Citation Nr: 21074583 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-21 152 DATE: December 15, 2021 ORDER Entitlement to a rating greater than 30 percent for post-traumatic headaches associated with service-connected residuals of traumatic brain injury (TBI) is denied. FINDING OF FACT The appellant's service-connected post-traumatic headaches do not at least as likely as not cause severe economic inadaptability. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for post-traumatic headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Army from May 1998 to September 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted the appellant a separate compensable rating of 30 percent for headaches associated with an in-service TBI. This decision was appealed in a notice of disagreement (NOD) received by VA in October 2015. A Statement of the Case (SOC) was issued by VA in April 2016. VA received the appellant's Substantive Appeal (Form 9) in May 2016, perfecting the appeal and requestion a hearing. The appellant was scheduled for a hearing on March 28, 2019; however, he failed to appear for that hearing and did not offer good cause as to why he did not appear. No further attempts were made to reschedule the missed hearing or to request a new hearing and the issue was not raised when this matter was appealed to the Court of Appeals for Veterans Claims (Court). As such, the Board considers the request for a hearing withdrawn. 38 C.F.R. § 20.603(d). In a January 2020 decision, the Board remanded this claim for further development, to include determining whether the appellant's TBI residuals were distinguishable from his service-connected psychiatric disability. A Supplemental Statement of the Case was issued in May 2020 and the claim was returned to the Board. In an October 2020 decision, the Board denied the appellant's claim for an initial rating greater than 30 percent for his service-connected post-traumatic headaches. The October 2020 Board decision was appealed to the Court. In a Joint Motion for Partial Remand (JMPR) filed with the Court in August 2021, the appellant's representative and VA's Office of General Counsel asked the court to vacate the October 2020 Board decision on the denial of a rating in excess of 30 percent for post-traumatic headaches, asserting the Board had failed to adequately define the terms set forth in the 50 percent criteria and failing to provide an adequate reasons or bases for the denial of the claim. In an August 2021 Order, the Court adopted the August 2021 JMPR and ordered the requested relief be granted. The claim was returned to the Board for further consideration. 1. Entitlement to a rating greater than 30 percent for post-traumatic headaches associated with service-connected residuals of traumatic brain injury (TBI) is denied. The appellant contends that his service-connected post-traumatic headaches are more disabling than currently rated. He asserts the frequency and severity of symptoms warrant a higher initial rating. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. 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 2 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. In Holmes v. Wilkie, 33 Vet. App. 67, 73 (2020), the CAVC held that DC 8100 contemplates all migraine symptoms. Therefore, to evaluate migraines under DC 8100, VA must consider all symptoms experienced due to migraine attacks and then rate the symptoms based on the frequency, duration, and economic impact of those attacks. The Court commented that this analysis is similar to that used to assign ratings for psychiatric disabilities under 38 C.F.R. § 4.130. DC 8100 is used to rate other types of headaches as well, as there are no other analogous DCs, unless the service-connected headache symptoms are already contemplated within the rating criteria for a different disability, such as sinusitis under DCs 6510-6514. 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). The appellant is currently in receipt of a 30 percent rating under DC 8100 for his service-connected post-traumatic headaches. 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. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against the appellant's service-connected post-traumatic headaches being "completely prostrating" or being "productive of severe economic inadaptability." 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8100. In making this finding, the Board has conducted a review of the relevant evidence of record. The Board notes the appellant has undergone several VA examinations during the period his claim has been pending. At an August 2015 VA examination, the appellant reported symptoms of pain on both sides of his head that was pulsating or throbbing, with the pain also occasionally localized. He reported headaches were usually accompanied by sensitivity to light and sound, with sensory changes accompanying the symptoms. He indicated the duration of his typical head pain was between 1 and 2 days. The examiner characterized these symptoms as being consistent with "very frequent prostrating and prolonged attacks of non-migraine headache pain," noting that they occur more frequently than once per month. The examiner noted that these symptoms impaired the appellant's concentration and cognitive acuity when they were active. In an associated August 2015 TBI evaluation, the appellant's headaches, along with other residual symptoms of his TBI to include impaired focus and concentration, memory and recall issues, headaches, chronic fatigue, mood swings, irritability, and apathy, were noted to contribute