Citation Nr: 20006276 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 16-46 075 DATE: January 24, 2020 ORDER Entitlement to a rating for migraine headaches, in excess of 30 percent disabling, from November 16, 2001, to October 8, 2015, is denied, but a 50 percent is granted effective October 8, 2015. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT 1. Throughout the period on appeal from November 16, 2001 to October 8, 2015, the Veteran’s migraine headache disability was characterized by prostrating attacks occurring on average approximately once per month, and did not more nearly approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Since October 8, 2015 and thereafter, the Veteran has manifested very frequent, completely prostrating migraine headaches productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent disabling for migraine headaches, from November 16, 2001 to October 8, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 8100. 2. For the period since October 8, 2015, the criteria for a 50 percent rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.20, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1998 to November 2001. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Cleveland, Ohio (hereinafter Agency of Original Jurisdiction (AOJ)). In a December 2019 rating decision, the AOJ granted an increased rating of 50 percent disabling for the Veteran’s migraine headaches, effective October 11, 2019. In October 2019, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearings is of record. The Veteran has claimed unemployability due, in part, to his migraine headaches. As such, the issue of TDIU is deemed part and parcel of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board has listed this as a separate claim for administrative purposes. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s disability, 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. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an initial increased rating for migraine headaches. The Veteran seeks entitlement to an increased evaluation, in excess of 30 percent prior to October 11, 2019, and in excess of 50 percent disabling thereafter, for his service-connected migraine headache disability. In adjudicating this appeal, the AOJ has assigned a 30 percent rating effective to the date of service discharge. Under DC 8100, a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Migraine headaches are evaluated under DC 8100, 38 C.F.R. § 4.124a, which provides for a 10 percent disability rating for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned for characteristic prostrating attacks occurring on an average once a month over the last several months. Finally, a 50 percent disability rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “characteristic,” “prostrating,” or “prolonged.” The term characteristic prostrating attacks means migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). Completely prostrating attacks must render a veteran to be entirely powerless. Id. at 253. The Board has reviewed the Veteran’s VA treatment records in depth. The VA treatment records are largely consistent over time and demonstrate treatment for tension and migraine headaches throughout the period on appeal. The Board has summarized relevant medical evidence below: Historically, VA records in 2002 reflected the Veteran’s report of headaches 2-3 times per week of 8/10 severity. In September 2010, the Veteran visited the emergency room due to headache with nausea and photophobia. He was noted to have some headaches during a hospitalization in October 2010. A neurology consultation noted migraines which occurred 3 to 4 times a month which were “debilitating.” In a December 2010 VA treatment record, the Veteran stated that he had headaches occurring between once a month and up to 20 times per month. He walked to the emergency room in February 2011 due to a migraine headache with nausea which had been present for 1.5 hours. In subsequent evaluations, the Veteran reported incomplete relief of headaches with various treatment modes. In a June 2011 statement, the mother of the Veteran’s children described the Veteran as having “severe migraines that would put him flat on his back” and had sent him to the hospital often. He lacked motivation to find jobs due to his fear of being fired due to migraines. In a statement received in July 2011, the Veteran described a history of migraine headaches which had interfered with his ability to work. He reported migraines averaging 3 to 4 per month but sometimes he had as many as 5 to 6 migraine headaches in a month. He indicated that his migraines were not relieved with use of medication. In a July 2011 VA treatment record, the Veteran stated that he had headaches 3-4 times per month. In an August 2011 VA treatment record, the Veteran stated that he had headaches 2-3 times per week. In September 2011, the Veteran was deemed entitled to VA Vocational Rehabilitation Services. In September 2011, the Veteran was afforded a VA examination to assess the severity of his headache disability. During this examination, the Veteran described symptoms of his tension and migraine disability as including headaches, nausea, sensitivity to light, throbbing head pain, pain on the right side of his head, and changes in vision. As for the duration of a typical migraine, the Veteran reported that his symptoms last from 5 hours to one day. During headaches, he took medication and went into his bedroom. If he wasn’t home, he found the darkest place he could find and closed his eyes. The examiner found that the Veteran described prostrating attacks of headaches less frequently than once every two months, and that he did not experience very frequent and prolonged attacks of migraine. A VA clinic record in December 2011 noted that the Veteran had a migraine headache wherein he requested bed rest. In a