Citation Nr: 21064892 Decision Date: 10/22/21 Archive Date: 10/21/21 DOCKET NO. 18-29 976 DATE: October 22, 2021 ORDER Entitlement to an extra-schedular rating for post-traumatic migraine headaches is denied. REMANDED Entitlement to a TDIU, to include on an extra-schedular basis, is remanded. FINDING OF FACT The level of severity and symptomatology of the Veteran's migraine headaches are contemplated by the rating criteria and appropriately rated. CONCLUSION OF LAW The criteria for an extra-schedular rating for migraine headaches are not met. 38 U.S.C. §§ 1155, 5103(a), 5107; 38 C.F.R. §§ 3.321 (b)(1), Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to September 1976. These matters are on appeal to the Board of Veterans' Appeals (Board) from a May 2014 rating decision. A hearing was held with the undersigned Veterans Law Judge in December 2020. The Veteran contends that his service-connected migraine headaches occur so frequently and are of such severity that he is rendered completely incapacitated and incapable of maintaining gainful employment. Entitlement to an extra-schedular rating for post-traumatic migraine headaches The Veteran is currently assigned a 50 percent rating for his migraines, which is the highest schedular rating available under Diagnostic Code 8100. Under 38 C.F.R. § 3.321 (b)(1), an extra-schedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." This standard was elucidated in Thun v. Peake, 22 Vet. App. 111, 115 (2008), which, in pertinent part, described the first two steps in the analysis. Thun's first step requires a comparison of the level of severity and symptomatology of the disability with the rating criteria for that disability. Thun's second step then requires a determination as to whether the veteran's exceptional symptomatology causes marked interference with employment, frequent periods of hospitalization, or other related factors (functional impairment). The Court of Appeals for Veterans Claims (Court) recently provided clarification in interpreting the Thun factors. Regarding the first step, the Court in Long v. Wilkie noted that because this determination is, by nature, fact-bound and highly contextual, it should be approached as a totality of the factors inquiry that considers whether the veteran's symptomatology presents an impairment so exceptional that the rating schedule is not capable of assessing it in the first instance. 33 Vet. App. 167 (2020). In other words, Thun's first step is not met simply because the symptoms of the disability are not considered in the rating criteria for that disability; rather, it is met when the impairment cannot be evaluated by the rating schedule. Id. The Court noted that this approach was not new, and that it was used to reach the holding in Doucette v. Shulkin, 28 Vet. App. 366 (2016), where it found the veteran's complaints were "precisely the effects that VA's audiometric tests are designed to measure" and therefore could not be deemed exceptional. Id. at 369. Turning to the evidence, in his VA Form 21-8940 application for a TDIU, the Veteran explained that he is unable to work because of his severe migraine headaches. His headaches prevent him from being productive. He must rest most of the time and stays in bed because he becomes sick to his stomach if he moves around much. In January 2013 correspondence, the Veteran explained that he experiences daily headaches that require him to spend much of his time in bed. In an October 2013 VA examination, the Veteran reported that his chronic headaches had increased in severity. He experiences constant head pain, pulsating or throbbing head pain that moves from side to side, with associated symptoms of nausea, sensitivity to light, sensitivity to sound, and changes in vision. The examiner indicated the Veteran had very frequent characteristic prostrating attacks more frequently than once a month. The examiner stated that the headaches would impact the Veteran's ability to work if he were employed, but he was not due to multiple disabilities. In a June 2014 Disability Benefits Questionnaire (DBQ), it reflects that the Veteran suffers from chronic daily headaches with pulsating or throbbing head pain on both sides of the head that worsens with physical activity. His headaches are accompanied by sensitivity to light and sound and changes in vision. He experiences very frequent prostrating and prolonged attacks more frequently than once monthly. The physician indicated the headaches did not impact the Veteran's ability to work because he did not work. In a December 2019 DBQ drafted by his treating physician, it states the Veteran experiences chronic headaches with pulsating or throbbing head pain on both sides of the head that worsens with physical activity. He also experiences sensitivity to light and sound and changes in vision. The pain occurs more frequently than once a month and lasts more than 2 days. He has very frequent prostrating and prolonged migraine attacks. The physician wrote that the headaches cause difficulty with concentration and impact his ability to work because they occur frequently and cause debilitating pain. He further remarked that the headaches occur several times per month, and the Veteran has not had good control of the headaches despite multiple pharmacologic therapies and specialty neurology evaluation. In his hearing, the Veteran explained that he experiences migraine attacks at least