Citation Nr: 21003744 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 07-22 715 DATE: January 22, 2021 ORDER Entitlement to a disability rating of 50 percent for migraines, but no higher, for the period prior to March 22, 2010 is granted. Entitlement to a disability rating in excess of 50 percent for migraines for the period from March 22, 2010 onward is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease and degenerative joint disease, with intervertebral disc syndrome is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) based solely on migraine headaches on an extraschedular basis is remanded. FINDINGS OF FACT The evidence is at least in equipoise as to whether, absent the ameliorating effects of medication, the Veteran’s migraines most closely approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 50 percent, but no higher, for migraines for the period prior to March 22, 2010 have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a. 2. The Veteran has already been granted the highest available rating for migraine headaches for the period from March 22, 2010 onward. 38 C.F.R. § 4.124a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to June 1986 and on the temporary disability retired list from June 1986 to May 1991. The Veteran’s migraine and lumbar spine claims originate from a November 2004 claim for increased ratings of the Veteran’s lumbar spine disability and post-concussion syndrome. Both claims were denied in a December 2005 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran timely initiated and perfected an appeal of these claims. In June 2016 the Board of Veterans’ Appeals (Board) denied the Veteran’s lumbar spine claim and, in pertinent part, granted the Veteran a separate compensable rating for migraine headaches, as a residual of post-concussion syndrome. The Board staged the Veteran’s migraine rating as 30 percent for the period from October 23, 2008 and 50 percent for the period from December1, 2012 onward. In September 2018 the Court of Appeals for Veterans Claims (CAVC) vacated the Board’s June 2016 decision as to the rating of the Veteran’s lumbar spine disability and the level, and effective dates thereof, of the Veteran’s separate migraine headache rating. Pursuant to the September 2018 CAVC action, in February 2019 the Board remanded the Veteran’s lumbar spine claim to obtain a new VA examination that complied with the CAVC holdings in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Also in February 2019, the Board granted entitlement to a disability rating of 30 percent for the Veteran’s migraines for the period prior to October 23, 2008; denied entitlement to a disability rating in excess of 30 percent for the period from October 24, 2008 to March 21, 2010; and granted a disability rating of 50 percent, but no higher, for the period from March 22, 2010 onward. While development of the remanded lumbar spine claim was undertaken at the RO level, the Veteran appealed the Board’s February 2019 decision as to his migraine claims to CAVC. In April 2020 CAVC vacated the February 2019 Board decision as to the Veteran’s migraine claims, and directed that the Board readjudicate the Veteran’s migraine claims and specifically address whether a TDIU rating could be predicated on the Veteran’s migraine headaches alone for the purposes of special monthly compensation (SMC). A supplemental statement of the case (SSOC) addressing the Veteran’s lumbar spine claim was issued in May 2020. Thus, the Veteran’s claims return to the Board as: 1. Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease and degenerative joint disease, with intervertebral disc syndrome. 2. Entitlement to a disability rating in excess of 30 percent for the period prior to March 22, 2010. 3. Entitlement to a disability rating in excess of 50 percent for migraines for the period from March 22, 2010 onward. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) based solely on migraine headaches. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Entitlement to a disability rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the applicable rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (U.S. 2012). In adjudicating claims for VA benefits, the burden of proof only requires an “approximate balance” of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is “unique” to the VA adjudicatory process, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. Migraines are rated under diagnostic code 8100. 38 C.F.R. § 4.124a. A disability rating of 30 percent requires a showing of characteristic prostrating attacks occurring on an average onc ea month over last several months; a disability rating of 50 percent requires a showing of very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. Diagnostic code 8100 does not contemplate the effects of any relief provided by medication. Id. 1. Entitlement to a disability rating of 50 percent for migraines for the period prior to March 22, 2010 is granted. An October 2002 VA treatment note reflects a complaint by the Veteran that his migraines occurred twice a week. While outside the period on appeal, this information is probative inasmuch as it relates to later statements by the Veteran and his treating providers. In his November 2004 claim, the Veteran stated that his migraines were so severe that he was unable to eat or sleep. April 2005 and September 2005 VA treating provider notes document “chronic” headaches; the September 2005 note characterizes the chronic headaches as “stable.” The Board finds that these notes do not reflect any shift or change in frequency from the Veteran’s October 2002 report of twice weekly headaches. A December 2005 medical opinion from a private provider reflects the Veteran’s report of “recurrent migraine headaches” that occurred “once every day on the average” with each attack lasting for 30 minutes. The provider documented the Veteran’s statement that he had to miss work approximately twice a month due to his migraine headaches. In his March 2006 notice of disagreement (NOD) the Veteran repeated his contention that his migraines were so severe that they interfered with eating and sleeping. VA treating provider notes dated March 2006 and May 2006 reflect that the Veteran continued to experience migraine headaches, but that he was successfully self-treating his migraines with remedies not prescribed by his VA doctors. The March 2006 note reflects that the Veteran had tried prescription medication, but was unable to tolerate it. In May 2007 the Veteran reported experiencing “7/10” pain in his head to VA treating providers at the time of his visit. In his July 2007 Form 9 the Veteran described his migraines as “unbearable.” He continued to report head pain at the time of VA medical treatment visits in February 2008 and September 2008. Upon consideration of the totality of the evidence currently of record, the Board finds that the evidence is at least in equipoise as to whether, absent the ameliorating effects of prescribed medication and/or other treatments for migraine headaches, the Veteran’s migraines would most closely approximate the criteria for a rating of 50 percent: very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. Therefore, the Board concludes that the criteria for entitlement to a disability rating of 50 percent, but no higher, for migraines for the period prior to March 22, 2010 have been met, and the same is hereby granted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a. 2. Entitlement to a disability rating in excess of 50 percent for migraines for the period from March 22, 2010 onward is denied. A 50 percent rating for the Veteran’s migraines is in effect for the period from March 22, 2010 onward. This represents the highest schedular rating available for migraine headaches under Diagnostic Code 8100. 38 C.F.R. § 4.124a. The Board has considered whether any other diagnostic codes would be appropriate to evaluate symptoms of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Board notes that the Veteran’s migraines are a manifestation of his service connected post-concussion syndrome (PCS), as discussed in previous Board decisions. The Veteran’s non-headache PCS symptoms are currently being rated and compensated under diagnostic code 8045-9304; the rating for that disability is not currently at issue. Therefore, Diagnostic Code 8100 is the most appropriate code for evaluating the Veteran’s migraines. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Per the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedular is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits for the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong in Thun, the evidence does not reflect that such an exceptional disability picture is present to warrant the available schedular criteria for the Veteran's headaches inadequate. A comparison between the level of severity and symptomatology of the Veteran's headaches with the established criteria shows that the rating criteria under DC 8100 reasonably described his disability level and symptomatology with respect to the symptoms he experienced. DC 8100 specifically instructs that a maximum 50 percent disability rating be assigned for frequently completely prostrating and prolonged attacks productive of severe economic inadaptability. As such, the Veteran's precise symptomatology and effects are contemplated by the rating schedule. Due to the available schedular rating adequately contemplating the Veteran's levels of disability and symptomatology for his service-connected headaches, the second and third elements under Thun become moot. In light of the foregoing, a rating in excess of 50 percent for migraines is not available for the period from March 22, 2010 onward. 38 C.F.R. § 4.124a. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease and degenerative joint disease, with intervertebral disc syndrome is remanded. As noted above, in February 2019 the Board remanded the Veteran’s lumbar spine claim to obtain a new VA examination that complied with the CAVC holdings in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that its February 2019 remand directives as to the Veteran’s lumbar spine claim have not been substantially complied with in that the examination obtained is inadequate for adjudication purposes. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. In February 2019 the Board directed that a VA examination and opinion be obtained that, in pertinent part, addressed the following: “The examiner must provide a description either by the Veteran or based on the examiner’s observation of any functional limitation or additional loss in range of motion following repeated use over time. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to back disability alone and discuss the effect of the Veteran’s back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) [emphasis added].” The Veteran was afforded a VA examination in November 2019. The examiner recorded that the Veteran reported no flare-ups of his thoracolumbar spine disability. The November 2019 VA examiner went on to state “I have no basis to offer additional losses of function or motion when it comes to observed repetitive use, repetitive use over time or during a flare-up (as there was no compelling indication for flare ups reported by the Veteran) [emphasis added] based on current exam.” The Board cannot determine whether the Veteran reported flare ups to the examiner and the examiner made a determination that such statements were not “compelling” and thus declined to record them, or whether the Veteran actually did not report any flare ups. More fundamentally, the Board notes that it is the obligation of the Board, not the VA examiner, to make appropriate determinations of competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The VA examiner thus may not decline to record statements by the Veteran on the basis of their own determination of the statements’ probative value. Further, the Board cannot make its own evaluation of the probative weight of the examiner’s opinion without knowing what evidence informed that opinion. Additionally, the operative standard for adjudicating VA benefits claims is not that evidence must be “compelling,” but rather that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. Therefore, the Board concludes that the February 2019 VA examination is inadequate, as the factual basis for the examiner’s conclusions is unclear and there is an indication that an improper standard of evaluation was used. The November 2019 VA examiner also stated that “while the additional functional loss cannot be accurately measured in terms of range of motion [emphasis added] probatively, this veteran states that he has pain with walking, sitting and standing for over 10-15 minutes. He cannot do repetitive bending and stooping due specifically to his lower back.” The Board finds that this statement is not responsive to the February 2019 directive that “[i]f it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).” This directive was issued to ensure compliance with Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). In light of the foregoing, the Veteran’s lumbar spine claim should be remanded to obtain an adequate VA medical opinion that is responsive to the Board’s remand directives and consistent with applicable law. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) for migraine headaches, on an extraschedular basis is remanded. The April 2020 CAVC order directs the Board to address whether TDIU is warranted on the basis of the Veteran’s migraine headaches alone, for purposes of special monthly compensation (SMC). VA will grant a TDIU where the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16. If there is only one such disability, this disability shall be ratable at 60 percent or more. 38 C.F.R. § 4.16. A total disability rating may also be assigned on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b). Section 4.16(b) applies to Veterans who are unemployable by reason of service-connected disabilities but fail to meet the percentage standards set forth in section 4.16(a). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, but it can review the record and determine whether an appropriate case is to be referred to the Director of Compensation Services for consideration of entitlement to TDIU on an extraschedular basis. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015); 38 C.F.R. § 4.16(b). As discussed above, the Veteran’s migraine headaches may not be, as a matter of law, rated any higher than 50 percent for the entire period on appeal. 50 percent is less than the 60 percent criteria for TDIU based on a single disability identified by 38 C.F.R. § 4.16. Thus, any consideration of entitlement to TDIU on the basis of the Veteran’s migraine headaches alone is necessarily based on consideration of entitlement to TDIU on an extraschedular basis. Therefore, consistent with CAVC’s April 2020 order, the Board concludes that the Veteran’s claim to TDIU on the basis of his migraine headaches alone should be remanded to the Director of Compensation Services for consideration of entitlement to TDIU on an extraschedular basis. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate medical provider as to the severity of the Veteran’s lumbar spine disability during the period on appeal. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner must provide a description either by the Veteran or based on the examiner’s observation of any functional limitation or additional loss in range of motion following repeated use over time. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to back disability alone and discuss the effect of the Veteran’s back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Refer the Veteran's claim for entitlement to an extraschedular TDIU on the basis of migraine headaches alone for the rating period from December 23, 2004 to the present, to the Director, Compensation Service, for consideration TDIU under 38 C.F.R. § 4.16 (b). A copy of the Director's decision on this claim must be included in the electronic claims file. The Director is asked to consider whether the Veteran's migraine headaches alone warrant an extraschedular TDIU for the rating period from December 23, 2004 to the present. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.