Citation Nr: 20056072 Decision Date: 08/25/20 Archive Date: 08/25/20 DOCKET NO. 14-37 923 DATE: August 25, 2020 ORDER A rating of 50 percent for a headache disability, for the period prior to May 10, 2020, is granted. A total disability rating based on individual unemployability (TDIU), for the period prior to December 13, 2019, is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s headache disability has been characterized by very frequent, completely prostrating, and prolonged episodes that are productive of severe economic inadaptability. 2. Throughout the period on appeal, the Veteran’s service-connected disabilities have prevented him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for a headache disability, for the period on appeal prior to May 10, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.6, 4.7, 4.124, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for entitlement to TDIU, for the period on appeal prior to December 13, 2019, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1973 to August 1993. The matter of an increased rating for a headache disability comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision. In April 2018, the Board remanded the matter of an increased rating for a headache disability for a new VA examination because the Veteran indicated that his disability had worsened since his last VA examination. Additionally, the Board found the matter of TDIU had been raised by the record and remanded the matter for development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Headache Disability The Veteran asserts that he is entitled to a rating of 50 percent for his headache disability, for the period prior to May 10, 2020. The Veteran’s headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Codes 8199-8100. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The use of the “99” series and a hyphenated diagnostic code reflects that there is no specific diagnostic code applicable to a headache disability, and it must be rated by analogy. 38 C.F.R. § 4.20. As the rating schedule does specifically include a rating for a headache disability, the Veteran has been assigned an analogous rating under DC 8100 for migraines, as the functions affected, anatomical localization, and symptoms are closely related. Ratings regarding neurological conditions, including migraines, are assigned under DC 8100. A rating under DC 8100 is assigned when the evidence demonstrates: • characteristic prostrating attacks averaging one in two months over the last several months (10 percent rating); • characteristic prostrating attacks occurring on an average of once a month over the last several months (30 percent); or, • very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability (50 percent maximum). 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define prostrating. Dorland’s Illustrated Medical Dictionary defines prostration as extreme exhaustion or powerlessness. Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). In Pierce v. Principi, 18 Vet. App. 440 (2004), the Court held that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating,” and “[i]f ‘economic inadaptability’ were read to import unemployability, the appellant, if he met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability resulting from a service-connected disability (TDIU) rather than just a 50% rating.” 18 Vet. App. 440, 446 (2004). In Pierce, the Court examined the “productive of severe economic inadaptability” criterion for a 50% evaluation under DC 8100 and noted that “[n]owhere in the DC is ‘inadaptability’ defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.].” 18 Vet. App. at 446. The Court explained that, contrary to the Secretary’s argument, “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating” because “[i]f ‘economic inadaptability’ were read to import unemployability,” a claimant who “met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [ (TDIU) ].... rather than just a 50% rating.” Id. The Court therefore rejected the notion that “severe economic inadaptability” was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16(a)). In addition, the Court in Pierce acknowledged the Secretary’s concession that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Id. at 445. The Board finds that a rating of 50 percent for the Veteran’s headache disability, throughout the entire period on appeal, is warranted. First, the Veteran underwent an in-person VA examination in May 2020 regarding his headache disability. The Veteran reported that his headache disability began during service after he suffered a concussion. The Veteran stated that his headache disability has progressively worsened and that his headaches now occur two to three times per week. The Veteran stated that over-the-counter medication does not provide relief during a headache episode. The examiner indicated that the Veteran’s headache episodes include constant pain, pain localized to one side of the head, and sensitivity to light and sound. Further, the examiner indicated that the Veteran has prostrating headache episodes that occur more frequently than once per month and that are productive of severe economic inadaptability. Additionally, regarding economic inadaptability, the examiner stated that during a prostrating headache episode the Veteran would be prevented from working and would need to stay in a dark room. Subsequently, in a May 2020 rating decision a rating of 50 percent, the schedular maximum, was granted with an effective date of May 10, 2020, which is the date of the Veteran’s VA examination regarding his headache disability. The Board has reviewed the evidence of record and finds that that the Veteran’s symptoms related to his headache disability met the 50 percent rating criteria prior to the May 2020 VA examination. First, in the July 2012 Application for Compensation, the Veteran stated that his headache disability had worsened since his last rating assignment. Further, in the October 2013 Notice of Disagreement, the Veteran stated that he has prostrating headache episodes two to four times per week. The Veteran also stated that the episodes are prolonged and completely disabling and that over-the-counter medication does not provide any relief. The Board finds that these credible statements are consistent with the findings of the May 2020 VA examination and establish that the Veteran’s symptoms related to his headache disability met the 50 percent rating criteria prior to the May 2020 VA examination as well as throughout the entire period on appeal. Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing a 50 percent rating for the Veteran’s headache disability, throughout the entire period on appeal, have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted. TDIU The Veteran asserts that his service-connected disabilities prevent him from obtaining and retaining substantially gainful employment. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. For purposes of entitlement to a TDIU rating, disabilities resulting from a common etiology are considered as one disability. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but age and impairment caused by nonservice-connected disabilities are not factors for consideration. 38 C.F.R. §§ 3.341, 4.16, 4.19. Also, it is necessary that the record reflect some factor that places the Veteran in a different category than other Veterans with equal ratings of disability. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board has reviewed the evidence of record and finds that TDIU is warranted throughout the entire period on appeal. In a May 2020 rating decision, the Regional Office (RO) determined that the Veteran’s service-connected disabilities prevent him from obtaining and retaining substantially gainful employment. The RO indicated that TDIU was granted effective the date that the Veteran met the schedular requirements for TDIU, which was on December 13, 2019; however, the Veteran’s combined disability evaluation (without considering the grant of 50 percent for headaches) was 80 percent as of July 24, 2012. The Board finds that the Veteran meets the schedular requirements for TDIU throughout the entire period on appeal. Accordingly, the Board resolves all reasonable doubt in favor of the Veteran and grants TDIU throughout the entire period on appeal. 38 U.S.C. § § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.