Citation Nr: 21065093 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 18-05 280 DATE: October 25, 2021 ORDER Entitlement to an initial 50 percent disability rating for service-connected migraine headaches is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective August 29, 2016. FINDINGS OF FACT 1. For the entire period under review, the evidence is at least in equipoise as to whether the Veteran has experienced very frequent, completely prostrating migraine headaches productive of severe economic inadaptability. 2. For the entire period under review, the Veteran's service-connected migraine headaches and depressive disorder have prevented the Veteran from securing and following gainful employment. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran's favor, the criteria for an initial 50 percent rating for service-connected migraine headaches are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a Diagnostic Code 8100. 2. Effective August 29, 2016, the criteria for the award of a TDIU are met 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from November 1987 to October 1988 and from February 1989 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision. In July 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Entitlement to an initial rating of 50 percent, but no higher, for a migraine headache disability is granted. Migraine headaches are rated under Diagnostic Code 8100. 38 C.F.R. § 4.124a. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as non-compensable. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. A 50 percent rating is the maximum rating available under Diagnostic Code 8100. The term "prostrating attack" is not defined in regulation or case law, but 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). Further, "severe economic inadaptability" is also not defined by VA regulation. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the Court has held that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. In this regard, it was explained by the Court that if "economic inadaptability" were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating. Id., citing 38 C.F.R. § 4.16. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words "productive of" could be read to mean either "producing" or "capable of producing." Id. at 446-447. The Board may not deny entitlement to a higher rating based on relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Historically, service connection for migraine headaches was established in the January 2017 rating decision on appeal, at which time the AOJ assigned an initial 30 percent disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, effective August 29, 2016. In December 2016, the Veteran underwent a VA examination in connection with his claim for service connection for headaches. The examiner noted the Veteran's 2016 diagnosis of migraine including migraine variants. The examiner noted that 1989 was the onset of the Veteran's condition and that his headaches had persisted for years. The examiner noted that the Veteran was following up with a neurologist since 1996 and that he had taken different medications. The examiner reported that the Veteran's headache pain was localized to one side of the head and worsens with physical activity, and that he experienced sensitivity to light and sound. The examiner noted that the Veteran's duration of typical head pain was 1 to 2 days and that the location of the typical head pain was on the right side of the head. The examiner reported that the Veteran had characteristic prostrating attacks of migraine once every month but that that Veteran did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The examiner reported that the Veteran's headache condition did not impact his ability to work and that there was no effect on his ability to function in an occupational environment as it can be controlled with medication at the time of headache. See December 2016 VA examination report. The record includes a January 2018 Disability Benefits Questionnaire (DBQ) completed by the Veteran's VA neurologist stating that the Veteran has a history of chronic migraines starting during military service. The neurologist noted that the Veteran's symptoms include headache pain, nausea, sensitivity to light, and sensitivity to sound. It was noted that the duration of typical head pain was 1 to 2 days and the location was on the right side of the head. The neurologist indicated that the Veteran had characteristic prostrating attacks of migraine headache pain more frequently than once per month and that he has very frequent prostrating and prolonged attacks of migraine headache pain. The neurologist noted that the Veteran's headache condition impacts his ability to work has he has severe headaches, 15 days per month, and remarked that the Veteran has significant migraine disability. See January 2018 Headaches DBQ. A review of the Veteran's private treatment records indicates that the Veteran was experiencing nearly daily headaches in December 2015. In May 2017, the Veteran's VA treatment records noted he had been experiencing at least 24 days of headache per month with approximately 10-11 severe days per month. The Veteran's VA treatment records note that the Veteran keeps a very precise headache diary and that he has headaches about 80 percent of the days with severe headaches about 40 to 50 percent of the days. See October 2017 and January 2018 VA treatment records. During the Veteran's July 2021 hearing, the Veteran credibly testified that, when he has his headaches, he will see flashes of light and sometimes has blind spots in different spots in his vision. He yawns a lot and tends to start dehydrating, his eyes will water, he urinates a lot, and then the pain comes in and it feels like someone is taking a nail and pushing it right up into his right eye. It goes around that side of his head and down into his neck and shoulder, and that can sometimes last three or four days. Afterwards, he is sluggish and beat down, and does not have a lot of energy; he feels worn out from fighting the pain. He takes medication, but that puts him to sleep; it puts him out for at least 12 hours, and it is usually a full 24 hours until he is functioning again. He has gone through