Citation Nr: 21010185 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 09-27 705A DATE: February 24, 2021 ORDER An initial 30 percent rating for service-connected migraine headaches from August 28, 2003, to May 13, 2010, is granted. A rating in excess of 30 percent for service-connected migraine headaches from May 14, 2010, to September 26, 2019, is denied. A rating in excess of 50 percent for service-connected migraine headaches since September 27, 2019, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. From August 28, 2003, to May 13, 2010, the Veteran’s service-connected migraine headaches were manifested by characteristic prostrating attacks occurring on an average once a month over the last several months, without evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. From May 14, 2010, to September 26, 2019, the Veteran’s service-connected migraine headaches were manifested by characteristic prostrating attacks occurring on an average once a month over the last several months, without evidence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. Since September 27, 2019, the Veteran’s service-connected migraine headaches were assigned a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, the maximum schedular evaluation available under the rating criteria; there is no evidence of symptoms of service-connected migraine headaches that render the rating criteria inadequate. CONCLUSIONS OF LAW 1. For the period dated from August 28, 2003, to May 13, 2010, the criteria for an initial 30 percent rating for service-connected migraine headaches were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.7. 4.21, 4.124a, Diagnostic Code (DC) 8100. 2. For the period dated from May 14, 2010, to September 26, 2019, the criteria for a rating in excess of 30 percent for service-connected migraine headaches were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.7. 4.21, 4.124a, DC 8100. 3. For the period dated since September 27, 2019, service-connected migraine headaches have been assigned the maximum schedular 50 percent rating; the criteria for an extraschedular rating are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.400, 4.3, 4.7. 4.21, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the Army National Guard of Georgia from August 1984 to August 1990, with verified periods of active duty from May 20, 1985, to September 13, 1985; active duty for training (ACDUTRA) from August 9, 1986, to August 23, 1986; and inactive duty for training (INACUDTRA) from October 11, 1986, to October 12, 1986. Veteran status has been established for the August 1986 ACDUTRA period based on service-connected injury incurred in that period. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Department of Veteran’s Affairs (VA) Board of Veterans’ Appeals (Board) in October 2012; a transcript of the hearing is of record. The record reflects that the Veteran received a letter from VA in September 2020 indicating that he could request a virtual tele-hearing instead of waiting for a Travel Board hearing. Upon further review, the Board notes that the Veteran did not have a pending hearing request as he had already provided testimony in the October 2012hearing before the undersigned VLJ who will consider the transcript of that hearing as evidence in the decision herein. The Board remanded this case for further development in October 2012, April 2016, and most recently, in February 2019; the claims file has been returned to the Board for adjudication. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. On appeal is the initial rating assigned by the VA Regional Office (RO). By a March 2004 rating decision, the RO granted service connection for head injury with migraine headaches and assigned the same an initial noncompensable rating, effective August 28, 2003. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. By an August 2007 rating decision, the RO granted a 10 percent rating, effective September 19, 2005, by a January 2011 rating decision, the RO granted a 30 percent rating, effective May 14, 2010, and in a November 2019 rating decision, the RO granted a 50 percent rating, effective September 27, 2019. In this regard, the caption of the Veteran’s service-connected migraine headaches has changed over the course of the appeal. The RO, in its original March 2004 grant of service connection, captioned the Veteran’s disability as head injury with migraine headaches. In its April 2018 rating decision, the RO granted a separate evaluation for traumatic brain injury (TBI) and captioned the Veteran’s disability as migraine headaches. The November 2019 rating decision code sheet, a report of all of the Veteran’s service-connected disabilities as well as disabilities that have been denied service connection appears, indicates that he is service-connected, in pertinent part, related to the disability on appeal, for migraine headaches, TBI, and residuals, nasal deformity, secondary to nasal fracture. Service connection has been specifically denied on a secondary basis for hearing loss, sleep apnea, allergic rhinitis, memory loss, multiple sclerosis, posttraumatic stress disorder (PTSD), and vertigo. Of record is lay and clinical evidence of symptoms reported coincident to the Veteran’s service-connected migraine headaches that have specifically been denied service connection on a secondary basis during the course of the current appeal; the Board need not further consider such symptoms for further development in the adjudication of the severity of the Veteran’s service-connected migraine headaches. The Veteran bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and clinical evidence of record. 