Citation Nr: 21061829 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-43 624 DATE: October 5, 2021 ORDER A 50 percent disability rating for migraine and tension headaches is granted effective since August 27, 2013, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 30 percent for migraine and tension headaches prior to August 27, 2013, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The evidence is in equipoise as to whether from December 12, 2013, the migraine and tension headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The evidence is in equipoise as to whether there was an increase in disability in the migraine and tension headaches during the one-year period prior to the date of claim, December 12, 2013. 3. The evidence is in equipoise as from August 27, 2013, to December 11, 2013, the migraine and tension headaches were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 4. The weight of evidence is against a finding that from December 12, 2012, to August 26, 2013, the migraine and tension headaches were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 50 percent disability rating for migraine and tension headaches from August 27, 2013, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2021). 2. The criteria for a disability rating in excess of 30 percent prior to August 26, 2013, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1974 to August 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) regional office (RO). In June 2021, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge and a transcript of the hearing has been associated with the electronic claims file. At the hearing, the counsel raised the issue of entitlement to TDIU. Hearing transcript, page 7. Since entitlement to TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, it can be part of the initial adjudication of a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, the TDIU claim is part of the increased rating claim for migraine and tension headaches and the Board has taken jurisdiction of the issue of entitlement to TDIU. Hearing transcript, page 7. At the June 2021 hearing, the undersigned Veterans Law Judge agreed to hold the record open for 90 days for the Veteran and his counsel to submit additional evidence. Id. at 9. Later in June 2021, the counsel submitted additional evidence and waived that remainder of the 90-day period. In any event, that 90-day period has expired. Neither the Veteran nor his counsel has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to a disability rating in excess of 30 percent for migraine and tension headaches Governing law and regulations Under Diagnostic Code 8100, a 50 percent rating is warranted for migraine headaches manifested by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. A 30 percent evaluation requires symptomatology manifested by characteristic prostrating attacks occurring on an average of once per month over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating." The Board additionally observes that the Court has not undertaken to define "prostrating." Cf. Fenderson v. West, 12 Vet. App. 119 (1999), in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack. According to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." The rating criteria also do not define "inadaptability." However, the United States Court of Appeals for Veterans Claims (the Court) noted that nothing in Diagnostic Code 8100 required the claimant to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). Analysis In a March 2011 rating decision, a RO granted service connection for migraine and tension headaches effective August 4, 2010, and assigned an initial 30 percent disability rating effective that same date. On December 12, 2013, a RO received the Veteran's claim for an increased rating for headaches. In an April 2014 rating decision, a RO denied entitlement to an increased rating for headaches. In May 2014, a RO received a statement from the Veteran in which he requested reconsideration of the recent denial of an increased rating for headaches. In the August 2014 rating decision, a RO again denied entitlement to an increased rating for headaches. The Veteran perfected an appeal of the denial in the August 2014 rating decision. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. The Veteran underwent a VA examination in July 2014 that shows an increase in severity of the headaches. Given that new and material evidence was received within one year of the April 2014 rating decision denying an increased rating for a headache disorder, the April 2014 rating decision is not final. As such, the date of claim is December 12, 2013. As such, the Board will consider his increased rating claim from December 12, 2012 (one year prior to date of claim) to the present. VA treatment records reveal that on September 10, 2013, the Veteran reported that he had headaches three to four times a week for an average of eight hours in duration and that previously he only had headaches once or twice a week. He stated that his headaches were preceded by flashing lights and aura. The Veteran noted that his prescription for his headaches now only lasts two weeks whereas the prescription used to last a month. The diagnosis was the migraines were increased in frequency. In November 2013, the Veteran reported that a few months ago the headaches increased in frequency and severity. He indicated that he had headaches four to five times a week. He stated that his headaches were more severe and that they were manifested by nausea and aura. A VA pharmacist noted in November 2013 that the Veteran had severe migraines and recommended using a beta blocker to treat the headaches. An April 2014 VA examination report reveals that the Veteran stated that he had headaches four to five times a week, which lasted one to two hours in duration. His headache pain was manifested by pulsating or throbbing head pain as well as pain localized to one side of the head. He had the following non-headaches symptoms associated with the headaches: nausea, vomiting, sensitivity to light, and changes in vision. The duration of the typical head pain was less than one day, and the Veteran reported that if he takes medication at the onset of the headache, the pain sometimes only lasts one to two hours. The April 2014 VA examiner stated that the Veteran had characteristic prostrating attacks of headache pain once every month over the last several months. The examiner further stated that the Veteran did not have very prostrating and prolonged attacks of migraines or non-migraine pain that was productive of severe economic inadaptability. As for functional impact on the ability to work, the examiner noted that the Veteran could not take some of his medications when he worked as a truck driver because of possible side effects and random drug testing. VA treatment records show that in April 2014 the Veteran had throbbing headaches that were manifested by small flashing lights, nausea, vomiting, photophobia, and phonophobia. He reported that he used to have headaches two to three times a week but that he now had headaches four to five days a week. In a June 2014 statement, the Veteran reported that he had headaches five to six times a week, which would last six to eight hours. In a June 2014 statement, the Veteran's spouse also noted that after he had a headache, he was not able to do anything for several hours because he is drained of energy and focus. The July 2014 VA examination report reflects that he now had headaches six to eight times a week and instead of just six times a week as he reported at the April 2014 VA examination. His headache pain was manifested by pulsating or throbbing head pain that vary in location. He had the following non-headaches symptoms associated with the headaches: nausea, vomiting, sensitivity to light, and changes in vision. The duration of the typical head pain was less than one day. The examiner stated that the Veteran had characteristic prostrating attacks of headache pain once every month over the last several months. The examiner further stated that the Veteran did not have very prostrating and prolonged attacks of migraines or non-migraine pain that was productive of severe economic inadaptability. As for functional impact on the ability to work, the July 2014 VA examiner noted that if the Veteran were working, his job would be impacted when he has severe headaches because of poor concentration, nausea, vomiting, and vision changes that may impact his safety or the safety of others. The examiner added that the headaches may also impact his ability to perform some job functions when symptomatic. VA treatment records reveal that in November 2015 the Veteran reported that he had headaches four to five days a week. In September 2016, it was noted that he was still having frequent attacks of acute migraines. In November 2016, it was noted that the Veteran's headaches were on average four to five attacks per week. In February 2017, the Veteran reported that his headaches occur four to five times a week but that the duration of attacks had decreased from seven to eight hours to five to six hours. In November 2017, he reported that he had headaches five to six times a week that typically last for several hours. In June 2018, the Veteran reported that he had headaches four to six times a week that lasted for hours and were manifested by visual aura, nausea, photophobia, and throbbing. At the June 2021 hearing, the Veteran testified that his headaches average between five and six times a week. Hearing transcript, page 4. The Veteran is competent to report his headache symptomatology, and the Board finds him credible. VA treatment records and VA examination reports show that he has headaches four to eight times a week that last at five to six hours in duration and are manifested by visual aura, nausea, photophobia, and throbbing. Though both VA examiners determined that the Veteran did not have very prostrating and prolonged attacks of migraines or non-migraine pain that was productive of severe economic inadaptability, the Board places great weight on the April 2014 VA examiner's finding that the Veteran could not take some of his medications when he worked as a truck driver because of possible side effects and random drug testing. Moreover, the Board places considerable weight on the July 2014 VA examiner's finding that the headaches would cause poor concentration, nausea, vomiting, and vision changes that may impact his safety or the safety of others in the workplace and that the headaches may also impact his ability to perform some other job functions as well. Given the frequency and severity of symptomatology and the VA examiners' findings on functional impact, the evidence is in equipoise as to whether since December 12, 2013, migraine and tension headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As for the one-year period prior to the date of the claim, December 12, 2013, the September 10, 2013, VA treatment record reflects that the Veteran reported that his headaches had increased in frequency from one to two times a week to three to four times a week. He also reported that he took medications so frequently for his headaches that his medication prescription now only lasted two weeks whereas previously the prescription lasted a month. On September 23, 2013, it was noted that the migraines had increased in frequency. In November 2013, it was noted that a few months ago, the headaches increased in severity and frequency. The evidence is in equipoise as to whether there was an increase in disability in the migraine and tension headaches during the one-year period prior to the date of claim, December 12, 2013. The Veteran first sought treatment for his headaches on September 10, 2013, at which time he reported that his prescription medication only lasted two weeks instead of the usual month. Two weeks prior to the date of treatment was August 27, 2013. In light of the above, the evidence is in equipoise as from August 27, 2013, to December 11, 2013, the migraine and tension headaches were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As for the period from December 12, 2012, to August 26, 2013, VA treatment records do not reveal any treatment for headaches during that time period. Moreover, the Veteran first reported the increase in frequency of the headaches on September 10, 2013. That date is also the first date that the Veteran reported that his prescription medication for headaches only lasted two weeks instead of the usual month. The weight of evidence is against a finding that from December 12, 2012, to August 26, 2013, the migraine and tension headaches were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The preponderance of evidence is against this claim, and it is denied. REASONS FOR REMAND In his June 2021 formal TDIU claim, the Veteran reported that he was currently receiving treatment at the Memphis VA Medical Center. The RO last obtained records from that facility in September 2018. The RO should obtain any additional records from the Memphis VA Medical Center and the Dyersburg VA community based outpatient clinic for the period from September 2018 to the present. A February 2021 Social Security Administration inquiry result reflects that the Veteran has been receiving Social Security disability benefits since 2011. At the June 2021 hearing, the Veteran testified that he is receiving Social Security disability benefits because of a back disability. Hearing transcript, page 15. Although the Veteran reported that he is not receiving Social Security disability benefits due to a service-connected disability, records from that agency are still potentially relevant to his TDIU claim. The RO has also not provided him notice of the information and evidence needed to substantiate and complete this claim, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C. §§ 5103, 5103A (2012). Given the evidence of employment impairment due to the service-connected migraine and tension headaches, the RO should refer the Veteran's claim of entitlement to TDIU to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of the assignment of an extraschedular rating. 38 C.F.R. § 4.16(b) (2021). The matters are REMANDED for the following action: 1. The RO should provide the Veteran notice of the information and evidence needed to substantiate and complete a claim for TDIU, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. 2. Ask the Veteran to identify all treatment for his bilateral hearing loss, tinnitus, and headaches, and any other disability pertaining to his TDIU claim, and obtain any identified records. Obtain the Veteran's VA treatment records from the Memphis VA Medical Center and the Dyersburg VA community based outpatient clinic from September 2018 to the present. 3. Obtain the Veteran's federal records from the Social Security Administration regarding the Veteran's claim for disability benefits. Document all requests for information as well as all responses in the claims file. 4. After the development in 1 through 3 is completed, the RO should undertake any necessary development on the TDIU claim as warranted by any additional evidence of record. 5. After the development in 1 through 4 is completed, the RO should refer the claim of entitlement to TDIU to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of the assignment of an extraschedular rating, if applicable. 6. Thereafter, readjudicate the claim on appeal. If the benefit sought in connection with the claim remains denied, the Veteran and his counsel should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.