Citation Nr: 21062526 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-25 415 DATE: October 7, 2021 ORDER Entitlement to an increased rating of 50 percent for migraine headaches is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an increased rating greater than 10 percent for left hand fracture is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran's migraine headache symptoms were manifested by very frequent prostrating and prolonged attacks that are productive of severe economic inadaptability. 2. The Veteran's left hand fracture symptoms have not more nearly approximated limitation of motion with a gap of more than 2 inches (5.1 cm) between the thumb pad and fingers, with the thumb attempting to oppose the fingers; there is no ankylosis of the left thumb. 3. The Veteran's service-connected disabilities do not preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for the maximum schedular 50 percent rating for service-connected migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for an increased rating greater than 10 percent for left hand fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.45, 4.71a, DC 5003-5228. 3. The criteria for entitlement to a TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, among other things, denied an increased rating for the Veteran's service-connected left hand fracture and migraine headaches. In April 2013 the Veteran filed a notice of disagreement (NOD) and in March 2017 the RO issued a statement of the case (SOC). In May 2017 the Veteran filed a substantive appeal (via VA Form 9). In October 2019 the Board remanded the Veteran's claim to furnish him a notice letter addressing his claim for entitlement ot a TDIU. The Board also remanded the Veteran's claim to determine the current severity of his service-connected left hand fracture and migraine headaches. In November 2019, the Veteran was sent a letter asking the Veteran to complete, sign, and return an enclosed Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Also, the Veteran was provided VA examinations in February 2020 which addressed his left hand fracture and migraine headaches. Those examinations are adequate to decide the Veteran's claim and the RO substantially complied with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, 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. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 1. Migraine headaches The Veteran's migraine headaches are currently rated noncompensable under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a noncompensable rating is warranted for less frequent attacks; a 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average of once a month over the last several months; a 50 percent rating is assigned when migraines with very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. These criteria are successive; thus, each criterion for a higher rating must be met in order to warrant such a rating. Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). On the Veteran's February 2013 Supplemental Claim (VA Form 21-526b) the Veteran stated that his migraine headaches have worsened since his last VA examination. At a March 2013 VA examination the Veteran reported that his migraine headaches occur daily, and he wears prescription sunglasses because light bothers him. As a result, the Veteran will go in a dark room to alleviate his headache pain. The VA examiner noted that the Veteran experiences constant head pain, pulsating or throbbing head pain, and nausea. The VA examiner noted that that the Veteran does not experience characteristic prostrating attacks of migraine headache pain. The VA examiner also noted that that the Veteran's migraine headaches do not impact his ability to work. In the May 2017 VA Form 9 the Veteran stated that he retreats to a dark room twice daily for 10 to 15 minutes for his headache pain to subside enough to continue working. Also, the Veteran stated that he is "forced to use significant leave time" for days where he is unable to work because of his migraine headaches At a February 2020 VA examination the Veteran reported he experiences nausea, dizziness, blurry vision, and sensitivity to light. The VA examiner noted that the duration of his typical head pain lasts less than 1 day. The VA examiner noted that the Veteran does not experience characteristic prostrating attacks of migraine/non-migraine headache pain or that he has very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The VA examiner also noted that the Veteran's migraine headaches impact his ability to work. The Veteran reported that he was "unable to concentrate and perform work duties when having a headache attack." For the following reasons, an increased rating of 50 percent for migraine headaches is warranted. The March 2013 and February 2020 VA examiners noted that the Veteran did not experience headaches with very frequent completely prostrating and prolonged attacks, which is required for a 50 percent disability rating under DC 8100. The term "prostrating attack" is not defined in regulation or case law, however, can be defined as extreme exhaustion or powerlessness. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack); DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012). Given that the Veteran needs to lie down so that his headaches go away, it can be said that the Veteran's headaches cause him powerlessness and are considered "prostrating" for VA purposes. Under DC 8100, a 50 percent rating also requires that headaches cause the Veteran severe economic inadaptability which is also not defined in regulation or case law. In Pierce v. Principi, 18 Vet. App. 440, 446 (2004), the Court examined the "productive of severe economic inadaptability" criterion for a 50% evaluation under DC 8100 and noted that "[n]owhere in the DC is 'inadaptability' defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.]