Citation Nr: 20077599 Decision Date: 12/08/20 Archive Date: 12/08/20 DOCKET NO. 16-13 028 DATE: December 8, 2020 ORDER Entitlement to a uniform initial disability rating of 50 percent for migraine headaches is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted from January 5, 2011, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Since the January 5, 2011 effective date of service connection, the Veteran's migraine headaches included very frequent completely prostrating with prolonged attacks capable of producing severe economic inadaptability. 2. From January 5, 2011, the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a uniform initial disability rating of 50 percent for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.10, 4.124a, Diagnostic Code (DC) 8100. 2. From January 5, 2011, the criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for migraine headaches with a noncompensable rating from January 5, 2011. In November 2018, the Board, in pertinent part, denied an initial rating in excess of 30 percent for service-connected migraine headaches. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Before the Court issued a decision, the parties to the appeal filed a joint motion for partial remand to vacate the portion of the November 2018 Board decision that denied an initial rating in excess of 30 percent for service-connected migraine headaches and remand this issue back to the Board. The Court granted the joint motion in October 2019. In April 2020, the Board remanded the migraine headache claim for additional development. The development has been completed and the claim has returned to the Board. For entitlement to a TDIU, the Board will assume jurisdiction as part of the higher initial rating claim for headaches. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board notes that entitlement to a compensable rating for a close head injury (CHI) is subject to a separate April 2020 Board remand. The remand development has not been completed, and the issue is not before the Board. I. Duty to notify and assist The claims at issue are subject to a November 2018 Court joint motion and April 2020 Board remand that required a fully responsive medical opinion to the Veteran’s headache symptomatology reports. The Board finds that the October 2020 VA-contract medical opinion substantially complies with both remand instructions. The Board also points out that the instant decision results in a total rating award throughout the claims period. Further discussion of compliance with VA’s duties to notify or assist or prior remands is not necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). II. Higher initial rating for migraine headaches Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” See Holmes v. Wilkie, __ Vet. App. __, No. 19-2495, slip op.6 (Nov. 25, 2020). Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. Id. The 50 percent rating criteria contain several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. For background purposes, the Veteran is service-connected for migraine headaches associated with fractured mandible as part of injuries sustained in a motor vehicle accident (MVA) during service. In January 2011, the Veteran filed a service connection claim for a transient ischemic attack (TIA) or stroke. It was later determined that the Veteran’s migraine headaches were a manifestation of this claimed disability. Accordingly, the initial rating for migraine headaches originates with the January 2011 service connection claim for a TIA/ stroke. March 2011 private medical records included the Veteran’s complaints about pain located behind both ears. He described experiencing a halo effect in his vision when he stared. It lasted for about 20 minutes. Physical findings were detailed. The physician assessed cervicogenic headaches, among other diagnoses. In May 2012, the Veteran’s wife reported that he experienced headaches behind his ears that increased with stress. In May 2012, a VA Traumatic Brain Injury (TBI) examination report noted subjective symptoms that do not interfere with work or instrumental activities of daily living, such as mild or occasional headache. October 2012 private medical records from Dr. S showed that the Veteran complained about ongoing headaches. Neurological clinical findings were detailed. Dr. S assessed migraine headaches among other problems. May 2013 private dental records noted that the Veteran experienced severe pain directly behinds his ears. It was of an 8/10 severity. In May 2013, the Veteran completed a Bioesthetics Questionnaire for a private physician. He reported experiencing headaches of an 8/10 severity on a seldom basis. He had treatment with a private neurologist, Dr. S., for halo vision, stroke and migraines. He also reported having severe head pain affecting the top, back and behind his ears areas. It occurred on a weekly basis with a duration lasting for hours. He believed this pain was related to the service-connected CHI and it was exacerbated by migraines. In May 2013, Dr. T furnished a letter in support of the claim. He stated that he had been the Veteran’s primary care physician since 2006. The Veteran had experienced chronic headaches for years following the 1966 MVA and initially thought the headaches were related to his eyes instead of CHI. He continued to experience chronic migraines. In March 2014, the Veteran reported that he had migraine headaches associated with his service-connected CHI. He cited letters from his treating physicians. In July 2016, Dr. B, a