to "mild or moderate" difficulty participating in a "competitive work setting." At an October 2019 VA examination, the appellant reported symptoms of pain on both sides of the head, with daily headache pain triggered by noise and light. He particularly experienced pain in the right eye and frontal area first, with the pain then spreading across to his entire head if symptoms worsened. He reported sensitivity to light and sound and indicated symptoms typically lasted around 2 hours at a time. The examiner opined that these symptoms were not characteristic of prostrating attacks and were not productive of severe economic inadaptability; however, the examiner did not provide an explanation for that opinion. At a March 2020 VA examination, the appellant reported symptoms of constant head pain, with pulsating and throbbing, with headaches all day and pain all around the head. He reported sensitivity to light and sound. The examiner opined that these symptoms were not characteristic of prostrating attacks and were not productive of severe economic inadaptability; however, the examiner did not provide an explanation for that opinion. The Board has also reviewed the appellant's VA treatment records during the period this claim has been pending and just before this claim was filed. In July 2013 the appellant reported at a VA medical appointment that he had worked full-time for the prior 3 years. An April 2015 suicide risk assessment indicated that the appellant was not experiencing any employment related issues. In a subsequent VASH program screening, the appellant was noted to have been employed full-time as a mailroom clerk at the West Los Angeles VA campus for the prior 13 months. He was noted to have a college degree, having graduated with a degree in finance in 2014. At an August 2016 VA medical appointment, the appellant reported being laid off from work in February of that year, although he did not indicate why he was laid off or whether it had any connection with his headache symptoms. He stated that he was working on finding a job that would interest him. At an August 2019 VA medical appointment, the appellant sought specific treatment for his chronic headaches. He stated that his symptoms had begun about 10 years prior, but they had been worsening and had increased in frequency in the prior 3 to 4 years. He indicated they occurred daily with mild intermittent symptoms of photophobia. He denied symptoms of vision changes, fevers, chills, chest pain, shortness of breath, focal weakness, or aura. Regarding his life circumstances, he indicated that he had recently graduated with a bachelor's degree, begun working for the VA, and had recently bought a home. The examiner noted there were no "red flag symptoms." The appellant denied symptoms of severe pain and indicated that symptoms were not worse in the morning after awakening. He did not report symptoms so severe that he had to take time off from work, needed other accommodations, or that symptoms were only manageable by doing things such as lying down or going into a dark and/or quiet room. He was noted by the examiner to drink coffee twice a day and to spend his workday in front of a computer screen. The examiner determined the appellant's symptoms were more likely than not due to tension headaches, caused by stress and possibly increased work time on the computer with poor ergonomic support. The examiner recommended the appellant reduce his caffeine intake, improve his ergonomics at his workstation, and consider anti-glare glasses for working on the computer. The examiner also seemed to suspect that sleep apnea might be contributing to the appellant's frequent headaches, noting his elevated body mass index and his frequent snoring. The examiner recommending a sleep study if symptoms persisted. The examiner further cautioned that a neuro consult would be warranted if symptoms worsened. The appellant has not indicated that he has followed through in receiving additional treatment or further testing. The appellant has not offered any separate statements regarding the nature, frequency, or severity of his headache symptoms during the course of this appeal. His representatives have made vague assertions that he is entitled to an increased rating, but he, himself, has not presented any separate statements beyond his VA examinations and VA treatment records regarding his symptoms and how he manages them. Considering this evidence, the Board finds the evidence at least as likely as not shows the appellant meets the element of frequency under the rating criteria. Throughout the period this claim has been pending, the appellant, both in seeking treatment and at his VA examinations, has consistently reported headache symptoms occurring daily, lasting from between 2 hours to all day. The question for the Board then is whether these symptoms are "completely prostrating" and "productive of severe economic inadaptability" as contemplated by the rating criteria. To that end, the Board finds that the severity of the appellant's headache symptoms does not at least as likely as not reach the level necessary to establish entitlement to the next higher rating, as they do not appear to be completely prostrating and are not productive of severe economic inadaptability. In making this finding the Board has afforded significant probative weight to the appellant's VA treatment records. Specifically, the Board has afforded great probative weight to the August 2019 VA treatment record in which the appellant specifically sought treatment for his recurrent chronic headaches. As an