Citation Nr: 21003441 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-20 931 DATE: January 21, 2021 ORDER Since September 29, 2010, a rating of 50 percent for migraine headaches is granted. Since September 29, 2010, a rating of 10 percent for traumatic brain injury (TBI) is granted. REMANDED A rating in excess of 10 percent for TBI. A total disability based on individual unemployability (TDIU) prior to September 14, 2013.   FINDINGS OF FACT 1. Since September 29, 2010, the Veteran’s migraine headaches have manifested in symptoms of frequent, completely prostrating attacks that are productive of severe economic inadaptability. 2. Since September 29, 2010, the level of evaluation for at least two of the facets for the Veteran’s TBI under the Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified table was level 1. CONCLUSIONS OF LAW 1. Since September 29, 2010, the criteria for a maximum rating of 50 percent for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code (DC) 8100. 2. Since September 29, 2010, the criteria for a 10 percent rating for TBI are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2003 to April 2008. He also had periods of active duty for training (ACDUTRA) in June 2009 and October 2012, with additional service in the Army Reserves. The case is on appeal from an April 2011 rating decision. In January 2019, the Veteran testified at a Board hearing. In April 2019, the Board remanded the case for additional development. The Veteran is seeking higher ratings for his migraine headaches and TBI symptoms. He filed a claim for increase in September 29, 2010, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). While the claim was on appeal, the Veteran was awarded 30 percent from June 27, 2019 for migraines. As this does not represent a full grant of the benefit sought, the increased rating claim now before the Board is for a compensable rating for TBI for the entire appeal period, and for a rating in excess of 0 percent for migraine headaches prior to June 27, 2019, and in excess of 30 percent thereafter. Additionally, the Veteran was awarded a TDIU since September 14, 2013. As his claim for TDIU was part and parcel of his increased rating claim for migraines and TBI symptoms, an earlier effective date for his TDIU is also still on appeal. Additional evidence has been associated with the claims file since the July 2020 supplemental statement of the case (SSOC), but the Board finds the claim for an increased rating for migraine headaches is fully allowed in this decision and thus, a remand for another SSOC is not necessary for that claim. See 38 C.F.R. § 20.1305(c). However, as the evidence is pertinent to the claim of increased rating for TBI and for an earlier TDIU effect date, a remand for RO consideration of the evidence is necessary, as discussed in the remand section below. Id. General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. A rating in excess of zero percent for migraine headaches prior to June 27, 2019, and in excess of 30 percent thereafter. Specific Legal Criteria Under DC 8100 pertaining to headaches, a noncompensable rating is assigned for less frequent attacks. 38 C.F.R. § 4.124a, DC 8100. A 10 percent rating requires that the condition be productive of headaches with characteristic prostrating attacks averaging one in two months over last several months. A 30 percent rating requires headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent rating requires that the disability be manifested by very frequent and prostrating and prolonged attacks that are productive of severe economic inadaptability. Analysis The Veteran maintains that he is entitled to a higher rating for his service-connected migraine headaches. At the January 2019 Board hearing, the Veteran voiced disagreement with the findings from prior VA examinations, and contended the examiners did not find prostrating migraine attacks while simultaneously indicating that his headaches have negatively affected his work attendance. Starting in September 2009, just prior to the one-year appellate look back period, VA treatment records reflect that the Veteran was experiencing daily headaches, and “cannot think clearly with headaches.” See September 2009 medical CAPRI document. A physiatrist physician rated his headaches as “severe,” with sensitivity to light and noise as also severe, and mild vision problems. Id. He again reported constant headaches and sensitivity to light and noise in December 2009, and in July 2010, it was noted that while he always has a low grade headache, during the daytime they will “get really bad.” See July 2010 medical CAPRI document. The Veteran was first afforded a VA examination in connection with his increased rating claim in November 2010. He reported that he was not currently on medications, and was experiencing headaches, mostly bifrontal, that were “always present,” approximately 3 out of 10 on a pain scale, but up to 3 times per day with pain increasing to 8 out of 10, causing him to have to sit or pull over if driving. The Veteran also complained of non-headache symptoms associated with the migraines to include photophobia, phonophobia, occasional nausea and vomiting, visual blurring, and vertigo one to two