disagreement in order to provide the maximum consideration to the Veteran. The Veteran underwent a VA examination in December 2013 for his headaches. At the examination, the Veteran reported monthly headaches lasting for up to 36 hours. The Veteran denied prostrating attacks of migraine headache pain and reported prostrating non-migraine pain once per month. The Veteran also reported that the headache pain impacted his ability to work. See December 2013 VA Headache Examination pp. 24-26. The Veteran underwent a second VA examination in April 2015 for his headaches. The Veteran reported that the typical duration of the head pain was less than one day with the frequency more than once per month, but denied very frequent prostrating and prolonged attacks of migraine headache pain and denied non-migraine headache pain. See April 2015 VA Headache Examination. In light of the evidence, the Board finds that the Veteran’s muscle contraction headaches, claimed as migraine headaches, does not warrant rating in excess of 30 percent for his headaches. In order to receive a higher evaluation, there must be very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As noted in the VA examination reports, the Veteran denied very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As such, an initial rating in excess of 30 percent is not warranted. 38 C.F.R. § 4.124a, DC 8100. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (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). 2. Entitlement to an increased rating for muscle contraction headaches (claimed as migraine headaches), effective August 3, 2015. As noted above, the Veteran asserts that he is entitled to an increased disability rating for muscle contraction headaches, claimed as migraine headaches. See May 2015 Fully Developed Clam, p. 9. The Veteran’s request for an initial compensation rating in excess of 30 percent is not warranted. However, that decision does not preclude an increased rating for the entire period on appeal. The Board notes that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, 21 Vet. App. 505. In this case, the disability has significantly changed during the appeal period and staged ratings are warranted. The Veteran underwent a third VA examination in August 2015 for his headaches. The Veteran reported that the typical duration of the head pain was more than 2 days with the frequency 3 to 4 times per week. The Veteran also reported prostrating and prolonged attacks of migraine and non-migraine headache pain. See August 2015 VA Headache Examination. In light of the evidence, the Board finds that the Veteran’s muscle contraction headaches, claimed as migraine headaches, warrant a rating of 50 percent effective the date of the VA examination, August 3, 2015. The 50 percent rating reflects the highest available rating under 38 C.F.R. § 4.124a, DC 8100. 3. Entitlement to TDIU. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection is in effect for the following disabilities: PTSD; muscle contraction headaches, claimed as migraine headaches; left shoulder acromioclavicular joint bursitis; right shoulder group I muscle strain (dominant); right long finger crush injury (dominant); thoracolumbar muscle strain, claimed as back; right lateral ligament strain, claimed as right ankle; tinnitus; painful scar of right hand long finger, 3rd metacarpal; right knee patellar tendonitis; left knee patellar tendonitis; and bilateral hearing loss. For the entire period on appeal, the Veteran’s PTSD disability rating has been no less than 50 percent disabling and his combined disability evaluation was 80 percent prior to August 3, 2015 and 90 percent from August 3, 2015. Thus, the percentage requirements for a TDIU are met because the Veteran had two or more service-connected disabilities, one of which was rated at 40 percent or more disabling, and his combined disability evaluation was rated at 70 percent or more disabling. 38 C.F.R. § 4.16(a). The Veteran contends that his service-connected disabilities prevent him from securing or following substantially gainful employment. The Veteran is a high school graduate and served as a truck driver and laborer during service. See May 2015 TDIU Application, May 2015 Fully Developed Claim. As noted above, the Veteran’s muscle contraction headaches, claimed as migraine headaches, have increased in severity and the Board has found that an increased rating is warranted effective August 3, 2015. See August 2015 VA Headache Examination. The Board finds that while the record does not show total and occupational and social impairment, his PTSD and muscle contraction headaches, claimed as migraine headaches, disabilities combine to make it impossible for him to secure and maintain substantially gainful employment from August 3, 2015. See Owens, supra. In this regard, the Veteran’s symptoms associated PTSD include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened effect, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control. See August 2015 VA PTSD Examination. The Veteran’s symptoms associated with muscle contraction headaches, claimed as migraine headaches, occurred 3 to 4 times per week, typically lasting over 2 days, and kept him in bed during the attacks. Additionally, the bad headaches also caused nose bleeds. See August 2015 VA Headache Examination. Given the above adverse symptomatology, the Board find that the most probative evidence of record showed his PTSD combined with the symptomatology of his muscle contraction headaches, claimed as migraine headaches, would prevent him from engaging in a substantial occupation involving physically demanding jobs, such as his past employment as a truck driver, as well as sedentary employment even if he had work experience in this area, which he does not. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO). Tellingly, the preponderance of the evidence also demonstrates that the Veteran’s condition has worsened during the period on appeal, such that the Veteran has been rendered unable to maintain a substantially gainful occupation since August 3, 2015. See December 2013 VA Headache Examination pp. 24-26, December 2013 VA PTSD Examination, April 2015 VA Headache Examination, August 2015 VA Headache Examination, and August 2015 VA PTSD Examination. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is one for the adjudicator. See Geib, supra; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that he is unable to maintain a substantially gainful occupation because of his service-connected disabilities, and an award of TDIU is warranted from August 3, 2015. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. DEEMER, ASSOCIATE COUNSEL