Citation Nr: 20026056 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 14-12 167A DATE: April 15, 2020 ORDER Entitlement to an initial 50 percent rating for service-connected migraines is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT Throughout the period on appeal, the Veteran has experienced prostrating headaches more than once per month that are productive of severe economic inadaptability. CONCLUSIONS OF LAW The criteria for an initial 50 percent disability rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4,124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1987 to June 1992. The Board thanks the Veteran for his service. In May 2017, the Veteran and a witness testified at a Travel Board hearing before the undersigned Veterans Law Judge. The Veteran waived consideration by a Department of Veterans Affairs (VA) Regional Office (RO) for any additionally received evidence. A transcript of the hearing is associated with the claims file. This matter was previously before the Board in February 2018, at which time it was remanded to the RO for further development, to include: (1) obtaining any outstanding VA and private medical treatment records; and (2) obtaining a VA psychiatric examination. The RO sent a development letter to the Veteran in April 2019 requesting authorization to obtain any outstanding private treatment records, to which the Veteran did not respond. Additionally, VA treatment records have been associated with the record, and a VA psychiatric examination was conducted in September 2019. As such, the Board finds that there has been substantial compliance with the February 2018 remand directives. 1. Entitlement to an initial increased rating for service-connected migraines A November 2019 rating decision shows that the Veteran was granted a partial increased rating for his service-connected migraines, with a 50 percent rating (the highest schedular rating for the applicable diagnostic code) effective November 12, 2019. The record shows that the Veteran was not sent the rating decision, as there is no notification letter associated with the file. However, the Veteran was informed of the increased rating in a November 2019 Supplemental Statement of the Case (SSOC). Thus, the issue before the Board is entitlement to a rating in excess of 30 percent for service-connected migraines between June 25, 2010 (the effective date for the grant of service connection) and November 12, 2019. The Board finds that the Veteran is entitled to a 50 percent rating for service-connected migraines effective June 25, 2010, which represents a full grant of the schedular benefits sought on appeal. The Veteran’s service-connected migraine headaches have been rated under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a 30 percent rating for migraine headaches is warranted when there are characteristic prostrating attacks occurring on an average once a month over several months. A maximum rating of 50 percent is warranted for very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. The Rating Schedule does not define ‘prostrating.’ However, ‘prostration’ has been defined as complete physical or mental exhaustion. Merriam-Webster’s New Collegiate Dictionary 999 (11th ed. 2007). ‘Prostration’ has also been defined as extreme exhaustion or powerlessness. Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). According to Stedman’s Medical Dictionary, 27th Edition (2000), p.1461, ‘prostration’ is defined as a marked loss of strength, as in exhaustion. See e.g. Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013). Additionally, the terms in the phrase “productive of severe economic adaptability” have not been clearly defined by regulations or by case law. The United States Court of Appeals for Veteran’s Claims (Court) has noted that ‘productive of’ can either have the meaning of ‘producing’ or ‘capable of producing.’ Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually produce severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, economic inadaptability does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at a minimum, capable of producing severe economic inadaptability. In this case, the Veteran has had three VA examinations during the period on appeal. A June 2011 VA examination did not make a finding as to whether the Veteran’s migraines were productive of severe economic inadaptability. However, the examination did indicate that the Veteran experienced weekly headaches for the past year, most of which were prostrating in nature. The Veteran reported that he had an impaired ability to be productive at work due to the headaches, and that he had to lie down during a prostrating headache. The Veteran additionally reported that he was unemployed due to his medical condition(s). Given that a 30 percent rating is warranted based on having a prostrating migraine just once per month on average, the Board finds that the Veteran experienced “very frequent” headaches because they occurred almost weekly (up to four times per month) on average. Additionally, the Board finds that the reported impact of the Veteran’s migraines on his work ability, to include decreased productivity and having to lie down, is productive of severe economic inadaptability, particularly given that the frequency of the Veteran’s prostrating migraines lead to the loss of employment. Thus, the June 2011 examination supports the grant of a 50 percent rating. A November 2019 VA examination was used by the RO as a basis to grant a 50 percent rating effective November 12, 2019. The examination found that the Veteran had very frequent prostrating headaches (eight to ten times per month) requiring the Veteran to go into a quiet room and sleep. Further, the Veteran reported that he found it difficult to maintain employment due to his migraines. The examiner found that the Veteran’s migraines were productive of severe economic inadaptability. Given that the reported symptoms and frequency of the Veteran’s migraines at the time of the November 2019 examination were similar to those reported in the June 2011 examination, the Board finds that the June 2011 examination also supports a 50 percent rating. VA treatment records spanning between the 2011 and 2019 examinations continue to show frequent, severe migraines producing similar functional impairment and difficulty with employment, although the Veteran continued to work. See CAPRI Records dated August 2011, April 2012, August 2012, August 2017, May 2018. Additionally, a letter from one of the Veteran’s employers states that during his period of employment (April 2014 to January 2017), the Veteran missed work at least two to eight days per months due to headaches, with many additional days when the Veteran made mistakes in his work while experiencing headaches. See Statement received July 2017. The Board acknowledges that an October 2016 VA examiner found that the Veteran did not experience prostrating attacks, and that his headaches did not have a functional impact on his ability to work, despite a report of daily headaches. The examiner was competent to make such findings. However, given that both the 2011 and 2019 examiners determined that the Veteran experienced prostrating attacks, and in context of the other medical records and lay statements showing frequent migraines impairing the Veteran’s ability to work, the Board finds the October 2016 VA examination’s findings are of lower probative value than the cumulative evidence in the record. In sum, the Board finds that the Veteran is entitled to a 50 percent rating under DC 8100 throughout the entire period on appeal. Neither the Veteran nor his representative has raised any other issues arising from the peripheral neuropathy rating claims, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability is remanded. The record includes a rating decision dated October 24, 2019 granting service connection for “depressive and bipolar disorder with anxiety disorder” effective June 25, 2010. However, it does not appear from the record that the Veteran and his representative were ever informed that service connection was granted for an acquired psychiatric disability because there is no notification letter for the October 2019 rating decision associated with the claims file and the February 2020 statement from the representative continued to list the issue of service connection for PTSD as an issue on appeal. Thus, it does not appear that there is an issue of fact or law remaining for adjudication by the Board, but the matter remains pending because the Veteran has not received notification, as required by law. The Board finds that this issue must be remanded to the RO to take appropriate action, to include informing the Veteran that service connection has been granted and implementing the rating decision or otherwise document for the record the status of that issue. The matter is REMANDED for the following action: Take appropriate action to notify the Veteran of the grant of service connection for “depressive and bipolar disorder with anxiety disorder” as shown in the October 2019 rating decision or otherwise document for the record the status of that issue. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Anderson, 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.