Citation Nr: 18156980 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-57 804 DATE: December 11, 2018 ORDER An initial rating of 50 percent for migraine headaches is granted. REMANDED A total disability rating for compensation based on individual unemployability (TDIU) prior to January 22, 2013 based on service-connected migraine headaches disability is remanded. FINDING OF FACT The Veteran’s characteristic migraine headaches more nearly approximate the criteria of very frequent and completely prostrating with severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent for service-connected migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1973 to December 1974. The case is on appeal from a June 2011 rating decision, which granted service connection for migraine headaches with a rating of 30 percent effective October 12, 2004. Other appellate history is as follows: In a May 2005 rating decision the RO denied, in pertinent part, service connection for hearing loss, tinnitus, and a back disorder. The Veteran perfected an appeal to these decisions. In a decision dated in October 2012, the Board denied service connection for hearing loss and tinnitus, and remanded the issues of service connection for a back disorder, and a higher initial rating for service-connected headaches, for further development. In December 2012, the Veteran appealed the Board’s October 2012 denial of service connection for hearing loss and tinnitus to the Court of Appeals for Veterans’ Claims (Court). In a February 2014 Memorandum Decision, the Court vacated the Board’s October 2012 denial of service connection for hearing loss and tinnitus and remanded the claims for further development. In a decision dated in February 2015, the Board denied service connection for a back disorder; and remanded the issues of service connection for hearing loss and tinnitus, and the issue of a higher initial rating for service-connected headaches, for further development. In correspondence dated in November 2016, the Veteran withdrew his appeal for service connection for hearing loss and tinnitus. See also RO’s February 2017 acknowledgment of Veteran’s withdrawal of his claims for service connection for hearing loss and tinnitus. As such, the Board no longer has jurisdiction over these issues. In a September 2013 rating decision, the RO denied reopening a claim of service connection for an acquired psychiatric disorder/PTSD; and denied service connection for right and left hand Dupuytren’s condition, palmar fasciitis, and bilateral condition of the palms, diagnosed as left Dupuytren’s contractures involving the left ring and middle fingers. The Veteran perfected an appeal to these decisions. In correspondence dated in April 2017, the Veteran withdrew his appeal for service connection for right and left hand Dupuytren’s condition. See also October 2017 withdrawal of service connection for right and left hand Dupuytren’s, and RO’s October 2017 acknowledgment of the withdrawal of these claims. As such, the Board no longer has jurisdiction over these issues. In a rating decision dated in August 2017, the RO granted service connection for PTSD with major depressive disorder effective January 22, 2013; thus resolving the he Veteran’s appeal for that benefit. In its August 2017 rating decision, the RO also granted entitlement to TDIU, effective January 22, 2013. The issue of TDIU prior to January 22, 2013 is addressed in the REMAND portion of this decision. 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). An initial rating of 50 percent for migraine headaches In January 2016, the RO granted service connection for migraine headaches with a rating of 30 percent effective October 12, 2004. The Veteran has appealed the assigned rating. 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. § 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. The Veteran’s service-connected migraine headaches disability is rated under the migraine headaches provisions of Diagnostic Code 8100, which provides for a 10 percent rating for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 30 percent rating is warranted for migraine headaches when there are characteristic prostrating attacks occurring on an average once a month over last several months. Id. A maximum rating of 50 percent is warranted for very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. Id. The phrase “productive of economic inadaptability” does not require that a veteran be completely unable to work to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Facts On VA general medical examination in April 2007, the Veteran complained of low-level pressure-type headache daily headaches, and of severe headaches 2-3 times a month that since the late l970s without change. He averred that he felt confused and had difficulty even with arithmetic; fumbled and dropped things; and had difficulty maintaining focus and sometimes difficulty standing during the severe headaches; and said that he usually laid down during the headaches because any kind of movement, including standing, made the headaches worse. He added that the headaches usually lasted 2-8 hours and occasionally twelve hours. The diagnosis was migraine headaches. In June 2010 the Veteran was re-examined by the April 2007 examiner, who surmised that the Veteran’s “headache pattern has continued.” The examiner elaborated as follows: “Over the years, those fairly severe headaches have increased in frequency and severity to the current levels. The headaches have not changed substantially in the past two years.” The diagnosis was Migraine headaches, moderately severe; which the examiner stated was aggravated by any movement of the body or head. The examiner added that during the headaches the Veteran was “TOTALLY incapacitated, lying in a dark, cool place.” On VA headaches/neurological examination by another physician in January 2013, the Veteran reported that he usually