Citation Nr: 21009227 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 12-23 218 DATE: February 19, 2021 ORDER Entitlement to a rating in excess of 50 percent for migraines, to include on an extraschedular basis, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected migraines is inadequate. 2. The Veteran did not return a completed VA Form 21-8940 to support his claim for TDIU, and the preponderance of evidence is against finding that the Veteran’s service-connected disabilities result in total unemployability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent for migraines, to include on an extraschedular basis, have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2003 to January 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In April 2017, the Board denied entitlement to an increased rating higher than 50 percent for migraine headaches. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court); and pursuant to a November 2017 joint motion for remand (JMR), the Court vacated the Board’s decision and remanded the case back to the Board in December 2017. In August 2018 and again in August 2020, the Board remanded the case for additional development. The AOJ having substantially complied with the directives of the Board remands, the case is now returned to the Board for appellate review. The issue of entitlement to a TDIU was raised by the record in an April 2018 request by the Veteran (after having been withdrawn previously in 2015), as part of the increased rating claim for migraine headaches. Rice v. Shinseki, 22 Vet. App. 447 (2009) 1. Entitlement to a rating in excess of 50 percent for migraines, to include as on an extraschedular basis The Veteran contends that he is entitled to an extraschedular rating for his headaches because of the amount of time lost from work due to the severity of the headaches. In an April 2018 statement, the Veteran indicated that in 2017 he was not able to work 137 days of the year due to his migraines. He noted that on average he missed half of the work week because of his condition. He also noted that he had to miss work to attend medical treatment for his headaches. He noted that since 2014, he had been getting Botox injections around his skull and typically it took two days to recover from the injections. He stated that for the past four months he wore a Cefaly migraine machine. He also noted that he took Topiramate pills every day and naproxen when he felt a migraine coming on and that combining all of these medications and devices left him feeling dizzy, in a drunk state, and like he was drugged all of the time. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, 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 rating criteria for a 50 percent rating contain several undefined phrases. Thus, these will be defined for the purposes of this decision in accordance with Porter v. Wilkie, No. 19-1521, 2020 U.S. Vet. App. Claims (June 3, 2020). The descriptive phrase “very frequent” connotes a frequency of 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 Veteran’s migraine headaches have been rated as 50 percent disabling since January 26, 2008, the day following his separation from service. See September 2016 rating decision. As the Veteran is in receipt of the highest schedular rating for his migraine headaches, he can only receive a rating higher than 50 percent on an extraschedular basis. Consideration of an extraschedular rating under 38 C.F.R. § 3.321 (b) requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. Here, pursuant to the Court’s order, the Board remanded the issue of migraine headaches in August 2018 and August 2020 for referral for extraschedular consideration to the Director of Compensation and Pension. In December 2020, the Director noted that the evidence of record did not show that the case presented such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. The question for the Board is whether the Veteran’s migraine headaches disability is adequately contemplated within the schedule of 50 percent disabling under 38 C.F.R. § 4.124, Diagnostic Code 8100. The Board finds that the quality, frequency, severity, and nature of the Veteran’s headaches are adequately contemplated in the schedule. The Veteran experiences headaches that are considered very frequent completely prostrating and involving prolonged attacks productive of severe economic inadaptability. The Board recognizes that the Veteran’s statement in April 2018 that felt dizzy, in a drunk state, and like he was drugged all of the time due to his medications and devices. Prior VA medical evidence shows complaints of feeling dazed, sleep disturbance and irritability associated with the headaches. See, e.g., May 2008 VA examination report. A February 2015 VA examination report shows that the Veteran’s symptoms included pulsating head pain on both sides of the head, sensitivity to light and sound, dizziness, blurred vision, and weakness. In September 2016, a VA treatment record notes the Veteran reported pulsating head pain on both sides of his head that worsened with physical activity, as well as nausea, vomiting, and light and sound sensitivity. According to the Veteran he experienced prostrating attacks of migraine headache pain more than once a month and missed 150 days of work in the last year due to his headaches. A February 2020 VA examination report shows the Veteran reported symptoms that were crippling, sometimes lasting four days. His current symptoms were migraines on average three to four times per week. The impact of the migraines was that they would completely cripple his day, including his job, where no activities were possible. His current medication included methocarbamol, Topiramate, naproxen, and Botox. He described sharp headache pain, nausea, vomiting, and sensitivity to light and sound. The symptoms associated with the Veteran’s migraines including blurred vision, weakness, nausea/vomiting, sensitivity to sound and light, and feeling dazed and drugged are closely analogous to the symptom of completely prostrating attacks of head pain, which is a symptom commonly associated with migraine headaches. As noted, the phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. See Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). Experiencing blurred vision, weakness, nausea/vomiting, sensitivity to sound and light, and feeling dazed and drugged is analogous to being entirely powerless. Thus, these symptoms are all encompassed by the broader symptom of