Citation Nr: 21006921 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-00 844 DATE: February 5, 2021 ORDER An increased initial 50 percent rating for headaches is granted. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. VETERAN’S CONTENTIONS The Veteran contends that the symptoms associated with her headaches are more severe than is reflected in the currently assigned disability rating. Specifically, the Veteran contends that her headaches require her to lay down in a cool dark room. The Veteran also contends that her non-headache symptoms include light and sound sensitivity, auras, and nausea. FINDING OF FACT The Veteran's headaches are productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial 50 percent rating for headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1993 to January 1997 and from March 2006 to April 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Jurisdiction was subsequently transferred to the RO in Atlanta, Georgia. This claim was previously before the Board at which time the Board remanded it for additional development. Entitlement to an initial compensable rating prior to January 18, 2018 and in excess of 30 percent thereafter for headaches Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Currently, the Veteran is in receipt of a noncompensable disability rating prior to January 18, 2018 and a 30 percent disability rating thereafter for headaches under Diagnostic Code 8199-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and "99". 38 C.F.R. § 4.27. Under Diagnostic Code 8100, headaches with less frequent attacks are rated noncompensable, headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling, headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated as 30 percent disabling, and headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Although the rating criteria do not define "prostrating," according to Dorland's Illustrated Medical dictionary, 32nd Edition (2012), p. 1531, "prostration" is defined as "extreme exhaustion or powerlessness." After consideration of the entire record and relevant law, the Board finds that the Veteran's headaches are analogous to very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, entitling her to an initial 50 percent rating. In this regard, September 2012 service treatment records (STRs) document that the Veteran had prostrating headaches 3 to 4 times a week and that her eyes were very sensitive during the attacks. She was unable to work due to their sensitivity. She did not leave work to go home, however, because her unit accommodated her by providing a cool dark room whenever needed. In a March 2012 VA examination report an examiner documented that the Veteran had no prostrating episodes of headache pain in the last 12 months. However, the Veteran reported headaches around the eyes and in the frontal area. The headaches were triggered by stress, occurred approximately once a week, and periodically resulted in her seeing things “floating” and experiencing nausea, vomiting, and photophobia. The Veteran treated the symptoms by laying down in a dark cold room. The examiner indicated that the Veteran had lost no work in the last 12 months from headache pain. However, the examiner documented that the Veteran reported her headaches affected her occupation in that she had to wear sunglasses when she had headaches and it affected her concentration. In a July 2014 notice of disagreement (NOD), the Veteran reported headaches happening at a frequency of twice a week, lasting from the time she woke up in the morning until she went to bed at night and requiring medication. In a January 2016 VA Form 9, the Veteran reported near constant headaches two to three times a week lasting for more than a day and affecting her work performance. Finally, in a June 2019 VA examination report an examiner documented that the Veteran had prostrating attacks of headache pain once every month. The Veteran reported experiencing headache pain posteriorly, frontally, and retro-orbitally. Non-headache symptoms associated with headaches included nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The examiner indicated that the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. However, the examiner indicated that the Veteran’s headaches impacted her ability to work in that severe headaches affected her concentration and she occasionally missed work. Resolving reasonable doubt in the Veteran's favor, the Board finds that a 50 percent rating is warranted for headaches, based on the Veteran's consistent reports of very frequent headache pain that interferes with her ability to work. Notably, the Veteran’s treatment records during the appellate period and the March 2012 and June 2019 VA examination reports reflect that the Veteran had prostrating attacks of headache pain that impacted her ability to work due to pain, light, and sound sensitivity, difficulty with concentration, changes in vision, and nausea. The Board also accepts the Veteran's lay statements regarding her inability to work due to the severity of her headaches. The Board also notes that the rating criteria for headaches do not explicitly contemplate the ameliorative effects of medication and, therefore, the assigned rating should contemplate the nature and frequency of characteristic prostrating attacks that would occur without medication. See 38 C.F.R. § 4.124a, Diagnostic Code 8100; Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Board acknowledges that the March 2012 VA examiner indicated that the Veteran had lost no work in the past 12 months from headache pain and the June 2019 VA examiner indicated that the Veteran's prostrating headaches were not productive of economic inadaptability. However, these findings are inconsistent with the Veteran’s consistent reports throughout the period on appeal of worsening headache pain frequently interfering with her work and the June 2019 VA examiner’s own determination that the Veteran's headaches impacted her ability to work. Furthermore, none of the examiners considered the ameliorative effects of medication to treat headaches in reaching the conclusion that her headaches were not productive of economic inadaptability. Therefore, the Board finds that the Veteran's headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 3.102. Based on the foregoing, the Board finds that a 50 percent rating is warranted for the period throughout the pendency of the appeal. The Board further notes that this is the maximum schedular rating available under Diagnostic Code 8100. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to a TDIU has been raised by the evidence of record, to include as part and parcel of the initial increased rating claim. Specifically, a June 2013 Vocational Rehabilitation Counseling Record indicated that the Veteran’s service- connected back condition impaired the Veteran’s ability to prepare for, obtain, or retain employment; an April 2018 Neck (Cervical Spine) Condition examination report indicated that the Veteran’s cervical spine (neck) condition impacted her ability to work in that repetitive, rotational, and extension movements may be limited; an April 2018 VA Back (Thoracolumbar Spine) Conditions examination report indicated that the Veteran’s thoracolumbar spine (back) condition impacted her ability to work in that repetitive bending and prolonged standing without breaks is limited; and a June 2019 VA Headaches examination report indicated that the Veteran’s headache condition impacted her ability to work in that severe headaches affected her concentration and occasionally caused her to miss work. However, to date the issue of entitlement to TDIU has not yet been fully developed. The Veteran's employment history and all other factors which have a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Therefore, a remanded is necessary to obtain clarification/additional information regarding the Veteran's employment history so that the Board can accurately ascertain if and at what points the Veteran was gainfully employed during the period on appeal. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of the Veteran's relevant treatment that has not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Send the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for completion. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.