Citation Nr: 20042321 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 19-31 827 DATE: June 24, 2020 ORDER Entitlement to an increased rating of 50 percent, but no higher, for tension headaches is granted. FINDING OF FACT The Veteran’s tension headaches more closely approximate very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an increased rating of 50 percent, but no higher, for tension headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8199-8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1982 to January 2008. He appeals a December 2018 rating decision by the Agency of Original Jurisdiction (AOJ) continuing a non-compensable disability rating for tension headaches. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In a February 2020 rating decision, the AOJ granted entitlement to a total disability rating based on unemployability (TDIU) from May 3, 2018 because of the Veteran’s service-connected posttraumatic stress disorder (PTSD). As a result, the AOJ also granted entitlement to special monthly compensation (SMC) at the housebound rate from October 5, 2018. Hence, the Veteran’s benefits have been maximized from that date. Here, the Veteran filed his increased rating for headaches claim on October 5, 2018. As a result, further evaluation of entitlement to TDIU in this case is moot. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In other words, even before the rating period of appeal, the Veteran has been entitled to TDIU based on one disability. Additionally, the Veteran has been receiving SMC at the housebound rate from the date of his headache increased rating claim. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran contends that the frequency, duration, and severity of his tension headaches have worsened. See January 2020 Dr. M.B. disability benefits questionnaire (DBQ). His tension headaches are rated at 0 percent under 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100 by analogy. The Board notes that strictly requiring an unlisted condition to demonstrate the same objective symptoms as the analogous condition is an error. See Stankevich v. Nicholson, 19 Vet. App. 470, 472-73 (2006). Nevertheless, under Diagnostic Code 8100, migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensable. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Finally, migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. Medical experts agree that the Veteran has daily headaches that respond with varying success to over the counter medication. See, e.g., December 2018 VA examination report; January 2020 Dr. M.B. disability benefits questionnaire (DBQ). Without explanation, a VA examining physician. found the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. See December 2018 VA examination report. In January 2020, Dr. M.B. agreed that the Veteran did not have characteristic prostrating attacks of migraine headache pain. See January 2020 Dr. M.B. DBQ (emphasis added). However, Dr. M.B. found the Veteran had “very frequent prostrating and prolonged attacks of non-migraine headache pain” that occurred more frequently than once a month. Id. (Emphasis added). Dr. M.B. further stated that the Veteran would not be able to maintain substantially gainful employment due to the amount of work missed and frequent breaks. Id. Specifically, she found the Veteran would need to miss three or more days a month from work or need to leave early because of headaches. See January 2020 Dr. M.B. residual functional capacity evaluation (RFC). He would also have difficulty concentrating for most of the workday. The Veteran’s sister provided a first-hand account of the Veteran’s headache symptoms that corroborated Dr. M.B.’s opinion. She knew he got them very often, and saw he had to lie down to try to wait for them to pass. See December 2019 E.C. statement. He would get dizzy, light-headed, and nauseous; importantly, the Veteran’s headaches tend to “shut him down and he can’t function at all when he has one.” Id. This is also consistent with the Veteran’s statements to Dr. M.B.; specifically, the Veteran has four prostrating headaches a month accompanied with light and sound sensitivity, disturbed concentration, and dizziness. Like at the December 2018 VA examination, the Veteran stated he took over the counter medication for relief. Further, the Veteran’s attacks would last anywhere from a couple of hours to half a day, and the Veteran would have to lie down in a dark and quiet environment for headache relief. See January 2020 Dr. M.B. DBQ. As stated above, the Board recognizes that strictly requiring an unlisted condition to demonstrate the same objective symptoms as the analogous condition is an error. See Stankevich v. Nicholson, 19 Vet. App. 470, 472-73 (2006). Here, the Veteran at least has very frequent prostrating and prolonged attacks of headache pain that occur more than once a month. Based on this fact, the Veteran is entitled to at least a 30 percent disability rating for tension headaches. The second prong of the rating criteria concerns whether headaches are productive of severe economic inadaptability. This term has not been clearly defined by regulations or case law. The Court of Appeals of Veterans 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, headaches 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 headaches must be, at minimum, capable of producing “severe” economic inadaptability for a 50 percent rating. Here, Dr. M.B. further stated that the Veteran would not be able to maintain substantially gainful employment due to the amount of work missed and frequent breaks. See January 2020 Dr. M.B. DBQ. Specifically, she found the Veteran would need to miss three or more days a month from work or need to leave early because of headaches. See January 2020 Dr. M.B. RFC. He would also have difficulty concentrating for most of the workday. Even after considering reasonable accommodations, the Veteran would still have “severe” difficulties in completing his work, as he would have trouble staying focused to complete simple repetitive tasks more than three days a month for seven hours of an eight-hour workday. Id. Thus, the evidence is at least in equipoise and the Board finds that the criteria for a disability rating of 50 percent, but no higher, for his tension headaches have been met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Salazar, 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.