Citation Nr: 21071694 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-00 375A DATE: December 1, 2021 ORDER Entitlement to an increased rating in excess of 30 percent prior to April 17, 2018 for migraine headaches is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 21, 2017 is denied. FINDINGS OF FACT 1. Prior to April 17, 2018, the Veteran experienced migraines with characteristic prostrating attacks occurring on average once a month over the last several months. [His/Her] migraines did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment consistent with his educational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for migraines 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 entitlement to TDIU have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1997 to November 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2020 decision, the Board denied the Veteran's increased rating and TDIU claims. The Veteran appealed the portion of the Board's decision that denied entitlement to a rating in excess of 30 percent prior to April 17, 2018, for migraine headaches, and entitlement to a TDIU prior to June 21, 2017, to the United States Court of Appeals for Veterans Claims (the Court). The Veteran indicated he was not appealing his disability rating from April 17, 2018. While the matter was pending before the Court, in June 2021, the Veteran's attorney and a representative of VA's Office of General Counsel filed an Amended Joint Motion for Remand. In the Joint Motion, the parties indicated that a remand was necessary "because the Board erred when it failed to provide adequate statement of reasons and bases." See June 2021 Joint Motion at page 2. In a June 2021 Order, the Court vacated the Board's September 2020 decision and remanded the matter for readjudication in light of the Joint Motion. The Board notes, the Veteran was previously represented by a private attorney. In a January 2021 correspondence, prior to recertification to the Board, the attorney informed VA that he is no longer representing the Veteran and has notified the Veteran of this withdrawal of representation. As the Veteran has not appointed a new representative he will be considered as unrepresented at this time. 1. Entitlement to an increased rating in excess of 30 percent prior to April 17, 2018 for migraine headaches Increased Rating Generally, disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that he is entitled to an initial rating in excess of 30 percent prior to April 17, 2018, for migraine headaches. In September 2020, the Board determined that a 30 percent rating, but no higher, for the period prior to April 17, 2018, was warranted for the Veteran's migraine headaches. The Board found that the Veteran's symptoms did not more nearly approximate severe economic inadaptability due to his headaches as he maintained employment full time in addition to teaching his kids and completing coursework. In the June 2021 Joint Motion, the parties agreed that the Board's statement of reasons and bases was inadequate because it failed to address all relevant evidence of record. The parties noted that the Board made specific reference to a May 2017 VA treatment record indicating the Veteran was working full time however, the parties noted that the record contains additional evidence of the Veteran's functioning and employment that is relevant to his claim. Specifically, the parties noted the Board failed to address relevant VA treatment notes from April 2015, May 2017, and June 2017. The Veteran's service-connected migraine headaches are assigned an initial 30 percent rating, effective October 23, 2015, the date of receipt of the Veteran's original claim. Migraine headaches are rated pursuant to 38C.F.R. §4.124a, Diagnostic Code (DC) 8100. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. 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 38C.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 contains 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 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). Throughout the relevant appeal period, the Veteran reported having headaches that were accompanied by a number of symptoms, including nausea, vomiting, and sensitivity to light and sound. In an April 2015 physical rehab consult note the clinician noted the Veteran is not presently working. Although chronic headache was listed in past medical history, there is no indication in the record that unemployment was related to his headaches. In an October 2015 mental health counseling note, VA psychologist noted that the Veteran and his wife are working together again in business. On December 2015 VA headache examination, the Veteran was provided diagnoses of migraine including migraine variants and cervicogenic headaches. It was noted that the Veteran first began experiencing headaches during his military career, over the parietal lobe, severe in intensity, intermittent associated with aura, nausea, light, and sound sensitivity. He experienced pain on both sides with pain worsening during physical activity. His typical headache pain lasted less than one day. The Veteran reported taking a muscle relaxant for headaches. Non-headache symptoms included nausea, vomiting, and sensitivity to light and sound. The VA examiner noted the Veteran did not have characteristic prostrating attacks of migraine headache pain. He noted prostrating attacks of non-migraine headache pain less than once every two months. He did not have very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain. The examiner noted the Veteran's headache condition did not impact his ability to work. On May 15, 2017 mental health evaluation screening note, the Veteran reported chronic pain and hypertension and that his pain and physical limitations prevent him from working. His pain was noted to be from the hip/SI joint, ankle and tinnitus. There was no indication that his pain and physical limitations were a result of his service-connected migraine headaches. In a subsequent May 23, 2017 social work note, the Veteran reported completing coursework towards a bachelor's degree in psychology. He reported that he is certified in sports medicine, that he has a water certification and a welding certification, and that he and his wife homeschool their children two days a week. The Veteran was noted to be employed full time. He reported that he and his wife own two businesses together. On a June 2017 anesthesiology note for SI joint dysfunction, the clinician