Citation Nr: 21004145 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-23 932 DATE: January 26, 2021 ORDER For the entire period on appeal, a disability rating of 70 percent, but not higher, for the service-connected mental disability is granted. For the period on appeal prior to July 25, 2019, a disability rating of 30 percent, but not higher, for the service-connected headaches, is granted. Since July 25, 2019, a disability rating higher than 30 percent for the service-connected headaches is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the service-connected mental disability is manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. For the period on appeal prior to July 25, 2019, the service-connected headaches were manifested by characteristic prostrating attacks occurring on an average once a month over last several months. 3. Since July 25, 2019, the service-connected headaches are manifested by characteristic prostrating attacks occurring on an average once a month over last several months. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating of 70 percent for the service-connected mental disability are met; the criteria for a rating of 100 percent are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9434 (2019). 2. For the period on appeal prior to July 25, 2019, the legal criteria for a rating of 30 percent for the service-connected headaches were met; the criteria for a rating higher than 30 percent were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2019). 3. Since July 25, 2019, the legal criteria for a rating higher than 30 percent for headaches are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from May 1999 to July 2009. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In April 2016, the Veteran presented testimony at a Board hearing, chaired via videoconference by a Veterans Law Judge who is no longer available to render a decision, and he accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO’s denial of his claim and he was informed of the information and evidence necessary to substantiate the claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. The Veteran was afforded an opportunity to attend a new hearing conducted by the Veterans Law Judge who would decide the claim, but he did not respond. In September 2018, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board also denied a rating higher than 0 percent for headaches prior to May 18, 2013. The Board’s decision with respect to that claim is final. See 38 C.F.R. § 20.1100. The Board remanded also the issue of entitlement to a higher rating for headaches since May 18, 2013. On remand, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 30 percent, effective July 25, 2019, and granted an increased rating of 50 percent for the service-connected mental disability, effective July 28, 2009. As these do not represent the full grant of benefits sought on appeal, those issues remain on appeal. The issue of TDIU entitlement was not separately appealed but is being considered here as a component of the increased rating claim in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). The evidence demonstrates that the Veteran is unemployed, and he attributes this to his mental disability. Disability Ratings – Laws and Regulations Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In the process of evaluating a psychiatric/mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran’s psychiatric symptoms and the veteran’s capacity for adjustment during periods of remission. After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering rather than based solely on the examiner’s assessment of the level of disability at the moment of examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. See 38 C.F.R. § 4.126. The VA Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, the VA Secretary anticipated that any list of symptoms justifying a particular rating would, in many situations, be either under- or over-inclusive. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. This construction is consistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). Since August 4, 2014, VA has required a diagnosis of a mental disorder that conforms with the DSM–5. For claims prior to that date, VA required a diagnosis that conformed with the DSM–IV–TR. See Schedule for Rating Disabilities: Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093, 45,093 –94 (Aug. 4, 2014 (amending 38 C.F.R. § 4.125)). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Psychiatric disorders are to be rated on the severity, frequency, and duration their respective signs and symptoms. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to an increased rating for the service-connected mental disability. In an August 2010 rating decision, VA granted service connection for bipolar disorder, attention deficit disorder, hyperactivity disorder, and simple phobia, and assigned an initial disability rating of 30 percent under Diagnostic Code 9434, effective July 28, 2009. The current appeal arises from an increased rating claim received at VA on October 6, 2010. In a June 2013 rating decision, the disability rating was increased to 50 percent, effective October 31, 2011. Pertinent to the claim on appeal, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities. A 0 percent rating is warranted where a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted for PTSD if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating, may be assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. An April 2013 letter from the Veteran’s wife states that the Veteran exhibits constant irritability toward his family without a cause. He lacks motivation to complete tasks with the family. She asserted that the Veteran’s bouncing on his exercise ball is an obsessive ritual. There are periods where he lets his hygiene go, overeats, and spends money. He is lax when caring for their children. He is unable to sustain productive working relationships. He goes for long periods without the desire to speak to his own parents and siblings. He