Citation Nr: 21004564 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 09-27 930 DATE: January 27, 2021 ORDER Entitlement to an increased 50 percent evaluation, but not higher, for migraine headaches is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to an initial compensable evaluation for traumatic brain injury (TBI) residuals is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT During the appeal period, the evidence is at least in equal balance that the Veteran experienced migraines manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.   CONCLUSION OF LAW The criteria for a disability rating of 50 percent, but no higher, for migraines are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1954 to September 1957. He died in March 2020. The appellant is his surviving spouse and has been substituted as the claimant with respect to the issues on appeal. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2010, a hearing was held before the undersigned. A transcript of the hearing is of record. In December 2010, December 2012, May 2013, September 2015, May 2016, and December 2017, the Board remanded the claims for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to disability compensation has already been established and an increase in the assigned rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Migraine Headaches At the time of his death, the Veteran was seeking a rating in excess of 30 percent for his service-connected migraine headaches. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, 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 Diagnostic Code 8100. The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). VA treatment records from May 2008 indicate that the Veteran’s headaches had become worse in the past two years. He described having pain in the temporal area that radiated to the occipital areas. Symptoms mostly occurred at night and they did not interfere with activities. In August 2008, it was noted that the Veteran’s headaches were stereotyped, left-sided retroorbital throbbing headaches associated with motion sensitivity, phonophobia, and mild photophobia which could last up to hours at longest duration. He would have one headache daily present upon wakening that resolved after 4 to 5 hours. A September 2008 buddy statement from the Veteran’s former supervisor indicated that the Veteran was frequently placed on light duty with complaints of various conditions including headaches. The Veteran’s son also stated in September 2008 the Veteran’s migraines would leave him in a debilitated state. His daughter stated that her mother would make sure they were quiet when the Veteran had headaches and that he would go into a dark bedroom, which was his refuge. In his October 2008 notice of disagreement (NOD), the Veteran stated he had prostrating migraine headaches 2 to 3 times a month. During a headache he would be out of commission for 12 to 48 hours at a time and would require extreme quiet in a blackened room. He would also get sick to his stomach, have problems keeping his eyes open, problems communicating, and irritation with certain smells. He also stated that he did not feel safe driving during a migraine attack. In March 2009 VA treatment records, it was noted that the Veteran had bitemporal pain, with symptoms mostly at night that interfered with sleep. During a May 2009 VA TBI examination, the Veteran stated that he had constant headaches, mostly in the front of the head, pounding, and sometimes radiating to the back of the head. September 2009 VA treatment records also noted that the Veteran had bitemporal pain, with symptoms mostly at night that interfered with sleep. At his October 2010 Board hearing, the Veteran stated that his headaches would get bad enough that he could not hear any noise and would sometimes throw up. When his headaches would get bad, he would lie down and not do anything and go to bed. He could not mow the lawn or wash the cars. The Veteran’s wife, a nurse, stated that she would have to leave the house quiet and dark. She also stated that he would not do any chores. The Veteran’s headaches would also prevent him from doing things he loved, like working on his car. He stated that he would also get dizzy and would not be able to see. The Veteran underwent a VA examination in January 2011. The Veteran complained of headaches every day and that they were prostrating 4 times a week. The Veteran would just lie on the couch and not be able to do anything. They were not treated with continuous medication and would last one to two days. The Veteran also stated he could not work because of headaches due to dizziness and light sensitivity. VA treatment records from January 2011 note that the Veteran had been having daily headaches typically at night, lasting hours until he went to bed. They were worse with light and noise and better in dark and quiet environments. In February 2011, the Veteran stated that he had headaches that were throbbing in quality and retroorbital for all of his life. He would get 2 to 3 headaches a week which last for several hours and had nausea and occasional vomiting, as well as fatigue, photo and phonophobia. In August 2011, the Veteran had similar symptoms, and reported getting headaches every day lasting a couple hours or so. In February, March, and May 2012 VA treatment records, it was noted that the Veteran denied headaches. In another March 2012 VA treatment record, the Veteran stated that his headaches were not well-controlled. Following a cardiac ablation procedure in July 2012, the Veteran denied headaches, but in another July 2012 record he indicated his headaches were not well controlled. In December 2012 and January 2013, the Veteran denied sudden/intense headaches. In a March 2013 VA TBI examination, the Veteran reported constant issues with headaches and dizziness. Subsequently, at various dates including August 2013, June 2014, July 2014, September 2014 and June 2015, the Veteran denied headaches including sudden/intense headaches. In an April 2014 opinion, a VA examiner indicated that the Veteran did not mention headaches as interfering with his functioning. An April 2016 Disability Benefits Questionnaire (DBQ) from the VA neurology clinic indicated that the Veteran had chronic daily headaches associated with nausea, vomiting, and sensitivity to light, and was treated with medication. The Veteran experienced headache pain constantly, which was pulsating or throbbing and on both sides of the head. The Veteran had characteristic prostrating attacks of migraine pain more frequently than once a month and had very frequent prostrating attacks of migraine pain. The Veteran indicated that headaches prevented him from working. In April 2016 VA treatment records, it was noted that the Veteran came to re-establish care for his headaches. He reported daily pounding bilateral pain over the temples with associated nausea, vomiting, and sensitivity to light. The Veteran underwent a VA examination in June 2016. The Veteran experienced headache pain that was pulsating or throbbing and on both sides of the head. He also experienced nausea, sensitivity to light, and sensitivity to