noted the Veteran's pain is constant and limiting his ability to work. He noted that the Veteran does not work currently and that he is disabled for headaches for over one year. However, the Board notes the treatment record reflects the pain is related to s/p left SI joint procedure rather than his headaches. The Board has reexamined the record, to include the evidence noted in the Joint Motion, and finds that a rating in excess of 30 percent for the period prior to April 17, 2018, for migraine headaches, is not warranted. Specifically, the December 2015 VA examiner did not find that the Veteran experienced characteristic prostrating attacks occurring on an average once a month over the last several months. The evidence cited in the Joint Motion notes the existence of pain and unemployment, but does not indicate that the Veteran's unemployment is due to his service-connected headache pain. The April 2015 treatment record stating that the Veteran is not working and documents treatment for left ankle pain; it does not indicate or suggest that the Veteran is unemployed due to his headaches. Although the May 2017 treatment record states that "his pain and physical limitations prevent him from working" the pain was attributed to be from the hip/SI joint, ankle and tinnitus. The June 2017 treatment record states that the Veteran's lumbar spine "pain is constant and limiting his ability to work. He does not work currently." The report then notes that the Veteran is "disabled for his headaches [for] over 1 year." As drafted, the report indicates that the Veteran lumbar spine pain limits his ability to work, not his headaches. Although the report states that the Veteran is "disabled for his headaches over 1 year," the Board finds that this is an inartful reference to the fact that service connection for headaches was awarded over a year prior (February 2016) and not a statement that the Veteran's headaches preclude employment. As noted, no where else in the treatment record were headaches discussed, the Veteran did not complain of headaches at that time, and the report notes difficult working due to pain which is attributed to his spine. Additionally, the December 2015 VA examiner opined the Veteran's headaches did not impact his ability to work. VA treatment records are also silent for any complaints of such severe attacks happening frequently. As there is no evidence that the Veteran's headaches are productive of severe economic inadaptability, a 50 percent rating under DC 8100, prior to April 17, 2018, is not warranted. Therefore, the Board concludes that the Veteran's migraine headaches did not meet the criteria enumerated for a 50 percent rating prior to April 17, 2018. The preponderance of the evidence is against finding an initial rating in excess of 30 percent for the Veteran's service-connected migraine headaches, for this period on appeal. As such, the benefit-of-the-doubt doctrine is inapplicable, and the Veteran's claim is denied. 38 C.F.R. § 4.3. 2. Entitlement to a TDIU prior to June 21, 2017 Laws and Regulations VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). As sedentary is defined as "doing or requiring much sitting" the Board finds that sedentary employment is a job where the worker primarily sits down. MERRIAM-WEBSTER'S COLLEGEIATE DICTIONARY 1123 (2003). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. 38 C.F.R. § 4.16(a). VA's policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). In situations where the percentage evaluations do not allow TDIU under § 4.16(a), an extraschedular TDIU may be awarded under § 4.16(b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 in the first instance. The Board, however, is not precluded from considering whether the case should be referred to the Director of VA's Compensation Service for consideration of an extraschedular TDIU rating. Analysis The Veteran contends that he is entitled to a TDIU prior to June 21, 2017. After careful review of the lay and medical evidence of record, the Board finds the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities prevented him from securing or following gainful employment at any point during the relevant appeal period Prior to June 21, 2017, service connection has been granted for migraine headaches, to include cervicogenic headaches, rated as 30 percent disabling from October 23, 2015; irritable bowel syndrome, rated as 30 percent disabling from October 23, 2015: s/p left ankle sprain s/p subtalar joint debridement and decreased mobility, rated as 20 percent disabling from December 4,2 012; painful scar, left ankle associated with s/p left ankle sprain s/p subtalar joint debridement and decreased mobility, rated as 10 percent disabling from July 30, 2015; tinnitus, rated as 10 percent disabling from October 23, 2015; painful scar associated with s/p left ankle sprain s/p subtalar joint debridement and decreased mobility rated as noncompensable from December 24, 2012; and epididymitis, rated as noncompensable from February 26, 2016. The Veteran was in receipt of a combined disability rating of 70 percent from October 23, 2015. The Board finds, because there is not at least one disability that is rated at 40 percent disabling or more, prior to June 21, 2017, the schedular requirements for a TDIU pursuant to 38 C.F.R. § 4.16(a) are not met. Nevertheless, even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, TDIU may be granted on an extraschedular basis in cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. §§ 4.16(b). The Board can consider TDIU under 38 C.F.R. § 4.16(b) for the period on appeal prior to April 2018 because the claim was previously submitted to the Director of the Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). An opinion was obtained from the Director in January 2021. Accordingly, the Board has jurisdiction to consider the issue of whether a TDIU is warranted on an extraschedular basis prior to April 17, 2018. In September 2020, the Board denied the Veteran's claim for a TDIU prior to June 21, 2017 and determined that referral for extraschedular consideration was not warranted. Specifically, the Board found VA treatment records that noted the Veteran's employment, schooling, and teaching of his children between 2015 and 2017 conflicts with the Veteran's reports that he has not worked since 2015. The Board noted that statements made while seeking medical treatment are significant and given weight and credibility because they were made at a time when there was no