Citation Nr: 21066991 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-55 199 DATE: November 3, 2021 ORDER Entitlement to a 50 percent rating for tension headaches is granted. FINDING OF FACT Tension headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating of 50 percent for tension headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from January 2011 to January 2014. She also had additional service in the Army National Guard. The Veteran appeals the denial of a rating higher than 10 percent for tension headaches. The Veteran's disability is rated under Diagnostic Code 8100. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 8100 provides that migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. A 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The term characteristic prostrating attacks means migraine attacks that typically produce powerlessness or a lack of vitality, and completely prostrating attacks must render a veteran to be entirely powerless. Johnson v. Wilkie, 30 Vet. App. 245 (2018) The term "productive of severe economic inadaptability" is not defined by VA regulations. The Court, however, has stated that this term is not synonymous with being completely unable to work and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). In February 2017, the Veteran expressed that her service-connected tension headaches had increased in severity. In relation to her claim, the Veteran was afforded a VA examination in March 2017. During this examination, it was noted that the Veteran's headaches started in 2011. The headaches were described as frontal headaches which occurred three to four times a week. They were noted to last all day but were relieved with ibuprofen. The Veteran did not experience non-headache symptoms associated with her headaches. Her symptoms included headache pain on both sides of the head that lasted less than a day. It was noted that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. It was also noted that the Veteran's headache condition did not impact her ability to work. Mild disability was noted by the examiner. The Veteran reported a migraine like headache for the last four days in May 2017. She claimed to have had nausea and a severe headache. In a June 2017 statement, the Veteran expressed that her condition had progressively worsened and inhibited her ability to function normally. She reported that she continued to experience tension headaches and that the frequency of her tension headaches had increased. During migraines, the Veteran stated that she could not function properly and that she took medication but without relief. The Veteran reported severe pain, sensitivity to light, and the urge to vomit. She further reported that she had to lay down in a dark room until her symptoms subsided. She expressed that it was difficult to do the things she needed to do when she had headaches. During the November 2018 VA examination, the Veteran reported headaches three times a week with pain that lasted one to three hours. The pain was described as throbbing and treated with ibuprofen/aspirin. It was noted that the Veteran's non-headache symptoms included nausea and change in vision. The Veteran was noted to have characteristic prostrating attacks of migraine/non-migraine headache pain which were described as less frequent attacks. The examiner found that the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner, however, noted that the Veteran's headaches impacted her employment in that she needed to rest for a while when working. Mild disability was noted by the examiner. In the July 2021 Board hearing, however, the Veteran testified that her tension headache symptoms impacted her day-to-day life including her ability to work and care for her loved ones. It was further stated that she suffered from tension headaches three to four times per week which equated to an average 12 to 17 headaches per month and anywhere from 144 to 204 attacks per year. The Veteran testified that her headaches impacted her ability to concentrate and focus, and they interfered with her responsibilities professionally and personally. She reported that she started going to college, but she still had episodes of debilitating pain. She expressed that she could not leave her home to even go to school because of her symptoms and that there were times where she either had to drop her classes or just prolong them. The Veteran expressed that her tension headaches occurred three to four times a week. The migraines, the debilitating, the real severe episodes, she stated occurred one to three times a month. She reported that during a migraine, she is bed bound, has to lay down, turn off the lights and has to be still because of the debilitating pain. She described extreme pain, an inability to see, sensitivity to light and the sensation to vomit during migraines. Tension headaches, however, were noted to cause pressure in the front of her head, blurry vision and difficulty concentrating. The Veteran expressed that her headaches have not changed since 2017. After review of the record, the Board finds that the Veteran's tension headaches meet, or more closely approximates, the criteria for a 50 percent rating. To that end, when resolving reasonable doubt in the favor of the Veteran, the Board finds that the evidence shows headache attacks that are very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. The term frequent is defined as happening at short intervals. https://www.merriam-webster.com/dictionary/frequent. The term "very" is defined as to a high degree. https://www.merriam-webster.com/dictionary/very. The term prolonged is defined as continuing for a notably long time or extended in duration. https://www.merriam-webster.com/dictionary/prolonged. The Veteran's tension headaches have been described as intense headaches 12 to 17 days per month and migraines one to three times a month. Her tension headaches have been noted to last one to three hours and all day. Although it was reported that the tension headaches were less intense than the migraines, they were noted to cause a loss of concentration, blurred vision, head pain and difficulty completing day-to-day tasks. It was also noted that the Veteran has to lay down in a dark place until her tension headache symptoms resolve or lessen. The Veteran's migraines have been described as debilitating headaches that cause extreme pain, an inability to see, sensitivity to light and the sensation to vomit. During migraines, the Veteran reports being bed bound and unable to function. The Veteran is competent report the nature and frequency of her headaches and the Board finds that her statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has credibly described a powerlessness during her tension headaches/ migraines. Her tension headaches are indeed very frequent, and many of them appear to be completely prostrating. When considering the frequency, duration, and severity of her tension headaches in conjunction with her migraines, the Board finds that very frequent completely prostrating and prolonged attacks are shown. Furthermore, the Board finds that the evidence sufficiently shows severe economic inadaptability. In this regard, the Veteran reports that, when she was working during service, if she had a headache she would inform her supervisor, close her office door, turn off the lights, and take some type of medication until the symptoms subsided and she could return to work. The Veteran testified that since service, while pursing higher education, there were times when she could not leave her home to attend class, and there were times when she had to drop her classes or just prolong them due to her headaches. It is also noted that the VA examiner found that the Veteran's headaches impacted her employment in that she needed to rest for a while when working. The Board finds that having intense headaches 12 to 17 days per month and migraines one to three times a month indicates an inability to effectively function for about half the month which rises to the level of severe economic inadaptability, i.e. "producing" or "capable of producing" economic inadaptability. The Board also finds that missing class, having to drop classes and/or the need to rest for a while when working, rises to the level of "producing" or "capable of producing" economic inadaptability. While the Board is mindful that the VA examiner found that the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability, the Board finds that the Veteran's credible lay evidence place the evidence at least in equipoise. Thus, in resolving all doubt in favor of the Veteran, the Board finds that the criteria for a 50 percent rating for tension headaches have been met and that a 50 percent rating is warranted. The Board notes that 50 percent is the maximum rating available under DC 8100. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered whether a higher rating by analogy is available through another other diagnostic code that considers similar symptoms but has found none. In this case, the Board finds no other provision upon which to assign a rating higher than 50 percent disabling for tension headaches. Moreover, the Veteran has not reported other symptoms not contemplated by these rating criteria. Accordingly, the claim for a rating of 50 percent disabling, but no higher, for tension headaches is granted. REMANDED Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND During her July 2021 Board hearing, the Veteran expressed that she was unemployable due her service-connected disabilities. This reasonably raises the issue of entitlement to TDIU which is deemed part and parcel of the rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). The issue of TDIU has been raised by the record. However, there is no VA Form 21-8940, Veteran's Application for Increased Compensation Based Unemployability of record, nor has this issue been addressed by the RO. On remand, the RO must request that the Veteran complete this form and adjudicate the issue of entitlement to a TDIU. The matters are REMANDED for the following action: 1. Obtain a VA Form 8940 from the Veteran to determine the facts necessary to adjudicate the issue of TDIU. (continued on the next page) 2. Upon completion of the above requested development and any additional development deemed appropriate to include obtaining a VA opinion, the AOJ must readjudicate the issue. All applicable laws and regulations should be considered. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S. Willie 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.