prostrating attacks of migraine, so they are already contemplated by the schedular ratings currently assigned. Additionally, the Board notes that the Veteran has also established service connection and receives compensation under the rating schedule for an anxiety disorder and traumatic brain injury with associated symptomatology for persistent chronic sleep impairment, dizziness, and other impairment in social and occupational functioning that would reasonably encompass irritability, as per 38 C.F.R. § 4.124a, DC 8045 (traumatic brain injury); and 38 C.F.R. § 4.130, DC 9440 (anxiety). The parties to the November 2017 JMR, which was granted by the Court, agreed that the Board erred by failing to consider the combined impact of the Veteran’s service-connected disabilities. See November 2017 JMR, p. 3. The Court cited Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014), in which the United States Court of Appeals for the Federal Circuit (Federal Circuit) determined that the Board must consider the “collective impact” of a veteran’s injuries when deciding the issue of extraschedular referral under 38 C.F.R. § 3.321 (b). Id. However, VA regulation no longer allows for extraschedular consideration for combined effects of service-connected disabilities. See 82 Fed. Reg. 57830 (December 8, 2017) (“An extra-schedular evaluation may not be based on the combined effect of more than one service-connected disability.”). Further, the December 2017 regulation applies to all applications for benefits that are received by VA on or after January 8, 2018 or that were pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit (Federal Circuit) on January 8, 2018. Thus, an extraschedular rating is not warranted on this basis. Therefore, the symptoms and/or manifestations and functional impairments of migraine headaches demonstrated are fully contemplated in the schedular criteria for the current rating. The parties to the JMR also found that the Board provided inadequate reasons or bases in its assessment of Thun, and whether the Veteran’s symptoms to include interference with work, warranted referral to the VA Compensation and Pension Director. See November 2017 JMR, p. 4. It was noted that the Board failed to explain how missing nearly half of all workdays in a year would not “eclipse” the level of severe economic inadaptability under the diagnostic criteria. Id. It was noted that “severe economic inadaptability” was not the same thing as a complete inability to work. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). Id. As noted in the JMR, the evidence of record notes that the Veteran stated that he had missed 150 days of work in the past year due to his migraines. Id. at 5-6. The Veteran’s migraines also caused him to cease his undergraduate studies due to his symptoms. Id. at 6. With regard to the first prong of Thun, as noted above, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. The Veteran has been assigned the 50 percent rating for his disability, which contemplates “migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” The schedular criteria in DC 8100 do not list numerous specific symptoms attributable to headaches or a checklist or illustrative sample of symptoms that are indicative of a particular disability evaluation. Rather, they focus on the severity, and frequency of the attacks that are produced by the headaches’ symptoms and, with respect to the 50 percent evaluation, the economic inadaptability productive of the attacks. Inherently, the criteria contemplate the potential of a wide range of symptoms; yet focuses on the specific functional effects of these headache-related symptoms in terms of whether and to what degree they are prostrating. As explained above, the Court has focused on the frequency with which the headache symptoms cause prostrating attacks that produce powerlessness or a lack of vitality and the extent to which any such attack renders a veteran entirely powerless. Here, there are multiple competent statements that the Veteran’s headaches are accompanied by severe incapacitating pain, light and noise-sensitivity, nausea, feeling drugged and in a daze, and blurred vision. As such, it impossible for him to attend school or work for more than approximately half of the year. These symptoms and Veteran’s associated feeling completely incapacitated appear to be directly related to the loss of vitality and powerlessness contemplated by the focus of the criteria on prostrating attacks. Collectively, the Board finds that these symptoms, and in particular the functional effect of these symptoms of causing a loss of vitality and powerlessness associated with feeling completely incapacitated, are specifically contemplated by the rating schedule. The 50 percent rating adequately contemplates the severity and frequency of the Veteran’s headaches and reasonably describes the Veteran’s disability level and symptomatology. To that end, it is not necessary to discuss in detail whether he exhibited other related factors such as those provided by the regulation as “governing norms” (including marked interference with employment and frequent periods of hospitalization), step two of Thun. While the Veteran has stated that he missed half a year of work and had to drop out of school because of his headaches, the 50 percent rating schedular criteria specifically contemplates “severe economic inadaptability” due to prostrating and prolonged migraine headaches. In other words, the schedular criteria comes first in assessing the severity of his condition. It is only when the evidence “presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate,” that the analysis continues to step two (2). That is not the case here. For these reasons, the Board finds that the schedular criteria are adequate to rate the Veteran’s migraine headaches; so, the assignment of an extraschedular rating for migraine headaches is not warranted. In making this determination, the Board has considered that DC 8100 contemplates all migraine symptoms and has thus considered all symptoms experienced due to migraine attacks, and has rated the symptoms based on the frequency, duration, severity, and economic impact of those attacks. See Holmes v. Wilkie, No. 19-2495, 2020 U.S. Vet. App. Claims (November 25, 2020). 