Citation Nr: 1800920 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-00 249A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for headaches. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD D. Houle, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1980 to February 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2016, the Veteran withdrew his request for a videoconference hearing before the Board. 38 C.F.R. § 20.704(e) (2017). A July 2016 Board decision denied entitlement to a disability rating in excess of 40 percent for a lumbar spine disability and entitlement to a disability rating in excess of 30 percent for headaches. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2017, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the July 2016 Board decision that denied entitlement to a disability rating in excess of 30 percent for headaches, and remanded the matter for action consistent with the terms of the JMPR. As noted in the JMPR, the Board recognizes that the Veteran does not seek to challenge the additional issue denied in the Board's July 2016 decision, specifically, entitlement to a disability rating in excess of 40 percent for a lumbar spine disability. Accordingly, that issue is no longer on appeal. Lastly, the Board notes that in its July 2016 decision, the issues of entitlement to service connection for residuals of a traumatic brain injury (TBI) and entitlement to a TDIU were remanded for further development. With regard to the Veteran's claim for a TDIU, such development has been completed and this matter is returned to the Board for further consideration. With regard to the Veteran's claim for service connection for TBI residuals, in a March 2017 rating decision, service connection was granted. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, during the period on appeal, the Veteran's headache symptoms most nearly approximate very frequent completely prostrating and prolonged attacks that are capable of producing severe economic inadaptability. 2. The Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent for headaches have been met throughout the period on appeal. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.321, 4.1-4.14, 4.124a, Diagnostic Code (DC) 8100 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). In light of the Board's favorable decision, however, any deficiencies in VA's duties to notify and assist the Veteran with his claims decided herein are moot. II. Entitlement to an Increased Rating A. Legal Principles Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2017). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). While the veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). B. Factual Background and Analysis The Veteran contends that the severity of his service-connected headaches warrants a higher disability rating for the period on appeal. This disability is currently rated at 30 percent disabling under 38 C.F.R. § 4.124a, DC 8100 for that period. For the reasons discussed below, the Board finds that, throughout the period on appeal, the Veteran's headache symptoms have most nearly approximated very frequent completely prostrating and prolonged attacks that are capable of producing severe economic inadaptability. As such, a disability rating of 50 percent, but no higher, is warranted. Under DC 8100, a 30 percent rating requires evidence of prostrating attacks occurring on average once a month over the last several months; and a maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define ?prostrating." By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, ?prostration" is defined as ?utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which ?prostration" is defined as ?extreme exhaustion or powerlessness." Post-service VA treatment records from 2007 to 2013 show an assessment of migraine headaches with prescribed treatment over the years consisting of Sumatriptan, Imitrex, and Zolmitriptan. During a February 2010 VA examination, the Veteran reported experiencing headaches on an almost daily basis. Each headache lasted for several hours. Pain was bi-frontal and at times, wrapped from temple to temple. Less than half of the headaches experienced were prostrating in nature. The Veteran reported weekly migraines over the last year, with less than half of them being prostrating in nature. The Veteran stated his headache symptoms included nausea, photophobia, photopsia, and occasional vertigo. To relieve his headaches symptoms, the Veteran stated that he goes into a dark room and uses Zomig, Imitrex, and ibuprofen, which provide limited relief . The examiner diagnosed the Veteran with chronic posttraumatic headaches and opined that the Veteran's headaches had a significant effect on usual occupation, as well as daily activities. In a March 2016 statement, the Veteran indicated that he experiences headaches approximately three to four times each week. He stated that his headaches make it difficult for him to concentrate and focus, that bright lights and noise aggravate his headaches, and that medication is unsuccessful for treatment purposes. When experiencing headaches, the Veteran stated that they ?kill [his] whole day," and require him to lie down. In an April 2016 statement, J. W., a friend of the Veteran's since childhood, indicated that he has witnessed the Veteran's headaches become severe enough that the Veteran cannot have company over and has to take medication to fall asleep. J. W. stated that the Veteran's headaches occur monthly and on a frequent basis. In a May 2016 statement, G. W., another childhood friend of the Veteran, indicated that the Veteran has complained to him about his headaches for the past several years, specifying that his headaches are only relieved when he lies down. In a January 2017 Disability Benefits Questionnaire (DBQ), the Veteran reported that the severity of his frequent headaches had worsened over the years despite taking medication. The Veteran stated that his headaches symptoms included pulsating and throbbing bilateral head pain, nausea, and sensitivity to light and sound. He reported taking Sertraline, Sumatriptan, Topiramate, and Parazonsin for his migraine headaches. While the examiner found that the Veteran's