dentist, furnished a letter in support of the claim. He had provided dental services to the Veteran for the past year and half. He stated that the Veteran’s primary complaint was severe pain behind his left and right ear with accompanying neck pain. He identified numerous oral and maxillofacial disorders for the Veteran. In January 2017, the Veteran submitted a headache log covering the time period from February 2016 through July 2016. On average, for these months, the headache frequency was between 8 to 14 episodes per month. The headache duration ranged from 1 to 8 hours. The headache severity was approximately 3.5 out of a 5 point scale with 5 points being the worst. The Veteran had approximately two headache episodes per month that were of the greatest (5/5) severity. In the January 2017 notice of disagreement (NOD), the representative requested a headache examination and consideration of the Veteran’s headache journal. In May 2018, the Veteran had a VA headache examination with a physician. The Board notes that the October 2019 joint motion deemed the medical opinion about the prostrating headache attacks as inadequate. However, this determination does not render the entire examination report inadequate and favorable reports exclusive of the prostrating headache medical opinion may be considered. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The physician diagnosed migraine headaches. She reported a headache frequency of three times per week. The severity varied but included severe headaches. The Veteran frequently took medication for treatment. The headache symptoms included the following: pulsating or throbbing head pain, localized pain, and pain that worsened with activity. The Veteran specified having head pain with throbbing behind the ears. Additional headache symptoms included the following: nausea, sensitivity to light and sound, visual changes, vomiting on rare occasions, and halos in visual fields. The headache duration was less than a day. The Board notes that the physician’s report that prostrating headache attacks occurred once every month is inadequate and will be disregarded. See October 2019 joint motion. For occupational impact, the physician noted having to leave work several times per month. In December 2019, the Veteran had a VA-contract examination with a physician. The Veteran’s headache symptoms included the following: pulsating or throbbing head pain, pain localized to one side of the head, and pain that worsened with physical activity. Non-headache symptoms associated with his headache episodes included nausea. The headache duration was less than a day and head pain typically involved the right side. The physician reported that prostrating attacks did not occur. In September 2020, a VA-contract medical opinion was obtained from a physician based upon review of the claims folder. The physician noted the reports from the May 2018 and December 2019 VA and VA-contract examinations as well as May 2013 private medical opinions. He surmised that the Veteran reported three headaches per week and his headaches affected his ability to function in an occupational environment. He characterized the Veteran’s headaches as prostrating and prolonged with associated economic incapacity. After considering the pertinent evidence in light of the applicable rating criteria, the Board finds that, for the following reasons, the evidence of record is at least evenly balanced as to whether the Veteran's migraine headache symptomatology meets the DC 8100 migraine 50 percent rating criteria since the effective date of service connection. At the outset, the Board notes that the Veteran is competent to describe the symptoms associated with his headaches, and there is no evidence of record which suggests he lacks credibility as to reporting this symptomatology. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n. 4 (Fed. Cir. 2007). The evidence regarding the Veteran's headache symptomatology is thus afforded significant probative value as noted below. The first issue is whether the Veteran has headaches of a completely prostrating severity. The evidence includes headache descriptions suggestive of a severity equivalent to prostrating migraines. (May 2013 private Bioesthetics Questionnaire report; January 2017 Veteran headache log; September 2020 VA-contract medical opinion). It is reasonable to assume that the scaled high or highest headache severity required the Veteran to stop any activity and rest until the headaches resolved. This characterization satisfies the completely prostrating standard noted above. The Board construes the reports of 8/10 severity in May 2013 private medical records and 5/5 severity in the Veteran’s January 2017 headache journal as probative evidence that the Veteran experienced headaches equivalent to completely prostrating. Accordingly, completely prostrating headaches are shown. As to the duration, there is no indication that any completely prostrating episode is brief, such as only lasting several minutes. The evidence indicates that the Veteran headache episodes last at the minimum an hour and more typically extend for several hours. See Veteran headache log received January 2017. Thus, the Board finds the reported prostrating headache episodes have a duration generally lasting several hours and meet the prolonged definition noted above. The next issues are whether the frequency of the prostrating episodes is at least twice a month or more and corresponding severe economic inadaptability. The descriptive