Citation Nr: 1808971	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  09-38 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to a disability rating higher than 30 percent for migraine headaches.

2.  Entitlement to a disability rating for lumbar disc disease with degeneration, disc protrusions, and degenerative joint disease higher than 10 percent prior to April 6, 2012, and higher than 20 percent thereafter. 

3.  Entitlement to a compensable disability rating for right lower extremity radiculopathy associated with lumbar disc disease with degeneration, disc protrusions, and degenerative joint disease prior to April 6, 2012; and higher than 20 percent prior to July 27, 2015.

4.  Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) prior to July 27, 2015.



REPRESENTATION

Veteran represented by:	New York State Division of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran and her spouse


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

The Veteran served on active military duty from July 1998 to November 2005 and from September 2006 to November 2007. 

This appeal comes to the Board of Veterans' Appeals (Board) from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which, in pertinent part, continued noncompensable ratings for the Veteran's service-connected migraine headaches and right lower extremity neuropathy disabilities, and increased the rating for the Veteran's service-connected lumbar degenerative disc disease disability to 10 percent, effective December 6, 2007.  

Because the Veteran's right lower extremity neuropathy/radiculopathy is "associated with" her lumbar degenerative disc disease disability, the Board has recharacterized the issues as identified on the title page.  See 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237, Note 1 (evaluate any associated objective neurologic abnormalities...separately).  

In August 2009, the RO increased the disability rating for the migraine headaches to 30 percent effective November 5, 2005; and made the 10-percent rating for the service-connected lumbar degenerative disc disease disability retroactive to November 15, 2005.  

In August 2011, the Veteran testified at a hearing before a Veterans Law Judge that is no longer with the Board.  

In November 2011, the Board took jurisdiction over the issue of TDIU, and then remanded all of the claims for further development.  

In a rating decision dated in December 2014, the RO increased the rating for the Veteran's service-connected lumbar degenerative disc disease disability from 10 percent to 20 percent, and the rating for the service-connected right lower extremity neuropathy disability from 0 percent to 20 percent, both effective April 6, 2012.

In a rating decision dated in May 2017, the RO increased the rating for service-connected right lower extremity radiculopathy [neuropathy] from 20 percent to 40 percent effective July 27, 2015; and apprised the Veteran that the 40 percent rating was considered a full grant of the benefit sought on appeal because the Veteran had stated, in her May 5, 2015 notice of disagreement, that she wanted a 40 percent rating.  However, because this 40 percent award does not commence from the earliest possible effective date stemming from the underlying claim for a higher rating for the service-connected disability, the issue remains on appeal for the period prior to July 27, 2015.  Swain v. McDonald, 27 Vet. App. 219, 224.

In a rating decision dated in September 2017, the RO granted entitlement to TDIU effective July 27, 2015.  Because this grant of TDIU does not commence from the earliest possible effective date stemming from the underlying claim for a higher rating for the service-connected disability, the issue remains on appeal.  Swain, at 224.

In October 2017, the Board notified the Veteran of that judge's departure, and in correspondence dated in November 2017 the Veteran said she did not want another Board Hearing.  

The decision below addresses the headaches rating claim and reflects a full grant of the benefit sought on appeal; so remand for compliance with 38 C.F.R. §  19.31(b)(1) is not warranted.  The lumbar degenerative disc disease, right lower extremity radiculopathy, and TDIU claims are addressed in the remand section following the decision.


FINDING OF FACT

The Veteran's characteristic migraine headaches approximate the impairment of very frequent and completely prostrating, with severe economic inadaptability.


CONCLUSION OF LAW

The criteria for a disability rating of 50 percent for migraine headaches have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

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).

The Veteran is requesting the highest rating of 50 percent for her service-connected migraine headaches.  During her August 2011 Board Hearing she testified that she gets 3 to 5 migraine headaches a month that come on unexpectedly, with at least one of these monthly migraines lasting for 48 hours; and her representative expanded that "if she gets an attack, she must take her medication . . . and immediately go home and lie down in a dark, quiet place."  Board Hearing Transcript, pp. 6, 13-14.  The representative added "I can't think of an employer in the job market [that] would want to hire the employee who, on average, would miss one day at work per week due to sickness."  Transcript, p. 6.

