Citation Nr: 20053632 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 17-22 778 DATE: August 12, 2020 ORDER A rating in excess of 30 percent for migraine headaches is denied. REMANDED The claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) for the period prior to July 29, 2019 is remanded. FINDING OF FACT The Veteran’s migraine headaches have not been shown to cause severe economic inadaptability. CONCLUSION OF LAW The criteria for a disability rating for migraine headaches in excess of 30 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1991 to June 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision. By that rating action, the RO, in part, granted an increased disability rating of 30 percent to the service-connected migraine headaches, effective April 29, 2015--the date of the Veteran’s intent to file a claim for increased compensation for headaches. The Veteran appealed the assigned rating. In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is of record. Notably, the Veteran has indicated that he is not employable, in part, due to his service-connected migraine headaches which are the subject of his increased rating claim adjudicated herein. The Board has therefore characterized the issues on appeal to include a claim for a TDIU rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In March 2019, the Board remanded the appeal to have the Agency of Original Jurisdiction (AOJ) obtain outstanding Social Security Administration (SSA) records and to schedule the Veteran for a retrospective VA examination to address the nature and severity of his migraine headaches over the entire claim period to the present. In November 2019, VA received the Veteran’s SSA records, and a VA examiner provide the requested opinion. Thus, the requested development has been accomplished and the appeal has returned to the Board for further appellate review. The Board also notes that the Veteran is in receipt of a 100 percent rating for his service-connected disabilities, effective July 29, 2019. However, as the Veteran has not been awarded the maximum benefits sought for the entire appeal period, the issue of entitlement to TDIU for the period prior to July 29, 2019 remains on appeal. See Bradley v. Peake, 22 Vet. App. 280 (2008), Buie v. Shinseki, 24 Vet. App. 242 (2010) (addressing distinguishable facts when a claim for entitlement to a TDIU was not moot). A rating in excess of 30 percent for migraine headaches is denied. The Veteran seeks a rating in excess of 30 percent for his migraine headaches. The Veteran’s migraine headaches are evaluated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. Id. A 50 percent is warranted for headaches with very frequently completely prostrating and prolonged attacks that are productive of severe economic inadaptability. Id. VA regulations do not define the term “prostrating” or “completely prostrating”. However, “prostrating” has been defined as “causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities. “Completely prostrating” has been defined as extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. VA regulations also do not define the term “severe economic inadaptability.” The United States Court of Appeals for Veterans Claims (Court) has noted that DC 8100 does not requires the veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. at 445-46 (2004). However, “severe economic inadaptability” denotes a degree of substantial work impairment. Evidence of work impairment may include, but is not necessarily limited to, the use of sick leave or unpaid absence. The Veteran maintains that his migraine headaches are more severely disabling than those reflected by the currently assigned 30 percent rating. He contends that, on average, he experiences migraine headaches two times a week, which equates to five or six headaches a month, and that they are accompanied with nausea; interfere with his work, and, cause him to have to lie down in a dark room. Transcript (T.) at pages (pgs.) 4-6)). The Board will deny the claim because the preponderance of the evidence of record does not show that the Veteran’s migraine headaches are frequently completely prostrating and prolonged attacks that are productive of severe economic inadaptability, criteria that is required for a 50 percent rating under the schedular criteria. As noted previously herein, the Board remanded the claim to have the AOJ schedule the Veteran for a retrospective VA examination to address the nature and severity of his migraine headaches over the entire claim period to the present. In November 2019, a VA examiner examined the Veteran and provided the requested opinion regarding the severity of his migraine headaches over the course of the appeal period. The November 2019 VA examiner opined, after a physical evaluation of the Veteran, that his migraine headaches had remained unchanged throughout the appeal period. Thus, according to the November 2019 VA examiner, examinations of the Veteran, conducted by VA in November 2016, June 2016 and September 2019 and November 2019 essentially yielded similar findings with respect to the Veteran’s migraine headaches. The Board agrees. Overall, a review of the four VA examination reports essentially uniformly disclose that the Veteran had complained of headache pain that began behind the ear, but then migrated to his entire cranium; occurred 10 to 12 days a month; were associated with photophobia and nausea; and typically lasted two hours, but could last several days. In addition, each of the four examiners concluded that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain that lasted once a month, but were not productive of severe economic inadaptability. While the June 2016, September 2019 and November 2019 examiners each concluded that the Veteran’s headaches would cause some absenteeism with employment, the Veteran reported that he had only lost two days (in his previous position that had lasted three months) as a result of his migraine headaches. The November 2019 examiner opined that aside from some absenteeism, the Veteran’s headaches would not otherwise impede gainful activities of his choosing. As such, the record does not suggest that the Veteran’s headaches have caused significant absenteeism from work or an impairment in his ability to work. Therefore, the preponderance of the evidence of record does not establish that the Veteran headaches have been productive of severe economic inadaptability. Accordingly, the criteria for a disability rating in excess of 30 percent for the Veteran’s migraine headaches have not been met, and the claim is denied. REASONS FOR REMAND A remand of the issue of entitlement to a TDIU rating for the period prior to July 29, 2019 is warranted to obtain outstanding Federal Medical Leave Act (FMLA) records. Here, on VA Form 21-4192, Request for Information in Connection with a Claim for Disability, the Veteran’s former supervisor from Teleperformance USA, indicated that the Veteran had been employed in telephone customer service from November 21, 2011 to April 30, 2013, had been terminated due to “performance” and had been placed on FMLA. The matters are REMANDED for the following action: Request that the Veteran provide documentation regarding his FMLA leave (such as letters from his doctors supporting his request that identify the medical disorder(s) underlying his request, approval documentation from his employer(s) that show the medical disorder(s) considered, and/or pay records showing use of FMLA). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.