headaches impacted his ability to work, as they prevented the Veteran from being productive and affected his interactions with others, the examiner stated that the Veteran did not experience characteristic prostrating attacks of migraine and non-migraine headache pain, nor were his migraines prostrating in nature enough to produce severe economic inadaptability. In support of his claim, the Veteran submitted an October 2017 opinion from vocational expert, Mr. C. Y., who highlighted the evidence surrounding the Veteran's service-connected headaches, as well as the functional limitations resulting from this disability. Upon review of the Veteran's claims file, as well as conducting an interview with the Veteran, the vocational expert opined that the two to four weekly headaches suffered by the Veteran are severe enough in nature that they would cause the Veteran to be absent from work more than would be tolerated by an employer. Based on the review of the record and the relevant law, the Board finds that the Veteran's comprehensive symptoms for the period on appeal most nearly approximate those contemplated by a 50 percent evaluation. The 30 percent evaluation only contemplates a frequency of prostrating attacks up to an average of once per month, a frequency which the Veteran's headaches exceed. Additionally, a 30 percent evaluation does not consider the duration of the Veteran's headaches, which the Board finds to be prolonged. Despite the January 2017 VA examiner's opinion that the Veteran did not experience characteristic prostrating attacks of migraine and non-migraine headache pain, the examiner found the Veteran's headache symptoms were severe enough in nature to prevent him from being productive in a work environment. Further, throughout the period on appeal, the Veteran has consistently described experiencing headaches that are prostrating in nature and that occur more than once per month, specifically, two to four times each week. The Board finds no reason to doubt the credibility of the Veteran's lay statements regarding the frequency and severity of his headaches. Lastly, the Board finds that the Veteran's headache symptoms are capable of producing severe economic inadaptability, as the Veteran must lie down to relieve his headache symptoms, and someone with the frequency and severity of such symptoms would likely need to use sick leave or unpaid absences beyond what is typically allowed to maintain a substantially gainful occupation. Additionally, the Board notes that an evaluation of 50 percent is the highest scheduler evaluation available for headaches. All potentially applicable codes have been considered and staged ratings are not warranted, as the Veteran has had a relatively stable level of symptomatology throughout the appeal period. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Fenderson v. West, 12 Vet. App. 119, 126-27. The Board, therefore, resolves all doubt in favor of the Veteran and finds that a 50 percent rating, but no higher, is warranted for the Veteran's headaches for the period on appeal. III. Entitlement to a TDIU A. Legal Principles It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16 (2017). Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2017). 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a) (2017). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to any non-service-connected condition or advancing age. 38 C.F.R. §§ 3.341, 4.16, 4.19. B. Factual Background and Analysis The Veteran contends that his service-connected disabilities preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. As a preliminary matter, the Board notes that the August 2010 rating decision denied entitlement to a TDIU because the Veteran had not completed a VA Form 21-8940. Further, pursuant to the Board's July 2016 remand, the Veteran was asked to send a completed VA Form 21-9840, for which he did not. The Board finds that, despite the absence of a VA Form 21-8940, the Veteran has sufficiently contended that his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment and provided enough educational and professional history to make a TDIU determination. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board further finds that the functional impairments caused by the Veteran's service-connected disabilities overshadow any professional skills acquired during and after service and preclude him from obtaining and maintaining a substantially gainful occupation. For the reasons discussed below, the Board finds that a TDIU is warranted. The Veteran has a high school education and holds two Associate degrees; one in Mechanical Engineering and one in Respiratory Therapy. The Veteran has not been employed in these fields, however, for any lengthy period of time. In a July 1990 statement, the Veteran indicated that he had difficulty obtaining and maintaining employment due to his service-connected back and headache disabilities. In a March 1995 statement, the Veteran indicated that he could not stand or sit for any prolonged period of time due to his back disability. He stated that if he did not disclose this disability to his employers when he was hired, they would quickly realize his physical limitations and let him go from employment. During a February 1996 VA examination, the Veteran reported that his headaches prevented him from working. During a July 2007 VA examination, the Veteran reported that he was unable to sit or stand for prolonged periods of time due to his back disability. The examiner noted severe effects on the Veteran's usual daily activities due to his back pain. During February 2010 VA examinations, the Veteran reported difficulty with prolonged standing, sitting, and walking, with respect to his back pain. He stated that lying down minimized his back pain. With respect to his headaches, the Veteran reported that he was only able to obtain relief for his headaches by going into a dark room to lie down. The examiner found that the Veteran was unable to tolerate employment duties due to chronic medical conditions, to include his back and headache disabilities. The Veteran applied for Social Security Administration (SSA) disability benefits in May 2012, claiming he has been unable to work since February 1, 