phrase “very frequent” found in the 50 percent rating criteria connotes a frequency at least greater than once a month. This is because DC 8100 is successive, and its 30 percent rating connotes a frequency of once a month. Johnson, 30 Vet. App. at 253. The below evidence supports a finding that the Veteran had prostrating headaches at least twice a month and severe economic inadaptability throughout the claims period. The May 2013 medical questionnaire in one place shows the Veteran reporting a seldom frequency for prostrating headaches but later in this report he refers to severe headaches occurring on a weekly basis. The Board observes that some of the Veteran’s descriptions appear to separate general head pain affecting certain areas from migraines. In this case, all head pain symptomatology whether it affects a specific area or falls under a migraine characterization is considered together for DC 8100 rating purposes. Next, Dr. B, the Veteran’s dentist, noted that the Veteran’s primary problem out of several maxillofacial disorders was severe pain behind his ears. This report implies frequent severe headaches since it ranks headaches as the most concerning problem out of multiple maxillofacial issues. The Veteran’s headache journal submitted in January 2017 indicates that over the recorded period he generally had two headache episodes a month that were of the highest severity and equivalent to completely prostrating. Finally, the September 2020 VA-contract physician considered multiple reports over the claims period and found the presence of prostrating and prolonged headaches with associated economic incapacity. The Board construes his report to not only show that the frequency of the Veteran’s prostrating headaches episodes met the 50 percent rating criteria under DC 8100, but that this occurred throughout the claims period since he cited medical reports dating to May 2013 in reaching his determination. The report, in addition to the September 2019 TDIU claim noted below, also indicates severe economic inadaptability. The conflicting evidence consists of medical opinions from the May 2018 VA and December 2019 VA-contract examination reports. As noted, the May 2018 VA medical opinion is inadequate and will not be considered. The December 2019 VA-contract medical opinion is conclusory and overlooks the above favorable evidence that underlies the October 2020 VA-contract medical opinion. The Board does not find that these reports are probative to weigh against assignment of a 50 percent rating throughout the claims period. For the above stated reasons, entitlement to a uniform initial rating of 50 percent for migraine headaches under DC 8100 is warranted. The 50 percent rating is the maximum schedular evaluation assignable under DC 8100. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As the Board is granting TDIU below, it will not consider whether an extraschedular rating is warranted. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), superseded in part by regulation, 82 Fed. Reg. 57230 (Dec. 8, 2017) (38 C.F.R. § 3.321(b)(1) performs a "gap-filling" function when a veteran's overall disability picture establishes something less than total unemployability). III. Entitlement to TDIU TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. As relevant, marginal employment is not considered substantially gainful employment, and a Veteran can establish marginal employment either by demonstrating an earned annual income less than the poverty threshold established by the U.S. Census Bureau or on a facts-found basis. Id.; Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Marginal employment on a facts-found basis includes, but is not limited to, employment in a protected environment when earned annual income exceeds the poverty threshold. Id. The Court has clarified that entitlement to TDIU must be considered for the entire appeal period of any associated rating claim where the Veteran asserts unemployability and claims the highest rating possible. Harper v. Wilkie, 30 Vet. App. 356, 362 (2018). In this case, the above initial rating claim for migraine headaches dates to January 5, 2011. From January 5, 2011, the Veteran is in receipt of service connection for migraine headaches, now rated as 50 percent disabling; multiple head lacerations, rated as 10 percent disabling; fracture mandible, right angle area rated as 10 percent disabling as well as bilateral hearing loss and CHI as noncompensable disabilities. The Veteran’s combined rating is 60 percent. The service-connected migraine headaches, multiple head lacerations and fracture mandible originated from a single accident, the 1966 MVA. (See January 2016 rating decision; August 1966 and October 1966 service treatment records confirming MVA-related injuries). Thus, the Veteran meets the schedular rating criteria throughout the claims period via disabilities resulting from a single accident that are considered as one disability for TDIU purposes. 