Citation Nr: 21071099 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 15-18 947 DATE: November 29, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for headaches is denied. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's headaches include characteristic prostrating attacks but are not very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The evidence of record does not indicate that the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 30 percent for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.124a, Diagnostic Code 8100. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal comes to the Board of Veterans' Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In December 2018, the Veteran testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. In April 2019 and April 2021, the Board remanded the appeal for further development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial rating in excess of 30 percent for headaches The Veteran contends he is entitled to a rating in excess of 30 percent for his service-connected headache disability. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 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 Holmes v. Wilkie, 33 Vet. App. 67 (2020), the CAVC held that DC 8100 contemplates all migraine symptoms. In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board concludes that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month over the last several months throughout the appeal period, corresponding to the criteria for a 30 percent rating under DC 8100, but does not have very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In October 2013, the Veteran underwent a VA examination. The VA examiner stated that the Veteran's migraine headache disability manifests with very frequent completely prostrating and prolonged attacks, occurring more than once a month. The examiner indicated that the Veteran has constant tension headaches and intermittent migraines that last less than a day. The examiner indicated that the Veteran's headache condition does not impact his ability to work as he is able to function as long as he can control the headaches with medication. In his April 2015 notice of disagreement, the Veteran reported that he has prolonged attacks of migraines two to four times a week and milder, but persistent, headaches occurring daily. He stated that the migraines completely disable him. At his December 2018 Board hearing, the Veteran testified he has headaches five days a week. He reported his headaches last between eight hours and three days and during a migraine he goes into a dark, quiet room. He stated that he takes Tylenol and uses ice packs, generally staying away from prescription medication. He reported it's almost impossible to hold a regular job with the condition, noting he had been "relieved from a job" on several occasions but did not specify a time period when this occurred. In August 2021, the Veteran underwent another VA examination. He reported daily, constant headaches with worsening symptoms three to four days out of the week. He reported dizziness, lightheadedness, blurry vision, nausea, intermittent vomiting, and sensitivity to light and smell. His head pain was noted to last less than one day and to have characteristic prostrating attacks once a month. The examiner indicated that the Veteran does not have very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner indicated that the headaches do impact the Veteran's ability to work, noting a decrease in energy, sensitivity to light and smell, and not participating in physical activity he used to enjoy. The Veteran's employment history is unclear. In a January 2014 private examination, the Veteran reported he retired from a job he had held for 30 years in 2011. In an April 2015 private treatment record, the Veteran indicated that he was employed part time in cleaning work and had a small business "of this nature" for the past 10 years. Considering all relevant evidence of record, the Board finds that the Veteran does have prostrating headaches but that the nature and frequency are not such that they constitute very prostrating and prolonged attacks productive of severe economic inadaptability. Although the evidence supports that the Veteran has frequent headaches, only some are prostrating. Further, a preponderance of the evidence is against finding that the Veteran's prostrating headaches are productive of severe economic inadaptability. There is some suggestion the Veteran has current employment despite his headache condition, suggesting it does not cause severe economic inadaptability. The record supports that the Veteran's headache condition would have an affect on employment, but the evidence does not support that any such negative impact rises to the level of severe economic inadaptability. Based on the forgoing, the Board concludes that Veteran's condition most closely approximates migraines with characteristic prostrating attacks occurring on average once a month over the last several months throughout the appeal period, corresponding to the criteria for a 30 percent rating under DC 8100. A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A higher 50 percent rating is not warranted under DC 8100. 2. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Board has found that the issue of entitlement to a TDIU was raised during an appeal for an increased rating, therefore it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, 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. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has had a combined rating of 70 percent for the entire period on appeal, including a 50 percent rating for posttraumatic stress disorder, a 30 percent rating for headaches, and a 10 percent rating for traumatic brain injury. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is not warranted. In April 2021, the AOJ requested that the Veteran completed a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran did not respond. Therefore, the Board must rely on evidence already in the record. In a November 2014 letter, a private examiner who assessed the Veteran's mental health condition opined that the Veteran's PTSD renders him permanently and totally unemployable. At his December 2018 Board hearing, the Veteran reported that he took early retirement in 1992 from his last job because he could not perform the duties he was hired for and that it is "almost impossible to hold a regular job" with such a headache condition. A January 2014 private examination indicates that the Veteran reported he retired in 2011 from a job he had held for 30 years. In an April 2015 private treatment record, the Veteran indicated that he was currently employed part time in cleaning work and has had a small business "of this nature" for the past 10 years. Although the record contains some information regarding his employment history, the Veteran has not provided sufficient information necessary to adjudicate his claim for a TDIU rating. The Veteran bears the burden of presenting and supporting his claims for benefits, 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009), and the Board notes that the duty to assist a claimant is not a one-way street, see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the instant case, the Veteran failed to cooperate to the full extent in the development of his claims. At minimum, the Board is unable to determine whether the Veteran is currently, or has during the period on appeal, engaged in substantially gainful employment. Thus, the appeal must be denied. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.