Citation Nr: 21077169 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-23 395 DATE: December 28, 2021 ORDER Entitlement to an initial disability rating of 50 percent for service-connected migraine headaches is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective November 20, 2013. FINDINGS OF FACT 1. The Veteran experienced migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for the entire period on appeal. 2. The Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 50 percent for service-connected migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. Effective November 20, 2013, the criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1998 to February 2002 and from July 2002 to July 2010. The Veteran testified at a hearing before the undersigned in August 2021. A transcript is of record. The appeal for a TDIU prior to May 20, 2019, was raised as part and parcel of the claim for a higher rating for migraine headaches, during the hearing before the Board. 1. Entitlement to a disability rating in excess of 30 percent for service-connected migraine headaches. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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. 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 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). The Board may not deny entitlement to a higher rating based on relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Historically, service connection for migraine headaches was established in a March 2015 rating decision, at which time the agency of original jurisdiction (AOJ) assigned an initial 30 percent disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, effective November 20, 2013. New and material evidencenamely a March 2016 VA examination report, as well as relevant VA treatment recordswas associated with the claims file within one-year of the March 2015 rating decision; thus, the March 2015 rating decision did not become final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.104. In an April 2016 rating decision, the AOJ continued the 30 percent disability evaluation. Again, new and material evidence in the form of relevant VA treatment records was associated with the claims file within one-year of the April 2016 rating decision; thus the April 2016 rating decision did not become final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.104. Therefore, the appeal before the Board is whether a higher initial rating can be assigned for the entire period from November 20, 2013. In conjunction with the filing of his claim, the Veteran submitted private treatment records and a headache Disability Benefits Questionnaire (DBQ) from Dr. C.L. Upon examination in October 2014, the Veteran described headaches occurring in the occipital lobe with dull, throbbing pain. He noted that his head pain was occurring less frequently and that he more commonly experienced dizziness. On the November 2014 DBQ, Dr. C.L. indicated that she had examined the Veteran only once in October 2014 but that he experienced daily headaches associated with dizziness. She opined that, although, the Veteran had characteristic prostrating attacks of migraine headache pain that occurred more frequently than once per month, he did not have very frequent prostrating and prolonged attacks of migraine headache pain. She indicated that the duration of his headaches was less than one day with non-headache symptoms of changes in vision and vertigo. However, she declined to proffer an opinion regarding whether the Veteran's headache condition impacted his ability to work as she noted that she had only seen him in office on time. In June 2015, the Veteran submitted a "Headache Form" to SSA in conjunction with his disability claim. He noted that on a "good week" he experienced headaches that required him to take medication and to "sit and not move" until the headache passed. On a "bad week," the Veteran noted that headaches of this nature occurred twice per week. After any headache episode, the Veteran noted that he was "very" exhausted and tired. In March 2016, the Veteran underwent a VA examination in connection with his claims for service connection for headaches. The Veteran indicated that he took prescription medication daily for treatment of headaches. He endorsed headache pain manifesting as pulsating or throbbing head pain and pain localized to one side of the head, as well as pain on both sides of the head. His non-headache symptoms associated with his headaches included nausea, vomiting, sensitivity for sound and changes in vision. The examiner noted that the duration of the Veteran's typical head pain was 1 to 2 days and that the location of the typical head pain was on posterior of the head. The examiner reported that the Veteran had characteristic prostrating attacks of migraine once every month and that that Veteran had very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The examiner stated that the Veteran's headache condition impacted his ability to work as the Veteran reported that headache pain required him to take time off and miss work. Beginning in July 2016, VA treatment records indicate that the Veteran's migraine headaches began to occur more frequently. See July 2016 Triage Note (indicating the Veteran called with complaints of migraines more frequently); October 2016 VA Addendum (indicating the Veteran's report of weekly headaches with pain "all over"); January 2017 VA Addendum (indicating the Veteran's "primary issue" is frequent headaches rated a 10 out of 10); February 2017 VA Physician Note (indicating severe headaches); May 2017 VA Neurology Consult (indicating headaches occurring two times per day with a duration of one hour and causing nausea and blurry vision.) In March 2017, the Veteran underwent another VA examination. He reported taking a variety of over the counter and prescription medication to manage his headache pain. The Veteran endorsed headache pain located on both sides of his head that worsened with physical activity that lasted from a few hours to all day. His non-headache symptoms associated with his headaches included nausea, vomiting, sensitivity to light and sound, changes in vision and vertigo. The examiner reported that the Veteran had characteristic prostrating attacks of migraine once every month and that that Veteran had have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The examiner stated that the Veteran could not work due to his headaches and vertigo. The Veteran underwent another VA examination in November 2019. He reported daily migraines lasting one to two hours and took over the counter and prescription medication for treatment. The Veteran endorsed pulsating or throbbing head pain located on both sides of his head lasting less than one day. His non-headache symptoms associated with his headaches included nausea, sensitivity to light, and intermittent numbness of the face and head. The examiner reported that the Veteran had characteristic prostrating attacks of migraine once every month and that that Veteran did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The examiner also stated that the Veteran's headache condition did not impact his ability to work. During the Veteran's August 2021 hearing, the Veteran credibly testified that he experienced headaches roughly two to three times per week lasting all day that require him to take medication and lie down. The Veteran's representative stated that the Veteran had reported to him throughout their working relationship that headaches occurred several times per week. The Veteran reported that his headache pain prevented him from straining himself, bending and turning and was exacerbated by loud noise and lights. The Veteran also testified that he had not been employed for quite some time due to his headaches as he would have