Citation Nr: 21008327 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 13-23 616 DATE: February 16, 2021 ORDER Entitlement to an initial disability rating greater than 30 percent for migraine headaches, from July 11, 2005, to June 30, 2016, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from July 11, 2005, to July 1, 2011, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from July 1, 2011, to September 16, 2011 is granted. FINDINGS OF FACT 1. Prior to June 30, 2016, the Veteran’s headaches did not result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran was engaged in substantially gainful employment prior to July 1, 2011. 3. From July 11, 2011, to September 16, 2011, the Veteran service-connected disabilities rendered her unemployable. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for migraines have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for a grant of TDIU have not been met prior to July 1, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.19, 4.26. 3. The criteria for a grant of TDIU have been met from July 1, 2011, to September 16, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.19, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to May 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affair (VA) Regional Office (RO). The Board notes that the procedural history of this appeal is a lengthy one which has been detailed on numerous prior actions in the appeal. Accordingly, the procedural history will only be repeated herein a necessary to explain the current issues before the Board. The Board has remanded these appeals on multiple occasions, most recently in April 2016 and May 2019. The issues are now returned to the Board. The Board observes that in September 2014, as part of this appeal, the Veteran testified before a Veterans Law Judge at a hearing held in Washington, DC. A transcript of that hearing is of record. On January 6, 2021, the Veteran was notified that the Veterans Law Judge who conducted her hearing was no longer employed by the Board, and offered the opportunity to appear for a new hearing before a different Veterans Law Judge. The Veteran did not respond to that notice, and the Board finds that she has waived her right to a new hearing. 1. Entitlement to an initial disability rating greater than 30 percent for migraine headaches, from July 11, 2005, to June 30, 2016 The Veteran seeks entitlement to an initial disability rating greater than 30 percent for migraine headaches, from July 11, 2005, through June 30, 2016. The Board finds that a 50 percent rating should be granted May 3, 2013, but that a rating in excess of 30 percent is not supported prior to that date. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran’s bilateral hearing loss, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here 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. The Veteran’s migraine headaches are rated under Diagnostic Code (DC) 8100, which compensates for migraine headaches. Under that rating criteria, a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A maximum 50 percent rating is granted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. As is noted above, and in prior decisions, the Veteran has been in receipt of a 50 percent rating for her headache disorder from June 30, 2016. This is the maximum schedular rating available for that disability, and therefore, the period on appeal is limited to the period prior to that date. As such, the Board will focus its analysis on medical records relevant to the period on appeal. The majority of the evidence prior to 2009, indicate the presence of headaches, but not the frequency or severity thereof. For example, a medical opinion by Dr. E.D., dated in June 2006, note the presence of post-spinal cephalic headaches, but do not describe the nature of those headaches. A VA examination dated in August 2008, conducted in connection with diabetes and hypertension claims, noted a medical history of headaches, but did not describe them. A medical opinion from a Dr. N.A., regarding gynecological issues, notes a definitive correlation between spinal anesthesia in service and her present headaches, but again did not describe the nature of those headaches. On September 9, 2009, the Veteran was afforded a VA examination in connection with her claim. After a physical examination and review of the medical history, the Veteran was diagnosed with chronic daily headache with medication overuse. She described her headaches as if “drums” are going off in her head. It was bifrontal, and radiated into the occipital love. There was no postural association to the headache. She stated that it hurts while lying down too long, standing too long, or sitting too long. She reported her headaches occurred daily, lasting about 30 minutes to one hour. She treated her headaches with over the counter medication. In March 2010, VA records indicated a complaint of pain in the head and face, although that was attributed to an infected tooth. In September 2011, the Veteran was afforded a VA examination pertaining to her hypertension claim, then pending. At that time she reported her high blood pressure causing headaches, resulting in concentration issues, and requiring her to lie down. She stated that such headaches occurred 1-2 times per week. A PTSD examination, also conducted during September 2011, noted physical pain from spine problems and headaches, preventing her from working more than some at-home clerical work. The examiner noted her reports of onset of headaches, but stated that it was beyond the scope of the practice of the examiner to opine as to the etiology of the headaches. An opinion regarding the possible etiology of her headaches (secondary to PTSD) described them as “severe” but did not include any other descriptors. A VA record from September 2011 noted headaches causing her concentration problems, occurring 1-2 times per week. In October 2011, she was afforded a new VA neurological examination. Her headaches were described as primarily postural in nature, giving her difficulty standing over periods of time. She had some generalized pain with twisting and turning her head, resulting in limitations to her physical abilities, such as difficulty mopping or sweeping. Pain appeared daily in the base of the neck, which can range from 3 to 8. The impression was low cerebrospinal fluid headache in 1978. In February 2012 and 2013, VA records indicate that