2. Entitlement to a TDIU While the Veteran has not submitted a formal claim for entitlement to a TDIU, in an April 2018 statement he noted that he was requesting entitlement to a TDIU because he was only able to work because his father had created a safe environment for him to work. Thus, in light of the claim for his service-connected migraines, the record reasonably raised the question of whether the Veteran is unemployable due to his service-connected disabilities, and the issue of entitlement to a TDIU rating is part and parcel of the claim for migraine headaches. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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. 38 C.F.R. § 4.16 (a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstances.” Rice, 22 Vet. App. at 452. When deciding a TDIU claim, the Board “must take into account the individual veteran’s education, training, and work history.” Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). Other than by distinguishing the concept of “substantially gainful employment” from “marginal employment” which “includes but is not limited to employment in a protected environment such as a family business or sheltered workshop” 38 C.F.R. § 4.16, the regulation explaining the criteria for TDIU, does not define “substantially gainful employment.” The Court has recently held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). The Veteran’s service connected disabilities are (1) migraine headaches, rated as 50 percent from January 26, 2008; (2) anxiety disorder, rated as 0 percent from January 26, 2008, and 30 percent from August 31, 2011; (3) tinnitus, rated 10 percent from August 31, 2011; and (4) traumatic brain injury, rated as 0 percent from January 26, 2008, and from 10 percent from August 31, 2011. The Veteran does not meet the percentage requirements for consideration of a total evaluation under 38 C.F.R. § 4.16 (a), effective January 26, 2008, as his combined disability rating for his service-connected disabilities is 50 percent. However, he meets the criteria for a TDIU, effective August 31, 2011, as his combined rating is 70 percent, and he has at least one disability (e.g., migraine headaches rated as 50 percent) that are rated as at least 40 percent disabling. Even for the period prior to August 31, 2011, when the required percentage requirements are not met, but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, the Director of the VA Compensation Service should consider whether a TDIU may be awarded on an extraschedular basis. 38 C.F.R. § 4.16 (b). Under the facts of this case, the Board finds referral is not warranted for the period prior to August 31, 2011; and entitlement to a TDIU on a schedular basis also is not warranted as of that date. After the issue of entitlement to a TDIU was raised by the Veteran in April 2018, the Board’s August 2018 remand instructed the AOJ to send the Veteran a TDIU claim form. The Veteran was sent a letter in May 2019, which included the VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. This form requested information regarding the Veteran’s occupational and educational history, which is necessary to determine entitlement to TDIU. The Veteran did not return this form to VA and did not respond in any way. A veteran must cooperate when he is asked for information that is essential in obtaining the evidence to substantiate his claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Additionally, a substantially complete VA Form 21-8940 is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant’s disabilities and employment and educational histories. However, the Veteran did not return VA Form 21-8940 to support his claim. Consideration has been given to the Veteran’s work experience that can be gleaned from the record because the Veteran did not return the necessary form for a TDIU. See 38 C.F.R. §§ 3.341, 4.16, 4.19. But the evidence does not support that the Veteran’s service-connected migraines, tinnitus, anxiety, and traumatic brain injury resulted in unemployability or precluded all forms of employment based on his customer service employment with his father’s business. A May 2008 VA examination report notes that the Veteran worked approximately 20 hours per week in telephone customer service in a family trucking business. It was noted that his usual occupation was in security. A November 2011 VA examination report notes that the Veteran was able to work in his chosen profession and perform substantially gainful employment due to tinnitus. The Veteran has made multiple assertions of missing approximately half a year of work due to his migraine headaches. See, e.g., September 2016 VA examination report. In April 2018, the Veteran submitted a statement that the only reason he had employment was because his father had created a safe environment. An October 2019 VA treatment record notes that the Veteran could not attend an appointment because he had to work. A separate October 2019 VA treatment record notes that the Veteran had daily migraines but was able to miss work because he worked for his father. In February 2020, a VA examination report notes that the Veteran was unable to work during migraines. He missed two days per week on average. The Board acknowledges that the Veteran has reported that he is currently employed at his father’s business, which might be considered a protected work environment. However, without any information concerning his duties it is not possible to determine whether this is considered marginal employment. Moreover, the mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not sufficient to warrant a grant of TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The determination as to whether TDIU is appropriate must be based on all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). When considering entitlement to TDIU on an extraschedular basis prior to August 31, 2011, the record must demonstrate some factor that takes the Veteran’s situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence weighs against the Veteran’s service-connected disabilities resulting in total unemployability. The preponderance of the evidence does not show that the Veteran is incapable of performing the physical and mental acts required by employment due to his service-connected disabilities. Based on the foregoing, the Board finds that the evidence does not reveal factors outside the norm resulting in unemployability due to the Veteran’s service-connected disabilities prior to August 31, 2011; and entitlement to a TDIU on a schedular basis is not warranted, thereafter. For these reasons, the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. As such, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.