has an inability to remember names of family members, or to produce clear speech. And, he has a difficulty adapting to stressful situations (Record 04/27/2013)a. A May 2013 VA TBI Examination reveals a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. The Veteran had mildly impaired judgment: For complex or unfamiliar decisions, he was occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. Social interaction was occasionally inappropriate. Visual spatial orientation was mildly impaired: Occasionally he would get lost in unfamiliar surroundings, had difficulty reading maps, or following directions (Record 05/17/2013). A May 2013 VA PTSD Examination reveals the Veteran’s complaint of PTSD, nightmares, and insomnia. It was taking him about 1 hour to get to sleep, and he would wake up every 1-2 hours. He was napping during the day. He would thrash at night and talk in his sleep, and had nightmares about combat. He would get depressed with low feelings, alternating with hyperactive episodes from about 2006. He had periods of overspending, and cycled into irritability when he was high or low. He had hypervigilance and could not sit with his back to a door. He was suspicious of people. Symptoms included difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran left this job and had been unemployed for several months due to his mental health symptoms (need to rock, depressed mood, difficulty concentrating, lack of sleep, increase in irritability, lack of focus). The Veteran turned all of his finances over to his wife after becoming 25,000 dollars in debt during hypomanic spending sprees. The Veteran was unaware when asked how much money he gets each month, and was also unaware and uninterested in understanding where his finances go. The examiner found that mental health symptoms would likely cause moderately severe discomfort when interacting with other people and moderately reduced communication effectiveness at times. This level of fatigue, concentration problems, and inner turmoil would likely cause moderate work inefficiency and lack of productivity. The amount of fatigue, apathy, and motivation problems he conveyed would likely cause intermittent moderately reduced reliability, for example he said he had a tendency at times to forget things he had planned on doing that day. The veteran did report some significant avoidance of social contact and an overall tendency towards confrontation, and thus, would experience moderate problems with his ability to interact effectively in groups. His ability to maintain a logical thinking process appeared adequate and would not likely impact his social or vocational functioning. He had some moderate reduction in his ability to adapt to stressful circumstances such as workplace, classroom, and other social environments. He did not suffer from gross impairment in thought processes, delusions, or hallucinations. He was not a danger to himself or others (Record 05/17/2013). A July 2019 VA examination reveals diagnoses of PTSD, unspecified bipolar disorder, ADHD, and simple phobia. It was not possible to differentiate the portion of occupational and social impairment attributable to each diagnosis (Record 07/29/2019). The examiner reviewed the evidence and noted a February 24, 2011, treatment record where the Veteran reported several psychiatric symptoms including stomping his foot when passing telephone poles. This compulsion could have been an indication of OCD, which the psychologist took into account with the diagnoses (PTSD, chronic, severe; BAD NOS; ADHD NOS; r/o OCD). It was also noted that the Veteran got upset when his daily rituals/routines were interrupted. According to the examiner, without additional information, the significance of this is unclear as some people are less adaptable and flexible than others. A search of claimant’s records did not find a diagnosis of OCD or discussion of obsessions. In an April 2013 statement the Veteran discussed three stressor events and his psychiatric symptoms including anxiety, insomnia, fear of the dark, and panic attacks. In an April 2013 statement, the Veteran’s wife reported several psychiatric symptoms and their functional impact. Based on this review, the examiner concluded that it is clear that the Veteran had several psychiatric symptoms that could have contributed to social or occupational impairment. Specifically, his symptoms indicate that he likely would likely have had problems interacting with others due to his anxiety, lack of flexibility, mood swings, and compulsive behaviors. In a work setting, there may have also been safety concerns due to his sleep impairment and lack of focus (Record 07/29/2019). VA outpatient records can be summarized as showing ongoing sleep impairment, irritability, mood swings, excessive spending (bankruptcy), difficulty concentrating, racing thoughts, phobias, depression, and anxiety, but full orientation, speech, affect, thought processes, and thought content, and absence of suicidal ideation or homicidal ideation. A March 9, 2012, Psychiatry Note characterized his PTSD as “severe” (Record 05/13/2015 at 15). In terms of family relations, he reported in November 2018, "I can go to being very happy and nothing bothers me to jumping down my kids throat and then will switch right back to being happy" (Record 05/13/2015 at 16). In a May 3, 2016, Psychiatry Consult, the Veteran reported relationship issues and hallucinations (Record 05/16/2016 at 5). The Veteran reported that he feels a deceased friend’s presence when he is alone. He has a phobia to be in the dark by himself (Record 05/13/2015 at 27). The Veteran reported that, every time he passes a telephone pole, he has to stomp his foot. He gets very upset and agitated if his daily rituals/routine is interrupted and the irritation can upset his whole day (Record 05/13/2015 at 27). The Veteran reported that he uses an exercise ball to relax. He reports he could bounce for a week straight (Record 05/13/2015 at 17). In a May 3, 2016, Psychiatry Note, the Veteran reported that he was not working and