Citation Nr: A21020399 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 200401-80130 DATE: December 22, 2021 ORDER From February 19, 2019, entitlement to a 50 percent rating, but no higher, for migraine headaches, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT From February 19, 2019, the Veteran had prostrating migraine headaches with symptoms of head pain, nausea, vomiting, sensitivity to light and sounds, changes in vision, tinnitus, vertigo, cognitive and memory impairment and fatigue, more than once a month which resulted in severe economic inadaptability. CONCLUSION OF LAW From February 19, 2019, the criteria for a 50 percent rating, but no higher, for migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Coast Guard from August 2005 to August 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in October 2019, which denied entitlement to a rating in excess of 30 percent for migraine headaches. The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), was signed into law on August 23, 2017. This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The Veteran opted into the AMA review system by submitting a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) in April 2020. The Veteran, through VA Form 10182, requested a hearing with a Veterans Law Judge and the opportunity to submit additional evidence in support of her appeal within 90 days after her hearing. The Veteran acknowledged her understanding of this by signing her Decision Review Request: Board Appeal (Notice of Disagreement) election form. In addition, the April 2020 VA Form 10182 indicated that the Veteran was also appealing the issue of entitlement to a TDIU from an October 2019 decision. In April 2020, the Board notified the Veteran that at the time of her April 2020 appeal, VA had not made a decision in the modernized system for her claim of entitlement to a TDIU. The Board notes, however, that prior to the October 2019 rating decision, which continued the 30 percent rating for the Veteran's service connected-migraine headaches, the issue of entitlement to a TDIU had been raised by the record. See September 2019 VA examination. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Therefore, the issue of entitlement to a TDIU is added to the issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the Board notes that evidence was added to the claims file during a period of time when new evidence was not allowed. See October 2019 correspondences; April 2020 Statement in Support of Claim; June 2020 Third Party Correspondence. The Board notes that although some of the evidence appears to have been resubmitted within 90 days of the June 2021 Board hearing, it does not appear that all of the evidence has been resubmitted. Therefore, the Board may not consider this evidence. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Increased Rating Entitlement to a rating in excess of 30 percent for migraine headaches Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). Although 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1. Resolving all reasonable doubt in favor of the Veteran, and after a review of the evidence, for reasons set forth below, the Board finds that a 50 percent rating, but no higher, is warranted for the Veteran's migraine headaches throughout the period on appeal. The Veteran's migraine headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100, which provides that a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on average once a month over last several months, and a 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The criteria set forth in Diagnostic Code 8100 are both successive and conjunctive. Thus, to satisfy the criteria for a higher level, a claimant must satisfy all the requirements of the lower levels (successive); and must show each element listed for the particular rating to be assigned (conjunctive). See Johnson v. Wilkie, 30 Vet. App. 245, 250 (2018). Further, because Diagnostic Code 8100 contains successive rating criteria, 38 C.F.R. § 4.7 (a higher rating should be assigned where the disability "more nearly approximates" the criteria for the higher rating) and 38 C.F.R. § 4.21 (all elements of a specific rating need not necessarily be found) are not applicable to Diagnostic Code 8100. However, 38 C.F.R. § 4.3 concerning the resolution of reasonable doubt would still be applicable to Diagnostic Code 8100. In addition, the rating criteria do not define "prostrating" as used in Diagnostic Code 8100. By way of reference, the Board notes that DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1530 (32nd Ed. 2012), defines "prostration" as "extreme exhaustion or powerlessness." Similarly, the rating criteria also do not define "severe economic inadaptability." "Productive of economic inadaptability" can be read as having either the meaning of "producing" or "capable of producing" severe economic inadaptability. However, nothing in Diagnostic Code 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating. Id. at 440. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). The Board has considered and relied on lay testimony and statements of record regarding the severity of the Veteran's migraine headaches in determining the appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which she has firsthand knowledge and her statements regarding her symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). A February 2019 VA treatment record indicates that the Veteran's migraine headaches had worsened in the past 18 months. The Veteran reported that she had mild to moderate daily unremitting headaches, and she had symptoms of head pain with nausea, vomiting, sensitivity to light and sound, tinnitus, vertigo, cognitive impairment, and fatigue approximately 4 times a month lasting for several hours. The VA treatment record indicates that the symptoms of the Veteran's migraine headaches were worsened with physical activity, work related activities, stress, and environmental conditions, including noise, light and movement, and were relieved by rest, medication and acupuncture for her low back pain. The VA treatment record indicates that the symptoms of the Veteran's migraine headaches caused the Veteran to miss work frequently. A July 2019 VA treatment record indicates that the Veteran had migraine headaches with fatigue, cognitive impairment, and memory impairment, approximately 16 times lasting approximately 10 to 16 hours through June 23. The VA treatment record indicates that the symptoms of the Veteran's migraine headaches were worsened with work-related activities, noise and overstimulation and were relieved by an external nerve stimulation device (CEFALY), medication and rest. The Veteran reported that she returned to work in June 2019 with a reduced schedule, and she increased her schedule to 8 hours a day, 3 days a week in the middle of June, and returned to 10-hour workdays, 3 days a week by the end