had about three 10/10 headaches a month that lasted about 5-10 hours; even with medication. The examiner stated that the Veteran was suffering from characteristic prostrating attacks of migraine headache pain “more frequently than once per month.” See also May 2017 VA headaches examination report, in which yet another examiner averred: “During a bout of severe, disabling headache which occurs 3 to 5 times/month he is unable to perform any work duties.” Analysis Reconciling the various reports into a consistent picture, the Board is persuaded that the Veteran’s migraine headaches disability picture more nearly approximates the criteria at Diagnostic Code 8100 commensurate with a rating of 50 percent. See 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. VA examiners agree that the Veteran suffers from multiple completely prostrating migraine headaches each month. VA examiners also agree that the Veteran is unable to perform any work duties during these prostrating attacks. Although the 2007 examiner stated that the Veteran’s headaches did not “preclude” the Veteran from going about his activities of daily living or obtaining and maintaining substantially gainful employment, the Board is mindful, for Diagnostic Code 8100 rating purposes, that economic inadaptability does not require that a veteran be completely unable to work in order to qualify for a 50 percent rating. See Pierce, 18 Vet. App. 440, 445-46. This simply would not make sense. Moreover, all examiners agree that the Veteran’s migraine headaches are worsened by any physical activity, including standing, despite the ameliorative effects of medication. It also appears that the Veteran’s cognitive and motor functioning is impaired during these prostrating attacks. It is reasonable to conclude that the Veteran’s physical and cognitive incapacitation during his frequent (more than once per month) prostrating migraine attacks would affect occupational functioning. The Board thus finds that the Veteran’s migraine headaches disability more nearly comports with a finding of very frequent and completely prostrating migraine headaches productive of economic inadaptability. See 38 C.F.R. § 4.7. Therefore, and according the Veteran all reasonable doubt, the Board concludes that the criteria for the maximum rating of 50 percent are met. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REMANDED ISSUE TDIU is remanded. The situation is somewhat complex: In a rating decision dated in August 2017, the RO granted TDIU based on the combined effect of his service-connected disabilities, and did not appeal the effective date of that decision; so the issue of TDIU since January 22, 2013 is resolved. However, the RO also granted service connection for migraine headaches in the August 2017 rating decision with an effective date of October 12, 2004; and the Veteran is requesting an award of TDIU based solely on his service-connected headaches disability. See, e.g., September 2015 request from Veteran’s attorney for consideration of TDIU as “part and parcel” of appeal for a higher initial rating for migraine headaches. See also Harper v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1618, No. 16-3519 (Dec. 6, 2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). In this regard, the Board notes that the Veteran has not been issued a Supplemental Statement of the Case regarding entitlement to TDIU prior January 22, 2013 based on service-connected migraine headaches disability. The Board further observes that in his November 2016 formal application for TDIU, the Veteran stated that he had not worked since January 2001; however, other records describe him as working years after that time. See, e.g., May 2007 VA pension/mental health examination report, which documents the Veteran as reporting that he was currently working and “living comfortably off the money that he gets for odd jobs” and his inheritance. There is also an indication that the Veteran may have been incarcerated during the appeal period. See, e.g., VA psychiatric consult records dated in November 2005, which document the Veteran as reporting that he was incarcerated from 1999 to 2000 “for meth possession,” and for 5 years for “criminal sexual abuse.” See also VA psychiatric consult records dated in March 2005, which document the Veteran as reporting that he was “previously incarcerated for pedophilia.” However, prison match records have not been associated with the claims file, so it is unclear whether, in addition to working, the Veteran may also have been incarcerated during the appeal period. Remand for additional development is thus warranted. It is important for the Veteran (and his representative) to know that providing the VA with accurate information is critical. Failure to do so may be detrimental to the Veteran. The matter is REMANDED for the following action: 1. Take appropriate action to ascertain whether the Veteran was working during the timeframe October 12, 2004 to January 22, 2013; and, if so, determine whether the work constituted substantially gainful employment. The Veteran’s representative is asked to contact the Veteran and assist in this effort. 2. Update the claims file to include the dates of the Veteran’s periods of incarceration, including local jail time, during the timeframe October 12, 2004 to January 22, 2013. If the Veteran had no prison or jail time during the timeframe October 12, 2004 to January 22, 2013, document the claims file accordingly. Again, the Veteran’s representative is asked to contact the Veteran and assist in this effort. 3. If the benefit sought (TDIU prior to January 22, 2013 based on service-connected migraine headaches disability) is not resolved to the Veteran’s satisfaction, issue a Supplemental Statement of the Case on the matter and return the case to the Board, as this issue is already on appeal. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. CHILDERS, COUNSEL