Citation Nr: 20006574 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 19-22 358 DATE: January 28, 2020 ORDER Entitlement to a disability rating in excess of 30 percent for migraine headaches is denied. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The most probative evidence does not show that the Veteran’s migraine headaches have manifested functional impairment to the extent that a rating in excess of 30 percent may be assigned at any point during the rating period. 2. The record reflects that the Veteran is gainfully employed, and has been for the entirety of the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4124a, Diagnostic Code (DC) 8100 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1976 to April 1996. The Board thanks him for his two decades of honorable service to the United States. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). A brief review of the procedural history of these matters is instructive. In May 2017, the Veteran filed a claim for increased ratings for migraine headaches, a lumbosacral strain, left ulnar nerve palsy, and a TDIU. However, the agency of original jurisdiction (AOJ) also considered the Veteran to have filed claims for increased ratings for a hiatal hernia and hypertension. A September 2017 rating decision increased the assigned rating for migraines to 30 percent, continued the assigned ratings for left ulnar nerve palsy, hiatal hernia, and hypertension, proposed to reduce the assigned rating for the lumbar spine disability from 20 percent to 10 percent, and denied entitlement to TDIU. The Veteran submitted a timely Notice of Disagreement as to all conditions except hypertension. Thereafter, in July 2019, the AOJ issued a rating decision restoring the 20 percent rating for the lumbar spine disability. It also issued a Statement of the Case continuing the assigned ratings for migraines, left ulnar nerve palsy, and hiatal hernia, and denying entitlement to a TDIU. The Veteran filed a timely VA Form 9 in July 2019. The Board notes that he stated on the form that he was only appealing the claims for an increased rating for migraine headaches and TDIU. In an August 2019 letter, the AOJ informed the Veteran that it had discontinued action on his claims for an increased rating for left ulnar nerve palsy and an increased rating for hiatal hernia. The AOJ further indicated that the appeal could be reinstated if the Veteran filed the relevant form before September 2, 2019, which would be one year after the date of decision notification. However, the Veteran did not submit any further correspondence relating to the discontinued issues. Therefore, the Board only has jurisdiction of the claims listed on the first page of this decision. 38 U.S.C. § 7105 (d). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Legal Criteria – Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Further, a disability rating may require re-evaluation in accordance with changes in a veteran’s condition. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 1. Entitlement to a rating in excess of 30 percent for migraine headaches The Veteran’s migraine headaches are currently evaluated under 38 C.F.R. § 4.124a, DC 8100, which provides a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating for migraines with characteristic prostrating attacks occurring on an average once a month over last several months; a 10 percent rating for migraines with prostrating attacks averaging one in 2 months over last several months, and a 0 percent rating for less frequent attacks. The phrase “completely prostrating” is not defined in the rating schedule. However, United States Court of Appeals for Veterans Claims (Court) has held that “prostrating” is defined as “lacking in vitality or will” and “powerless to rise.” See Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). The Court has indicated that the phrase “completely prostrating” means the headaches “must render the veteran entirely powerless.” Id. at 253. This differs from “characteristic prostrating” (required for a 30 percent rating), which means that the migraine attacks “typically produce powerlessness or a lack of vitality.” Moreover, “prolonged” has been defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. “[P]roductive of severe economic inadaptability” has been defined as either “‘producing’ or ‘capable of producing’ severe economic inadaptability.” Id. (citing Pierce v. Principi, 18 Vet. App. 440 (2004)). The Court has further held that the criteria of DC 8100 are successive. Johnson, 30 Vet. App. at 251. Successive criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Although 38 C.F.R. §§ 4.7 and 4.21 generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria. In Pierce v. Principi, 18 Vet. App. 440, 446 (2004), the Court held that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 [percent] rating,” and “[i]f ‘economic inadaptability’ were read to import unemployability, the appellant, if he met the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating.” In addition, the Court in Pierce acknowledged the Secretary’s concession that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Id. at 445. Turning to the evidence of record, the Veteran sought VA medical treatment for headaches in October 2016. He stated that his headaches were becoming more frequent. However, later that day, he described his headaches as “occasional” to another VA clinician. The Board observes that the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in June 2017. He reported that he had not missed any work due to his service-connected disabilities. This statement was corroborated by his employer, who indicated that the Veteran had not missed any work in the past twelve months due to disability and that it was unknown if any concessions were made by reason of disability. The Veteran had worked for the employer for over 14 years and his type of work was identified as an attendant for transportation and parking services. The Veteran underwent a VA examination in September 2017. He reported having headaches continuing since the 1970s, usually across the forehead but sometimes to the back of the head, occurring almost daily and becoming more frequent and intense. He stated that he lies down in a dark room and closes his eyes when he has headaches, and that he cannot look at the computers at work when he has headaches because it makes them worse. He reported that he currently takes medication for migraines. The examiner noted pulsating or throbbing headache pain with sensitivity to light and sound typically lasting one or two days. The Veteran had characteristic prostrating attacks of migraine pain once a month, but did not have very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The examiner found that the headache condition would result in decreased ability to focus and concentrate with migraine episodes. In October 2017, the Veteran reported to his primary care VA clinician that he continued to have headaches “off and on” and has been taking medication to help with his sleep and back pain. In April 2018, the Veteran reported that his headaches continued, and reported a current pain level of 7 out of 10. In November 2018, the Veteran’s local history was positive for headaches and the clinician recommended that he continue medication. In April 2019, the Veteran again reported a history of headaches. The Veteran appeared for another VA examination in January 2019. He stated that he has headaches every day, which have gotten worse due to using the computer more often. He indicated that he has a migraine about four times per week and will go to a dark room and lay down. The examiner found constant headache pain, pulsating or throbbing head pain, pain on both sides of the head, and pain worsening with physical activity. The Veteran exhibited additional symptoms including sensitivity to light and sound, changes in vision, and sensory changes, and reported that pain typically lasted more than two days, including on both sides, the forehead, and back of the head. The examiner found characteristic prostrating attacks of migraine headaches once every month, but did not find very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner noted functional impairment including difficulty concentrating, staying focused, using the computer, and having to lay down and rest until the headache gets better. In July 2019, a VA primary care note reflects that the Veteran reported that his headaches were “better.” The clinician recommended that he continue taking medication for the condition. On the same day as the above appointment, the Veteran submitted lay statements in support of his appeal. He contended that his migraines should warrant a higher disability rating, as they occur on a daily basis. He indicated that this is mostly due to his job having to sit in front of a computer screen every day. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to the claim of entitlement to a rating in excess of 30 percent for migraine headaches. During the rating period on appeal, the Veteran’s headaches have been productive of functional impairment including characteristic prostrating attacks occurring on average once a month over a period of several months. Such a level of functional impairment is contemplated by a 30 percent rating. 38 C.F.R. § 4.124a, DC 8100. As the record does not reflect very frequent episodes of completely prostrating and prolonged attacks productive of severe economic inadaptability, a higher rating is not for application. See id.; Johnson, 30 Vet. App. at 251. In reaching this conclusion, the Board has considered the medical opinions of the September 2017 and January 2019 VA examiners. Both examiners found that the Veteran’s condition did not result in very frequent completely prostrating attacks productive of severe economic inadaptability. As the examiners reviewed the claims file, considered the Veteran’s medical history and symptomatic reports, and rendered persuasive medical opinions consistent with their professional expertise, the Board affords their findings significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Regarding the question of severe economic inadaptability, the Board notes that the Veteran and his employer reported that he did not miss any days of work due to the migraine disability. Furthermore, the employer was unaware of any concessions made to the Veteran by reason of his disability. The fact that the Veteran did not miss work for an extended period and that his employer was unaware of any concessions needed for the disorder suggests that the Veteran’s migraines were not capable of producing severe economic inadaptability, under the meaning of applicable regulations. See 38 C.F.R. § 4.124a, DC 8100; Pierce, 18 Vet. App. at 445-46. The Board has considered the Veteran’s lay statements. Lay evidence is competent to report on matters that are capable of ordinary observation, including headache pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board notes that there are factors weighing against the Veteran’s credibility. Specifically, the Veteran reported having almost daily headaches during the September 2017 VA examination, but told a VA clinician the next month that his headaches only occurred “off and on,” which suggests less frequent occurrences. See Caluza v. Brown, 7 Vet. App. 496, 511 (1995) (holding that the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence of record when determining the credibility of lay evidence). Also, the Veteran told a VA clinician in July 2019 that his headaches were better, but, later that same day, he claimed that his headaches warranted a higher disability rating. The Board finds that these statements show inconsistency and concludes that higher probative weight should be afforded to the competent medical evidence of record. In sum, as the most probative evidence does not reach the level of equipoise, the claim of entitlement to a rating in excess of 30 percent for migraine headaches may not be granted. 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”). 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; 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. Id. In adjudicating the issue of entitlement to a TDIU, the Board may not consider any nonservice-connected disabilities or advancing age. However, the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. As of July 2019, the Veteran’s service-connected conditions consist of: migraine headaches, rated as 30 percent disabling from May 8, 2017; radiculopathy of the left lower extremity associated with intervertebral disc syndrome (IVDS), rated as 20 percent disabling from October 20, 2014; radiculopathy of the right lower extremity associated with IVDS, rated as 20 percent disabling from October 20, 2014; IVDS (previously rated as lumbar spine degenerative disc disease with intervertebral disc syndrome), rated as 20 percent disabling from August 27, 2017; hiatal hernia, rated as 10 percent disabling from May 1, 1996; and left ulnar nerve palsy, rated as 10 percent from May 1, 1996. He receives a non-compensable rating for hypertension. His combined rating is 70 percent from October 20, 2014; therefore, he meets the threshold criteria for a TDIU. See 38 C.F.R. § 4.16 (a). However, the question for the Board is whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Initially, the record reflects that the Veteran is gainfully employed and has been for the duration of the appeal period. In June 2017, his employer indicated, among other things, that the Veteran had been employed since 2003, remains employed as a senior parking attendant, receives health and retirement benefits, and had not lost any time during the preceding twelve months due to disability. In terms of salary, the Veteran was paid more than $27,000 during the period from June 2016 to May 2017. The Veteran has not indicated that he has left this position or that he is currently unemployed. In July 2019, the Veteran stated that he could not afford to leave his job because of the financial hardship that would occur. He reported that his job affected his migraines, and aggravated his back and sciatic nerve conditions. He reported dealing with great physical pain at his job due to his service-connected disabilities, which is also affecting him mentally. As the Veteran is currently employed in a substantially gainful occupation, he is ineligible for entitlement to a TDIU. 38 C.F.R. § 4.16 (a) (requiring that a veteran be “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities” in order to be eligible for a TDIU). Moreover, the record does not show that the Veteran’s employment is marginal or in an otherwise protected environment. Id. § 4.16 (b). Specifically, he earned more than $27,000 while working as a parking attendant between June 2016 and May 2017. The Board has considered the Veteran reports of pain due to his service-connected disabilities affecting his job performance. However, a high combined schedular rating in itself is recognition that a veteran’s service-connected disabilities cause functional impairment of his work performance. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment. Under the facts of this case, the record clearly shows that the Veteran is capable of securing and following substantially gainful employment. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence does not reach the level of equipoise in the claim of entitlement to a TDIU. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence   must rise to the requisite level set forth in section 5107 (b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, Associate Counsel 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.