Citation Nr: 21004724 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-52 659 DATE: January 28, 2021 ORDER Entitlement to a rating in excess of 30 percent for migraine headaches prior to June 3, 2011 is denied. However, a higher 50 percent rating is granted for the migraine headaches from June 3, 2011 onwards (which is the maximum permissible schedular rating). FINDING OF FACT Prior to June 3, 2011, the Veteran experienced migraines with characteristic prostrating attacks occurring on average once a month over the last several months, but since June 3, 2011, his migraines have been very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Prior to June 3, 2011, the criteria are not met for a rating higher than 30 percent for the migraines. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC/Code) 8100. 2. However, from June 3, 2011 onwards, the criteria are met for a higher (and maximum permissible) 50 percent schedular rating for the migraines. Id. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1985 to May 1989 and from June 1989 to August 1993. This appeal to the Board of Veterans’ Appeals (Board) is from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in November 2014, at which time the Board remanded the claim for further development – including to issue a Statement of the Case (SOC). That remand instruction since has been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran more recently testified in support of this claim during a hearing in December 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. During his recent December 2020 hearing, the Veteran stated that he believes he is entitled to an earlier effective date for the award for his total disability rating based on individual unemployability (TDIU). He already has been determined entitled to a TDIU as of June 4, 2011, but he testified during his hearing that he believes he is entitled to this TDIU, instead, back to 2006 because, from 2006 to 2011, he only worked what amounted to a modified work schedule (meaning only about 24-30 hours per week, instead of the normal 40 hours, and sometimes had to come in on weekends and was allowed to just to make up time lost). The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has recognized how a TDIU claim can be derivative, so part and parcel, of an increased-rating claim – if the Veteran asserts unemployability owing the service-connected disability for which he is requesting a higher rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009).   However, this case at hand is a bit different situation inasmuch as the Veteran already has been determined entitled to a TDIU and, as mentioned, is essentially requesting an earlier effective date for this benefit. This additional issue is not on appeal, in fact, must be separately appealed since a “downstream” issue following the granting of the TDIU. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). And the record shows he has not filed a claim for an earlier effective date for his TDIU or separately appealed this downstream issue, so the Board is not assuming jurisdiction over this additional claim. He is free to pursue this other claim at the RO. Thus, this appeal will only concern, instead, the rating for his migraines. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).   If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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 Veteran. 38 C.F.R. § 4.3. The Veteran contends that, for the entire period on appeal, so from his initial effective date of July 10, 2006 onward, he is entitled to a rating higher than 30 percent for his migraines. According to 38 C.F.R. § 4.124a, DC 8100, migraines are awarded a 30 percent rating when there are characteristic prostrating attacks occurring on an average of once a month over the last several months. A higher 50 percent rating requires very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability, and this is the highest permissible schedular rating under DC 8100. The rating criteria for this higher 50 percent rating contain 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. See Johnson v. Wilkie, 30 Vet. App. 245, 247 (2018). 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). Finally, 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 DC 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). Finally, when determining the proper rating for a Veteran's service-connected headache disability, the evidence must show that all the criteria listed for that particular rating are met as well as all the requirements of the lower ratings. Johnson, 30 Vet. App. at 247. 1. Entitlement to a rating in excess of 30 percent for migraine headaches prior to June 3, 2011 For this initial period prior to June 3, 2011, the Board concludes that the Veteran had migraines with characteristic prostrating attacks occurring on average once a month over the last several months, corresponding to the criteria for a 30 percent rating under DC 8100, so his existing rating – which he has had effectively since July 10, 2006. During his December 2020 hearing, the Veteran testified that his migraines started interfering with his work around 2006. Further, he stated that he worked until 2011, when he retired “on disability” that he attributed at least partly to his migraines. A May 2008 VA treatment record shows the Veteran reported having daily, but non-severe headaches, and severe headaches about three times per week. He reported that, when his headaches onset, laying down and going to sleep provided relief. The evaluating doctor did not indicate the headaches were prostrating or that they interfered with the Veteran’s work. A January 2009 VA treatment record shows the Veteran reported that his severe migraines had decreased from three per week to two per week. The evaluating doctor also noted that the Veteran suffered from very frequent tension headaches. That was a separate diagnosis from the migraines, and, unlike the migraines, the tension headaches have not been determined to be a service-connected disability. In any event, there was no indication the Veteran’s headaches were prostrating and no complaints from him that his migraines were impacting his work.   In October 2009, the Veteran submitted a written statement from his wife. In this statement, his wife noted that she believed his migraines were getting worse, and that he “constantly sits during normal activities and gather his bearing prior to continuing with that particular activity.” The Veteran also submitted a statement from a co-worker indicating he continued to see the Veteran “struggle with his balance and he constantly walk as if he’s unstable” while at work. In May 2012, the Veteran submitted a TDIU application and, on it, he indicated that his last day he was able to work prior to becoming too disabled to work was on June 3, 2011. His TDIU, since granted, dates from the following day – so from June 4, 2011. He attributed his unemployability, at least partly, to his migraines. He further stated that he was unable to maintain a regular work schedule. Accordingly, the Board concludes that the Veteran had migraines with characteristic prostrating attacks occurring on average once a month over the last several months during this earlier time frame – that is, prior to June 3, 2011, corresponding to the 30 percent rating he already has for this initial period under DC 8100. A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the evidence of record, including VA treatment records, the lay statements from his wife and co-worker, and the Veteran’s December 2020 hearing testimony, do not show that, for this earlier period, his migraines were very frequently completely prostrating and prolonged and productive of severe economic inadaptability. Specifically, while VA treatment records show the Veteran stated his migraines were severe and remedied by going to sleep, his wife’s October 2009 statement conveys that, in his day-to-day life, he managed his headaches by sitting more frequently. Further, his co-worker’s October 2009 statement indicates the Veteran was able to work, albeit with some balance issues. By the Veteran’s own statement on his TDIU application, his service-connected disabilities, so including his migraines, became too disabling to work on June 3, 2011. The Board recognizes that “productive of severe economic inadaptability” does not require actual unemployability; however, the evidence of record shows the Veteran’s work, while impacted, was not such that there was a severe economic impact to him. Further, his migraines were not characterized as prostrating during this earlier period. As such, the Board finds that his migraines, while frequent, were not completely prostrating and prolonged attacks and were not productive of severe economic inadaptability prior to June 3, 2011. Thus, for this earlier period prior to June 3, 2011, a higher 50 percent rating is not warranted under DC 8100. 2. However, a higher 50 percent rating for the migraines is warranted since June 3, 2011 The evidence of record, including the Veteran’s written statements, his TDIU application, and his Social Security Administration (SSA) records indicate that his last day worked was on June 3, 2011. During his recent December 2020 hearing, he explained that he had retired due to medical reasons, in large part owing to the frequency and unpredictability of his migraines. To reiterate, his TDIU dates from the following day – so from June 4, 2011, when he was no longer employed in any substantially gainful capacity. In June 2014, the Veteran submitted a Disability Benefits Questionnaire (DBQ), completed by his treating VA neurologist. On this DBQ, the Veteran’s neurologist indicated the Veteran has characteristic prostrating attacks of migraines more frequently than once per month, and even further that his prostrating migraines are very frequent and prolonged. This commenting neurologist added the Veteran has these headaches 15 or more days per month, usually lasting ten hours each. Other symptoms associated with the Veteran’s migraines include nausea, vomiting, sensitivity to light and sound, changes in vision, sensory changes, and vertigo.   As such, the Board finds that, from June 3, 2011 onwards, the Veteran’s stated day that his migraines became too severe for him to continue working, aside from the TDIU he is entitled to a higher 50 percent schedular rating for his migraines, which, as mentioned, is the highest permissible schedular rating under DC 8100. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.