Citation Nr: 21005284 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-38 029 DATE: February 1, 2021 ORDER From July 25, 2013, entitlement to a 50 percent rating for sinus headaches is granted. FINDING OF FACT From July 25, 2013, the Veteran’s headaches were very frequent, completely prostrating, prolonged, and productive of severe economic inadaptability. CONCLUSION OF LAW From July 25, 2013, the criteria for a rating of 50 percent for headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1978 to June 1982 and from December 1982 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Board denied the Veteran a) an increased rating for his sinus headaches, and b) an effective date earlier than July 25, 2013 for the award of service connection for sinus headaches in August 2019. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR). Pursuant to the JMPR, the Veteran abandoned his appeal of an earlier effective date. Additionally, the Court vacated the Board’s decision, and it remanded the matter to the Board for further proceedings consistent with the JMPR vis-à-vis the increased rating claim. Issue: Entitlement to a rating greater than 30 percent for sinus headaches Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability 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, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Headaches – Background Law Headaches are evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent disability evaluation is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring an average of once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define many of the terms used in this Diagnostic Code. However, the U.S. Court of Veterans Appeals (Court) provided guidance in to how to interpret Diagnostic Code (DC) 8100 in Johnson v. Wilkie, 30 Vet. App. 245 (2018). The Court noted that "DC 8100 is rife with subjective terms of degree" because VA has failed to define "frequent," "prostrating," and "prolonged." As the Court made clear in Johnson v. Wilkie, a 50 percent rating requires that the Veteran's headaches meet four criteria: 1) They are "very frequent"; 2) They are "completely prostrating"; 3) They are "prolonged"; and 4) They are "productive of severe economic inadaptability." For clarity, I will address each of these individually. "Very frequent": As the Court noted, "though the 10% and 30% ratings specify the number of headaches that must occur within a specific period, the 50% rating does not provide this level of detail. Yet, the phrase 'very frequent' connotes a frequency greater than once a month, which is enumerated in the 30% rating level, and once every 2 months, which is enumerated for the 10%." "Completely prostrating": The Court noted that this phrase means "the headaches must render the veteran entirely powerless." "Prolonged": The Court noted that this term means "the headaches must be long in duration," but that VA has not defined this. "Productive of severe economic inadaptability": Although Johnson did not address this in detail, the rating criteria do not define "severe economic inadaptability." Indeed, in Pierce v. Principi, 18 Vet. App. 440 (2004), the Court held that where the Board declined to award a 50 percent disability rating for a headache disorder without discussing the “interplay” among the regulations found at 38 C.F.R. § 4.3, § 4.7, and § 4.21, the Board committed error. Id. at 445. The Court in Pierce also determined that when the Board makes “a bare conclusory statement” about a claimant's “severe economic adaptability” without specific, supporting analysis, the Board commits a reasons-or-bases error. Id. at 446. Pierce noted preliminarily that “[n]owhere in the DC is ‘inadaptability’ defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.].” Id. at 444–45. The Court observed, however, that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating.” Id. at 446. Indeed, the Court reasoned, if the claimant were unemployable, he would be eligible for a total disability evaluation based on individual unemployability rather than just a 50 percent rating. Id. Further in Pierce, the Secretary acknowledged that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” economic inadaptability. Id. Merits To frame the issue, the Board will start with the JMPR. In relevant part, it states: The parties agree that the Board erred because it did not provide an adequate statement of reasons or bases in two respects. First, with respect to its discussion and reliance on January 2014 and July 2015 VA examinations, the Board found that “neither [the] VA examiner nor the licensed psychologist found that the Veteran’s sinus headaches produced severe economic inadaptability to warrant a higher evaluation.” (R. 9). However, the parties note that the January 2014 VA examiner said Appellant’s sinus headaches impact Appellant’s ability to work (R. 3418) and noted the “Veteran states when he is experiencing a headache he cannot focus or concentrate and unable to do physical or sedentary activities because of the pain,” (R. 3418-19), but was otherwise silent regarding impact on employment. (See R. 3414-20). Likewise, the July 2015 examiner did not address economic inadaptability, primarily offering an opinion linking Appellant’s headaches and other conditions to his anxiety disorder; that examiner did opine that Appellant’s anxiety disorder made him unemployable, but did not speak to whether the sinus headaches did so. (See R. 1144-52). Given the nature of the opinions offered, the parties agree that the Board did not adequately explain the basis on which it held that “neither [examiner] found that the Veteran’s sinus headaches produced severe economic inadaptability to warrant a higher evaluation.” (R. 9); see Fountain v. McDonald, 27 Vet. App. 258, 273 (2015) (Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation). As such, the parties agree that the Board’s statement of reasons or bases is inadequate, and remand is required. See Gilbert, supra. Second, the parties agree that the Board erred when it did not provide an