38 U.S.C. § 5107 (b). The record before the Board contains voluminous post-service treatment records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence.). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Under DC 8100, headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling; headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent disabling; headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated as 10 percent disabling; and headaches with less frequent attacks are assigned a zero percent rating. 38 C.F.R. § 4.124a, DC 8100. The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). VA regulations do not define “prostrating.” By way of reference, the Board notes that according to Webster’s New World Dictionary of American English, Third College Edition (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which “prostration” is defined “extreme exhaustion or powerlessness.” Further, “severe economic inadaptability” is also not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the United States Court of Appeals for Veterans Claims (Court) has held that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. It was explained by the Court that if “economic inadaptability” were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating. Id. citing 38 C.F.R. § 4.16. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words “productive of” could be read to mean either “producing” or “capable of producing.” Id. at 446-447. 1. Entitlement to an initial compensable rating for service-connected migraine headaches from August 28, 2003, to September 18, 2005, and to a rating in excess of 10 percent from September 19, 2005, to May 13, 2010. On VA examination in October 2003, the Veteran reported that since his in-service injury he has had severe headaches, currently treated with prescription medication, with biparietal pain involving the entire skull, occurring several times each week, lasting hours, and associated with nausea, vomiting, blurry vision, and photophobia without aura or phonophobia. The Veteran reported that he was unable to drive at night because the lights hurt and that he was not working due to back and shoulder disorders. During VA treatment in August 2005, he complained of headaches, ongoing, intermittent, and in the past two weeks, moderate to severe headaches, associated with nausea, photophobia, and worse with noise. On VA examination in June 2006, the Veteran reported daily headaches, present almost continually, waxing and waning in severity, with associated nausea when they are most severe, with visual blurring, a sense of cephalic and facial pressure particularly prominent when recumbent, and a sense of constant lightheadedness exacerbated by sudden postural changes. In his December 2007 Notice of Disagreement (NOD), the Veteran reported that his headaches were tormenting. In July 2009, the Veteran underwent private examination of his migraine headaches conducted by a private examiner. He complained of headache pain at the temples and reported that when such occurs, he has to stay in bed and is unable to do anything. His headaches occurred an average of three times each month, lasting two hours. His headaches impacted the ability to perform daily functions during flares slightly due to dizziness and did not impact his overall functional impairment, usual occupation, or daily activity. During VA treatment in April 2010, the Veteran reported chronic headaches for many years and complained that he woke at night from the same, with nausea and vomiting. Based on the evidence dated from August 28, 2003, to May 13, 2010, the Board finds that the Veteran’s service-connected migraine headaches were manifested by symptoms best approximated by characteristic prostrating attacks occurring on an average once a month over the last several months, contemplated by the rating criteria for a 30 percent rating. 38 C.F.R. § 4.124a, DC 8100. His description of his migraine headaches is one that paints a disability picture of episodes of “utter physical exhaustion or helplessness” or “extreme exhaustion or powerlessness,” terms considered in the Board’s determination of whether such episodes shall be prostrating attacks, discussed above. The Board can contemplate a scenario wherein the Veteran’s headaches with associated nausea, vomiting, blurry vision, photophobia, a sense of cephalic and facial pressure particularly prominent when recumbent, a sense of constant lightheadedness exacerbated by sudden postural changes, described by the Veteran as tormenting, and requiring him to stay in bed, unable to do anything, render him utterly exhausted or helpless or powerless. While the Veteran has reported his migraine headaches as occurring daily and thrice monthly, and the rating criteria for a 30 percent rating contemplate characteristic prostrating attacks only occurring on an average once a month over the last several months, there is no evidence that the Veteran’s migraine headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, as are required for the next higher rating, 50 percent, under DC 8100. Id. No party asserts that the Veteran experiences such attacks, he reported himself that his headaches lasted two hours, and the examiner reported that his headaches did not impact his overall functional impairment, usual occupation, or daily activity. Thus, the weight of the evidence demonstrates that a rating of 30 percent, but not higher, for service-connected migraine headaches from August 28, 2003, to May 13, 2010, is warranted. The claim is granted. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. 2. Entitlement to a rating in excess of 30 percent for service-connected migraine headaches from May 14, 2010, to September 26, 2019. On VA examination on May 14, 2010, the Veteran reported headaches several times per week with nausea and vomiting, aggravated by stress but also coming and going without any specific activity. He reported that his headaches lasted an indeterminable time and were alleviated by medication. He complained that during a headache he has to sit in a chair and close his eyes tightly. The examiner reported that the Veteran was in receipt of disability benefits related to other disorders and that his headaches did not interfere with employability. VA treatment records dated in June 2010 indicate that the Veteran complained of headaches, constant pounding in the biparietal region with associated nausea, blurred vision, photosensitivity, neck stiffness, and pressure on eyes, rated as a four through ten on a ten-point pain scale, lasting four-to-five hours, and occurring more than three times each week. During VA treatment in December 2010, the Veteran reported that his headaches were not as bad. In December 2011, during VA treatment, he reported that he had headaches daily. During his October 2012 Board hearing, the Veteran complained of vertigo, trouble writing, memory loss, and psychiatric symptoms, as well as constant daily headaches. He reported that when his headaches occur, they drive him wild and once during a fight with his son, he came close to shooting him. He asserted that he only gets two or three hours of sleep, that he cannot lie down due to vertigo, and that his headaches are so severe that he does not want to be bothered by anyone and gets in a corner and prays and clenched his eyes and tries to think of better times. In a March 2014 Disability Benefits Questionnaire (DBQ), the Veteran reported headache pain that was frontal, without associated symptoms, lasting a few minutes, less than one day. The examiner concluded that the Veteran did not have characteristic prostrating attacks of migraine headaches and no other pertinent physical findings, complications, conditions, signs, or symptoms related to his condition, and that such did not impact his ability to work. During VA treatment in December 2015, the Veteran presented for follow-up for chronic medical conditions and reported that his headaches had not been an issue lately. In March 2016, during VA treatment, the Veteran reported headaches, mild to moderate, worse with loud noise but not bright lights, located on the top of his head, without associated symptoms, and sought medication. VA treatment records dated in September 2016 indicate that he reported that his headaches were still there but maybe not occurring as often, and asserted that his pain was frontal, pulsate, and were associated with nausea and occasional sensitivity to light, lasting hours to all day, occurring several times each week. In April 2017, during VA treatment, the Veteran reported that his headaches were still present, but much improved on medication. VA treatment records dated in March 2018 indicate that the Veteran complained of headaches, especially with stress, and reported that he felt like hurting someone felt that his medication was not helping. While the Veteran has reported his migraine headaches as occurring daily, thrice monthly, and several times each week, and the rating criteria for a 30 percent rating contemplate characteristic prostrating attacks only occurring on an average once a month over the last several months, there is no evidence that the Veteran’s migraine headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, as are required for the next higher rating, 50 percent, under DC 8100. Id. No party asserts that the Veteran experiences such attacks. The Veteran has provided an incredibly varied account of the length of his headaches during this period, from an indeterminable time, four-to-five hours, a few minutes, and hours to all day; significantly no examiner has reported headaches deemed very frequent completely prostrating and prolonged and the examiners, in both examination reports, concluded that his headaches did not interfere with employability. Thus, the weight of the evidence demonstrates that a rating in excess of 30 percent for service-connected migraine headaches from May 14, 2010, to September 26, 2019, is not warranted. The claim is denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. 