a lot of different treatments over the years, but nothing worked long term. He testified that when he experiences a full-blown headache, he has to lie down and take a break; at its worst, there is nothing he can do but wait it out. He testified that sometimes his medication will take the edge off, and sometimes it will get rid of it, but he never knows. He does not know how long it is going to last or how severe it is going to be. He testified that in 2021, about 27 percent of the time he is completely down, and in 2020, it was about 29 percent of the days. He testified that he has been completely down an average of eight days a month in 2021. See July 2021 Hearing Transcript. Also during his hearing, the Veteran testified that he kept logs of his headaches and, in fact, the record includes daily headache logs kept by the Veteran beginning in April 2017 that detail the onset time, severity, symptoms, medications, duration, loss of productive hours, and additional details pertaining to his headaches. The record also includes logs provided by the Veteran summarizing the data, including breakdowns of the number of days per month with migraines and severe migraines. The logs are consistent with the testimony offered by the Veteran during his July 2021 hearing. The Board has no reason to question the credibility of the Veteran's report of the frequency and duration of his migraine symptoms. Lay evidence is competent when provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2) (2017); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran's migraine headaches impact his ability to function at work to a degree that amounts to "severe economic inadaptability." As discussed above, when the Veteran experiences a severe migraine, he needs to take medication, use an ice pack, and lie down until his headache subsided. Within the meaning of Diagnostic Code 8100, "productive of economic inadaptability" can be read as meaning either "producing" or "capable of producing." While Diagnostic Code 8100 does not define "inadaptability," nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). However, the Board notes that the Veteran stopped working in 2014, two years before filing his claim. The record indicates, and the Veteran has testified, that he was missing work several days per week due to migraines, which led to him being laid off from his company. The Veteran also testified that he had attempted to work at his own business after leaving this employment, but the unpredictable nature and frequency of his migraines impacted his reliability and ability to work. Upon review of all the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected migraine headache disability results in very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. The various symptoms such as sensitivity to light, sensitivity to sound, fatigue, burning eyes, blurry vision, and the need to medicate, use ice packs, lay down until he can get relief, and go to bed are representative of severe headaches that can reasonably be described as completely prostrating. Resolving all doubt in the Veteran's favor, the Board therefore finds that the symptoms of the Veteran's headaches more nearly approximate the criteria for a 50 percent rating. The Veteran's headaches are more frequent than the once-per-month envisioned by the 30 percent rating. The headaches are shown to be completely prostrating and prolonged, as well as productive of severe economic inadaptability. Thus, an initial rating of 50 percent, effective August 29, 2016, is granted for migraine headaches. See 38 C.F.R. § 4.124(a), Diagnostic Code 8100. The Board observes that a schedular rating in excess of 50 percent is not available for headaches under these rating criteria. Entitlement to a TDIU for the time period prior to August 5, 2019 is granted. During the Veteran's July 2021 hearing, the Veteran, through his attorney, has asserted that TDIU is warranted prior to August 5, 2019. Because entitlement to a TDIU was raised in relation to the Veteran's pending claim for a higher rating for migraine headaches, the question of whether entitlement to a TDIU can be granted dating from August 29, 2016 to August 5, 2019 (the effective date for the Veteran's current TDIU award) is for decision before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Under the applicable criteria, all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A total disability rating for compensation purposes may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). For the time period for August 29, 2016 to August 5, 2019, the Veteran was in receipt of service connection for three disabilities: migraine headaches, now rated at 50 percent, major depressive disorder associated with migraines, rated at 30 percent, and tinnitus, rated at 10 percent. The Veteran now has one disability rated at over 40 percent, with a combined rating of 70 percent, meeting the schedular criteria for a TDIU during the entire time period under review. Importantly, in granting entitlement to a TDIU, effective August 5, 2019, the AOJ made a specific finding that the award was based on the disabling effects of his migraine headaches and his depressive disorder. The effective date was chosen merely because, at the time, it was the date the Veteran met the schedular criteria for a TDIU. Review of the evidence shows no significant difference in the severity of the Veteran's headache and depressive disorder symptoms between the time the Veteran filed his headaches claim on August 29, 2016 to the effective date of the August 5, 2019 award. Indeed, the Veteran had stopped working full time years prior, and the evidence demonstrated that headaches and depression were, and are preventing the Veteran from securing or following gainful employment. Notably, the SSA awarded disability benefits based on the effects of these two disabilities in March 2018 following the Veteran's 2017 application. (Continued on Next Page) The Board accordingly resolves all doubt in the Veteran's favor and awards entitlement to a TDIU based on the disabling effects of the Veteran's migraines and depression, effective the entire period under review, from August 29, 2016 to August 5, 2019. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.