38 C.F.R. § 4.16(a)(2). From April 4, 2011, the Veteran is additionally service-connected for lack of strength on the right side associated with CHI with a 20 percent rating and transient ischemic attacks associated with CHI with a 10 percent rating. His combined rating from April 4, 2011 is now 70 percent. In sum, the Veteran’s combined schedular disability ratings meet the minimum requirements in 38 C.F.R. § 4.16(a) for consideration of a TDIU on a schedular basis from January 5, 2011. See 38 C.F.R. § 4.25. In analyzing TDIU claims, the central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In May 2011, the Veteran reported that he was unable to work due to memory loss and transient ischemic attacks. In May 2012, the Veteran submitted a formal TDIU application on VA Form 21-8940. He reported that he last worked full time in August 2010. He was too disabled to work by January 2011. He worked in car sales and his highest educational attainment was some college. He cited transient ischemic attacks and memory loss as the service-connected disabilities that precluded work. He explained that he had difficulty remembering product information and associated stress from memory difficulties. In July 2012, Dr. S furnished a letter in support of the then service connection claims. He confirmed that neuropsychological testing revealed impaired cognitive function affecting the Veteran’s ability to work. He stated that the Veteran’s 1966 MVA was directly related to his current cognitive deficits and headaches. In August 2012, Dr. S reported that recent neuropsychology testing revealed cognitive impairments. He stated that the Veteran was unable to work. In a September 2019 formal TDIU application, VA Form 21-8940, the Veteran cited migraine headaches, mandible fracture and CHI as the service-connected disabilities preventing him from securing or following any substantially gainful occupation. He reported becoming too disabled to work full time in December 2010. However, he had a series of part time jobs from January 2014 to the present with monthly earnings below the annual income amount established by the U.S. Department of Commerce, Bureau of the Census as the poverty threshold for one person. However, for the past 12 months, he earned $10,000 and his current income was $1028.00 per month for a projected annual income of $12,336.00. The Board notes that the 2019 Bureau of the Census poverty threshold for one person under age 65 is $13,300.00 and $12,261.00 for persons aged 65 or older. (https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html). From the above evidence, the Board finds that the evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities throughout the claims period. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). The Veteran has not worked full time since January 5, 2011. However, he reports working on a part time basis beginning in 2014 and by 2019 earning wages that appear to meet the above cited poverty threshold for one person aged 65 or older. The Board notes that marginal employment may also be held to exist on a facts found basis when earned annual income exceeds the poverty threshold. In this case, the Veteran has severe occupational impairment from service-connected migraine headaches, as discussed above, in addition to the neurological and cognitive manifestations of service-connected lack of strength on the right side, transient ischemic attacks and CHI. Considering the service-connected disabilities as a whole and apparent transient or limited nature of the reported part time work, the Board finds that marginal employment is shown from the time the Veteran began part time work in 2014 to include on a facts found basis for any 12 month periods his earning exceed the poverty threshold. 38 C.F.R. § 4.16(a). Thus, the Veteran has not followed a substantially gainful occupation throughout the claims period. The Veteran reports that his usual occupation is sales. (May 2012 and September 2019 VA TDIU claims). His highest educational attainment is some college. As to the non-economic TDIU component of physical capability in Ray, supra, the functional impairment beginning January 5, 2011 from the service-connected migraine headaches, multiple head lacerations, fracture mandible, right angle area, bilateral hearing loss and CHI is sufficient to show occupational impairment affecting physical occupational tasks, namely the endurance to sit in an office for several hours. This physical occupational impairment is outlined by the Court in Ray in determining whether the Veteran can secure and follow a substantially gainful occupation. Ray, 31 Vet. App. at 73. Given the above, the Board finds that from January 5, 2011, the Veteran has physical limitations due to service-connected disabilities and these physical limitations consist primarily of limited endurance to be present at an office. As to the non-economic mental capability in Ray, supra., the Veteran’s various neurological and cognitive impairment attributable to his service-connected disabilities undoubtedly pose mental impairment in completing a wide variety of occupational tasks associated with sales type work. The Veteran submitted several letters in May 2012 from various lay witnesses attesting to the Veteran’s memory difficulties and its impact on his longstanding job leading him to have to quit work. Then, the July 2012 and August 2012 letters from Dr. S, the Veteran’s treating neurologist, are convincing evidence that the Veteran’s mental impairment from service-connected headaches and various cognitive and neurological residuals associated with CHI, as noted in detail above, precluded him from securing work consistent with his education and occupational experience. Ray, 31 Vet. App. at 73.; see also Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). There are no subsequent reports to suggest that the Veteran at any point experience a material improvement in mental capability. For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from January 5, 2011 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.