Citation Nr: 21070694 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 15-04 997 DATE: November 24, 2021 ORDER Entitlement to a compensable disability rating for migraines/tension headaches prior to January 10, 2013 is denied. Entitlement to a 50 percent disability rating, and no higher, for migraines/tension headaches from January 10, 2013, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Prior to January 10, 2013, the Veteran's migraines/tension headaches did not manifest in characteristic prostrating attacks averaging one in 2 months over the requisite several month period. 2. From January 10, 2013, the Veteran's tension and migraine headache manifestations have been most closely analogous to very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. Resolving all reasonable doubt in the Veteran's favor, he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities throughout the entire period on appeal (i.e., since September 27, 2011). CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for migraines/tension headaches prior to January 10, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a 50 percent disability rating, and no higher, for migraines/tension headaches from January 10, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.20, 4.124a, Diagnostic Codes 8100. 3. The criteria for entitlement to a TDIU due to service-connected disabilities have 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 honorably on active duty from December 1990 to January 1995, November 1997 to March 1998, January 2003 to April 2004, and from May 2009 to April 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, these claims were previously before the Board in June 2018, at which time they were remanded to the Agency of Original Jurisdiction (AOJ) for the correction of a due process deficiency. Following that remand, in July 2020, the Board issued a decision denying entitlement to increased ratings for migraines/tension headaches. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). The Veteran and VA filed a Joint Motion for Partial Remand (JMPR) in February 2021 and argued that the July 2020 Board decision should be vacated. As a result, the Veteran's claim was remanded to the Board to address the issues raised by the JMPR. This included the issue of entitlement to a TDIU, which the Court found was raised by the record pursuant to 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). Increased Ratings VA's percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and criteria under which they will be rated, and the assignment of a Diagnostic Code (DC) depends wholly on the facts of the case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). If two disability evaluations are potentially applicable, 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 reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The most relevant information in determining the appropriate initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period. Hart v. Mansfield, 21 Vet. App. 505 (2007). An increased or staged rating should be assigned based on when the increase in disability can be factually ascertained, not simply the date of the medical report. See id.; Swain v. McDonald, 27 Vet. App. 219, 224 (2015). 1. Entitlement to a compensable disability rating for migraines/tension headaches prior to January 10, 2013 is denied. In March 2010, the Veteran submitted a claim for service connection for headaches. By rating decision dated in September 2010, the RO, in part, granted service connection for chronic migraines/tension headaches, assigning a noncompensable disability rating for this disability effective April 8, 2010. In September 2011, the Veteran requested an increased rating for his chronic migraines/tension headaches. By rating decision dated in April 2012, the RO continued a noncompensable disability rating for the Veteran's chronic migraines. The Veteran disagreed with this decision and perfected this appeal. During the pendency of the appeal, the AOJ issued a rating decision in December 2014, which increased the Veteran's disability rating for his service-connected migraines to 30 percent disabling, effective January 10, 2013. Therefore, two periods are before the Board on appeal; a compensable disability rating prior to January 10, 2013 and a disability rating in excess of 30 percent from January 10, 2013. The Veteran's chronic migraines are rated under 38 C.F.R. § 4.12a, DC 8100. Under DC 8100, migraines are evaluated as follows: a noncompensable rating is assigned with less frequent attacks; a 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months; 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, DC 8100. Evidence relevant to the level of severity of the Veteran's migraine headaches prior to January 10, 2013 includes VA treatment records and a VA examination and accompanying report. VA treatment records from 2010 reflect that the Veteran reported experiencing "constant" headaches and indicated that they occurred every day. The Veteran reported that the pain that accompanies these headaches is frontal, and that he becomes light sensitive, often going into a dark area for relief when they occur. The Veteran also reported sensitivity to noise during the headaches. See May 2010 psychology note. The Veteran underwent a VA examination for his migraines/tension headaches in December 2011. During the December 2011 examination, the VA examiner noted a diagnosis of migraine including migraine variants as well as tension headaches. The Veteran reported that he had been experiencing migraines and/or tension headaches since 2005. The Veteran indicated that he experienced constant head pain which worsens with physical activity, as well as sensitivity to light and postural dizziness. The Veteran reported he suffers from headaches daily. He did not have characteristic prostrating attacks of migraine or non-migraine headache pain. Significantly, the examiner wrote that the Veteran's headaches did not impact his ability to work and stated that the Veteran can work through his headaches with over-the-counter medication. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the disability picture for headaches prior to January 10, 2013 more closely approximated the criteria for a compensable rating under DC 8100. Throughout this period, headaches were manifested by headache pain lasting less than one day with no prostrating attacks of headache pain, or other symptoms sufficient to establish functional impairment on par with the level contemplated by the compensable rating. A compensable rating under DC 8100 is not warranted unless there are migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. The December 2011 VA examination did not show any prostrating attacks, and there are no complaints of prostrating attacks in the VA treatment records prior to January 10, 2013. While the Veteran experienced head pain, it did not affect his ability to work or otherwise function. In consideration thereof, the Board finds that the disability picture is consistent with the currently assigned 0 percent schedular rating under DC 8100, so a higher (compensable) rating under DC 8100 is not warranted for this appeal period. As the preponderance of the evidence is against a compensable rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Entitlement to a 50 percent disability rating, and no higher, for migraines/tension headaches from January 10, 2013, is granted. The Veteran contends that he is entitled to a disability rating in excess of 30 percent for his service-connected migraine/tension headaches from January 10, 2013. Evidence relevant to this period on appeal includes VA examinations, VA treatment records, and testimony from the Veteran. The Veteran underwent a VA examination in February 2014. During the examination, the Veteran reported experiencing constant head pain as well as sensitivity to light. The Veteran reported he suffers from headaches daily and his most severe headaches occur weekly. The VA examiner noted the Veteran had prostrating attacks of non-migraine headache pain more frequently than once per month. The VA examiner also indicated that the Veteran's migraine headache disability impacted his ability to work; the VA examiner stated that the Veteran experiences prostrating attacks once per week and will take off work if they occur at work. The Veteran underwent an additional VA examination in October 2015. The Veteran reported that he has daily headaches, but has severe headaches two to three times per week. The Veteran stated that when he has severe headaches he stays in bed from morning to evening. The Veteran endorsed symptoms such as headache pain on both sides of the head, sensitivity to light, and sensitivity to sound. The VA examiner noted that the Veteran experiences characteristic prostrating attacks of migraine / non-migraine headache pain once every month. However, the VA examiner indicated that the Veteran did not have very prostrating and prolonged attacks of migraines / non-migraine pain productive of severe economic inadaptability. The Veteran's most recent VA examination was in June 2018. The Veteran once again endorsed head pain, sensitivity to light, and sensitivity to sound. The VA examiner found that the Veteran does not experience characteristic prostrating attacks of migraine / non-migraine headache pain nor has very prostrating and prolonged attacks of migraines / non-migraine pain productive of severe economic inadaptability. Regarding impact on the Veteran's ability to work, the VA examiner noted that the Veteran reports difficulty performing tasks and duties when experiencing a migraine headache due to light and sound sensitivity, and the inability to focus and/or concentrate. During a hearing with a decision review officer in August 2015, the Veteran testified that he experiences continuous migraine headaches on a daily basis, with them being at their worst severity early in the morning. The Veteran indicated he takes medications for his migraines and has not seen any private treatment providers for his condition. VA treatment records from January 10, 2013 contain complaints and treatment for the Veteran's service-connected migraine disorder. The Veteran reported "throbbing headaches" daily associated with photophobia and phonophobia. The Veteran indicated that the only thing that helps alleviate his headache symptoms is being alone in a quiet, dark room. The Veteran also indicated that his migraine headaches are becoming "more intense" and more frequent. See e.g., January 12, 2016 VA primary care note; September 25, 2018 VA neurology note. As above, a 50 percent rating, the maximum available, requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Essentially this requires that migraines must be both frequent and prolonged in nature, not one without the other. Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). The phrase "characteristic prostrating attacks" plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. Johnson, 30 Vet. App. at 252. "Completely prostrating" means that "the headaches must render the veteran entirely powerless." Id. at 253. The term "productive of severe economic inadaptability" means either producing or capable of producing. Pierce v. Principi, 18 Vet. App. 440, 445-47 (2004) (stating that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating). Given the evidence of record, the Board finds that a disability rating of 50 percent, and no higher, is warranted for the Veteran's chronic migraines/tension headaches. As above, the Veteran experiences headaches daily, with severe migraine headaches two to three times per week, each lasting at least a day, which often require him to stop his activities. The Veteran indicated that when these severe migraines occur, he must go into a dark room with silence to obtain any relief. The Veteran has also indicated that he will leave work if such severe migraines occur. Such is evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As for the potential of an even higher rating, the 50 percent rating assigned is the maximum schedular rating available for this disability. This rating contemplates the Veteran's prostrating headaches and the severe economic inadaptability manifested by his migraines/tension headaches. Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A review of the record does not show any additional functional impairment associated with the Veteran's service-connected migraine headaches so as to warrant consideration of alternate rating codes. In making its rating determination above, the Board has also carefully considered the Veteran's contentions with respect to the nature of his service-connected migraines, and notes that his lay testimony is competent to describe certain symptoms associated with such disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability ratings that have been assigned for his service-connected migraine headaches. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability addressed above. TDIU 3. Entitlement to a TDIU due to service-connected disabilities is granted. A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has established service connection for posttraumatic stress disorder (PTSD), rated 50 percent disabling from July 18, 2013 and 70 percent disabling from February 15, 2018; obstructive sleep apnea, rated 50 percent disabling from September 23, 2011; allergic rhinitis, conjunctivitis, and chronic sinus, rated 30 percent disabling; anxiety disorder, rated 30 percent disabling; migraines/tension headaches, rated noncompensably disabling from April 8, 2010, and now 50 percent disabling from January 10, 2013; right rotator cuff tear with acromioclavicular joint osteoarthritis, rated 20 percent disabling; shoulder rotator cuff tendonitis with acromioclavicular joint osteoarthritis, left, rated 10 percent disabling from May 22, 2015 and 20 percent disabling from February 15, 2018; degenerative arthritis of the lumbar spine, rated 20 percent disabling; degenerative arthritis and disc herniation of the cervical spine, rated 10 percent disabling from April 8, 2010 and 20 percent disabling from February 15, 2018; cervical radiculopathy of the left lower extremity, rated 20 percent disabling; chondromalacia patellae, left knee, rated 10 percent disabling; patellar tendonitis, right knee, rated 10 percent disabling; allergic rhinitis, rated 10 percent disabling; plantar fasciitis of the right foot, rated 10 percent disabling; conjunctivitis, rated noncompensably disabling; right shoulder surgical scars, rated noncompensably disabling; and sinusitis, rated noncompensably disabling. The Veteran's combined rating for compensation purposes is 70 percent beginning April 8, 2010 and 90 percent beginning September 23, 2011. 38C.F.R. §4.25. Therefore, he has met the threshold criteria for a TDIU during the pendency of the appeal period. 38 C.F.R. § 4.16(a). The remaining inquiry is whether he is unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran filed a formal application for TDIU (VA 21-8940) in July 2013. The Veteran reported that he last worked full time in May 2013 as HVAC maintenance. Regarding education, the Veteran graduated high school and attended two years of college. The Veteran also reported he obtained specialized training in heating, ventilation, and cooling. VA treatment records reflect that the Veteran reported he worked maintenance at a casino as well as a self-employed HVAC technician. The Veteran reported that in both jobs he works alone, which "works out better for him" due to his service-connected PTSD. See January 10, 2013 VA mental health consult. During a September 2015 VA examination for PTSD, the Veteran reported that he stopped working primarily due to pain and limitations from his physical disabilities as well as difficulties from his psychiatric disability. Specifically, the Veteran stated that he experiences a lot of pain on a daily basis as a result of his knees, back, shoulder, hips, and migraines or tension headaches. The Veteran also indicated that he was becoming more and more aggravated with people and "almost getting into it" with people at work, which further contributed to his decision to stop working. The Veteran has had multiple VA examinations for his various service-connected conditions throughout the period on appeal. During a June 2018 VA examination for his cervical spine, the VA examiner noted that his cervical spine disability impacts his ability to work because it results in limited and restricted movement of the Veteran's neck. VA examinations from June 2018 for his right foot disability also reflect that the Veteran's ability to work is impacted as pain increases with prolonged weight bearing and repeated use over time, which limits activities such as standing, walking, and jogging or running. A June 2018 VA examination for his lumbar spine reflects that the Veteran has further limitations involving lifting and bending. As mentioned above, the June 2018 VA examination for PTSD reflects that the Veteran's primary symptoms include depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, and neglect of personal appearance and hygiene. The Veteran reported during the examination that he primarily spends his days at home, although he tries to get out of the house, even though it is "unpleasant" for him as a result of increased anxiety. The Veteran also endorsed that he experiences days where he does not leave his room or attend to his hygiene needs. VA examinations in June 2018 marked "no" on the question as to whether the Veteran's sinusitis, rhinitis, and sleep apnea had any impact on the Veteran's ability to perform work. No accompanying reasoning was offered. Based on the foregoing, the Board finds that the medical evidence supports a finding that the Veteran's service-connected disabilities make him unemployable. As above, the Veteran experiences severe and widespread physical limitations due to his service-connected disabilities. Further, the Veteran reported absenteeism, mentioned above, as a result of his service-connected migraine headache condition. Additionally, the Veteran's social functioning is also impaired as a result of his service-connected PTSD. Given that the Veteran's work experience is primarily physical in nature, with maintenance and HVAC work being his specialty, it is unlikely that he would be able to secure substantially gainful employment with such transferrable skills that he would physically be able to perform as a result of his limitations caused by his service-connected disabilities. Therefore, affording the Veteran the benefit of the doubt, the Board finds that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities and, therefore a TDIU is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board finds she meets the requirements for TDIU since the date of his increased rating claim (September 27, 2011). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.