she reported “intermittent” headaches since service. She denied any association between her headaches and light or sound. Her headaches were described as stable on medication. On May 3, 2013, she was afforded a new VA examination. At that time, her migraines were described as occurring approximately 3 times per week. She got some relief with over the counter medications. Pain occurred behind the eyes, migrating to the back of the head, and described as throbbing or pulsating. Duration was typically less than one day. Her migraine attacks were described as prostrating in nature, but occurring less than once every two months. her migraines were described as affecting her ability to work, due to frequent absenteeism, regardless of sedentary or physical nature of the work. In August 2014, the Veteran testified before a Veterans Law Judge that her migraines were debilitating, occurring two to three days per week, forcing her to stay in bed, and that her headaches had worsened since the May 2013 examination. In March 2015, she was again evaluated for migraine headaches. At that time she reports continued headache pain on both sides of the head, resulting in nausea, light sensitivity, sound sensitivity, visual changes, and prostrating attacks of head pain lasting less than one day at a time. Functionally, her headaches interfered with her ability to work, saying that headaches interfered with her ability to most activities of daily living, and making it impossible to drive. The examiner declined to say whether or not her headaches resulted in economic inadaptability, as she had no reference for that standard, although she did note that the Veteran was not presently employed and reported that she could not drive during a headache. She also indicated that the Veteran was perfectly able to participate throughout the entire examination, and found her reports of worsening since the prior examination to be less than credible, noting that she did not take any prescription medication for her migraines, had not been hospitalized due to migraines, and although she had to go to bed early twice the prior week, she was still able to engage in self-care, bathe, cook, do things in bed, and drive if needed. Private treatment records dated after March 2015, document ongoing treatment for headaches, but do not describe the nature of those headaches. In light of the above, the Board finds that the claim should be denied. In this matter, while there is evidence of prostrating attacks of migraine headaches, prior to June 30, 2016, there is simply no evidence showing that those attacks were very frequent, completely prostrating, and prolonged such that they were productive of severe economic inadaptability. At most, the Veteran’s headaches appeared to occur 2 or 3 times per week, and lasted less than a day at a time. Through 2011, and possibly as late as April 2013, the Veteran reported that she was self-employed, which implies that, even if the headaches were present, she was able to engage in employment activities. Even thereafter, there is no indication that her headaches, which only lasted less than a day, were very frequent or “completely” prostrating. There was no indication that she was seeking neurological care or taking prescription medication for her headaches throughout this period, and the 2015 examiner found her reports of worsening to be less than credible based on the evidence of record and her own examination of the Veteran. Indeed, as late as her March 2015 examination, she was able to engage in basic self-care, cook, bathe, clean, and drive, if needed. At that time she reported her headaches causing her to go to bed early, but they were not so frequent or severe as to completely prevent regular activities. In reaching this conclusion, the Board has reviewed all new evidence submitted since the time of the prior remand, to include any and all VA and private treatment records, but finds that these records primarily pertain to a period after the Veteran’s increase to 50 percent for migraines on June 30, 2016. As such, these records are not reflective of the period on appeal, and do not speak to the severity of the Veteran’s migraine headaches between 2005 and June 2016. In sum, while the Veteran clearly had characteristic prostrating attacks of headaches during the period on appeal, there is insufficient evidence of record to show that they were completely prostrating and prolonged in nature, or productive of severe economic inadaptability. As such, the criteria for a rating in excess of 30 percent prior to June 30, 2016, have not been met, and the increased rating claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) from July 11, 2005, to September 16, 2011 The Veteran seeks entitlement to TDIU from July 11, 2005, to September 16, 2011. The Board finds that the claim should be denied. A Veteran will be entitled to TDIU upon establishing she is in fact unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2016). Consideration may be given to her level of education, any special training, and previous work experience in making this determination, but not to her age or impairment from disabilities that are not service connected (i.e., unrelated to his military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19 (2016). To qualify for a total rating for compensation purposes on a schedular basis, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities-provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). In a claim for TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that “applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner”); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) (observing that “medical examiners are responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity,’ 38 C.F.R. § 4.10, but it is the rating official who is responsible for ‘interpret[ing] reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present,’ 38 C.F.R. § 4.2.”). Importantly, “substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. See 38 C.F.R. § 4.16 (a). In the present matter, the Board finds that the claim must be denied because, for the period in question, the Veteran was gainfully employed. Of consequence here, are several assertions made by the Veteran regarding her employability during the period in question. On June 4, 2013 the Veteran submitted a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). In that application she