incentive, financial or otherwise, to fabricate for personal gain. As such, the Board found that the Veteran was working full time prior to June 21, 2017. As noted above, in the June 2021 Joint Motion, the parties agreed that the Board's statement of reasons and bases was inadequate because it failed to address all relevant evidence of record. The Board has considered the Veteran's educational and employment background. The evidence reflects that the Veteran completed four years of high school and completed some college coursework. He is certified in sports medicine and has a water certification and a welding certification. See May 2017 VA treatment note. The evidence also shows that the Veteran's work history includes working at a dispensary, an outdoor bootcamp, and running two businesses with his wife. Id. Regarding the medical evidence of record, in an April 2015 physical rehab consult the clinician noted the Veteran is not presently working. However, the clinician did not indicate that the Veteran was unable to gain or maintain work. On July 2015 VA examination, the VA examiner noted the Veteran's scars do not impact his ability to work. In an October 2015 mental health counseling note, a VA psychologist noted the Veteran and his wife have four children and run a business together. On December 2015 VA hearing loss and tinnitus examination, the Veteran reported the constant ringing from tinnitus causes feeling of pressure in his head and interferes with his ability to follow conversations. Notably, an audiogram at that time demonstrated normal hearing acuity in both ears; therefore, it is not shown that he had actual loss of hearing. On December 2015 VA headaches examination, the Veteran reported pain is throbbing with intermittent sharp pain and high pressure which he feels is related to his chronic neck pain issues. He reported headache pain on both sides of the head that is worse with physical activity, lasting less than one day. He did not experience characteristic prostrating attacks of migraine headache pain or very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain. The VA examiner noted prostrating attacks of non-migraine headache pain less than once every two months. He noted the Veteran's headache condition does not impact his ability to work. In a May 15, 2017 mental health evaluation note, the Veteran reported past medical history which he described as chronic pain and hypertension. The VA clinician noted his pain and physical limitations prevent him from working. Approximately one week later, in a May 23, 2017 social work note, the Veteran stated that he and his wife teach their children at home two days a week. He reported that he works full time and that he and his wife own two businesses together. On May 2017 VA intestinal conditions examination, the VA examiner noted the Veteran's intestinal condition impacts his ability to work. He noted the Veteran always has to be close by a restroom or toilet, his disability keeps him homebound and sometimes he has to be in the toilet to have bowel movements every 30 minutes. The VA examiner noted that the bowel movement interrupts anything he does. However, the VA examiner did not indicate that the Veteran is unable to do any type of work. In this regard, the Board notes, approximately one week prior to examination, the Veteran reported being home with his children at least two days a week, working full time and running two businesses with his wife which indicates that he is in close proximity to a restroom at least two days a week while teaching his children at home. This further indicates that he likely has flexibility with working from home because he runs a business with his wife and both are able to be at home to teach their kids. On May 2017 VA reproductive organ conditions examination, the VA examiner noted the Veteran's male reproductive system conditions impact his ability to work. The VA examiner noted the Veteran "cannot lift and cannot concentrate on things and he has to lay down "a lot" because of pain in the genital area." However, the VA examiner did not explain why the Veteran's reproductive system conditions would prevent all forms of substantially gainful employment. On a June 2017 anesthesiology note, the clinician noted that the Veteran's pain is constant and limiting his ability to work. He noted the Veteran does not currently work and has been disabled for headaches for over one year. Although the clinician noted pain limited the Veteran's ability to work, he did not indicate that the pain prevented the Veteran from working. Accordingly, the Board finds the competent evidence of record does not reflect that the Veteran was unable to work due to his service-connected disabilities; instead, it shows that he has been employed during the relevant appeal period. The Board recognizes that the Veteran's service-connected disabilities may result in some occupational impairment and/or inconvenience in a workplace; however, he is being compensated for those limitations in the ratings currently assigned. 38 C.F.R. § 4.1. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from service-connected disabilities and the residual conditions in civilian occupations. Upon consideration of the collective evidence, the Board finds that the Veteran's claim for TDIU, prior to June 21, 2017, is not warranted as the evidence does not demonstrate that the Veteran was precluded from obtaining or maintaining substantially gainful employment. While the Board does not wish to minimize the nature and extent of the Veteran's overall disability, the evidence of record does not support his claim that his service-connected disabilities are sufficient to produce unemployability. By his own reporting, the Veteran has been able to successfully run a business and teach his children from home. Furthermore, no VA examiner has indicated that he is precluded from working due to his service-connected disabilities. The December 2015 VA intestinal conditions examiner points out that the Veteran experiences frequent bowel movements and has to go to the bathroom often, but the examiner did not explain that he could not do his job because of this. The record that is before the Board establishes that the Veteran's service-connected disability symptoms have not rendered him unable to secure and follow a substantially gainful occupation prior to June 21, 2017. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Aston, 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.