Citation Nr: 18149135 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-30 527 DATE: November 8, 2018 ORDER Entitlement to an initial increased rating exceeding 10 percent for service-connected migraine, including migraine variants, from May 8, 2015 to October 1, 2015, is denied Entitlement to an initial increased rating of 50 percent, but not higher, for service-connected migraine, including migraine variants, beginning October 1, 2015, is granted. REMANDED The inferred claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. From May 8, 2015 to October 1, 2015, the Veteran’s migraines have not manifested to characteristic prostrating attacks occurring on an average once a month over last several months, or very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Beginning October 1, 2015, the Veteran’s migraines have manifested to result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial increased rating exceeding 10 percent for service-connected migraine, including migraine variants, from May 8, 2015 to October 1, 2015, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (“DC”) 8100. 2. The criteria for entitlement to an initial increased rating of 50 percent, but not higher, for service-connected migraine, including migraine variants, beginning October 1, 2015, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (“DC”) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to June 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Entitlement to an initial increased rating exceeding 10 percent for service-connected migraine, including migraine variants. Service connection for migraines, including migraine variants, was awarded in the September 2015 rating decision on appeal with an initial 10 percent evaluation assigned, effective May 8, 2015. The Veteran contends that a higher initial rating is warranted as his migraines has increased in frequency and severity, and has affected his ability to work. Disability ratings are determined by applying the criteria set forth in the schedule of ratings. 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. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. The Veteran’s migraines are currently rated as 10 percent disabled under DC 8100. Under DC 8100, a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over last several months. A higher 30 percent rating is assigned for characteristic prostrating attacks occurring on an average once a month over last several months; and the highest rating of 50 percent is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. From May 8, 2015 to October 1, 2015 The first report of symptoms for the Veteran’s migraines are shown in an April 2015 VA treatment record, where the Veteran was shown to have occasional tension headaches with migrainous features. Subsequent VA treatment records are silent for symptoms and/or reports of the Veteran’s migraines. However, in lieu of this, the Veteran submitted a detailed log called “Migraine Diary,” which shows a chronological list of the Veteran’s migraine episodes from May 2015 to December 2017. From May 2015 to October 1, 2015, the log reflects the Veteran experiencing one migraine in May and one major migraine in August, both of which resulted in the Veteran sleeping in a dark room. In August 2015, the Veteran was afforded a Headaches DBQ examination. In this examination, it was reported that the Veteran had prostrating attacks, with less frequent attacks; and no prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. However, the examiner reported the Veteran’s headache condition impacted his ability to work, as it affected the Veteran’s efficiency at work. The evidence of record does not demonstrate that a rating higher than 10 percent is warranted. The August 2015 DBQ does not specifically reflect information that would even warrant a 10 percent evaluation. However, the totality of the evidence at this time, including the Veteran’s credible statements, persuasively suggest that the Veteran’s service-connected migraines manifested to a level of not more than characteristic prostrating attacks averaging one in 2 months over last several months. Therefore, the Board finds that a 10 percent evaluation was properly assessed prior to October 1, 2015. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find the evidence is of such approximate balance as to warrant its application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). From October 1, 2015 In an October 2015 letter addressed to the Veteran, the VA Healthcare system in Nebraska noted that the Veteran has been seen for his migraine headaches, and is currently experiencing rebound headaches from over-use of non-steroidal anti-inflammatory drugs. Therefore, the VA adjusted his medications to improve his headaches. The Veteran’s “Migraine Diary” shows that from October 2015 to December 2017, the Veteran’s migraines increased in frequency over time from occurrences happening three days a month to having major migraines nine days a month; most of which were accompanied with blurred vision, and required the Veteran to lay down and/or sleep in a dark room for 4 to 6 hours. In November 2015, the Veteran noted that he spoke with his employer about moving to a less physically demanding position, to alleviate his constant headaches/migraines. In December 2015, the Veteran’s position was moved, with a pay reduction. However, according to the log, the migraines persisted to the point where the Veteran was granted a 90-day absence from his employer, without pay, to try and gain control over his migraines. To no avail, in December 2017, the Veteran quit his job. VA treatment records dated from February 2016 to December 2017 reflect the Veteran’s reports of having chronic migraines that has significantly affected his life. The Veteran reported an increase in his migraine frequency to experiencing chronic pain daily, with increased symptoms involving blurred vision, numbness and tingling in arms and hands, having to lay down in a dark room for approximately 4 to 6 hours to reduce the pain, and frequently interrupted sleep during the night. The Veteran’s physicians have tried to assist the Veteran in controlling his migraine symptoms with various oral medications and Botox injections. Additionally, the Veteran’s VA treatment records and his migraine log, both detail his migraines that resulted in functional impairment to the activities of his daily living. The Veteran contends that he is unable to exercise, read, golf, conduct any activities over his head where he would have to look up, spend time outside on a bright day, drive at night, stare at a computer, or hold his head certain ways; as these things trigger migraines. In a December 2017 treatment record, the examiner noted the Veteran’s current occupational functioning as not currently working due to his migraines. To further support his claim, the Veteran submitted a September 2017 lay statement from M.D., where it was corroborated that the Veteran’s migraine symptoms have increased. M.D. reports that she speaks to the Veteran multiple times a day, and the Veteran has reported headaches almost every day, with progression into migraines at least twice a week. She further states that the Veteran reports feeling numbness in his hands and arms, and experiences migraines from sitting, mowing lawn, walking for long periods, moving his head the wrong way, raising his arm wrong, or bending wrong. M.D. additionally reports that the Veteran’s doctors are constantly adjusting his medications to help with the pain; and the Veteran has become hyper-vigilant of what he does, to not trigger migraines. The Veteran also informed her that he had to quit his job because he couldn’t take the pain. Based on the above, the Board finds that a maximum schedular rating of 50 percent is warranted for the Veteran’s migraines. The Veteran’s VA treatment records, along with the Veteran and M.D.’s credible lay statements, show that the Veteran’s migraines have increased in frequency to a level ranging from twice a week to every day, which requires the Veteran to lay down in a dark room for a prolonged period of time, and has resulted in the Veteran having quit his job. The Board finds that there is no objective evidence of record which contradicts these statements about the frequency and severity of the Veteran’s migraines. Additionally, the Veteran’s VA treatment records support his statements regarding his severity and the impact it has upon his employment. Therefore, the Board finds that the criteria for a rating of 50 percent have been met. A 50 percent evaluation is the maximum schedular rating for migraines under DC 8100 and a higher rating is not possible under this diagnostic code. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. Therefore, an initial rating higher than 50 percent for migraines is not appropriate. REASONS FOR REMAND After review of the record, it is inferred that the Veteran has alleged that he is unemployable due to his service-connected disability and a claim for TDIU, which is part of the increased rating claim currently before the Board, must be remanded to allow for initial adjudication by the AOJ. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation). The matter is REMANDED for the following action: 1. Request the Veteran submit a properly completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Then adjudicate the claim for entitlement to TDIU due to migraine headaches on a extraschedular basis. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel