Citation Nr: 21062333 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-37 834 DATE: October 7, 2021 ORDER A separate rating of 30 percent migraine headaches with traumatic brain injury (TBI) is granted. REMANDED Entitlement to a rating in excess of 10 percent for residuals of TBI is remanded. Entitlement to a rating in excess of 30 percent for migraine headaches with TBI is remanded. FINDING OF FACT The Veteran's migraine headaches with TBI are at least manifested by characteristic prostrating attacks occurring on an average once a month over the last several months. CONCLUSION OF LAW The criteria for a separate rating of 30 percent for migraine headaches with TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.25, 4.124a, Diagnostic Codes (DCs) 8045, 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2000 to January 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an August 2021 Board hearing before the undersigned Veterans Law Judge. Increased Rating Entitlement to a separate rating of 30 percent migraine headaches with TBI. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative 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(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends TBI residuals include migraine headaches a couple times per week lasting between 30 minutes to an hour and having to miss work about once per month for severe headaches. See August 2021, Board hearing. The Veteran's current 10 percent rating for residuals of a TBI are rated under Diagnostic Code 8045. The Board notes that the April 2015 rating decision based the 10 percent rating on finding the Veterans' highest level of impairment for the 10 facets of TBI was a "1." Specifically, the RO assigned a severity level "1" for the following facets: Memory, Attention, Concentration, Executive Functions; Judgment; Social Interaction; Motor Activity; and Visual Spatial Orientation. Based on the evidence of record, which includes a diagnosis of migraine headaches, the Board finds the Veteran's TBI residuals for migraine headaches should be separately rated under Diagnostic Codes 8100. See 4.124a, DC 8045 (indicating that residuals with a distinct diagnosis, such as migraine headaches, should be separately evaluated under the appropriate diagnostic code). Under Diagnostic Code 8100, migraine headaches resulting in characteristic prostrating attacks occurring on average once in 2 months over the last several months warrant a 10 percent rating. Migraines resulting in characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a, DC 8100. The Board finds that a separate rating of at least 30 percent for residual migraine headaches is warranted throughout the period on appeal. A March 2015 VA examination for TBI diagnosed migraine headaches as a manifestation of TBI. A March 2015 VA examination for headaches indicates the Veteran has prostrating headaches less than once every two months. At the August 2021 Board hearing, the Veteran testified that he has migraines a couple times per week that lasts 30 minutes to one hour, are resistant to medication, "debilitating at times," and impacts his work such that he has to lay down in a quiet, dark room. The Veteran further stated that he has to take off work about once a month due to headaches. See, e.g., August 2021, Board hearing. The Board finds the Veteran's lay statements concerning the frequency and severity of migraine headaches to be competent, credible, and highly probative. While the evidence suggests that the Veteran suffers from some prostrating headaches that are severe enough to prevent him from working approximately once a month, it is unclear whether all of the Veteran's headaches are completely prostrating. Based on the foregoing and resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran's migraine headaches are at least with characteristic prostrating attacks occurring on an average of once a month over the last several months, and thus warrant a 30 percent rating. Further, the Board finds the award of a separate rating of 30 percent for TBI residual migraine headaches does not violate 38 C.F.R. § 4.14 because, as explained above, the Veteran's 10 percent rating for TBI residuals is supported by manifestations other than migraine headaches. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for residuals of TBI is remanded. 2. Entitlement to a rating in excess of 30 percent for migraine headaches with TBI is remanded. The Veteran contends that in addition to migraine headaches, TBI residuals include left-hand tremors, blurry vision off and on, irritability, anger issues, short-term memory loss, destruction of his marriage as a result of short-term memory loss, and avoidance of some members of his family due to previous confrontations. See August 2021, Board hearing; July 2017, VA Form 9; May 2015, Notice of disagreement. The most recent VA examination for TBI was conducted in March 2015 and the Veteran has stated TBI residuals have worsened since his last VA examination. See July 2017, VA Form 9. Under the circumstances, to ascertain a more complete picture of the Veteran's TBI residuals throughout the appeal period, the Board finds the VA is required to afford the Veteran a contemporaneous examination to assess the current nature, extent, and severity of his TBI residuals. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In Morgan v. Wilkie, 31 Vet. App. 162, 167 (2019), the Court held, "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." Indeed, the Court stated doing so was necessary to ensure a veteran is appropriately compensated before resorting to § 3.321(b)'s extraschedular provisions. In doing so, the Court held this included secondary service connection. Id.; see also Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc). In light of the evidence, which can include testimony at a hearing, the Board finds that further information is necessary to properly rate, on a schedular basis, all of the manifestations of the Veteran's service-connected TBI, in this case, to include any psychiatric disorder, eye disorder, and left-hand disorder. As such, on remand, a medical opinion should be obtained to determine any secondary disability the Veteran may have and whether they are proximately due to his service-connected disability. Morgan, 31 Vet. App. 162; Bailey, 33 Vet. App. 188; Long, 33 Vet. App. 167. Here, to date, the Veteran has not been diagnosed as having a psychiatric disability and thus on remand must be afforded a VA psychiatric examination. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020); see also Long. Additionally, the Veteran testified that he receives treatment from his private physician and was also referred to a private neurologist. VA has not requested, and the claims file does not have any private treatment records. Accordingly, on remand, the AOJ should obtain any outstanding private and VA treatment records. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, and with the Veteran's assistance, any outstanding and relevant private treatment records (including, but not limited to records from the Veteran's private primary care physician and private neurologist). 2. Obtain any necessary authorization for any outstanding and relevant private treatment records for TBI residuals, to include his private physician and neurologist. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and severity of his TBI. The examiner should provide a full description of the disability and report all signs and symptoms. A psychiatric disability must be ruled in or excluded. Any psychiatric complaints and manifestations must be addressed. To the extent possible, the examiner should identify any symptoms and functional impairments due to TBI alone and discuss the effects of the Veteran's residuals of TBI on any occupational functioning and activities of daily living. The examiner should also identify all comorbid physical, neurological, or mental disorders and state whether each is shown to be caused by the Veteran's TBI, to specifically include the Veteran's eyes, left-hand tremor, migraine headaches, and any psychiatric disorder. If not, then, with respect to each comorbid disorder identified, the examiner should attempt to distinguish any symptoms and impairments attributable to such disability from the symptoms and impairment attributable to the TBI. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, Associate 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.