of June; and her employer assigned her to work with adults 2 days a week, which reduced the number of days the Veteran experienced stress and was exposed to noise when working with children. In September 2019, the Veteran indicated that during the period of December 2018 to September 2019, she had 155 migraine headache attacks, on approximately 242 days, lasting approximately a day. She stated that she only had 48 days migraine free days during the period. The Veteran was afforded a VA examination in September 2019. The Veteran reported that her migraine headaches had worsened, and in the past 12 months she had approximately 3 migraines a week, which lasted on average 1 to 2 days with symptoms of head pain, nausea, vomiting, vertigo, and tinnitus. The VA examination indicated that the symptoms of the Veteran's migraine headaches were relieved by CEFALY, medication, and rest. The Veteran reported that approximately 70 percent of her migraines were incapacitating. The Veteran reported that she was currently working part time, and she lost close to 20 days from work in the past year due to her migraines. The examiner noted that the Veteran had characteristic prostrating attacks of migraine and non-migraine headache pain once every month. The examiner noted that the Veteran did not have very prostrating and prolonged attacks of migraines or non-migraine pain productive of severe economic inadaptability. The examiner opined that the Veteran's headache impacted her ability to work and noted that the Veteran had lost time off from work, had reduced productivity, and cut back on her work schedule due to the frequency of her headaches. In April 2020, a private examiner noted that the Veteran experienced migraine headaches approximately 1 to 2 times a week, which lasted from less than one day to 2 days, and rarely more than two days. The private examiner noted that the symptoms of the Veteran's migraine headaches included head pain, nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, tinnitus, vertigo, cognitive and memory impairment, and fatigue, which reduced her activity and stress tolerance. The private examiner noted that the Veteran's symptoms were worsened with physical activity and the Veteran's treatment plan included medication. The private examiner opined that the Veteran's migraine headaches impacted her ability to work and noted that she was limited to working 16 hours per week with accommodations for rest and breaks during severe migraines and opined that the Veteran was currently unable to work full time. In May 2021, a private treatment provider noted that the Veteran continued to experience frequent debilitating migraine headaches, with visual fatigue, and visual vestibular dysfunction associated with dizziness since her concussion. The treatment provider noted that the Veteran's symptoms were worsened with physical activity, and personal and work-related stressors. The treatment provider noted that the Veteran's treatment plan included medication, injections, physical therapy, visual therapy, and ongoing psychotherapy, and rest. The treatment provider noted that the Veteran's high physical and mental demands of her work as an inpatient speech and language therapist had not allowed her the needed respite to recover from her various health problems. The treatment provider noted that the Veteran struggled with insomnia, anxiety, impaired concentration, and persistent fatigue which compounded the level of impairment from her physical ailments, in combination with her employment and personal stressors, which made it untenable for her to continue working at that time. The treatment provider recommended a medical leave of absence of a period of one year to allow the Veteran to focus more fully on her well-being and achieve better control of her migraine headaches, residual post-concussive symptoms and mental health conditions. In June 2021, the Veteran testified that she had daily headaches, and migraine headaches approximately one to six days a week, which typically lasted two to three days. She testified that stress worsened her symptoms, and her symptoms were relieved with rest and medication, CEFALY, injections, an occipital nerve block (UBRELVY), acupuncture, and physical therapy. She testified that in addition, she also experienced dizziness, nausea and vomiting during migraine headaches, and she would take anti-nausea medication, which worked approximately 70 percent of the time. She testified that she was currently employed and testified that she had been taking approximately two to six days a month off from work due to her headache pain, and she would also leave work early; and in April 2021, she stopped working due to her migraine headaches. Resolving all reasonable doubt in favor the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that the Veteran's migraine headaches warrant a 50 percent rating, which is the maximum rating available for migraine headaches, from February 19, 2019, the date of the VA treatment record which indicated that the Veteran's migraine headaches had worsened. The Board finds that from February 19, 2019, the Veteran had been having very frequent completely prostrating prolonged migraine headaches, which caused severe economic inadaptability. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Duty to Assist Error Under the AMA, if the Board of Veterans' Appeals (Board) identifies a duty to assist error that existed at the time of the AOJ's decision on the claim under review, the claim must be returned for correction of the error and readjudication. 38 C.F.R. § 3.2601(g). Entitlement to a TDIU is remanded. The Veteran also seeks entitlement to a TDIU due to her service-connected migraine headaches. See September 2019 VA examination; August 2021 Veteran's Application for Increased Compensation Based on Unemployability. The Board notes that the evidence of record indicates that there are outstanding VA Vocational Rehabilitation and Employment (VR&E) records, which are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. See July 2020, October 2020, and March 2021 VR&E Decisions. Specifically, a May 2020 VR&E notice indicated that the Veteran had been on a rehabilitation plan through Vocational Rehabilitation and Employment. However, the rehabilitation plan is not in the Veteran's file and it appears that such records relate to a relevant evidence window. A remand is required to allow VA to obtain the Veteran's VR&E records. As the Board has identified a duty to assist error that occurred prior to the October 2019 rating decision on appeal, specifically that the AOJ did not obtain complete relevant VR&E records prior to the October 2019 rating decision, the issues must be remanded. (Continued on the next page) The matters are REMANDED for the following action: Obtain all outstanding VA Vocational Rehabilitation and Employment records. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.