Legal Criteria

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 has been rated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100 throughout the appeal period.  

Under Diagnostic Code 8100, a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months.  30 percent rating for migraine headaches is warranted when there are characteristic prostrating attacks occurring on an average once a month over last several months.  A maximum rating of 50 percent is warranted for very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability.

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).

Analysis

According to the VA headaches examiners in 2012 and 2017, the Veteran does not have very prostrating and prolonged attacks of migraines, however, the Veteran reports that despite prescribed migraine phrophylactics that she takes daily, she still suffers from 3 to 4 migraines per month with associated light sensitivity and upset stomach, and must take to her bed during these headaches.  See March 2012 statement from Veteran.  See also VA medical records (dated in March 2010) regarding the ineffectiveness of the Veteran's prescribed migraine headaches treatment regime and the expansion of that regimen to include injections.  Notably, because the ameliorative effects of medication do not appear to be contemplated by the rating criteria under Diagnostic Code 8100, they should not be considered in the Veteran's case.  See Jones v. Shinseki, 26 Vet. App. 56 (2012).

In consideration of this evidence, the Board finds that the Veteran's characteristic migraine headaches approximate the impairment of very frequent completely prostrating and prolonged attacks, with severe economic inadaptability.  See 38 C.F.R. § 4.7.  Although the VA examiners suggested that the economic impact of the Veteran's headaches was not severe, they both acknowledged that the Veteran is unable to work when having prostrating migraines because she has to lie down in a dark room.  See, e.g., August 2017 VA examination report, p. 3.  Therefore, when according the Veteran all reasonable doubt, the Board concludes that the criteria for the maximum schedular rating of 50 percent have been met throughout the appeal period.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3


ORDER

A disability rating of 50 percent for migraine headaches is granted; subject to the law and regulations governing the payment of monetary benefits.



REMAND

As for the propriety of the assigned rating for the Veteran's service-connected lumbosacral spine disability, the Veteran was afforded VA examinations in November 2010, April 2012, and August 2017; however, those examinations were not wholly adequate.  See Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that, per 38 C.F.R. § 4.59, in order to assess the effect of painful motion, range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances, should be done).  Moreover, although the Veteran reported that "any activity causes pain" during the August 2017 examination and the objective evidence of pain on palpation (see examination report, pp. 2-3), the examiner stated that the Veteran did not have flare-ups and so did not provide an opinion regarding functional loss during flare-ups.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that the examiner should "estimate the functional loss that would occur during flares").  Remand for a new examination to ascertain the severity of the Veteran's service-connected lumbosacral spine disability (including during flare-ups) is warranted.

The intertwined issues of a higher rating for right lower extremity radiculopathy, and entitlement to TDIU prior to July 27, 2015, are also remanded.

Accordingly, the case is REMANDED for the following action:

1.  Please obtain any outstanding VA and non-VA treatment records with respect to the issues remaining on appeal.

2.  After the development in #1 is complete, please schedule the Veteran for a VA examination to ascertain the severity of her service-connected lumbosacral spine disability.  The examiner must discuss the Veteran's current complaints and symptoms with the Veteran and document said in the examination report.

a. The examiner should report range of motion findings in degrees, on both active and passive range of motion testing, in weight bearing and nonweight-bearing circumstances, in the examination report.  

b. If there are flare-ups, and if the examination cannot reasonably be conducted during a flare-up, the examiner should estimate the functional loss during a flare in terms of additional range of motion loss, if possible.

If any of these assessments cannot be accomplished, it should be explained why.  

A rationale for all opinions reached must be provided. 

2.  Finally, readjudicate the issues remaining on appeal.  If any benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112.



______________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs