Citation Nr: 21071670 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-49 073 DATE: December 1, 2021 ORDER Entitlement to an initial compensable rating prior to May 5, 2021, and in excess of 50 percent from May 5, 2021 and thereafter for tension headaches is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The evidence indicates that prior to May 5, 2021, the Veteran's headache disability manifested in daily headaches lasting less than a day, and from May 5, 2021 and thereafter, the Veteran's headache disability manifested as migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The evidence of record is not sufficient to show that the Veteran's service-connected disabilities, individually or in aggregate, prevent the Veteran from finding and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating prior to May 5, 2021, and in excess of 50 percent from May 5, 2021 and thereafter for tension headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 5102, 5103, 5103A 5107(b); 38 C.F.R. §§ 3.340, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty under honorable conditions in the United States Navy from September 1987 to April 1993. In December 2018, the Board issued a decision which denied the claim on appeal. The Veteran filed a timely appeal to the Court of Appeals for Veterans' Claims (Court). In a September 2019 Joint Motion for Partial Remand, the parties agreed to remand the appeal to the Board for further development. In June 2020, the Board remanded the appeal for further development. 1. An initial compensable rating prior to May 5, 2021, and in excess of 50 percent from May 5, 2021 and thereafter for tension headaches The Veteran contends that his tension headaches are such that a higher rating is warranted. The Veteran has a noncompensable rating prior to May 5, 2021, and a 50 percent rating from May 5, 2021 and thereafter for tension headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks. 38 C.F.R. § 4.124a. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. Id. A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average once per month over the last several months. Id. A maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define "prostrating," nor has the U.S. Court of Appeals for Veterans Claims. See Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." Turning to the evidence, in a May 2012 private Diagnostic Consultation, the consultant reported that the Veteran has almost daily migraine headaches which last two to eight hours. The consultant stated that the Veteran had a diagnosis of migraine headaches. In a July 2012 Application for a TDIU, the Veteran reported that he became too disabled to work in September 2011. The Veteran noted that the disabilities that prevented him from working were his knees, back, hearing loss, ankles and PTSD. The Veteran stated that the most he ever earned in a year was $40,000 as a delivery driver supervisor. The Veteran also reported that he was employed from June 2003 to February 2008 as a route driver, where he worked forty hours a week and made $2000.00 a month. The Veteran stated that he lost three days of work during this period due to his disabilities. The Veteran reported that he was last employed at a different company from March 2008 to May 2011 as a route driver, where he worked forty hours a week and made $1600.00 a month. The Veteran stated that he lost four months of work due to illness during this period. The Veteran noted that he had completed high school and he had not had any other training before he became too disabled to work. In a July 2013 VA examination, the Veteran reported experiencing daily headaches since approximately 2011. The Veteran stated that his headaches are located at the bilateral temples. The Veteran stated that symptoms included throbbing and pain at a level of 8 out of 10. The Veteran stated that he treated his headaches with over the counter medication. The examiner reported that the Veteran experiences headache pain described as pulsating or throbbing head pain and pain on both sides of the head. The examiner noted that his typical headache is located on both sides of the head with a duration of less than one day. The examiner found that the Veteran does not have characteristic prostrating attacks of migraine headache pain. The examiner noted that the Veteran's headaches did not impact his ability to work. The examiner remarked that the Veteran is able to function with the headaches, but it is limited. In a September 2013 Notice of Disagreement, the Veteran reiterated that he has tension headaches every day and throughout the day. The Veteran stated that he takes oxycodone from VA to relieve his tension headaches. In a lay statement provided with an October 2016 VA Form 9, the Veteran reported that his left knee condition was such that he needed a knee replacement, but he was too young to receive the surgery. The Veteran stated that he took oxycodone two to three times a day for pain to get through the day, which caused him dizziness and prevented him from driving, making it difficult to find or maintain a job. The Veteran stated that he also was unable to find a job due to this condition because he used walking aids such as knee braces, walking cane, and a walker at times to support his knees and no employer would hire him seeing those aids upon interview. The Veteran went on to state that he had migraines every day and took medication in the morning and medication to sleep at night. The Veteran stated that his conditions affected his ability to support himself and his family properly. In a resume submitted in May 2018, the Veteran indicated employment as a behavioral technician from November 2016 to March 2017 and a dependency case manager from January 2017 to February 2018. The Veteran also noted current employment as a behavioral technician since October 2017. The resume indicates a gap of employment from January 2011 to November 2016. The resume indicates that the Veteran earned a bachelor's degree in psychology in December 2016. In a June 2018 Appellate Brief, the Veteran, through his representative, asserted that his headaches greatly and negatively impact his daily life activities, thus preventing complete participation in family and friends' activities. In a July 2019 VA medical record, the Veteran reported with complaint of headaches. The examiner noted that the Veteran reported headaches that usually start in the occipital region. The examiner noted that the headaches are not preceded by scintillating scotomas or fortification spectra. The examiner stated that the Veteran described headaches as dull, and non-throbbing with a pain score of 10 out of 10. The examiner stated that the Veteran's headaches are not associated with nausea, or phonophobia but are associated with photophobia. The examiner stated that headaches can last up to 35 minutes and have a frequency of three times a day. In a March 2020 Appellate Brief, the Veteran, through his representative, asserted that his headaches resulted in unemployability. The examiner cited the October 2016 VA Form 9 statement in which the Veteran stated that he was unable to work due to his current conditions. The representative also noted that it had not been demonstrated that the Veteran was aware of the legal distinction between characteristic prostrating headaches and throbbing headaches of the bilateral temples with a pain level of 8 out of 10. In a March 2020 Application for a TDIU, the Veteran reported that he last worked as a counselor for a youth services center from August 2018 to February 2020. The Veteran stated that he lost one month of time during this period of work. The Veteran specified that his left knee disability prevented him from securing or following any substantially gainful occupation. The Veteran further noted that his time lost was for treatment from a doctor from January 2020 to February 2020 for his left knee disability. The Veteran noted college attendance from January 2014 to December 2016. In a May 2021 Statement in Support of Claim, the Veteran stated that he gets headaches that occur daily and happen at various times of the day. The Veteran reported pain occurring generally at the temple regions, the back of the head and behind his ears. The Veteran stated that five to six times a month, his headaches knock him out of commission. He reported that during these times, he is incapacitated and bedridden for six hours. The Veteran further reported visual spots, tingling, weakness, dizziness, lightheadedness, and throbbing pain. The Veteran noted that he is prescribed medication for treatment. The Veteran stated that he has missed events and activities due to his headaches because they rendered him unable to function. The Veteran noted that he has missed three weeks of work within the last twelve months due to his episodes. In a May 2021 private Diagnostic Evaluation, the examiner noted the Veteran's lay statements in which he stated that he had headaches daily, occurring at various times during the day. The examiner stated that the Veteran reported pain generally around the temple region, on the back of the head, and behind the ears. The examiner noted that the Veteran reported that his headaches made him incapacitated and bedridden for about six hours. The examiner noted that the Veteran reported these episodes five to six times per month. The Veteran stated that, during these episodes, he has visual spots, tingling, weakness, dizziness, lightheadedness and throbbing pain. The Veteran was prescribed medication for his headaches. The examiner further noted that the Veteran reported missed events and activities due to his headaches. Furthermore, the examiner noted that the Veteran reported missing three weeks of work in the last twelve months due to his episodes. In a July 2021 VA examination, the examiner endorsed symptoms of pulsating or throbbing head pain and pain on both sides of the head. The examiner also noted non-headache symptoms associated with headaches, such as nausea, sensitivity to light, sensitivity to sound, changes in vision, lightheadedness, and weakness. The examiner reported that typical head pain lasted less than one day. The examiner stated that the Veteran had characteristic prostrating attacks of headache pain. The examiner also reported that the Veteran has very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner remarked that the Veteran's characteristic prostrating attacks of migraine/non-migraine headache pain occur more frequently than once per month. The examiner noted that the Veteran's headache condition impacts his ability to work in that he has difficulty concentrating and light and sound sensitivities lead to difficulty for the Veteran completing physical and administrative tasks at work on average five to six days a month. In a September 2021 Appellate Brief, the Veteran, through his representative, asserted that his symptomatology prior to May 5, 2021 was such that a higher rating is warranted. The representative stated that his symptomatology presented in a greater degree of impairment than the current noncompensable rating. The representative also stated that the Veteran presented with significant deficits with activities of daily living. After review of the record, the Board finds that prior to May 5, 2021, a compensable rating for headaches is not warranted. During this period, the evidence indicates that the Veteran's headache disability manifested in daily headaches located at the bilateral temples and lasting less than a day. The evidence does not indicate that the Veteran's headaches produced characteristic prostrating attacks. While the Board acknowledges the Veteran's assertion that he did not understand the definition of characteristic prostrating attacks during this period, the medical and lay evidence does not show utter or extreme physical exhaustion or helplessness due to his headaches. Moreover, the Veteran's education matriculation and work history during this period indicate that, even if the Veteran experienced daily headaches, they were not such that they caused utter or extreme physical exhaustion or helplessness two to three times a month or resulted in economic inadaptability due to his headaches. Furthermore, while the Board acknowledges the Veteran's October 2016 lay statements, they do not establish that the Veteran's headaches prevented employment; rather the Veteran claimed that his conditions in aggregate, many of which are not service-connected, prevented employment. The Board acknowledges the June 2018 Appellate Brief assertion that the Veteran's headaches affected his daily life activities during this period, preventing complete participation in family and friends' activities. However, it is not ascertainable from this statement that the frequency, severity or duration of the headaches would warrant a compensable rating for characteristic prostrating attacks. Therefore, a 10 percent rating is not warranted during this period. Thus, during this period, the Veteran's headaches more closely approximated to a noncompensable rating. From May 5, 2021 and thereafter, a rating in excess of 50 percent is not warranted. As the highest schedular rating has been awarded, the Board concludes that the Veteran has received the full benefit and is not entitled to a higher rating. In reaching this decision, the Board has considered the Veteran's lay statements. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings now assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a higher rating is warranted. 2. TDIU The Veteran contends that his service-connected disabilities are such that he is unable to find and secure substantially gainful employment. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. For the Veteran to prevail on a claim for a TDIU, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether the Veteran is entitled to a TDIU, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). The Veteran filed a formal claim for a TDIU on July 30, 2012. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran is seeking entitlement to a TDIU as a component of his claim for a higher initial rating for his service-connected tension headaches, which became effective June 1, 2012. From June 1, 2012, the Veteran has a 10 percent rating for a left knee disability and a noncompensable rating for tension headaches. From April 18, 2021, the Veteran additionally had a 70 percent rating for posttraumatic stress disorder (PTSD). From May 5, 2021, the Veteran additionally had a 50 percent rating for tension headaches. From July 16, 2021, the Veteran additionally had a 50 percent rating for bilateral pes planus. The Veteran also has a noncompensable rating for hypertension since July 16, 2021. Prior to June 1, 2012, the Veteran has a combined rating of 10 percent, from April 18, 2021 to May 5, 2021, the Veteran has a combined rating of 70 percent, and from May 5, 2021 and thereafter, the Veteran has a combined rating of 90 percent. Therefore, from April 18, 2021, the Veteran has met the schedular criteria for a TDIU. Turning to the evidence, in a May 2012 diagnostic consultation, the consultant stated that for reasons of non-military-related bilateral shoulder issues, which are being treated, in conjunction with military-related orthopedic deficits of the knees and ankles, partial loss of lower extremities, orthopedic deficit of the lumbar spine, chronic right sciatic radicular pain, unpredictable manifestations of PTSD, hearing deficit and chronic daily migraine headaches, the Veteran is unemployable. The consultant stated that the aforementioned conditions are permanent and progressive without reasonable expectation of clinical and or symptomatic improvement. In a July 2012 application for a TDIU, the Veteran reported that he became too disabled to work in September 2011. The Veteran noted that the disabilities that prevented him from working were his knees, back, hearing loss, ankles and PTSD. The Veteran stated that the most he ever earned in a year was $40,000 as a delivery driver supervisor. The Veteran also reported that he was employed from June 2003 to February 2008 as a route driver, where he worked forty hours a week and made $2000.00 a month. The Veteran stated that he lost three days of work during this period due to his disabilities. The Veteran reported that he was last employed at a different company from March 2008 to May 2011 as a route driver, where he worked forty hours a week and made $1600.00 a month. The Veteran stated that he lost four months of work due to illness during this period. The Veteran noted that he had completed high school and he had not had any other training before he became too disabled to work. In a September 2012 response to a request for employment information, the Veteran's employer from March 2008 to May 2011 stated that the Veteran earned $23,268.83 during the twelve months preceding his last date of employment. The employer stated that the Veteran worked daily for eight hours on a forty hour a week schedule. The employer noted that the Veteran's last day of employment was May 12, 2011. The employer stated that the reason for termination was resignation. The employer did not note any concession made to the Veteran by reason of age or disability. In July 2013 VA examinations, the examiners noted that neither the Veteran's headaches nor his left knee disabilities caused functional impact on the Veteran's ability to work. Social Security Administration (SSA) records indicate an October 2014 determination that the Veteran was disabled for the purposes of disability insurance benefits. The determination noted that the Veteran was unable to work due to bilateral ankle and knee pain, back pain and shoulder pain. In a lay statement provided with an October 2016 VA Form 9, the Veteran reported that his left knee condition was such that he needed a knee replacement, but he was too young to receive the surgery. The Veteran stated that he took oxycodone two to three times a day for pain to get through the day, which caused him dizziness and prevented him from driving, making it difficult to find or maintain a job. The Veteran stated that he also was unable to find a job due to this condition because he used walking aids such as knee braces, walking cane, and a walker at times to support his knees and no employer would hire him seeing those aids upon interview. The Veteran went on to state that he had migraines every day and took medication in the morning and medication to sleep at night. The Veteran stated that his conditions affected his ability to support himself and his family