to tell his employer that he needed to go home when headaches began. The Board has no reason to question the credibility of the Veteran's report of the frequency and duration of his migraine symptoms which is supported by evidence identified in his VA and private treatment records, as well as in VA examinations and SSA filings. Lay evidence is competent when provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds that the Veteran's migraine headaches impact his ability to function at work to a degree that amounts to "severe economic inadaptability." Initially the Board notes, that the Veteran has reported daily to weekly migraine headaches for the entirety of the appeal. As discussed above, for the entire period on appeal the Veteran has noted that when he experiences a severe migraine, he needs to take medication and lie down until his headache subsided. Within the meaning of Diagnostic Code 8100, "productive of economic inadaptability" can be read as meaning either "producing" or "capable of producing." While Diagnostic Code 8100 does not define "inadaptability," nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Veteran has testified that he was missing work several days per week due to migraines and that he has been unable to consistently work due to his headache pain. Upon review of all the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected migraine headache disability results in very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. The various symptoms such as sensitivity to light, sensitivity to sound, fatigue, blurry vision, and the need to medicate and lay down until he can get relief are representative of severe headaches that can reasonably be described as completely prostrating. Resolving all doubt in the Veteran's favor, the Board therefore finds that the symptoms of the Veteran's headaches more nearly approximate the criteria for a 50 percent rating for the entire period on appeal. While VA examiners stated that the Veteran suffered monthly headaches, which is envisioned by a 30 percent disability rating, the Veteran's testimony, as well as VA and private treatment records, indicate that the Veteran's headaches occurred more frequently than once-per-month. Additionally, the headaches are shown to be completely prostrating and prolonged, as well as productive of severe economic inadaptability. Thus, an initial disability rating of 50 percent is granted for migraine headaches. See 38 C.F.R. § 4.124(a), Diagnostic Code 8100. The Board observes that a schedular rating in excess of 50 percent is not available for headaches under these rating criteria. 2. Entitlement to a TDIU. In connection with the Veteran's increased rating claim for his service-connected headache disability, the Veteran has indicated that he is unable to work due to his service-connected disabilities. See August 2021 Hearing Transcript. The Board notes that the Veteran has been awarded a TDIU, effective May 20, 2019. Thus, the issue of entitlement to a TDIU prior to that date has been raised, and it is part and parcel with the rating claim above. 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. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Based upon the 50 percent initial evaluation awarded for headaches in this decision, the Veteran's service-connected disabilities prior to May 20, 2019 were peripheral vestibular disorder, rated 30 percent disabling, and migraine headaches, rated 50 percent disabling, with a combined rating of 70 percent. As such, the schedular criteria for a TDIU are met throughout the whole period. The evidence of record shows that the Veteran was not gainfully employed throughout the period as well. Indeed, records filed with the Social Security Administration (SSA) show that in 2013, the Veteran was a college student with no income. He indicated he did not earn his degree. Although the Veteran did work for part of 2013 through June 2014, such was noted to be on a temporary basis as a labor worker. The Veteran indicated he earned 9 dollars an hour. Even assuming the Veteran was working 40 hours per week, for the time period he worked, his income would still be under the poverty threshold for one person in 2014. In reviewing the evidence of record, the Board observes that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits since August 2014. While SSA decisions are not binding on VA, they are relevant to the issue of total and permanent disability. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The Veteran reported that he completed one year of college education. During his time in service, he did welding and plumbing, as well as worked on aircraft. See Claimant's SSA Brief, May 2019 VA 21-8940. Following service, the Veteran reported that he worked 10 months as a parts inspector but was let go due to absences caused by migraines and dizziness and worked for one month in plumbing but was let go due to performance issues. While SSA awards contemplate the disabling effects of all disabilities, the award of a TDIU by VA may only be based on the disabling effects of service-connected disabilities. The Board notes that the Veteran was awarded SSA disability due to migraines and his service-connected vestibular disorder (referred to as somatic symptom and related disorders by SSA.) Pertinent to the Veteran's claim, Dr. C.L.'s private treatment records and DQB noted daily migraine headaches with dizziness and changes of vision. In a June 2015 SSA filing, the Veteran noted that he experienced, at least, weekly migraine headaches that required him to take medication and sit down and "not move" until resolution. He reported that after these headache episodes, he was exhausted. In a March 2016 VA examination, the examiner opined that the Veteran had very prostrating and prolonged attacks of migraines productive of severe economic inadaptability and that his headache pain required him to take time off work. In a March 2017 VA examination, the examiner also reported that the Veteran had very prostrating and prolonged attacks of migraines productive of severe economic inadaptability and that he could not work due to his headaches and vertigo. Additionally, the Veteran has continuously and credibly reported that he frequently and continuously experienced severe headaches and dizziness episodes that require him to lie down until they pass. Further, the evidence of record also indicates that the symptoms of the Veteran's vestibular disorder impact the Veteran's ability to work. See September 2019 SSA Claimant's Brief; March 2015 VA Examination; October 2015 VA Primary Care Physician E&M Note (clinician note opining that the Veteran is unable to work due to his vertigo.) At a July 2019 examination, the Veteran indicated that he was told by two different primary care providers that he is unsafe to work in any environment, and that his dizziness occurs so often that he cannot perform work that would require prolonged standing or walking or working on an assembly line or heavy machinery. The examiner note that the Veteran's daily dizziness and vertigo would prevent work in a physical labor job or even a sedentary job. The Veteran does drive but has dizziness while driving. (Continued on Next Page) Resolving all doubt in benefit of the Veteran and considering the limitations caused by his service-connected disabilities, the fact that the Veteran has only one year of college education, and the fact that his work experience consisted mainly of manual labor and mechanic work, the Board finds that entitlement to a TDIU is granted effective the entirety of the period under review, from November 20, 2013. Although the Veteran did perform temporary work until June 2014 as a laborer, there is no indication that such was gainful employment. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.