Citation Nr: 21002732 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 12-36 104 DATE: January 14, 2021 ORDER Entitlement to an extraschedular rating prior to July 30, 2015, for tension headaches with migraines is denied. FINDING OF FACT Prior to July 30, 2015, the Veteran's headaches disability did not present an exceptional case with symptoms more severe, frequent, or long-lasting than what is contemplated in the assigned 50 percent rating. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent on an extraschedular basis for the Veteran’s headache disability prior to July 30, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION This case has a highly complex procedural history, notwithstanding the fact that the Veteran has been granted TDIU (a 100% rating) for the last five years. Notwithstanding, the Board has undergone a detailed review of this record to fully address this case. The Veteran served on active duty in the United States Coast Guard from April 2002 to June 2002 and from February 2003 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that granted service connection for tension headaches and assigned a noncompensable disability rating from November 4, 2010. A January 2015 rating decision granted an increased, 10 percent rating for the headaches with migraines from January 16, 2015. In December 2015, the Veteran testified at a personal hearing before a Veterans Law Judge that has since retired. In June 2016, the Board granted entitlement to an initial 30 percent rating for the service-connected headaches from November 4, 2010, to January 13, 2016, and a 50 percent rating from January 13, 2016. The Board also granted entitlement to special monthly compensation (SMC) at the housebound rate from January 13, 2016. The Board remanded entitlement to an extraschedular rating for the headaches prior to January 13, 2016, entitlement to a total disability based on individual unemployability (TDIU) due solely to the headaches, and SMC at the housebound rate prior to January 13, 2016, to the Agency of Original Jurisdiction (AOJ) for additional development. The Veteran appealed the Board’s denial of entitlement to a schedular rating in excess of 30 percent prior to January 13, 2016, for the headache disability to the United States Court of Appeals for Veterans Claims (Court). In a February 2017 order, which incorporated the parties’ January 2017 Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the matter to the Board. In a June 2017 decision, the Board granted entitlement to an initial 50 percent schedular rating for the service-connected headaches with migraines from November 4, 2010, to January 12, 2016. A December 2019 Board decision remanded entitlement to an extraschedular rating for the headaches prior to January 13, 2016, and entitlement to TDIU prior to January 13, 2016, for additional development. An August 2020 rating decision granted entitlement to TDIU from July 30, 2015, and SMC at the housebound rate from January 7, 2016. The Board finds these grants were full grants of the benefit sought by the Veteran. In his January 2016 TDIU application, the Veteran contended he became too disabled to work in July 2015. In addition, the June 2016 Board decision granted entitlement to SMC at the housebound rate from January 13, 2016, because the schedular requirements of SMC at the housebound rate were met with the grant of the 50 percent rating for the headaches from that date. SMC is payable at the housebound rate when a veteran has a service-connected disability rated as 100 percent disabling, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) is permanently housebound because of a service-connected disability or disabilities. 38 U.S.C. § 1114(s)(1). VA's duty to maximize benefits requires the Board to determine whether any combination of the Veteran's service-connected disabilities would establish SMC at the housebound rate. See Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008). The Board remanded entitlement to an earlier effective date for the SMC at the housebound rate because the grant of a total rating for the service-connected headaches prior to January 13, 2016, would mean the schedular requirements for SMC at the housebound rate were met from an earlier date. The AOJ granted SMC at the housebound rate from the earlier date of January 7, 2016, which is the effective date of the assigned 100 percent rating for the Veteran’s service-connected vertigo. The Veteran has not contended that he was permanently housebound because of the service-connected headaches or that the schedular requirements for SMC at the housebound rate were met prior to January 7, 2016. Notably, even if the Board were to grant a 100 percent rating for the headaches on an extraschedular basis, the schedular requirements would still not be met prior to January 7, 2016. Accordingly, those issues are no longer on appeal and will not be addressed by the Board. As entitlement to TDIU was granted due solely to the service-connected headaches, the matter before the Board is whether an extraschedular rating in excess of 50 percent is warranted prior to July 30, 2015. Entitlement to an extraschedular rating for service-connected headaches. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. In a recent precedential case, the Court held DC 8100 contemplates more than just headache symptoms and requires that VA consider all symptoms the veteran experiences as a result of migraine attacks. Holmes v. Wilkie, No. 19-2495, slip op. at 7 (Vet. App. Nov. 25, 2020). The Court noted a specific veteran’s symptoms still may raise extraschedular considerations if they present an exceptional case with symptoms more severe, frequent, or long-lasting than what is contemplated in the rating criteria. Id. at 8. Based on a review of the record, the Board finds the Veteran’s symptoms prior to July 30, 2015, did not present an exceptional case with symptoms more severe, frequent, or long-lasting than what is contemplated in the assigned 50 percent rating—very frequent, completely prostrating and prolonged attacks, leading to economic inadaptability. The Veteran was provided a VA examination in November 2010. He reported having daily headaches but severe headaches that lasted six to eight hours four to six times a month. The examiner noted the headaches were not prostrating and that the Veteran rarely missed work due to the headaches. In January 2012 letters, the Veteran’s father reported the severity of the headaches caused the Veteran to lie down at times. In his January 2012 notice of disagreement, the Veteran reported the headaches could last up to 10 hours and required him to lie down two to three times a month. The Veteran was provided another VA examination in January 2015. The Veteran reported having tension headaches daily and migraine headaches that lasted between six and twelve hours two to four times a week. The symptoms included pain, sensitivity to light and sound, and occasional nausea. He could not work during the migraines, causing him to miss work. The examiner opined the headache disability impacted the Veteran’s ability to work, noting he had to leave work early at times. The Veteran submitted multiple headache logs documenting the severity and frequency of his headaches that covered periods between January 2011 and September 2015. As the parties agreed in the January 2017 JMPR, the diaries reveal almost daily tension headaches and frequent migraine headaches prior to January 2016. At the December 2015 Board hearing, the Veteran reported having daily tension headaches and weekly migraines. He testified that he had experienced “quite a few” prostrating headaches and that they had caused him to miss promotions at work. He reported he had not worked since August 2015 due to a work-related neck injury, but also in part due to migraines. He separately noted he had to miss work “very few times” because of the migraines. He could not work during the migraines, which lasted most of the day. He indicated that he could work through the tension headaches, but that his job in data input aggravated his headaches. The headaches also made it difficult to concentrate. (Continued on the next page)   In January 2016, the Veteran submitted documents created by his employer that show he last worked full-time in August 2014. He was noted to have several medical conditions, including daily headaches and intermittent migraines. In March 2016, the Veteran’s former employer submitted a statement that noted the Veteran last worked July 29, 2015, and had a disability separation due to migraines. The Board finds this evidence shows the Veteran’s headache disability did not present an exceptional case with symptoms more severe, frequent, or long-lasting than what is contemplated in the assigned 50 percent rating prior to July 30, 2015. During this period, the Veteran had daily headaches and frequent migraines that interfered with work, but reported on multiple occasions that he rarely missed work due to the headache disability during the period under consideration. The timespan, frequency, and severity of these headaches and migraines do not show that an exceptional disability picture existed prior to July 30, 2015. It is important for the Veteran to understand that not all evidence in this case supports the current evaluations, let alone something else. The severity of the Veteran’s headaches and migraines during this period simply cannot be described as more severe than very frequent completely prostrating and prolonged attacks. Accordingly, the Veteran’s symptoms are fully contemplated by the 50 percent schedular rating, and the criteria for an extraschedular rating prior to July 30, 2015, for tension headaches with migraines have not been met. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.