Citation Nr: 21074502 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 14-32 589 DATE: December 15, 2021 ORDER Entitlement to an extra-schedular rating in excess of 50 percent for migraines is denied. Entitlement to an effective date earlier than December 9, 2013 for the grant of an increased rating for migraine headaches is denied. REMANDED Entitlement to a rating in excess of 40 percent for traumatic brain injury (TBI), to include separate ratings for dizziness, vertigo, and posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. A preponderance of the evidence is against finding the Veteran has an exceptional disability picture for his service-connected migraines, such that the available schedular evaluation is not inadequate. 2. On December 9, 2013 the Veteran submitted an informal claim for VA compensation benefits. There is no evidence of record that the Veteran submitted a claim for migraines prior to this date. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent on an extraschedular basis for migraine headaches are not met. 38 U.S.C. §§ 5107, 1155; 38 C.F.R. §§ 3.321, 4.16, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to an effective date earlier than December 9, 2013 for the grant of an increased rating for migraines have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1988 to September 1995, March 2003 to March 2005, September 2008 to February 2009, and January 2010 to April 2010. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2014 and May 2017 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota. In April 2018 and again in August 2020, the Board remanded the case to the AOJ for additional development and consideration. The file is now before the Board for further appellate review. Extra-schedular rating in excess of 50 percent for migraines The Veteran is seeking a rating in excess of the maximum 50 percent rating assigned for his service-connected migraine headaches, therefore claiming entitlement to an extraschedular rating for this disability. Disability ratings are determined by the application of the facts presented in the VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1 (2020). Under Diagnostic Code 8100, a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is assigned for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. The highest schedular evaluation of 50 percent is assigned for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2020). The United States Court of Appeals for Veterans Claims has clarified that the phrase characteristic prostrating attacks "plainly described migraine attacks that typically produce powerlessness or a lack of vitality." Johnson v. Wilkie, 30 Vet. App. 245 (2018). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Turning to the evidence of record, the Veteran attended a VA examination in January 2016. During the examination, the Veteran reported having headaches every day since being hit in the back of the head with a backhoe. He states that when he feels a sense of vertigo, then the headaches can come on. The Veteran described constant headache pain, on both sides of the head, worsening with physical activity. His migraine headaches typically last less than one day. The Veteran reported symptoms of nausea, vomiting, sensitivity to light and sound, changes in vision, and sensory changes. The Veteran had characteristic prostrating attacks of migraine and non-migraine headache pain averaging once a month, productive of severe economic inadaptability. Regarding functional impact, the examiner stated the Veteran's migraine headache disability impacts his ability to work. The Veteran reported that he has daily headaches, which are triggered by light and noise, and that he will have to rest a few days out of the week. He cannot work during those times. At the May 2017 VA examination, the Veteran reported that his head pain was mostly on the left side, increasing with concentration, light, and sound. The Veteran described constant headache pain, on both sides of the head. He stated that he has frequent headaches during the day, some can last up to three days. The Veteran did not report any non-headache symptoms. The Veteran had characteristic prostrating attacks of migraine and non-migraine headache pain averaging once a month, productive of severe economic inadaptability. Regarding functional impact, the examiner stated the Veteran's migraine headache disability impacts his ability to work. The Veteran is currently unemployed. He reported five weeks out of the year of lost work time. He has received vocational training for his vision but could not finish due increased intensity upon concentrating. On May 2018, the Social Security Administration (SSA) furnished the Veteran's medical treatment record. The records show that the Veteran revealed in an eye conditions examination that he lost five weeks of work in the last twelve months due to limited mobility and very limited vision to perform any common task. Further, the record shows that the Veteran stopped work in February 2015 due to blindness from recurrent optic neuritis, depression, and headaches. The SSA awarded the disability benefits upon the Veteran's primary diagnosis of blindness and low vision and noted the secondary diagnosis of statutory blindness. During the September 2018 VA examination, the Veteran reported pain in the right temple with nausea, dizziness, and ringing in the ears lasting four hours a day. He must sit still or lay down during the occurrences. He stated that the frequency was several times a day. The Veteran stated his symptoms increased with humidity and increased barometric pressure while driving in a car. The Veteran described headache pain, as localized to one side of the head, worsening with physical activity. The Veteran further described the headache pain as stabbing ice pick pain. His migraine headaches typically last less than one day on his right side. The Veteran reported symptoms of nausea, sensitivity to light and sound, and sensory changes. The Veteran had characteristic prostrating attacks of migraine and non-migraine headache pain averaging once a month, productive of severe economic inadaptability. Regarding functional impact, the examiner stated the Veteran's migraine headache disability impacts his ability to work. The Veteran reported that he cannot work when he has a headache. During the April 2021 VA examination, the Veteran reported that he had constant headaches that waxes and wanes in intensity, three to four days a week. The Veteran described constant headache pain, on both sides of the head, worsening with physical activity. His migraine headaches typically are constant on both sides of the head. The Veteran reported symptoms of vertigo, and sensitivity to light. The Veteran had characteristic prostrating attacks of migraine and non-migraine headache pain averaging more than once a month productive of severe economic inadaptability. Regarding functional impact, the examiner stated the Veteran's migraine headache disability impacts his ability to work. The Veteran stated that he would miss two to three days of work per week due to headaches if he were employed. The Board finds an extraschedular rating in excess of 50 percent for the Veteran's migraine headache disability is not warranted, as the Veteran's symptoms are contemplated by the rating schedule criteria. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is finding the evidence before the VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology and is found inadequate, it must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321. When the Rating Schedule is inadequate to evaluate a Veteran's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director of the Compensation Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board notes it has jurisdiction to review the entirety of the Director's decision denying or assigning an extraschedular rating and the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU (total disability based on individual unemployability) benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review by the determination. Wages v. McDonald, 27 Vet. App. 233 (2015). The Board finds while the Veteran's reported migraine headache disability symptoms, including pain, nausea, vomiting, sensitivity to light and sound, and changes in vision, may cause economic impairment, the Rating Schedule criteria specifically provides for ratings based both on the severity of the migraine headache episodes themselves, as well as the level of resulting economic impairment. Diagnostic Code 8100 provides specific ratings based on the frequency and duration of prostrating attacks, and economic inadaptability due to migraine headaches and related attacks. Thus, symptoms such as pain, nausea, vomiting, sensitivity to light and sound, and changes in vision are specifically contemplated in the disability rating criteria as to whether the migraine headaches are prostrating and/or cause economic inadaptability. Therefore, the Board finds the Veteran does not have any symptoms or impairment from the service-connected migraine headache disability that are unusual or are different from those contemplated by the schedular rating criteria. The Rating Schedule is intended to compensate for average impairment in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the Veteran's migraine headaches and associated symptoms are specifically contemplated by the rating schedule criteria discussed above. Accordingly, the Board concludes the evidence does not indicate an exceptional or unusual disability picture. As such, the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 50 percent for service-connected migraine headache disability on an extraschedular basis. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application, and the Veteran's appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective Date A May 2017 rating decision increased the evaluation for migraine headaches to 50 percent effective March 21, 2017.The Veteran filed a Notice of Disagreement on May 29, 2018 regarding the assigned effective date for his service-connected migraines. Then, a June 2017 rating decision provided an earlier effective date of December 9, 2013. The Veteran continues to disagree with the assigned decision. The effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for the grant of service connection for disability compensation is the "[d]ay following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (b)(2)(i). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 38 C.F.R. §§ 3.151, 3.155, 3.160. On December 9, 2013, the Veteran submitted an informal claim for VA benefits which is the date of the claim. There is no competent evidence of record that the Veteran submitted a claim for migraines prior to December 9, 2013. This includes submission of intent to file form or other informal claims means such as telephone contact. Therefore, the entitlement to an effective date earlier than December 9, 2013 for the grant of an increase for migraine headaches is not warranted. REASONS FOR REMAND A remand is necessary in order to ensure compliance with the August 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In an August 2020 remand, the Board directed that a VA medical opinion be obtained to address whether the Veteran's memory, judgement, social interaction, and mood symptoms were due to his TBI or his PTSD. The Board specifically requested that the examiner review the Inner Light Healing Center records contained in the SSA records as well as any additionally supplied psychological treatment records. On remand, a VA medical opinion was obtained in April 2021. The examiner opined that the Veteran's deficit in concentration and memory and his lapses in judgement are more likely than not a residual of his traumatic brain injury. Depression, anxiety, and insomnia are more likely than not consequent to his depression and PTSD. He further opined that the Veteran's MMSE testing is confirmatory of his complaint of loss of concentration and short-term memory. He indicated that the degree of memory loss is frequently associated with a tendency toward impulsivity that would account for the loss of judgement. The Board finds the April 2021 medical opinion inadequate. The examiner did not consider the Veteran's Inner Light Healing Center records or any other psychological records in determining whether the Veteran's memory, judgement, social interaction, and mood symptoms were due to his TBI or his PTSD. The examiner provided a historical account of the Veteran's active service, rating decisions, TBI injuries with associated symptoms. The examiner states a conclusion without supporting it with sufficient rationale as it relates to the Veteran's psychological records. Therefore, a remand for an addendum opinion is warranted. Stegall, 11 Vet. App. at 268. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding pertinent VA and private records and associate them with the claims file. 2. Forward the Veteran's claims file to the VA Medical Center for an addendum medical opinion by a qualified VA clinician, to determine the nature and etiology of the Veteran's TBI disability. The claims file must be made available to and reviewed by the VA clinician. 3. Another VA examination of the Veteran should only be conducted if deemed necessary by the VA examiner that provided the requested medical opinion. Based on a review of the record, the examiner should specifically address which behavioral and cognitive (e.g., judgement, irritability, social appropriateness, memory loss, concentration) are due to the Veteran's TBI vs. any psychological disorder. The examiner must address the Inner Light Healing Center records, which are contained in the SSA records, and the Lakeville Behavioral Health records received November 19, 2020. In forming the opinion, the examiner must consider the Veteran's contention that the Light House records reflect his anger and rage toward his supervisor and family which warrant a 3 in the facet of social interaction and the facet of neurobehavioral effects. The rationale for the opinion expressed must be provided. 3. Ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. B. Chatterjee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.