sound. Typical head pain would last less than one day. The Veteran did not have characteristic prostrating attacks of migraine pain. The examiner indicated that the Veteran’s headache condition did not impact his ability to work. The Veteran ran his own successful roofing business for over 25 years after service. In June 2018 VA treatment records, it was noted that his headaches were stable on medication. Considering all relevant evidence of record, the Board finds the evidence is at least in equipoise as to whether the Veteran experiences very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The evidence of record, including various VA treatment records, establishes that throughout the period on appeal the Veteran’s migraine episodes have occurred several times a month (sometimes several times a week) and thus would more nearly approximate the “very frequent” criteria of Diagnostic Code 8100. The VA neurology clinic physician reported in April 2016 that the Veteran’s had characteristic prostrating attacks of migraine pain more frequently than once a month and had very frequent prostrating attacks of migraine pain. The Veteran also credibly reported that his migraine episodes lasted up to two days in length and that he must be in a quiet and dark room in order to manage the severe, throbbing pain, and the statements from his family and former supervisor support the Veteran’s contentions. The Board finds that such symptoms more nearly approximate very frequent completely prostrating and prolonged attacks of headache pain. In addition, the Veteran and his former supervisor have credibly explained that the migraine attacks disrupt his ability to work. The Veteran has indicated to treatment providers that he did not feel safe driving and that his headaches and dizziness would make it unsafe for him to work in roofing. As explained above, the definition of “productive” does not require that the headaches actually produce severe economic inadaptability, but that they are capable of producing such. Here, in resolving all reasonable doubt in the Veteran’s favor, the Board concludes that the nature of the Veteran’s headaches, particularly the fact that they are associated with dizziness and sensitivity to light and sound and require being in a quiet, dark room, make them capable of producing severe economic inadaptability. The Board acknowledges that some of the VA treatment records indicate that the Veteran denied having headaches at that time, and that an April 2014 opinion noted that the Veteran did not mention headaches as interfering with his functioning as well as the June 2016 VA examiner’s indication that the Veteran’s migraine attacks were not characteristic prostrating. Medical examiners are responsible for providing a full description of the effects of disability upon the Veteran’s ordinary activity; however, it is the responsibility of the adjudicator to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2. Accordingly, the Board resolves any reasonable doubt in favor of the appellant and finds that the Veteran is entitled to a 50 percent rating for his migraine headaches throughout the appeal period. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. As there is no higher schedular rating that can be assigned for migraine headaches by regulation, an evaluation of 50 percent, but no higher, is warranted. REASONS FOR REMAND TBI Residuals In the December 2017 Board remand, it was directed that a medical opinion be obtained from the June 2016 VA TBI examiner. The examiner was asked to delineate all symptomatology associated with migraine headaches and residuals of TBI, distinguish the symptoms of residuals of TBI from symptoms of the Veteran’s post-service August 2012 motor vehicle accident, and for any psychiatric symptoms, the examiner was directed to state all mental disorders diagnosed and clearly indicate whether any psychiatric symptoms were attributable to his service-connected residuals of TBI, the August 2012 accident, or any other causes. A supporting rationale was also requested for any opinions that could not be rendered without resorting to speculation. A VA opinion was provided in May 2019. The examiner stated that it was reasonable to assume that the 2012 accident contributed to disability and it was not reasonable to assume that there was an additive effect from a 1955 blast related TBI. Regarding psychiatric disorders, the examiner stated it was possible that the TBI in 1955 is some partial cause of depression. However, the incidence of depression/PTSD/anxiety/panic was highly independent of TBI history and it would be speculative to link his psychiatric history to his TBI. The examiner also indicated that the Veteran’s long history of alcohol abuse, chronic pain, and mental health issues was much more likely the cause of the Veteran’s condition and that residual effects from concussion rarely exceed one year. In this case, the examiner stated that the Veteran’s mental health issues were much more likely the cause of the Veteran’s condition, but that it was possible that the TBI in 1955 had some partial cause of depression. While the examiner stated that the incidence of depression/PTSD/anxiety/panic was highly independent of TBI history and it would be speculative to link the Veteran’s psychiatric history to his TBI, the examiner did not provide a rationale for this finding. Therefore, remand is required for a medical opinion addressing this issue. Because a decision on the remanded increased rating issue could potentially impact a decision on the TDIU issue, the issues are inextricably intertwined. A remand of the TDIU claim is required. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Forward the claims file, including a copy of this remand, to a VA examiner qualified to opine on TBI related issues to obtain a medical opinion regarding the Veteran’s residuals of TBI. The complete electronic claims file must be made available to the reviewing clinician.   The reviewing clinician must specifically provide an opinion on the following questions: a) Distinguish the symptoms of the service-connected residuals of the Veteran’s in-service TBI from the symptoms of his post-service August 2012 MVA. If it is not possible to distinguish which symptoms were attributable to the Veteran’s service-connected TBI residuals or symptoms of his post-service August 2012 MVA, the examiner must assume, for purposes of the examination, that any such symptom was related to the Veteran’s service-connected TBI residuals. b) For any psychiatric symptoms, the examiner should state all mental disorders diagnosed prior to the Veteran’s death, to include depression. The examiner should then clearly indicate whether the Veteran’s diagnosed mental disorder(s) or any of his psychiatric symptoms were attributable, in whole or in part, to his service-connected TBI, his post-service August 2012 MVA, or any other causes. In providing these opinions, the examiner is asked to consider the lay statements of record, including the October 2019 statement from the Veteran’s spouse. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not   be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.