adequate statement of reasons or basis when it appeared to focus solely on whether the condition was productive of economic inadaptability, rather than whether it was capable of producing severe economic inadaptability. As the Court has noted, “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating. If ‘economic inadaptability’ were read to import unemployability, the appellant, if he met the economic inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability resulting from a service-connected disability (TDIU) rather than just a 50% rating.” Pierce v. Principi, 18 Vet. App. 440, 446 (2004). At oral argument in Pierce, the Secretary conceded “that ‘productive of’ could be read as having either the meaning of ‘producing’ or ‘capable of producing’.” Pierce v. Principi, 18 Vet. App. At 445. Here, the Board stated that “[w]hile the evidence reveals that the Veteran’s sinus headaches prohibited him—at most— from doing anything productive for three or four days each month, this does not reflect severe economic inadaptability.” (R. 9). The parties agree that the Board’s statement of reasons or bases is not inadequate in that it is not clear whether the Board has considered whether this condition, which could prohibit work up to one day per week, is capable of producing severe economic inadaptability. See Pierce v. Principi, 18 Vet.App. at 446. As a threshold matter, the Board highlights that it did not cite a July 2015 VA examination in the now-vacated October 2019 decision. Indeed, the Board cannot identify such an examination. The Board construes this as a drafting error in the JMPR. The Veteran claimed service connection for sinus headaches on July 25, 2013. VA service connected the Veteran's headaches in January 2014, rating them as 30 percent disabling effective July 25, 2013. The Veteran appealed the assigned rating. The January 2014 VA examination report shows symptoms of constant head pain on both sides of head, which typically lasted up to three days. The Veteran did not have characteristic prostrating attacks of migraine headache pain. Rather, the January 2014 examiner indicated that the Veteran did have prostrating attacks of non-migraine headache pain more frequently than once per month and very frequent prostrating and prolonged attacks of non-migraine headache pain. The Veteran had described having frequent headaches with facial pressure and tooth pain, and that he took medication daily. In terms of functional impact, the Veteran reported that he could not focus or concentrate when experiencing a headache; and that he was unable to do physical or sedentary activities because of the pain. In January2015, a licensed psychologist opined that the Veteran’s anxiety disorder secondary to medical condition and social impairment were emotionally debilitating; and that individuals with this symptomology typically have few friends and inability to maintain a job. The psychologist added that the Veteran’s sinus headaches and temporomandibular joint disability continue to manifest as an anxiety disorder and have caused the anxiety disorder. In August 2017, the Veteran’s mother explained that the Veteran had issues with headaches since service and that they occurred probably three-to-four times in a month. She indicated that she was afraid to talk to the Veteran when he had these headaches because they aggravated him so badly that she did not want to bring on more stress and anger for him. She indicated that the headaches also flared at times and made the Veteran nauseous and unstable, and that he had to lay down in a dark room to rest and get relief. She indicated that these headaches typically lasted between twelve to twenty-four hours, and that the headaches immobilized him and kept him from doing anything. Based on the evidence presented, the Board finds that the Veteran experiences a multitude of headaches that vary in intensity and duration. However, the Board is satisfied that, at a minimum, some of these headaches meet the first three Johnson criteria, i.e., they are "very frequent," they are "prolonged," and they are "completely prostrating." This appeal turns on whether these headaches meet the fourth Johnson criterion, i.e., whether they are "productive of severe economic inadaptability." To reiterate, severe economic inadaptability denotes a degree of substantial work impairment. It, however, does not mean the Veteran is incapable of any substantially gainful employment. Evidence of work impairment includes, but is not necessarily limited to, the use of sick leave or unpaid absence. Indeed, work availability and performance or limitations are considerations in determining severe economic inadaptability. The evidence regarding severe economic inadaptability is, at worst, unclear. The 2014 VA examiner, while not expressly opining on the question of severe economic inadaptability, noted the Veteran's headaches impacted his ability to work. Additionally, the 2017 statement from the Veteran's mother only buttresses the 2014 VA examiner's finding. Moreover, the January 2015 statement from a licensed psychologist confirms that the Veteran’s sinus headaches along with temporomandibular joint disability manifest as an anxiety disorder which in some individuals typically result in an inability to maintain a job. Based on the foregoing, the evidence suggests the Veteran's symptoms can, and likely do, affect his employment or job performance and that he potentially would lose significant time from work because of his headaches. As such, the Board concludes, resolving doubt in the Veteran's favor, that the Veteran's headaches are at least capable of producing severe economic inadaptability. Accordingly, the undersigned finds that the Veteran’s headaches were very frequent, completely prostrating, prolonged, and productive of severe economic inadaptability. Therefore, the Veteran meets the criteria for a 50 percent rating – the maximum available – from July 25, 2013, the date VA service connected the Veteran's sinus headaches. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.