properly. In a resume submitted in May 2018, the Veteran indicated employment as a behavioral technician from November 2016 to March 2017 and a dependency case manager from January 2017 to February 2018. The Veteran also noted current employment as a behavioral technician since October 2017. The resume indicates a gap of employment from January 2011 to November 2016. The resume indicates that the Veteran earned a bachelor's degree in psychology in December 2016. In a March 2020 Appellate Brief, the Veteran, through his representative, asserted that his headaches resulted in unemployability. The examiner cited the October 2016 VA Form 9 statement in which the Veteran stated that he was unable to work due to his current conditions. In a March 2020 Application for a TDIU, the Veteran reported that he last worked as a counselor for a youth services center from August 2018 to February 2020. The Veteran stated that he lost one month of time during this period of work. The Veteran specified that his left knee disability prevented him from securing or following any substantially gainful occupation. The Veteran further noted that his time lost was for treatment from a doctor from January 2020 to February 2020 for his left knee disability. The Veteran noted college attendance and completion from January 2014 to December 2016. In a May 2020 Response to Request for Information, the Veteran's employer stated that he began employment in August 2018 and is still employed as a youth shelter manager. The employer stated that the Veteran earned $46,253 in the twelve months proceeding. The employer noted that the Veteran worked forty hours a week at eight hours a day. The employer noted that the Veteran's gross monthly income varies but is approximately $600.00 a month. The employer also noted that the Veteran is entitled to receive benefits such as vacation, health insurance, life insurance and sick leave as a result of his employment. In a May 2021 statement in support of claim, the Veteran stated that he gets headaches that occur daily and happen at various times of the day. The Veteran reported pain occurring generally at the temple regions, the back of the head and behind his ears. The Veteran stated that five to six times a month, his headaches knock him out of commission. He reported that during these times, he is incapacitated and bedridden for six hours. The Veteran further reported visual spots, tingling, weakness, dizziness, lightheadedness, and throbbing pain. The Veteran noted that he is prescribed medication for treatment. The Veteran stated that he has missed events and activities due to his headaches because they rendered him unable to function. The Veteran noted that he has missed three weeks of work within the last twelve months due to his episodes. In a May 2021 VA PTSD examination, the Veteran reported that he works full-time at a youth shelter as a shelter coordinator. He stated that he has been argumentative at work and has recently taken his anger out on children at the shelter in the form of verbal aggression leading to the Veteran being put on administrative leave for two weeks. The examiner endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner summarized the Veteran's occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In an August 2021 VA foot examination, the Veteran reported pain in his feet when he walks more than fifteen to twenty minutes. He also stated that he was unable to stand more than twenty minutes. The examiner noted functional impact on the Veteran's ability to work in that he cannot walk or stand longer than twenty minutes. After review of the record, the Board finds that a TDIU is not warranted. At the outset, the Board noted that, prior to the Veteran meeting the schedular criteria, he only had a compensable rating for a left knee disability and had a noncompensable rating for tension headaches. During this period, the evidence does not establish that the Veteran service-connected left knee or his noncompensable headaches prevented the Veteran from finding or following substantially gainful employment. Rather, the evidence indicates that several nonservice-connected disabilities impacted the Veteran's ability to work. Moreover, the evidence indicates that the Veteran was able to secure substantially gainful employment since November 2016. For these reasons, a referral to the Director of Compensation Service for extraschedular consideration is not warranted as the evidence does not substantiate a reasonable possibility that the Veteran was unemployable due to his service-connected disabilities during this period, and the evidence does not support a finding that the Veteran was in fact unemployable due to his service-connected disability. The record indicates that, since meeting the schedular criteria for a TDIU, the Veteran has continued to follow substantially gainful employment. The Board acknowledges the fact since May 5, 2021, the Veteran is in receipt of a 50 percent disability rating for migraine headaches under Diagnostic Code 8100, which provides such a rating when the migraines are characterized by very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. However, the Court has held that the term "economic inadaptability" is not synonymous with "an inability to work." See Pierce v. Principi, 18 Vet. App. 440 (2004). Specifically, the Court explained 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. In this case, as explained above, while the Veteran's migraine headaches are productive of severe economic inadaptability, they have not been shown to preclude the Veteran from gainful employment. Likewise, while the evidence indicates that the Veteran's PTSD and bilateral pes planus cause some interference with employment, the evidence does not establish that the Veteran cannot find or follow substantially gainful employment. To the contrary, the evidence indicates that the Veteran is currently employed in work that provides income above the poverty level. The evidence also does not indicate that the Veteran's work is sheltered due to his service-connected disabilities. Therefore, a TDIU on a schedular basis is not warranted. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.