January 2012 correspondence, the Veteran stated that he had 3-4 headaches per month which lasted 4 hours to 1 day in duration. A December 2012 evaluation for the Social Security Administration (SSA) determined that the Veteran’s migraines were severe in nature which were frequent (3-4 times a month). The Veteran, nonetheless, was found capable of adjusting to work such as performing simple, routine tasks in an environment with limited contact with others and avoidance of heavy lifting. A January 2013 VA clinic record noted headaches which occurred 3 to 6 times per month. VA clinic records in August 2015 variously reflected the Veteran’s report of migraines which occurred 1 to 2 times per week, or once per week. On October 8, 2015, the Veteran described an increased frequency to 2 to 3 times per week. In November 2015, the Veteran was afforded another VA examination to assess the severity of his migraine headache disability. During this examination, the Veteran described symptoms of his migraine disability as including headaches, nausea, sensitivity to light and noise, sensory changes, throbbing head pain, pain on one side of his head, and changes in vision. As for the duration of a typical migraine, the Veteran reported that his symptoms last from 5 hours to 3 days. However, the Veteran did report experiencing prostrating attacks of head pain occurring once per month. It was noted that the Veteran would be limited from sedentary or physical employment during a migraine headache episode until the attack passed. In September 2016, the Vocational Rehabilitation services created an action plan to develop additional skills to obtain work. The Veteran indicated his interest and ability to perform a career such as a social worker, or substance abuse and behavioral counselor. In a statement received in December 2016, the Veteran described “always” having a history of at least 4 to 5” migraines a month since service discharge. In November 2017, the Veteran requested a change in job goal with Vocational Rehabilitation service to an automotive mechanic. A January 2018 evaluation found no physical impairments to him working as an automotive mechanic. Notably, the Veteran reported part-time employment as a small engine mechanic on and off for “years.” At a hearing in October 2019, the Veteran testified to undergoing Botox injections on a regular basis to treat his migraine headaches. He asserted that he had experienced his headaches once or twice a week, and not once or twice a month. He had lost employment, in part, due to absenteeism due to his headaches. A November 2019 VA physical therapy consultation noted the Veteran’s report of having a constant migraine, of 2/10 severity, with intense headaches that required him to go to a dark room. He had missed work approximately 2 to 3 times per week due to migraines. He had been working part-time at Target. At another evaluation, the Veteran described having 3 to 4 migraines per month. In November 2019, a nurse practitioner submitted a Disability Benefits Questionnaire indicating that the Veteran was unable to perform sedentary work due to service-connected disability. It was noted that, since his last examination, the Veteran reported an increased frequency and intensity of headaches averaging 3 times per week and lasting 5 hours to 3 days at a time. In November 2019, the Veteran was afforded another VA examination to assess the severity of his migraine headache disability. During this examination, the Veteran described symptoms of his migraine disability as including headaches, nausea, sensitivity to light and noise, sensory changes, throbbing head pain, pain on one side of his head, and changes in vision. As for the duration of a typical migraine, the Veteran reported that his symptoms last from 5 hours to 3 days. However, the Veteran did report experiencing prostrating attacks of head pain occurring once per month. The Board finds that the most credible lay and medical evidence reflects that, for the time period prior to October 8, 2015, the Veteran’s migraine headache disability was characterized by prostrating attacks occurring on average approximately once per month, and did not more nearly approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. At the outset, the Board notes that the frequency and duration of the migraine attacks has varied from month to month. At one point, he has argued that his headaches have always occurred at the frequency of 4 to 5 attacks per month since discharge. See Statement received in December 2016. However, this recollection is not consistent with the documentary record. For the time period prior to October 8, 2010, the Veteran most consistently reported 3 to 4 headaches per month. See October 2010 neurology consultation; Veteran statement received July 2011; VA treatment record dated July 2011; Correspondence received January 2012; and SSA evaluation dated December 2012. He also explained that he may have more migraines occasionally. See Veteran statement received in July 2011. The Board places greater probative weight on the Veteran’s descriptions of the severity, frequency, and duration of his headache symptoms made to his treating physicians at the time of treatment as being most reliable. The Board further finds that the most consistent evidence reflects that the Veteran’s significant migraines were prostrating in nature. In this respect, his lay witnesses describe the migraine attacks as “debilitating,” and putting him “flat on his back” which is consistent with producing powerlessness or a lack of vitality Thus, the Board finds that the criteria for a 30 percent rating under DC 8100 have been met for the entire appeal period up until October 8, 2015. However, for the time period prior to October 8, 2015, the Board finds that the criteria for a rating in excess of 30 percent have not been met. In this respect, the Board notes that