3. Entitlement to a rating in excess of 50 percent for service-connected migraine headaches since September 27, 2019. In an October 2019 DBQ, the Veteran reported that he was still having problems with headaches, that he gets one anytime he is frustrated, daily, and that they last almost all day. He asserted that during a headache, he sits in a quiet room, that he cannot lie down due to vertigo attacks. He reported that he took medication for his headaches, that his pain was constant and on both sides of his head, associated with nausea, vomiting, and sensitivity to sound, and lasted one-to-two days. The examiner concluded that the Veteran had characteristic prostrating attacks of migraine headaches once monthly, and had very prostrating and prolonged attacks of migraine headaches productive of severe economic inadaptability. There were no other pertinent related physical findings, complications, conditions, signs, or symptoms. The examiner reported that the Veteran’s headaches impacted his ability to work as such would occur every day and cause extreme absenteeism and that the number of his headaches were also sufficient to disrupt his social life. In a November 2019, DBQ, the Veteran reported that he had headaches when he was stressed out, three days each week, less than one day in duration, occurring at the crown of the head and both sides of his head, with pulsatile or throbbing pain with nausea but no emesis, sensitivity to light, noise, and smells, and worsening with physical exertion, treated with medication with minimal relief. The examiner concluded that the Veteran did not have characteristic prostrating attacks, and did not have very prostrating and prolonged attacks of migraine headaches productive of severe economic inadaptability. There were no other pertinent related physical findings, complications, conditions, signs, or symptoms, and the examiner concluded that the Veteran’s headaches did not impact his ability to work. While one examiner, in October 2019, determined that the Veteran’s service-connected migraine headaches were manifested by very prostrating and prolonged attacks of migraine headaches productive of severe economic inadaptability, the examiner, in November 2019, did not. There is no evidence upon which to resolve the different opinions of the examiners and where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. As set forth above, the Veteran is currently in receipt of a 50 percent rating for migraine headaches resultant to the November 2019 rating decision. This is the maximum rating available for migraine headaches pursuant to pertinent rating criteria DC 8100, contemplating very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. There is no provision for a higher rating for migraine headaches in the Rating Schedule, and no evidence that the Veteran’s disability is more appropriately evaluated under other rating criteria. Thus, a schedular rating in excess of 50 percent for service-connected migraine headaches is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. First, the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability. Then, the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. Finally, the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria contemplate the Veteran’s service-connected migraine headaches. His symptoms, his headache pain and specific associated symptoms, are contemplated by the rating criteria and considered by the Board in its decision. Neither the Veteran nor his representative have reported symptoms beyond those provided in the rating criteria, migraine headaches, beyond those symptoms denied service connection on a secondary basis to service-connected migraine headaches during the course of the appeal. The rating criteria are therefore adequate to evaluate his disability and referral for consideration of extraschedular rating is not warranted. 38 C.F.R. § 3.321; Thun, 572 F.3d 1366. REASONS FOR REMAND Entitlement to a TDIU is remanded. On VA examination in October 2003, the Veteran reported that he was not working due to back and shoulder disorders. In July 2009, the private examiner reported that the Veteran’s headaches did not impact his overall functional impairment or usual occupation. On VA examination in May 2010, the examiner reported that the Veteran was in receipt of disability benefits related to other disorders and that his headaches did not interfere with employability. In the March 2014 DBQ, the examiner concluded that the Veteran’s headaches did not impact his ability to work. On VA TBI examination in May 2016, the Veteran stated that his last job was at junk yard driving a truck for auto salvaging. He had worked there off and on for three to four years, but lost that job because the owner died four or five years ago. In the October 2019, DBQ, the examiner concluded that the Veteran had very prostrating and prolonged attacks of migraine headaches productive of severe economic inadaptability and reported that the Veteran’s headaches impacted his ability to work as such would occur every day and cause extreme absenteeism. On VA TBI examination in November 2019, the Veteran reported that he had not worked in over 10 years. Thus, while the Veteran has not asserted that his service-connected migraine headaches render him unemployable, the evidence, specifically, the conclusions of the VA examiner in the October 3, 2019, DBQ, raise the issue of such. Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim of entitlement to a TDIU is part of an increased rating claim when such is raised by the record). On remand, the RO should seek from the Veteran clarification if he wishes to pursue a claim of entitlement to a TDIU based on his service-connected migraine headaches. The matters are REMANDED for the following action: Seek from the Veteran clarification if he wishes to pursue a claim of entitlement to a TDIU based on his service-connected migraine headaches; based on his response, completely develop the claim of entitlement to a TDIU, if appropriate. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.