Citation Nr: 20040165 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 18-17 831 DATE: June 11, 2020 ORDER Entitlement to a 50 percent evaluation for migraine headaches is granted. REMANDED The issue of entitlement to an evaluation higher than 10 percent for chronic back strain with mechanical low back pain is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s migraine headaches are productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an evaluation of 50 percent for migraine headaches have been met. 38 U.S.C. § 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.124a, Diagnostic Code 8100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1993 to May 1997, from February 2001 to October 2001, and from January 2005 to October 2006. This matter comes before the Board from a July 2015 rating decision by the agency of original jurisdiction (AOJ). In her July 2016 notice of disagreement (NOD), the Veteran limited her appeal to the issues of entitlement higher evaluations for her service-connected migraines and low back disability. A Board hearing was held in February 2020. A transcript is of record. During the period on appeal, the issue of entitlement to TDIU was raised. Specifically, lay statements from the Veteran’s parents, a coworker, and her supervisor all note the impact of her service-connected disabilities on her occupational functioning. The Board also notes that records produced by the Veteran’s readjustment counselor at a Vet Center between September 2010 and June 2015 includes the counselor’s notation in June 2015 that the Veteran was reaching the “tail end” of her ability to work, both physically and mentally. Thus, the Board has jurisdiction over this issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Evaluation of migraine headaches The Veteran is currently in receipt of a 30 percent evaluation for migraines. She asserts that a higher evaluation is warranted. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a disorder with the requirements contained in VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. If there is a question as to which evaluation to apply to the 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. Under the criteria for evaluating migraines, a 50 percent evaluation is assigned where there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent evaluation is assigned where there are characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable evaluation is assigned for less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran submitted the instant claim for increase in March 2015. Along with her claim, she submitted various lay statements. Her mother described migraines of such severity that they caused vomiting, blurry vision, and rendered the Veteran unable to lift her head up. She noted that migraines occurred four to five times per week, and interfered with the Veteran’s work. Her father noted that the Veteran’s migraines caused severe pain and vomiting, and indicated that her medication did not always work. He stated that these headaches interfered with the Veteran’s work. A coworker indicated that he had worked with the Veteran for two and a half years, and that during that time, he had taken her to the VA clinic several times due to migraines. He noted that migraines caused the Veteran to miss three to four days of work at a time. Her supervisor indicated that the Veteran had been under her supervision for six months, and during that time, the Veteran had missed work due to illness 16 days. She also indicated that the Veteran also left work early due to illness. On VA examination in June 2015, the Veteran described headaches four to five times per week. She stated that she missed many days of work due to her headaches, and that typical headache caused her to be “down” for one and a half days. The examiner noted that the Veteran took Topamax, Imitrex, and hydrocodone. She indicated that the Veteran experienced bilateral pulsating and throbbing head pain, nausea, and sensitivity to light and sound. The Veteran stated that the typical duration of head pain was one to two days. The examiner indicated that characteristic prostrating attacks occurred once every month, and that migraines were not very prostrating and prolonged, and were not productive of severe economic inadaptability. An August 2015 VA neurology note indicates an impression of intractable migraine headaches. The provider noted that if oral medication did not alleviate a headache, the Veteran used injectable Imitrex. He noted that various other medications had been attempted, including injections to the back of the head. She was referred for Botox treatment. Botox injections were performed in September 2015, and continued. In February 2020, the Veteran submitted a VA headaches disability benefits questionnaire (DBQ) completed by a physician. The physician indicated that that the Veteran experienced had characteristic prostrating attacks of migraine headache pain, but did not indicate their frequency. During her February 2020 hearing, the Veteran testified that her headaches had become progressively worse, and that they required her to take a shot and lie down. She stated that she was sometimes in bed two days. She stated that, in addition to migraine attacks, she experienced constant headache pain. She noted that if she experienced a migraine at work, her coworker drove her home. She indicated that she experienced migraines two to three times per week, and that they were triggered by certain foods, loud noise, and bright lights. She also stated that she sometimes woke up with a migraine. Having carefully considered the evidence of record, the Board concludes that the maximum 50 percent evaluation is warranted for the Veteran’s migraine headaches. During the entire period on appeal, the Veteran has repeatedly reported that his headaches have interfered with his work, and that they are sometimes not alleviated by medication. She has stated that when she experienced migraines, she rests quietly in a dark room, that it must be quiet. She states that migraines cause her to be in bed for up to one and a half days, and that they occur up to three times per week. Both her parents, and a coworker have attested to the impact the Veteran’s migraines have on her occupational functioning. Her supervisor has stated that the Veteran misses a significant amount of work due to her headaches. As early as 2015, medical records reflect that the Veteran’s migraines were refractory to numerous methods of treatment. The Board acknowledges that the June 2015 VA examiner indicated that characteristic prostrating attacks occurred only once every month, that migraines were not very prostrating and prolonged, and were not productive of severe economic inadaptability. However, as noted, the Veteran, her parents, and coworkers have described the impact of migraine headaches on her ability to work. Moreover, subsequent records document the severity and refractory nature of the Veteran’s migraines. Thus, the Board concludes that, as a whole, the record supports a finding that the criteria for the maximum 50 percent evaluation for migraines have been met. REASONS FOR REMAND Evaluation higher than 10 percent for chronic back strain with mechanical low back pain During the February 2020 hearing, the undersigned Veterans Law Judge pointed out that during previous examinations, the Veteran was unable to perform some of the necessary testing. He noted that the rating criteria required such testing. On review of the record, the Board observes that during examination in June 2015, the Veteran declined to perform range of motion testing due to a pelvic mass that caused pain. She also declined to perform such testing on examination in September 2016. The Board notes that the general rating formula for disease and injuries of the spine provides for evaluations based on degrees of motion in various planes. Thus, the Veteran is advised that, absent evidence indicating range of motion testing, the Board is unable to determine whether an evaluation higher than 10 percent is applicable. The Board also observes that the general rating formula directs that associated objective neurologic abnormalities are to be evaluated as part of the spine disability, and rated accordingly. During her February 2020 hearing, the Veteran testified that she had pain that shot down her legs. Considering the above discussion, the Board concludes that an examination is necessary to determine the severity of the Veteran’s low back disability, to include whether there are neurological manifestations. TDIU Further development and adjudication of the increased rating claim remanded herein may provide evidence in support of the claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the severity of her service-connected low back disability, to include whether there are neurological manifestations. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. All pertinent symptomatology and findings referable to the Veteran’s low back disability should be reported in detail, including range of motion (ROM) testing. The examiner should set forth the Veteran’s range of motion findings and note any pain, pain on use (to include the point during range of motion at which the Veteran reports pain), weakness, incoordination, or excess fatigability. If feasible, the examiner should portray any additional functional limitation of the spine due to these factors in terms of degrees of additional loss of motion. If not feasible, this should be stated and discussed in the examination report. If the Veteran does not have pain or any of the other factors, that fact should also be noted. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also specify whether there are neurological manifestations related to the Veteran’s low back disability, and if so, their nature and severity. 2. Then, readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.