." The Court explained that, contrary to the Secretary's argument, "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 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 Court in Pierce acknowledged the Secretary's concession that the phrase "productive of severe economic inadaptability" in DC 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Id. at 445. The Veteran reported that he has difficulty concentrating when performing work duties and takes extended vacation time due to his migraine headaches. Therefore, it can be reasonably concluded that the Veteran's migraine headaches are capable of producing severe economic inadaptability. Thus, there is competent and credible evidence of migraine headaches that cause prostrating attacks and are capable of producing severe economic inadaptability. The Board therefore finds that the Veteran's symptoms were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for the entirety of the appeal period. Thus, an increased rating of 50 percent for migraine headaches is warranted. 2. Left hand fracture Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. The Veteran's left hand fracture is rated under 38 C.F.R. § 4.71a, DCs 5003-5228. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DCs 5003-5228 reflects that the Veteran's left hand fracture is described as degenerative arthritis, other than post-traumatic under DC 5003 and that the rating assigned is based on limitation of motion of the hand under DC 5228. Under 38 C.F.R. § 4.71a and DC 5228, a 10 percent disability evaluation is assigned for a gap of one to two inches (2.5 to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent disability evaluation is assigned for a gap of more than two inches (5.1 cm) between the thumb and fingers, with the thumb attempting to oppose the fingers. In determining disability ratings, DC 5228 makes no differentiation between the major and minor hands. At a March 2013 VA examination the Veteran reported that he experiences pain in the left thumb with decreased mobility. The VA examiner noted that the Veteran experiences painful motion in the left thumb and index finger. The gap between the thumb pad and the fingers measured less than 1 inch (2.5cm). The Veteran was able to perform repetitive-use testing with 3 repetitions. At a February 2020 VA examination the Veteran reported he experiences limited decreased strength in his left hand. The gap between the thumb pad and the fingers measured less than 1 inch (2.5cm). The Veteran was able to perform repetitive-use testing with 3 repetitions. For the following reasons, an increased rating is not warranted. At worst, the gap between the thumb pad and the fingers measured less than 1 inch (2.5cm). Under DC 5228, these measurements warrant a noncompensable rating. The Veteran's left hand fracture is currently rated 10 percent for painful, limited motion under 38 C.F.R. § 4.59. Even considering the Veteran's lay statements regarding pain and the corresponding functional impairment, the evidence of record is not reflective of, or consistent with, for a gap of more than two inches (5.1 cm) between the thumb and fingers, with the thumb attempting to oppose the fingers. More information as to functional impairment during this period would not warrant a higher rating. Thompson v. McDonald, 815 F.3d 781, 785 Fed. Cir. 2016) ("[I]t is clear that the guidance of 38 C.F.R. § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). Moreover, there is no indication of ankylosis in the evidence of record. For the foregoing reasons, the preponderance of the evidence is against an increased rating for the Veteran's left hand fracture. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). 3. TDIU The issue of entitlement to a TDIU is a potential part of an increased rating claim when such claim is expressly raised by the Veteran, or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In the May 2017 VA Form 9 the Veteran stated that his migraine headaches cause him to use leave time for days he is unable to work. At the time the Veteran had a pending increased rating claim for his service-connected migraine headaches which was filed on February 28, 2012 in a Veteran Supplemental Claim (VA Form 21-526b). Therefore, the issue of a TDIU was reasonably raised by the record, and as part and parcel of the claim for an increased rating for his migraine headaches. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran is currently in receipt of service connection for sleep apnea rated 50 percent, from September 18, 2018, bilateral pes planus rated 30 percent, from September 18, 2018, left ankle strain rated 20 percent, from September 18, 2018, left hip strain rated 10 percent, from August 1, 2008, right hip strain rated 10 percent, from August 1, 2008, left hand fracture based on limited motion of the left thumb rated 10 percent, from February 28, 2013, left hand fracture based on limited motion of the left index finger rated 10 percent, from February 28, 2013, and left hamstring and patellofemoral pain syndrome of the left knee rated 10 percent, from September 18, 2018. The Veteran's combined disability rating is 90 percent from September 18, 2018 and he has met the percentage requirements under 38 C.F.R. § 4.16(a). Prior to this date, the Veteran did not meet the percentage requirements to include any of the exceptions in 38 C.F.R. § 4.16(a)(1)-(5). The period before September 18, 2018 will be discussed separately below. As previously mentioned, on the May 2017 VA Form 9 the Veteran stated that he retreats to a dark room twice daily for 10 to 15 minutes for his headache pain to subside enough to continue working. Also, the Veteran stated that he is "forced to use significant leave time" for days where he is unable to work because of his migraine headaches. A December 2018 vocational rehabilitation counselor (VRC) noted on a Counseling Record Narrative Report that the Veteran is employed but that his service-connected disabilities are aggravated due to the amount of sitting he does at his job and his inability to change positions at will. Outside of the Veteran's employment, a June 2019 Report of School Attendance (VA Form 21-674) indicates that the Veteran was enrolled full time at Webster International University as recently as May 2019 where he was seeking a B.S. in Education. The Veteran is service connected for migraine headaches now rated 50 percent disabling and this disability has been found to cause the Veteran severe economic inadaptability. The Board notes, however, that severe economic inadaptability is not synonymous with unemployability. Pierce, 18 Vet. App. at 446. There is nothing in the evidence of record to indicate that the Veteran is not following substantially gainful employment. The Board acknowledges the Veteran's service-connected disabilities impact his ability to work, however, neither the medical nor lay evidence indicates that the functional impairment from his service-connected disabilities is so severe as to preclude substantially gainful employment. In the October 2019 remand, the Board instructed the RO to ask the Veteran to complete a formal application for a TDIU and to report his education and employment history and earnings. In November 2019, the RO sent a letter to the Veteran and asked him to complete VA Form 21-8940, which would provide his educational background, employment history and earnings. A copy of VA Form 21-8940 and detailed instructions for the Veteran were included with the letter. The Veteran did not submit VA Form 21-8940 and has not otherwise provided any information pertaining to his educational background, employment history, or earnings. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street). The degree to which the Veteran's ability to work may be impacted by his service-connected disabilities is unclear without the VA Form 21-8940 and information regarding his education, employment history, or earnings. Under 38 U.S.C. § 5107(a), a claimant has the responsibility to present and support a claim for VA benefits. See Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009) (the "support" requirement of section 5107(a) obligates the claimant to provide some evidentiary basis for his or her benefits claim). The Veteran has not done so in this case. For the foregoing reasons, the preponderance of the evidence reflects that the functional impairment from the Veteran's service-connected disabilities has not been shown to be so severe as to preclude substantially gainful employment. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to TDIU on an extraschedular basis prior September 18, 2018 For the period prior to September 18, 2018, the Veteran was service connected for left hip strain rated 10 percent, from August 1, 2008, right hip strain rated 10 percent, from August 1, 2008, left hand fracture based on limited motion of the left thumb rated 10 percent, from February 28, 2013, and left hand fracture based on limited motion of the left index finger rated 10 percent, from February 28, 2013, for a combined 40 percent rating from February 28, 2013. Therefore, the Veteran did not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a) to include the exceptions in 38 C.F.R. § 4.16(a)(1)-(5). When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a TDIU on an extraschedular basis, may nonetheless be granted when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. See 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." In the present case, there is not sufficient evidence to substantiate a reasonable possibility that the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities prior to September 18, 2018 and thereafter. Although the Veteran stated that his migraine headaches cause him to take leave from his job, there is nothing in the record to suggest that the Veteran was not following a substantially gainful occupation at any time during the appeal period. Moreover, as recently as May 2019 the Veteran was enrolled full time at Webster International University where he was seeking a B.S. in Education which indicates a capacity to learn and potentially engage in a variety of occupations that could account for the physical limitation caused by his service-connected disabilities. As the Veteran did not submit a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, the Board is not capable of knowing in what capacity the Veteran was employed and to what extent he was engaged in substantially gainful employment prior to September 18, 2018 and thereafter. Therefore, referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is not warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.