twice weekly that are so severe he cannot walk or even reach to touch his hair and must stay in bed in a dark room. He frequently becomes nauseous. He no longer drives or does his own errands because he does not know when the migraine attacks will arise. In his Notice of Disagreement, he explains that the headaches are completely disabling, and he has ongoing problems daily that require him to be medicated and effectively renders him incapacitated. In his VA Form 9, it states that the Veteran is severely disabled and industrially impaired due to his migraines. The VA treatment records reflect worsening headaches throughout the appeal period that affect his activities of daily living despite medication and neurology treatment. The Board appreciates the severity of the Veteran's migraines and the impact they have on his life. However, the symptoms complained of (i.e., throbbing pain, nausea, sensitivity to light and sound, changes of vision, frequent attacks of such severity that they produce economic inadaptability) fit squarely within the 50 percent rating criteria under Diagnostic Code 8100. While the associated symptoms of nausea, changes in vision, and sensitivity of light and sound are not expressly provided for in the rating criteria, they are notated in the DBQs and VA examinations and considered in the assignment of a rating. While the Board is sympathetic to the Veteran's contention that the severity and frequency of his migraines are to such a high degree that it is not adequately rated, the rating criteria provides for "very frequent" and "prolonged" prostrating attacks. In other words, the symptoms the Veteran endorses are the very symptoms encompassed in the rating criteria, and the impairment can be evaluated under the rating criteria. Accordingly, the first step of the Thun analysis has not been met because the level of severity and symptomatology are commensurate with the rating criteria. With that being the case, the Board does not need to reach the second step of the analysis and consider the functional impairment, such as marked interference with employment, a resultant inability to drive or run errands, or a decrease in concentration. Entitlement to referral for consideration of an extra-schedular rating is denied. REASONS FOR REMAND Entitlement to a TDIU, to include on an extra-schedular basis VA will grant a TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. There are two regulatory subsections that allow for a TDIU. The first, called a "schedular TDIU," is found at 38 C.F.R. § 4.16 (a) and requires that certain disability rating percentages be in place. Either the Board or the AOJ can grant a schedular TDIU in the first instance. The second, called an "extra-schedular TDIU," is found at 38 C.F.R. § 4.16 (b). It does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance, it must first be submitted to VA's Director of Compensation Service. 38 C.F.R. § 4.16 (b). The schedular TDIU subsection provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. The extra-schedular subsection explains that it is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). The Veteran's service-connected disabilities are rated as follows: migraine headaches (50 percent); tinnitus (10 percent); Bankart fracture resolved with chronic mild pain and bursitis, right shoulder (10 percent); bilateral hearing loss (0 percent); and hepatitic C (0 percent). Consequently, the Board finds that the Veteran does not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16 (a). In considering whether referral for consideration of an extra-schedular TDIU is warranted, the Board incorporates the evidence detailed earlier in the decision. In addition to the above evidence, the same physician who drafted the December 2019 DBQ also drafted a letter in November 2019, explaining that the Veteran suffers from headaches that limit his ability to work. Acknowledging the Veteran's several significant medical conditions, he opined that it is the migraines that cause the Veteran to be functionally incapacitated on a regular basis. He is unable to hold any type of gainful employment because of the severe and intractable headaches. The Veteran explained in his Notice of Disagreement that he left work in 2004 due to problems with blood in his urine which led to a diagnosis of prostate cancer. He was treated and has no present cancer or urology needs. However, he has had worsening headaches that prevent any meaningful work. The condition is completely disabling in and of itself, and he has ongoing problems daily that require him to be medicated and effectively renders him incapacitated. In his VA Form 9, it states that the Veteran is severely disabled and industrially impaired due to his migraines. It is asserted that, while the Veteran has multiple other disabilities, it is principally his headaches that prevent him from being employed. Upon careful consideration of the evidence, the Board finds there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to his migraines. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Thus, remand is warranted for referral to the Director of Compensation Service for consideration of a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b). The matter is REMANDED for the following action: Refer the claim for a TDIU on an extra-schedular basis to the Director of Compensation Service. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.