Citation Nr: 21000944 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-18 805A DATE: January 6, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for migraine headaches is denied. REMANDED Entitlement to service connection for a stomach disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran has not had very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for migraine headaches are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from March 1992 to June 1994. The appeal originates from March 2011 and August 2013 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned in October 2018. In March 2020, the Court of Appeals for Veterans Claims (Court) vacated the April 2019 Board decision and remanded the matter pursuant to a joint motion for remand (JMR). Entitlement to an initial rating in excess of 30 percent for migraine headaches. Disability ratings are determined by comparing a veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s migraine disability is rated under Diagnostic Code 8100. A 30 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once per month over the last several months. A 50 percent rating requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The phrase “characteristic prostrating attacks” is defined as describing migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The modifier “completely” as used before “prostrating” in the 50 percent criteria means that the veteran must be rendered entirely powerless and that “productive of severe economic inadaptability” means either producing or capable of producing severe economic inadaptability. Id. at 253. Taken together, the 50 percent rating for migraines is appropriate with very frequent, prolonged attacks that render the veteran entirely powerless and either cause or can cause severe economic inadaptability. Based on the evidence, including the July 2013 and June 2014 VA examinations, the Veteran is not entitled to an initial rating in excess of 30 percent for migraines. At the July 2013 examination, he reported daily headaches lasting two hours. The examiner noted that he had characteristic prostrating attacks of migraine headache pain occurring more than once per month but not very frequent prostrating and prolonged attacks of migraine headache pain. At the June 2014 examination, the Veteran reported daily headaches lasting 12 to 24 hours. The examiner noted that he had characteristic prostrating attacks of migraine headache pain occurring more than once per month but not very frequent prostrating and prolonged attacks of migraine headache pain. In the September 2014 NOD, the Veteran reported migraine headaches occurring approximately every day lasting “about 7 to 8 hours at a time.” In the June 2015 Form 9, he described daily headaches occurring for 12 to 24 hours at a time. In January 2017 hearing testimony before the RO, he indicated that he had 15 to 20 headaches per month lasting “a couple of hours.” He also testified that he had multiple headaches a day and that “the most [he] experienced [a headache] is . . . two hours in one time, in one date.” He repeated that “the longest [the headaches] have been is . . . two hours straight.” There is a clear contradiction between the Veteran’s testimony before the Board and his reporting at other times. His testimony that his headaches have lasted up to two hours at most is broadly consistent with his reporting at the July 2013 examination and January 2017 RO hearing, but inconsistent with many statements he has submitted describing far longer headaches during the appeal. Review of contemporaneous medical treatment records merely shows generalized notations of headaches, which does not provide a basis for determining the nature of his symptoms. Due to his contradictory statements, the Board finds that the Veteran is not a credible historian of his symptomology and affords his testimony no weight. The VA examinations, while containing findings as to headache symptoms and functional impact (including the June 2014 examiner’s finding that the Veteran’s headaches are “disabling for sedentary or physical employment”), were based on reporting that is not credible and therefore are entitled to no weight. There is simply no basis for the assignment of an increased rating. Consideration is given to arguments raised by the Veteran. See April 2020 Correspondence. He challenges the adequacy of the July 2013 examination. He maintains that the examination report lacked sufficient detail as to the frequency and duration of the headache disorder as well as failing to sufficiently consider his lay reports as described in his hearing testimony and filings. It is immaterial whether the July 2013 examiner specified the duration of his headaches, as such would be based on his reporting which has been found not to be credible. With respect to the 50 percent rating, there is an absence of credible evidence of completely prostrating attacks (i.e., rendering the Veteran entirely powerless), and therefore the question of severe economic inadaptability is not reached. See Johnson, supra. With respect to the duty to assist, the Board finds that it would be futile to obtain a new examination or opinion. In the absence of contemporaneous documentation of the symptoms of the migraine headaches and the lack of credible reporting, it would be futile to further develop the claim. As to the September 2011 statement, the Board notes that such significantly precedes the appeal period and therefore has little probative value. The Board has also considered the applicability of the Court’s ruling in Holmes v. Wilkie, No. 19-2495 (2020) with respect to non-headache symptoms under Diagnostic Code 8100. The Veteran reported nausea, vomiting, blurred vision, light and noise sensitivity, and sensory changes at the VA examinations. Review of contemporaneous medical treatment records do not show such symptoms attributable to migraine headaches. Given that the Veteran’s lay reporting has been found not to be credible and the absence of objective evidence concerning the frequency, duration, and severity of the claimed symptoms with respect to migraine headaches, an increased rating on that basis is not warranted. REASONS FOR REMAND 1. Entitlement to TDIU is remanded. As discussed in the JMR, the issue of TDIU due to headaches has been raised. The Board notes that the Veteran is in receipt of a total rating for PTSD throughout the appeal. Though such would appear to render a TDIU claim moot, the Veteran may still be entitled to special monthly compensation (SMC) based on housebound status. As the adjudication of the service connection claim for a stomach disorder may bear on eligibility for SMC, the Board will defer adjudication at this time. 2. Entitlement to service connection for a stomach disorder is remanded. The Veteran asserts that he has a stomach disorder related to service. See October 2018 Hearing Testimony. The Board remanded the matter for a VA examination with opinion regarding the etiology of a stomach disorder. A VA examination with opinion was obtained in December 2019. In July 2020 correspondence, however, the Veteran raised a theory of secondary service connection based on his service-connected PTSD and identified an inguinal hernia, which was not addressed in the examination or opinion. The July 2020 appellate brief also argues that medications for the Veteran’s service-connected disabilities may cause his stomach disorder. Accordingly, an addendum opinion should be obtained addressing these points. The matters are REMANDED for the following action: Request an addendum opinion from the December 2019 stomach examiner. The examiner is asked to address the following: 1. Specify whether the Veteran has had a diagnosis of an inguinal hernia during the appeal. If a diagnosis is not made, reconcile the finding with the medical treatment records submitted in July 2020. 2. If the examiner makes a diagnosis of a hernia, is it at least as likely as not that the hernia had its onset in or is otherwise etiologically related to active service? 3. Is it at least as likely as not that a stomach disorder (to include a hernia, if diagnosed) was proximately caused by the Veteran’s PTSD or medications for any of his service-connected disabilities? 4. Is it at least as likely as not that a stomach disorder (to include a hernia, if diagnosed) underwent any incremental increase in disability regardless of its permanence, due to the Veteran’s PTSD or medications for any of his service-connected disabilities? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alhinnawi 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.