times per week. He stated he did not leave work due to the headaches, but felt that he should have. The examiner found a diagnosis of mixed headache disorder of migraine and muscle tension, daily and chronic, mild to moderate. In VA treatment records from May 2011 to March 2015, the Veteran reported frequent “debilitating” and “intense” headaches, with extreme light and noise sensitivity with occasional nausea and vomiting. He describes wearing sunglasses indoors, and when bad, must go into a dark room and lie down. At an August 2012 VA examination for PTSD, he stated that headaches impair his ability to sleep, with sharp pain in the right parietal region two days per week lasting less than 24 hours. His treatment consisted of “rest in a dark room” with prescribed Gabapentin. At his next VA examination for headaches in March 2018, and described worsened headaches with photophobia, phonophobia, and visual aura. Symptoms checked by the examiner included pain localized on the right side of the head, sensitivity to light, a duration of less than one day, with a functional impact of “occasional h/a but no impact when on own at night as not exposed to noise, light or people.” The examiner opined the Veteran does not have characteristic prostrating attacks, but also noted that headaches have affected his attendance at work in the past. At a PTSD examination conducted that same day in March 2018, the Veteran reported that his chronic, frequent headaches are “debilitating, and “detour” his actions. From April 2018 until July 2019, VA treatment records reflect continued daily headaches, light and sound sensitivity with visual aura. It is also noted that they last anywhere from 15 minutes to three hours, with little success using medication to include Imitrex and propanolol. Following the April 2019 remand, the Veteran was afforded a new VA examination in June 2019. The Veteran was listed as using daily topiramate and propanolol for medication, and historically lost 20 days of work in the past 12 months. The examiner checked symptoms of constant head pain, pain on both sides of the head, nausea, vomiting, sensitivity to light and sound, and changes in vision. The examiner noted prostrating attacks of headache pain once every month, with a functional impact of 2 to 4 weeks work-time lost in last 12 months. Upon consideration of the evidence of record, the Board finds that the Veteran’s headaches meet the criteria for a 50 percent disability rating under DC 8100 for the entire appeal period. Since September 2009, just prior to the start of the appeal period on review, the record shows the Veteran reporting daily headaches of up to three hours during the day. Thus, he meets the frequency necessary for a 50 percent rating. The severity of the headaches has been described by the Veteran and a physiatrist as severe and debilitating, with symptoms of extreme sensitivity to light and sound, visual aura, occasional nausea and vomiting, and the requirement to wear sunglasses indoors, lie down in a dark room, and take daily medication for any relief. Furthermore, it is clear that the Veteran regularly takes two daily medications to manage his headaches, and they are not always effective in relieving his headache pain. Entitlement to a higher rating should not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Jones v. Shinseki, 26 Vet. App. 56, 63. As DC 8100 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran’s headaches, the Board is precluded from considering the relief afforded by the Veteran’s medication, if any, in evaluating the severity of his disability. Id. In this regard, while the November 2010 and March 2018 VA examiners indicated there were no prostrating episodes, it is not clear whether they considered the ameliorative effect of his using various pain medications or dark-room treatment in making their assessment of the nature, frequency, and duration of his headaches. The Board has also considered not only whether there has been severe economic inadaptability but whether the headaches have been capable of such. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Furthermore, in Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018), it was held that the phrase “characteristic prostrating attacks” plainly describes headaches that typically produce powerlessness or a lack of vitality. This matches the March 2018 and June 2019 examiners’ description that his migraines have affected his attendance at work, in addition to a November 2020 lay statement from the Veteran’s former employer of migraine issues causing work problems, despite the nighttime employment. As such, his headache symptoms meet the 50 percent rating criteria. The Board acknowledges that the VA examination reports of record do not confirm very frequent prostrating and prolonged attacks that are productive of severe economic inadaptability. However, when looking at the severity of the Veteran’s headache symptoms, and when affording all reasonable doubt in his favor, the Board determines a 50 percent rating is appropriate for the entire appeal period. As this is the maximum rating available under DC 8100, it constitutes a full grant of the benefit sought on appeal. Additionally, as the date entitlement arose is slightly more than one year prior to the date of receipt of the claim for increase, the appropriate effective date for the 50 percent rating is September 29, 2010, the date of the claim. To the extent any earlier effective date is sought, the Board finds that a preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In sum, the Board determines when resolving reasonable doubt in favor of the Veteran, his service-connected migraine headache disability more nearly approximates symptoms of very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability, for the entire appeal period. For these reasons, the Board finds that a maximum rating of 50 percent for his migraine headache disability is warranted since September 29, 2010. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. A rating in excess of zero percent for TBI. Specific Legal Criteria TBI is evaluated under 38 C.F.R. § 4.124a, DC 8045. Under that DC, there are three main areas of dysfunction listed that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In each individual, symptoms may fluctuate in severity from day to day. Adjudicators are to evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Adjudicators are to evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, they are to separately evaluate any residual with a distinct diagnosis that may be evaluated under another Diagnostic Code, such as migraine headache, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. VA is to evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of Traumatic Brain Injury Not Otherwise Classified.” Physical (including neurological) dysfunction is evaluated based on the following, under an appropriate Diagnostic Code: Motor and sensory dysfunction, including pain of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled “total.” However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than total, since any level of impaired consciousness would be totally disabling. Adjudicators are to assign a 100 percent evaluation if “total” is the level of evaluation for one or more facets. If no facet is evaluated as “total,” adjudicators are to assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. The evaluation assigned is based upon the highest level of severity for any facet of cognitive impairment and other residuals of traumatic brain injury not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Analysis The Veteran and his representative contend that the currently assigned rating does not compensate for the severity of the symptoms experienced as a result of his TBI, which the Veteran asserts has manifested by sleep deprivation, weight gain, speech pattern problems, ability to concentrate, irritability, and headaches. The Board notes that pursuant to 38 C.F.R. § 4.124a, his symptom of migraine headaches associated with his TBI is already rated separately DC 8100, with the award of 50 percent for the entire appeal period as discussed in the prior section. As such, the question turns as to whether any remaining symptoms (not already associated with or rated under another DC) warrant a compensable rating under DC 8045. For purposes of the decision herein discussed, eight facets have already been allocated to other separately-diagnosed service-connected disorders, or are not presently demonstrated in the evidence of record. The following four facets have been attributed to the Veteran’s service-connected PTSD by medical providers and VA examiners: memory, attention, concentration, and executive functions; judgment; social interaction; and neurobehavioral effects. The following three symptoms are either not present in the Veteran or rank at a 0 level impairment: orientation; visual spatial orientation; and consciousness. Finally, while the Veteran has some reported subjective symptoms, such as tinnitus, insomnia, headaches, vision issues, sensitivity to sound and light, these have all been attributed to other separately-diagnosed service-connected disorders. Thus, the remaining unallocated TBI symptoms are physical dysfunctions that fall under the two facets of motor activity and communication issues. The Board will consider these facets for the Veteran’s TBI rating. VA treatment records demonstrate the Veteran experiencing motor activity issues starting just prior to the one-year appellate look back period. In September 2009, a physiatrist physician rated the Veteran as “severe” in poor coordination and clumsiness. See September 2009 medical CAPRI document. She also marked “moderate,” for slowed thinking and difficulty with organization. Id. In August 2011, a behavioral health lab consult report noted the Veteran experiencing agitation for several days due to motor retardation. A year later in August 2012, a nurse practitioner noted that the Veteran appeared to have significant problems articulating feelings and worries about his memory and inability to drive, and that he seemed to be minimalizing his symptoms. In an October 2012 evaluation by a neuropsychologist, it was found that his fine motor speed was in the low average range. There is also evidence of communication problems. In February 2010 at a mental health assessment, it was noted that the Veteran experienced a normal rate and