asserted that she had been employed from February 1995, though June 2011, working 40 hours per week as the owner of the company, with highest gross earnings of $6000.00 per month. With that assertion, she also included a statement that following June 2011, she was unable to continue working due to migraines and PTSD, as well as lack of sleep due to sleep apnea and teeth grinding (the Board observes that sleep apnea and bruxism are not service-connected disabilities). In January 2015, she submitted a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). In that form She asserted that she worked until July 2011, working approximately 15 hours weekly, and earning $45,999.96 in the prior 12 months before the last date of employment. The gross amount of her most recent payment for employment was $26, 833.32, which she asserted was not a lump sum payment. Her employment was described as writing proposals and other paperwork, and she asserted that she left her employment due to chronic pain, although she did not discuss the nature of this chronic pain. Also in January 2015, she submitted a new VA Form 21-8940, in which she changed her prior assertions regarding her employment. In this new application, she reported working for one corporation from February 1995, to January 2004, in an administrative position, working only 28 hours per week, and earning approximately$39,946.00. per year. From January 2005 to June 2011, she worked for a different corporation (the same she asserted she was the owner in the 2013 application), working only 28 hours per week, with a maximum yearly salary of $53,577.00 per year. She described her work as “proposal writer/paperwork.” With this application, she included a statement that she had been employed, earning income through 2011, but really stopped working in 2005. Her chronic pains required her to take an early retirement in 1995 or get laid off, with her being self-employed since that time. She asserted that her husband ran the business. Statements from her husband have asserted that she became unemployed in July 2011. Based on this evidence, the Board finds that the primary criterion for entitlement to TDIU has not been met prior to July 1, 2011. The evidence suggests that the Veteran was employed for the period in question, and therefore does not meet the most basic requirement, namely, “unemployability.” In this regard, the Board notes that the Veteran was employed, at least part time, if not full time for the entire period in question, and alone earned income in line with the national average for a full household, not just a single individual. To the extent that the Veteran asserts that her various disabilities interfered with her ability to work from 2005 through 2011, while certainly competent to report such observable evidence, the Board finds that her later statements regarding her employability during this time to be less than credible for rating purposes. Indeed, her statements regarding her employability changed drastically between her initial application in 2013, and her updated application in 2015. The initial application implied that she was able to work 40 hours we week, while her later application reduced that amount to 28 hours per week. The initial application attributed her unemployability to a mix of her service-connected and non-service-connected disabilities, while the later application said her migraines alone prevented employment. Indeed, as later as April 2013, a date after her initial grant of TDIU, she reported to a VA pharmacologist that she was able to exercise up to 3 times per week, and was self-employed, working 18-20 hours per day, which was noted to include a significant amount of travel. In sum, the Board finds her statements that she was only marginally employed during this period to be less than credible to determine the true nature of her employment during this period of time. See Caluza v. Brown, 7 Vet. App. 498 (1995) (giving factors to consider in assessing the credibility of lay testimony, to include facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, time of creation of evidence, and lay statements made during treatment). Even presuming that the Veteran’s statement that she was only employed 28 hours per week during the period in question were true, the Board finds that this does not entitle her to TDIU. The question before the Board is not whether the Veteran was able to maintain “full time” employment. Rather, the question is whether the Veteran was able to engage in “substantially gainful employment,” As noted above in Moore, substantially gainful employment is employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Even if the Veteran were only working part-time, as she asserts in her 2015 application (again, the Board finds this later assertion to be less than credible given that she asserted full-time employment in 2013), her employment was gainful. In January 2015, she asserted that her final 12 months of employment resulted in income of $45,999.96, nearly the national average for the average multi-person household, not just a single individual. Affording the Veteran the benefit of the doubt, and applying her reported income in her final year of employment, at 28 hours per week, she was earning roughly $31.60 per hour, when the average hourly income nationwide was less than $13.00 per hour. The Board finds this more than substantially gainful. Even if her disabilities prevented her from working all but one hour per week (again, the Board notes that she has worked to between 28 and 40 hours per week employment during this period), that employment would be “substantially gainful” as it allowed her to earn a living wage. As such, the Board concludes that the Veteran was engaged in substantially gainful employment during the period in question, and entitlement to TDIU prior to July 2011 remains denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. However, from July 1, 2011, to September 16, 2011, the Board finds that the evidence shows that the Veteran was unemployed, met the schedular criteria for a grant of TDIU, and was subject to service-connected PTSD and headaches which likely prevented gainful employment. As such, affording the Veteran the benefit of the doubt, the Board will grant an earlier effective date for the grant of TDIU of July 1, 2011, the first date she became unemployed.   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Pryce, Counsel