Citation Nr: 21068973
Decision Date: 11/17/21	Archive Date: 11/17/21

DOCKET NO. 12-22 113
DATE: November 17, 2021

ORDER

Entitlement to an initial 50 percent rating for posttraumatic headaches prior to April 14, 2015, is granted.

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) for the period prior to April 30, 2014, is denied.

FINDINGS OF FACT

1. Prior to April 14, 2015, the Veteran's posttraumatic tension headaches were characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

2. Prior to April 30, 2014, the effects of the Veteran's service-connected disorders did not render him unemployable.

CONCLUSIONS OF LAW

1. The criteria for an initial 50 percent rating for posttraumatic tension headaches, prior to April 14, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8100 (2020).

2. The criteria for entitlement to a TDIU prior to April 30, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16(a) (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1992 to January 1994, from September 2002 to January 2003, from August 2007 to February 2008, and from October 2011 to June 2012.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In an October 2020 decision, the Board denied entitlement to an increased initial rating in excess of 30 percent for posttraumatic headaches for the period prior to April 14, 2015, and in excess of 50 percent from April 14, 2015.

The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In May 2021, the parties filed a Joint Motion for Partial Remand vacating the Board's October 2020 decision to the extent that it denied entitlement to a rating in excess of 30 percent for posttraumatic tension headaches for the period prior to April 14, 2015, and remanded the matter for readjudication in light of the Joint Motion for Partial Remand.

In July 2015, the agency of original jurisdiction (AOJ) granted entitlement to a TDIU, effective January 17, 2017. In a July 2020 rating decision, the AOJ granted an earlier effective date of April 30, 2014, for the award of a TDIU. However, as the Veteran's TDIU claim was raised during the course of the appeal for increased rating for posttraumatic headaches, it is therefore part-and-parcel of that claim. The award of a TDIU does not cover the entire period on appeal pertaining to the headache disability, which is effective February 23, 2010. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018); Payne v. Wilkie, 31 Vet. App. 373 (2019). As such, the Board will address the issue of entitlement to a TDIU prior to April 30, 2014.

1. Entitlement to a rating in excess of 30 percent for posttraumatic tension headaches prior to April 14, 2015

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

The 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).

The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 

The Veteran's posttraumatic tension headaches are rated as 30 percent disabling for the period prior to April 14, 2015, pursuant to the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8100.

Under Diagnostic Code 8100, migraines are evaluated as follows: a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months; and, a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100.

In Johnson v. Wilkie, 30 Vet. App. 245 (2018), the Court found that the phrase "characteristic prostrating attacks" means "attacks that typically produce powerlessness or a lack of vitality." In other words, the term prostrating takes on its plain meaning of "lacking in vitality or will: powerless to rise: laid low." Id.   "Productive of economic inadaptability" can be read as having either the meaning of "producing" or "capable of producing," and nowhere in Diagnostic Code 8100 is "inadaptability" defined, nor can a definition be found elsewhere in title 38 of the Code of Federal Regulations. But, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

In addition, the Court clarified that the criteria of Diagnostic Code 8100 are successive, and 38 C.F.R. §§ 4.7 and 4.21 are not for application. See Johnson, supra. Successive criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Although 38 C.F.R. §§ 4.7 and 4.21 generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria.

On a June 2011 VA examination, the Veteran reported "oppressive frontal headaches with associated blurred vision, occurring about 2 to 3 times per week" which became "prostrating about once per week up to 9/10 intensity."

The examiner diagnosed posttraumatic tension-type headaches. The examiner noted that the effects on occupation were that the Veteran was assigned different duties.

On VA examination in April 2015, the Veteran reported that his headaches had progressively worsened since his last examination. He noted that they increased in frequency from 2 to 4 times per week. The headaches were acute and became incapacitating. He had not been able to work due to his headaches, traumatic brain injury, and posttraumatic stress disorder. During the acute episodes, he needed to stay in a dark room untiled his pain improved. The Veteran reported nausea, vomiting, sensitivity to light, sensitivity to sound, sensory changes, and vertigo. He took Tramadol and Meloxicam for treatment.

The examiner commented that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain once every month. The examiner also determined that the Veteran had very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The examiner indicted that the Veteran's headaches interfered with his ability to sustain any type of employment.

In this case, the 2015 VA examiner specifically reached that conclusion that the Veteran's headache disability has been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board notes that the 2011 VA examiner did not specifically address this criterion; however, a specific headache examination was not provided at that time. In addition, at the time of the 2011 examination the Veteran reported 2-3 headaches per week with 1 prostrating headache per week, and on examination in 2015 the Veteran indicated that his headaches had increased in severity and frequency prior to the 2015 examination.

Accordingly, resolving a reasonable doubt in favor of the Veteran, the Board finds that the Veteran's headache disability more nearly approximates the criteria for a 50 percent rating for the period prior to April 14, 2015, which contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

The Board notes that a 50 percent rating is the maximum rating allowed under Diagnostic Code 8100.

The Board has also considered other potentially applicable diagnostic codes; however, the Veteran's migraine headaches are not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule. 

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record outside of entitlement to a TDIU. See Doucette v. Shulkin, 28 Vet. App. 366, 370-71 (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).

For the foregoing reasons, the Board concludes that there is no basis for staged ratings of the Veteran's service-connected muscle tension headaches s, as his symptoms have been primarily the same throughout the appeal period. In this regard, the Board finds that a 50 percent rating for posttraumatic tension headaches prior to April 14, 2015, is warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

2. Entitlement to a TDIU prior to April 30, 3014

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16.

Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 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 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In order for a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 361.

In Geib v. Shinseki, 733 F.3d 1350 (2013), the Federal Circuit held that VA's duty to assist did not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities. "Indeed, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Id. at 1354.

Marginal employment shall not be considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 

Consideration shall be given in all claims to the nature of the employment and the reason for termination. In this regard, the Court has indicated that factors to consider in determining whether a protected work environment exists may include the "magnitude of the veteran's job responsibilities and the degree of accommodation necessary for successful, full-time work." Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017).

In this case, with respect to the period prior to April 30, 2014, the Veteran is service connected for posttraumatic tension headaches (now rated as 50 percent disabling), posttraumatic stress disorder with traumatic brain injury (30 percent from June 13, 2011), right shoulder contusion and bursitis (20 percent), tinnitus (10 percent), and various other disabilities including atopic dermatitis, allergic rhinitis, sinusitis, left knee disability, pinguecula, and exophoria, each rated as noncompensable. His combined rating is 70 percent prior to July 13, 2011, and 80 percent from that date, and he therefore meets the criteria for a TDIU per 38 C.F.R. § 4.16(a).

In this case, the Veteran reported on his VA Form 21-8940, Application for TDIU, that he worked at Muniz Air Force Base from January 1992 to September 2014. Social Security Administration records note the Veteran's report that he was with the Air National guard from December 1992 to September 2014, and was an Air National Guard tech from February 1995 to February 2015. As noted above, after the Veteran was granted service connection for his headache disorder, he served an additional period of active duty in 2011 and 2012. 

On VA psychiatric examination in February 2011, the Veteran indicated that he was working full time as a production controller at an Air Force base.

After his period of active duty from 2011 to 2012, a February 2013 report form the Puerto Rico Air National Guard indicated that the Veteran was not performing his duties at that time and had not been able to due to his medical condition. He had not reported his duty post since July 1, 2012, due to his medical condition.

On VA psychiatric treatment in February 2013, the Veteran reported that he had been out of work for the last year but receiving his salary irregularly. He was in the process of military discharge and awaiting a medical board decision. A September 2013 VA eye examination report indicates that the Veteran was working at that time on a full-time basis with the National Guard doing data entry/fleet manager. However, on VA psychiatric examination in April 2014, the Veteran reported that he had not worked as a civilian employee with the National Guard in the last 3 years. 

On VA knee examination in September 2013, the Veteran endorsed difficulties with left knee pain with exercise and going up and down stairs. On shoulder examination, the Veteran had difficulties with physical activities and activities that worsened with overhead activities. An April 2014 VA psychiatric examiner found the Veteran's psychiatric disorder to be productive of occupational and social impairment with reduced reliability and productivity.

Subsequent National Guard records indicated that the Veteran was placed on the temporary disability retired list in September 2014, and permanently retired in March 2015. Social Security records indicate that the Veteran had not been working and was disabled as of May 26, 2012. The Veteran was determined to be disabled as a result of affective disorders and osteoarthritis and allied disorders.

The evidence reflects that after the Veteran was discharged from active duty service in June 2012, he continued to be employed as a civilian employee with the National Guard. However, records conflict as to whether he was actually working from June 2012 until April 2014. The Veteran's SSA forms and TDIU claim indicate that the Veteran technically maintained employment while awaiting a disability determination from the National Guard. He reportedly continued to receive a salary, although payment was noted to be irregular. 

When the Veteran was discharge from the National Guard in March 2015, it was noted that the Veteran was found to be unfit and recommended for permanent retirement. He required his wife to act as caregiver and experienced chronic symptoms including anxiety, irritability, anger outbursts, insomnia, hypervigilance, as well as intrusive thoughts and nightmares. He had an acute hospitalization in 2013 secondary to a suicide attempt and two partial hospitalizations due to increased depression and anxiety. "Unfitting conditions" were noted to be PTSD and left knee pain.

The question is whether for any period contemplated by this appeal, the Veteran's service-connected disabilities preclude her from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the veteran's earned annual income. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell, 28 Vet. App. at 396 (Lance, J., concurring).

 After careful review of the record, the Board does not find that a TDIU is not warranted for any period contemplated by this appeal. During the appeal period, the Veteran worked as a civilian through 2011, and then was deployed on active duty from 2011 through June 2012. Following his discharge from active duty, the Veteran maintained employment through 2014, though it does not appear he was reporting for duty with the National Guard while he was awaiting medical evaluation board determination. On his TDIU application, the veteran reported salary in 2014 well above the poverty threshold with highest gross earnings of over $4,000 per month. While the Veteran may meet the TDIU schedular percentage criteria, awarding a TDIU would not service its intended purpose as the Veteran technically maintained employment.

A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell, 28 Vet. App. at 396 (Lance, J., concurring). While acknowledging the functional limitations associated with his service-connected psychiatric disability and physical disabilities in an occupational setting, the record reflects that the Veteran was not placed on temporary disability until September 2014, and then discharged from the National Guard in March 2015. The Veteran reported receiving a salary on his TDIU form  through September 2014, despite Social Security and National Guard records supporting disability prior to that date.

Accordingly, the Board concludes that a TDIU prior to April 30, 2014, must be denied. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56.

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. E. Wilkerson, 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.