initial matter, the Board notes that it was the opinion of the appellant's treating clinician that these headache symptoms were more likely due to causes other than his remote, in-service TBI. The examiner noted that headaches were likely "stress" related and possibly due to computer work and poor ergonomics. This is consistent with the opinion of the March 2020 VA examiner who indicated that the appellant was experiencing cluster type headaches inconsistent with symptoms expected to be related to a 20-year-old TBI. However, the Board has not weighed whether a reduction is warranted based on this and has focused its attention on determining whether the appellant does at least as likely as not have headache symptoms which are "completely prostrating" and which cause "severe economic inadaptability." In the August 2019 VA treatment notes, the appellant reported symptoms somewhat milder than those he had seemingly previously reported at his VA examinations. He did not report any symptoms as causing pain or difficulty that could be considered "completely prostrating" within the meaning of the rating criteria. He did not report feeling completely powerless or exhausted, being unable to do any particular activities, needing to be in a dark room, needing to leave work, or needing to take time off of work due to the onset or continuation of symptoms. He did not report significant bouts of exhaustion following headache symptoms. The appellant did report some symptoms of fatigue at his August 2019 VA treatment appointment, but the examiner seemed to indicate this might be related to spending more time working in front of a computer or maybe even possible sleep apnea. Regardless of the cause of the reported fatigue, it was not described in terms indicating that it rendered the appellant unable to do other chores, tasks, or activities of daily living. Other VA treatment records noting his working conditions and educational pursuits similarly do not indicate any periods wherein his symptoms were "completely prostrating" and left him exhausted or powerless. These records show he was generally able to maintain gainful employment, without any noted accommodations or modifications to his regularly assigned schedule and duties, and that he was able to participate in completing college coursework, again without significant modification or accomodation to his schedule or workload. While the August 2015 VA examination did note prostrating attacks of symptoms, it did not offer any explanation as to what symptoms where prostrating or how the appellant was left exhausted or powerless due to his headache symptoms. Even then though, the examiner's selection of this option on the form does not indicate symptoms being completely prostrating, as required for the next higher rating. Even if the symptoms did cause some powerlessness or exhaustion, this would have to be a complete powerlessness or exhaustion, which would be characterized by things like needing to miss work or lie down or sleep, or get away from noise and stimulation. The examiner, in noting the functional impact of the appellant's symptoms, noted that he only experienced impairment while he was experiencing symptoms, and that this impairment was limited to decreased concentration and cognitive acuity, which the Board finds is not at least as likely as not equivalent to "completely prostrating attacks" as required by the next higher rating level. Complete exhaustion and powerlessness would inherently require some element of the functional impact of symptoms persisting beyond their active state, which the examiner did not indicate was the case. Further, in a contemporary August 2015 VA examination of the impact of the appellant's residual TBI symptoms, a separate clinician opined that all the appellant's residual symptoms of his TBI amounted together to only mild to moderate impact on his ability to participate in a competitive work environment. The Board finds this, as well, does not at least as likely as not rise to the level of being "completely prostrating attacks" as required by the next higher rating level. The Board has considered the appellant's assertions that he has "completely prostrating attacks" of headache symptoms and notes he is competent to report symptoms he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Even so, the symptoms he has described do not appear to rise to that level of disability, as he has not, at any time, reported symptoms of a severity that they impact his day to day in the office or at school, prevents him from completing his work satisfactorily, or that requires any modifications or accommodations to his work schedule or duties because of headache related symptoms which leave him exhausted or otherwise powerless. Even though he may assert he meets the next higher rating criteria, his specific reports of symptoms and their effects does not. As such, the Board finds the preponderance of the evidence is against the appellant having headache symptoms which are completely prostrating. Even if the appellant's symptoms could be characterized as completely prostrating though, the preponderance of the evidence establishes that his symptoms do not cause "severe economic inadaptability." To that end, the Board has had to piece together the appellant's work and education history from various sources within his claims folder. His VA treatment records do indicate that he was unemployed for at least some period of time the claim has been on appeal; however, there is nothing that indicates he was unemployed due to his headache symptoms or frequent