the term “frequent” is defined as “happening at short intervals : often repeated or occurring.” See https://www.merriam-webster.com/dictionary/frequent. While the Veteran had variability in terms of the frequency, severity and duration of his headaches, the Veteran more commonly had 3 to 4 prostrating attacks per month – or approximately once per week – which does not meet, or more nearly approximate, the criteria for “very frequent.” The AOJ has interpreted the evidence to reflect that the Veteran met the criteria for a 50 percent rating effective October 11, 2019 – the date the Veteran formally filed an application for TDIU benefits. He also submitted an accompanying medical statement noting that, since his last examination, his migraines had increased in frequency and intensity to averaging 3 times per week and lasting 5 hours to 3 days at a time. The Board notes that, on October 8, 2015, the Veteran was seen in the VA clinic describing an increased frequency of his headaches – up to 2 to 3 times per week. This is fairly consistent with his December 2016 statement of having at least 4 to 5” migraines although his statement that this frequency had been consistent since discharge is not deemed accurate. Resolving reasonable doubt in favor of the Veteran, the Board finds that his migraine attacks are factually shown to have been manifested to be very frequent as of October 8, 2015 – the date the Veteran described an increased frequency of migraine attacks and provided a specific frequency of the attacks. Thus, a 50 percent rating is warranted effective October 8, 2015. As lay persons, the Veteran and his witnesses are competent to report symptoms such as the length, severity, and frequency of his headaches, as these symptoms require only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Board has considered the lay statements as demonstrating prostrating headaches. As discussed above, the lay evidence regarding frequency has been variable and the most reliable lay evidence – recorded in treatment records at the time of treatment – reflect 3 to 4 migraine attacks per month prior to October 8, 2015 and 1 to 2 attacks per week as of October 8, 2015. In conclusion, the Board finds that the criteria for an increased evaluation, in excess of 30 percent for the period from November 16, 2001 to October 8, 2015, for the service-connected migraine headache disability have not been met, but that the criteria for a 50 percent rating have been met effective October 8, 2015. In reaching the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. There is no further doubt of material fact to be resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for TBI is remanded. The Board finds that remand for additional development and examination is warranted before adjudication of the Veteran's appeal. The Veteran contends that he suffers from TBI due to an in-service assault. Here, a review of the Veteran’s service treatment records reflects that during service, the Veteran was injured during an assault when he was struck in the back of his head. His service treatment records noted a close head injury. His service treatment records and his post-service medical records reflect he complained of balance issues, psychiatric issues, and headaches. In a September 2019 correspondence, Dr. I. D. states that he has been treating the Veteran from TBI since August 2011 and notes that the Veteran has balance issues, mental health issues, and headaches. The physician also notes that the Veteran has a diagnosis of severe TBI which would benefit from long-term medical management of the condition. A VA examination was conducted to ascertain whether the Veteran has any residuals from the head injury which occurred during service. In a June 2015 VA examination report, the VA examiner noted that the Veteran did not have TBI or any residuals. However, a review of the Veteran’s records reflects the Veteran has been diagnosed with TBI and suffers from balance issues and headaches. Thus, it appears that the VA examiner’s opinion is inconsistent with the medical evidence. Given such, the Board finds that the VA examiner's opinion is inadequate for VA purposes and a remand is required for a new examination. 2. Entitlement to TDIU The claim of entitlement to TDIU is inextricably intertwined with the issue of entitlement to service connection for TBI residuals. Thus, this issue is deferred pending development of the service connection claim. The matters are REMANDED for the following action: 1. Obtain any updated VA medical records. 2. Upon completion of the above to the extent necessary, schedule the Veteran for a VA examination with respect to the Veteran’s claim for TBI. The examiner is required to review the claims file. Upon review of the record, interview and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a current TBI disability? (b.) If a current TBI disability exists, indicate whether it is at least as likely as not that such was incurred during service? (c.) If a current TBI disability exists, please identify all residuals. In so doing, the examiner should consider the evaluation of TBI injury in the VA clinic setting as well as the interpretation of brain magnetic resonance imaging (MRI) scans. The term “as likely as not” does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, the examiner must provide an explanation for the basis of that determination. A complete rationale must be given for all opinions and conclusions expressed. The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. The examiner must discuss the Veteran’s medical records, to include the Veteran's complaints of balance issues, psychiatric complaints, to include impulse control issues, and other symptoms. The VA examiner must discuss whether these symptoms are residuals of the Veteran’s in-service closed head injury. 3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.