had an unstable employment history (Record 05/12/2016 at 13). After a review of all of the evidence, the Board finds that the criteria for a rating of 70 percent for the service-connected mental disorder are met. However, the criteria for a rating of 100 percent are not met. The evidence establishes that the Veteran has deficiencies in family relationships, shown by evidence of “relationship issues” and evidence that he jumps “down his kids throat”; that he has deficiencies in work, due to evidence of inability to keep a job, and symptoms that would make it difficult to interact with other people; that he has deficiencies in judgment, due to compulsive spending, compulsive foot stomping, compulsive bouncing on an exercise ball, and phobias; that he has deficiencies in thinking, due to problems with concentration, and deficiencies in mood, due to chronic depression and anxiety. The Veteran also has occasional hallucinations of seeing a deceased friend. This is an example of evidence that might support a higher rating, making the evidence more nearly approximate the criteria for a 70 percent rating. Therefore, the Veteran has deficiencies in most areas. These demonstrate entitlement to a rating of 70 percent. The Board finds that the criteria for a rating of 100 percent are not met. Entitlement to a rating of 100 percent for a mental disability requires symptoms of the type and degree representative of serious impairments of thought, memory, communication, behavior, and orientation, such as to result in total social impairment and total occupational impairment. Here, the Board finds that the gross impairment of behavior resulting in severe disorientation, which is contemplated by the 100 percent rating criteria, is simply not evident in this case at any time. The Veteran has generally been found to be fully oriented on examination. His visual-spacial orientation was found to be only mildly impaired in May 2013. In sum, the Board finds that the service-connected mental disability is manifested occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but is not more nearly approximated by total occupational and social impairment. In light of these findings of fact, the Board concludes that a disability rating higher than 70 percent is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to an increased disability rating for headaches. The current appeal arises from a service connection claim received at VA on October 5, 2010. In a June 2013 rating decision, VA granted service connection for tension headaches and assigned an initial disability rating of 0 percent under Diagnostic Code 8100, effective July 28, 2009, the day following service separation. In an April 2020 rating decision, the disability rating was increased to 30 percent, effective July 25, 2019. Under Diagnostic Code 8100, a 50 percent rating is available with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is available with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is available with characteristic prostrating attacks averaging one in 2 months over last several months. With less frequent attacks, a 0 percent rating is for application. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define “prostrating” as used in Diagnostic Code 8100. By way of reference, the Board notes that according to Webster’s New College Dictionary, 909 (3rd Ed. 2008), “prostrate” is defined as “physically or emotionally exhausted.” “Incapacitated” is listed as a synonym. A very similar definition is found in Dorland’s Illustrated Medical Dictionary, 1554 (31st Ed. 2007), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Similarly, the regulations provide no clarification as to the meaning of the phrase “productive of severe economic inadaptability.” The United States Court of Appeals for Veterans Claims (Veterans Court), however, has issued a precedential decision which focuses on the meaning of this phrase. In Pierce v. Principi, 18 Vet. App. 440 (2004), the Veterans Court interpreted the phrase as follows: “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 Veterans 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 Veterans Court in Pierce acknowledged the VA Secretary’s concession that the phrase “productive of severe economic inadaptability” in Diagnostic Code 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Id. at 445. The Veterans Court has not issued another precedent decision on this interpretation; however, several nonprecedential memorandum reviews have provided further analysis and explanation. For instance, in Raulerson v. Peake, 2008 WL 754665 (March 17, 2008), a single judge affirmed a Board decision which had found the claimant’s headaches had not caused severe economic inadaptability and that they were not productive of severe economic inadaptability. Similarly, in Davis v. Shinseki, 2011 WL 1827467 (May 13, 2011), a single judge found that the Board had been able to provide examples and discussion to show that the Veteran in that case had not shown “any economic inadaptability, much less severe economic inadaptability, however it might have defined that phrase.” We interpret these memorandum decisions as a small shift away from the highly hypothetical analysis employed in Pierce. In both Raulerson and Davis, the single judges focused on the facts of the individual cases to determine whether in those particular situations, the headaches at issue were capable of producing severe economic inadaptability. Also see Mendenhall v. McDonald, 2014 WL 4784319 (September 26, 2014). In a more recent single-judge memorandum, the Veterans Court continued this small shift, again focusing on the particular facts of the claimant’s own situation, and affirmed the Board’s decision on the basis that the claimant had not shown evidence that his headaches actually did affect his employability: “he points to nothing in the record[…]such as an adjustment in his work schedule or an inability to complete his workload.” Burton v. McDonald, 2015 WL 3849126 (June 23, 2015). The single judge in Burton distinguished the facts from Pierce by noting that the claimant in Pierce contended he was unemployed as a result of his headaches and the Board failed to address why this unemployment did not constitute severe economic inadaptability. However, in Burton, the claimant did not contend that he has been unemployed, or otherwise point to evidence indicating that his migraine headaches affected his employment or employability. In attempting to determine whether the Veteran’s headaches are capable of producing severe economic inadaptability, the Board is cognizant of this mild trend in the Veterans Court to require a showing on the part of the Veteran that headaches affect his economic adaptability in some way. Unlike most rating codes, 38 C.F.R. § 4.124a Diagnostic Code 8100 for headaches is successive and cumulative, meaning that all the criteria for a higher rating must be met for the higher rating to be warranted. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). A May 2013 VA Examination reveals a headache every couple weeks. It can last a day, but not overnight. The Veteran does not need to lie down or turn off the lights. He can work through a headache. He has taken time off for headaches once every two months. He takes no medication. There were no characteristic prostrating attacks. There were no prostrating attacks of non-migraine headache pain. The examiner opined that headaches do not impact his ability to work (Record 05/17/2013). According to the examiner, he has infrequent tension headaches that date back to the time of his head injury. He gets a headache once every couple weeks. It is a throbbing headache pain with sensitivity to light. Stress or anger will bring it on or increased concentration, or a sunny day will bring it on (Record 05/17/2013). A July 2019 VA headaches examination reveals that the Veteran reports headaches 1-2 times a week lasting 7-8 hours. Pain is relieved with medication and going to a dark, quiet room. The Veteran experiences pulsating or throbbing head pain, pain localized to one side of the head, pain worsening with physical activity, vomiting, sensitivity to light and sound, changes in vision (such as scotoma, flashes of light, tunnel vision). These headaches have a duration of less than 1 day. Once a month, the Veteran has a prostrating attack. The examiner found no impact on the Veteran’s ability to work (Record 07/01/2019). VA outpatient treatment records can be summarized as showing tension headaches 1 or 2 times per week, which were relieved by prescribed medication. After a review of all of the evidence, the Board finds that the Veteran’s headaches have not changed fundamentally in type and degree of symptomatology or overall functional impairment over the period on appeal. As consistently noted in the clinical record, the Veteran’s headaches are not always prostrating, but he has prostrating attacks frequently enough to approximate characteristic prostrating attacks occurring on an average once a month over the last several months. Accordingly, the Board finds that the 30 percent rating assigned by the RO, effective July 25, 2019, is warranted for the entire period on appeal. However, the Board also finds that, at no time during the period on appeal, have the Veteran’s headaches approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Because of the successive nature of the rating criteria under Diagnostic Code 8100, the evaluation for each higher disability rating includes the criteria of each lower disability rating. Although there is evidence of prostrating headaches, each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Absent a showing of severe economic inadaptability due to headaches, there is no basis to assign a rating higher than 30 percent under Diagnostic Code 8100. The Board finds it significant that both the May 2013 and July 2019 examiners made a specific finding based on the Veteran’s report and discussion with the examiner that his headaches had no impact on his ability to work. These findings are inconsistent with severe economic inadaptability. Here, the evidence demonstrates that the Veteran experiences headaches which vary in frequency and intensity, but which occur several times per week, can be prostrating at times, affect his mood and productivity, are associated with symptoms of nausea, vision disturbance, and stress, and impact his ability to function effectively. Thus, there is arguable occupational (economic) impairment in this case. However, based on the Veteran’s reports and the medical assessments set out above, it is apparent that the Veteran has, throughout the period on appeal, retained the ability to adapt economically and occupationally regarding his headaches. The Board therefore finds that the Veteran’s headaches are not actually productive of, and are not capable of producing, severe economic inadaptability. In sum, the Board finds that, for the entire appeal period, the service-connected headaches have been manifested by characteristic prostrating attacks occurring on an average once a month over last several months. In light of these findings of fact, the Board concludes that a disability rating of 30 percent is warranted for the whole period; however, a disability rating higher than 30 percent is not warranted at any time. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366, 371. REASONS FOR REMAND Entitlement to TDIU. The Veteran claims that he is unable obtain and retain employment due to his mental disability. Nevertheless, he has not submitted a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), and the issue has not been adjudicated by the AOJ. Also, in light of the Board’s grant of an increased rating for the service-connected mental disability, the Board finds that remand for adjudication of the claim by the AOJ is necessary. The matter is REMANDED for the following action: 1. Perform any development that is necessary to obtain employment information and history, including solicitation of a VA Form 21-8940. 2. Adjudicate the remanded claim for TDIU. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.