rhythm of speech, but was attempting to speak very deliberately. At his October 2012 evaluation by the neuropsychologist, it was determined that his verbal fluency was in the low average range, with observed frequent fillers and pauses in his conversation. He also tested as “impaired” in confrontation naming, which involves the selection of a specific verbal label corresponding to a viewed picture of an object. The neuropsychologist went further to recommend referral to a speech language pathologist. At a September 2018 mental health assessment, his language was listed as “partially aphasic. The Veteran also endorsed worsened speech patterns at his January 2019 Board hearing, and in a November 2020 lay statement, his former employer stated he witnessed the Veteran slurring his words. The Veteran was afforded VA examinations for TBI in November 2010, July 2012, March 2018, and June 2019. For reasons discussed above, the Board will only address the findings associated with the facets for motor activity and communication. In November 2010, the VA examiner rated him at 0 for both motor activity and communication, although the Veteran reported some slurring of his words. In July 2012, the examiner again indicated that communication and motor activity were not impaired, and that he was able to maintain all activities of daily living including personal hygiene. The March 2018 examiner marked that his motor activity was normal, and that the Veteran was able to communicate and comprehend by spoken and written language. Finally, in June 2019, a physiatrist found independence in basic and instrumental daily activities, and marked normal for motor activity and communication abilities. Based on a holistic analysis of the totality of the medical and lay evidence, to include VA treatment records and the statements of the Veteran and his former employer regarding observable symptoms, the Board finds that at least a 10 percent rating under DC 8045 is warranted. The evidence supports that the Veteran experiences at least occasionally impaired comprehension or expression of either spoken or written language, and mildly slowed motor activity despite otherwise normal motor functioning. This is supported by the September 2009 physiatrist rating the Veteran severe/poor in coordination and clumsiness, the August 2011 report of motor retardation, the October 2012 neuropsychologist finding slightly impaired fine motor skills and verbal fluency (with a speech pathologist recommendation), and reports of the Veteran being partially aphasic and slurring of words in 2018, 2019, and 2020. These symptoms are attributed to his TBI rather than a nonservice-connected condition or a separate diagnosis. The Board also determines the date entitlement arose is slightly more than one year prior to the date of receipt of the claim for increase, based on the findings of the September 2009 examination by a physiatrist. Thus, the appropriate effective date for the 10 percent rating is September 29, 2010, the date of the claim. To the extent any earlier effective date is sought, the Board finds that a preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In sum, the evidence of record shows that residuals of the Veteran’s TBI warrant at least a 10 percent rating under DC 8045. Accordingly, the issue on appeal then becomes entitlement to an initial rating in excess of 10 percent for TBI, which is addressed further in the remand section below. The Veteran is not prejudiced by this intermediary action as it is a grant of benefits without any denial of greater benefits. REASONS FOR REMAND 1. A rating in excess of 10 percent for TBI. 2. A TDIU prior to September 14, 2013. The Board finds that a remand is warranted. Additional pertinent evidence was associated with the claims file subsequent to the July 2020 SSOC, to include a July 2020 VA examination for PTSD and submitted lay statements of the Veteran, his spouse, and former employer, that discuss TBI-related symptoms. No ensuing SSOC on this matter has been issued. See 38 C.F.R. §§ 19.31, 19.37. Thus, a remand is warranted. It is also observed that the November 2020 lay statements include assertions of the Veteran’s inability to sustain substantial and gainful employment “over the past decade,” which is prior to the current effective date for TDIU of September 14, 2013. The Board finds that the Veteran’s TDIU claim for the period prior to September 14, 2013, is part and parcel of the Veteran’s increased rating for TBI, and thus, no further appeal is necessary for that issue and the Board has jurisdiction over it. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). However, as the issue of TDIU is intertwined with the Veteran’s claim, an earlier effective date for TDIU is also remanded. Id. The matters are REMANDED for the following action: Review the record evidence received since the July 2020 SSOC. If the benefits sought on appeal are not granted in full, furnish the Veteran and his representative an SSOC that includes consideration of all evidence associated with the claims file since the July 2020 SSOC. Then return the case to the Board. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, 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.