completely and prolonged prostrating attacks of headache symptoms. This includes the appellant's own statements regarding his period of unemployment. Of note, the Board is not applying the more rigorous standard for entitlement to TDIU in mentioning this, but the Board does note that being completely unable to work due to headache symptoms for a period of time would also likely indicate some level of economic inadaptability. The key here is the ability to adapt, or to change when necessary to overcome a deficiency. Throughout the appellant's statements during his treatment history or his VA examinations, he has not indicated much of a need to adapt. He has not reported symptoms that impacted his ability to work or attend post-secondary school and complete his assigned duties in a satisfactory manner. While the claim has been pending, the appellant has been able to complete a college level course of study, earning a bachelor's degree while working full-time for most of the period. He has not reported needing any significant modifications in his work or academic schedule or duties to accommodate bouts of headache pain. He has not indicated that he requested any reasonable accommodations be made on his behalf in either his course of academic studies or his professional pursuits. He has not indicated that he missed significant time from work or school due to his symptoms. He has not indicated that he was unable to complete his assigned duties or coursework due to headache symptoms. He did not report any instance in which he received a lower performance evaluation or a reduced academic grade due to an inability to complete assigned tasks because of his headache symptoms. Simply put, there is just no direct evidence of record, even from his own reports, that the appellant's symptoms rise to the level of producing severe economic inadaptability. To the contrary, the appellant's reports and the doctor's treatment recommendations at his August 2019 VA treatment appointment indicate that the appellant's symptoms can be reduced by minor workplace accommodations that are entirely within the appellant's control. Sitting in a more ergonomic chair, drinking less coffee, and wearing anti-glare glasses were suggested as ways the appellant could reduce the symptoms related to the headaches he was experiencing. Additionally, the examiner made mention of there being no "red flag symptoms" or any severe symptoms. This naturally indicates symptoms being of a lesser severity than those contemplated by the next higher rating. The August 2019 VA treating clinician has the training and experience to diagnose and treat chronic headache symptoms. The clinician's report was also made based on the appellant's own reports of symptoms. As such, the Board affords these treatment records significant probative weight. See Nieves - Rodriguez v. Peake, 22 Vet. App. 295 (2008) (explaining that most of the probative value of a medical opinion comes from its reasoning). The treating physician's opinion implies that the appellant is perfectly capable of adapting his work environment and practices, along with daily habits, in order to perform his work at an adequate level and reduce the functional impact of his service-connected headache symptoms. This does not indicate severe economic inadaptability. Further, the Board affords the appellant's statements, as recorded by the examiner at the August 2019 VA treatment appointment regarding his symptoms and their impacts on him significant probative weight. These were made in the course of his seeking treatment for a present condition. The Board assumes the appellant had incentive to be as honest as possible in seeking treatment so as to adequately address the issue, come up with a workable treatment plan, and to avoid unnecessary and invasive testing. The appellant is competent to report symptoms he has experienced due to his service-connected headaches. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). And in this case, he is credible in his August 2019 report of symptoms. As such, the Board affords these statements significant probative weight. Although afforded great probative weight, these statements do not show the appellant meeting the criteria necessary for the next higher rating for many of the same reasons previously discussed. He has not reported symptoms which were severe. (Continued on the next page) The Board notes that assertions regarding the appellant having severe economic inadaptability have not been supported by any statements from the appellant. While he would be competent to describe the symptoms he experienced, and their impacts on his ability to work or complete academic coursework, he has not done so in a way that shows he experiences severe economic inadaptability. His own statements indicate symptoms less severe than those contemplated by the next higher rating. As such, the Board finds the preponderance of the evidence shows that the appellant's service-connected headaches do not cause severe economic inadaptability, as he was able to work and complete academic coursework, without any indication of time missed or modifications or accommodations needed in order to compete his work. Thus, the Board concludes that the appellant did not have headaches that were both "completely prostrating" and "productive of severe economic inadaptability" at any time during the appeal period. As such, a higher 50 percent rating is not warranted. 38 C.F.R. § 4.124a, DC 8100. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 4.3. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.