2010 due to his service-connected back and headache disabilities, as well as hypertension and depression, for which he is not service-connected. Prior to this period, he worked as a taxicab driver. He was provided with an examination, upon which the examiner found that the Veteran has some skills for sedentary work that he can ?probably perform." Thereafter, the Veteran was denied SSA disability benefits in October 2012. In a March 2016 statement, the Veteran indicated that he experiences headaches three to four times each week, requiring him to lie down to alleviate his symptoms. He stated that he fell during service and hit his head, losing consciousness. He reported residuals from the fall, to include, headaches, dizziness, trouble concentrating, and difficulty managing tasks. In a January 2017 neurological disorder DBQ, the VA examiner found that the Veteran's headaches impacted his ability to work, preventing him from being productive and affecting his interactions with others. The examiner did not opine as to whether the Veteran is capable of sedentary employment. In a January 2017 TBI DBQ, the VA examiner found that residuals from the Veteran's TBI sustained during service, to include the Veteran's migraine headaches, impact his ability to work. The examiner found that the Veteran's neurobehavioral effects, to include moodiness, impulsiveness, apathy, and lack of concentration, affect the Veteran's social interactions and his ability to work. The examiner did not opine as to whether the Veteran is capable of sedentary employment. In support of his claim, the Veteran submitted an October 2017 opinion from a vocational expert, Mr. C. Y., who highlighted the evidence surrounding the Veteran's service-connected disabilities, as well as any functional limitations resulting from those disabilities. Mr. C. Y. opined that the Veteran has been unable to secure and maintain substantially gainful employment, even at a sedentary level, as a result of his service-connected back disability, headaches, and residuals from a TBI. He stated that the Veteran's migraine headaches, which occur three to four times a week, require the Veteran to lie down in a dark and quiet place to rest until his symptoms pass. Mr. C. Y. opined that the Veteran's headaches occur frequently enough to cause absenteeism, for which such a number of days out of the office would not be tolerated by an employer. Further, Mr. C. Y. noted that the Veteran's back pain significantly impairs his ability to lift, stand, walk, and sit, and that the Veteran experiences frequent flare-ups that require him to rest during the day. Mr. C. Y. also noted that the Veteran's TBI-related symptoms include chronic fatigue, frequent irritability, mild memory loss, and mild impaired judgment. Mr. C. Y. stated that the Veteran is limited to unskilled work, as his employment history consists of driving a taxicab and some work at a drawing company approximately 20 years ago, for which the Veteran's skills have since become dated. He opined that the Veteran did not possess the necessary skills to transfer to sedentary work and that his physical limitations due to service-connected disabilities would preclude him from being able to perform the physical demands of any job as a result of his limited ability to lift, stand, walk, and sit. Upon review of the record, the Board finds that entitlement to a TDIU is warranted. The symptoms documented on VA examinations as associated with the Veteran's service-connected lumbar spine disability, headaches, and residuals of a TBI include physical symptoms with regard to difficulty lifting, walking, and standing and sitting for prolonged periods of time, as well as psychological symptoms of memory loss, impaired judgement, and irritability. The evidence shows that the Veteran's service-connected disabilities impede his ability to work due to his physical limitations as well as impairment in social and occupational areas of functioning. The Board accords significant weight to the February 2010 and January 2017 VA examination reports. The February 2010 examination found that the Veteran was unable to tolerate employment duties due to the physical limitations he experiences with his back and headache disabilities. The January 2017 VA examiner found that the Veteran's headaches prevent him from being productive in a work environment and affect his interactions with others. Further, the examiner found that residuals from the Veteran's TBI, to include headaches, impact the Veteran's ability to work, as these residuals affect the Veteran's ability to concentrate and interact with others. Significantly, the Board finds the October 2017 vocational expert opinion by Mr. C. Y. to be the most probative evidence of record. Based on his review of the Veteran's claims file, with consideration given to the Veteran's educational and employment background, Mr. C. Y. opined that the Veteran has been unable to secure and maintain substantially gainful employment, including at a sedentary level, as a result of his service-connected back, headache and TBI disabilities. This opinion is supported by medical evidence of record documenting the Veteran's reported symptoms regarding these disabilities since he left full-time employment in 2010, to include difficulty sitting, standing, walking, and lifting. While the Veteran completed two years of college, given that he has limited practice with his Associate degrees, the vocational expert found that the Veteran lacked the necessary skills to perform sedentary work. In light of the Veteran's occupational background and the functional limitations described, the Board finds that the Veteran is unable to obtain and maintain substantially gainful employment in accordance with his background and education level as a result of combined symptoms of his service-connected back, headache, and TBI disabilities. Accordingly, the Board finds that entitlement to a TDIU is warranted. ORDER Entitlement to a disability rating of 50 percent, but no higher, for headaches is granted for the period on appeal, subject to the statutes and regulations governing the payment of monetary awards. Entitlement to a TDIU is granted. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs