Citation Nr: 21011314 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-19 942 DATE: March 1, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for headaches prior to March 24, 2014, and in excess of 50 percent thereafter, on an extraschedular basis, is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Prior to March 24, 2014, the Veteran’s headaches were manifested by characteristic prostrating attacks occurring on average once a month over the last several months. 2. From March 24, 2014, the Veteran’s headaches were manifested by frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 3. For the entire appeal period, the Veteran’s service-connected headaches have been manifested by symptoms specifically contemplated by the rating criteria under which the disability is evaluated, such that an exceptional or unusual disability picture is not presented. CONCLUSION OF LAW 1. For the entire appeal period, the criteria for entitlement to an extraschedular rating for a service-connected headache disability have not been met. 38 U.S.C. §§ 1101, 1155, 5107; 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1967 to March 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision which, in pertinent part, granted service connection for headaches, evaluated at 10 percent, effective December 9, 2011. In an April 2014 rating decision, the RO granted an increased 30 percent evaluation, effective December 9, 2011. In a February 2018 decision, the Board denied a rating in excess of 30 percent for headaches prior to May 21, 2014 and granted an increased 50 percent evaluation from May 21, 2014. The Board also found TDIU raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the issue pending the outcome of an inextricably intertwined claim. As it pertained to the Board’s decision on the increased rating claim for headaches, the Veteran appealed to the U.S. Court of Appeals for Veterans Claims, an in a November 2018 order, the Court granted the parties’ Joint Motion for Partial Remand, vacated the Board’s February 2018 decision, and remanded the claim to the Board for adjudication consistent with the motion. In a May 2019 decision, the Board granted an increased 50 percent evaluation for the Veteran’s headaches, effective March 24, 2014, and remanded the issue of entitlement to an initial disability rating in excess of 30 percent prior to March 24, 2014, and in excess of 50 percent thereafter, on an extraschedular basis to obtain an opinion from the VA Director of Compensation Services. The Board notes that additional evidence pertinent to the issue of entitlement to a TDIU was received following the last supplemental statement of the case (SSOC). However, as this claim is being remanded, the Agency of Original Jurisdiction (AOJ) will have an opportunity to review this evidence in the first instance. Entitlement to an initial disability rating in excess of 30 percent for headaches prior to March 24, 2014, and in excess of 50 percent thereafter, on an extraschedular basis. The Veteran contends that higher disability ratings are warranted for his service-connected headaches. The Veteran’s headache disability has been rated under Diagnostic Code (DC) 8100 for migraine headaches. Under DC 8100, a noncompensable evaluation is assigned for migraines with less frequent attacks. A 10 percent evaluation is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent evaluation is assigned for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent evaluation is assigned for migraines with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Throughout the appeal period, the Veteran asserts that he is entitled to an increased rating for his headaches on an extraschedular basis. For the following reasons, the Board finds that the preponderance of the evidence is against the claim for an increased rating on an extraschedular basis. In Thun v. Peake, the Court set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The record shows that he asserts that his headaches cause sensitivity to light and sound, changes in vision, nausea, vomiting, and have interfered with his employment. The Board notes that migraine is a broad term that covers more than headaches. Specifically, it is defined as a familial symptom complex of periodic attacks preceded by prodromal sensory symptoms and commonly associated with irritability, nausea, vomiting, constipation or diarrhea, and photophobia. See Dorland’s Illustrated Medical Dictionary 1166 (32d ed. 2012). Furthermore, the Court recently found that DC 8100 contemplates all migraine symptoms. See Holmes v. Wilkie, No. 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131 (Vet. App. Nov. 25, 2020). Thus, to evaluate headache disabilities rated under this Diagnostic Code, VA must consider all symptoms experienced due to the Veteran’s headaches, and then rate all of the symptoms based on the frequency, duration, severity, and economic impact of those attacks. Here, the Board finds that all of the Veteran’s headache symptoms as previously described are contemplated by DC 8100. The Veteran has not identified any symptoms that are not contemplated by DC 8100. Accordingly, the Board concludes that the schedular rating criteria reasonably describe the Veteran’s disability picture. As the schedular criteria are not inadequate, the Board finds that the first Thun element is not met. The Board notes that in May 2019, the Board referred the issue of the Veteran’s migraine headaches to the Director of Compensation Service for consideration on an extraschedular rating. In a December 2019 opinion, the Director denied extraschedular evaluation for the Veteran’s headaches, noting that the record did not show that the schedular evaluation was inadequate to appropriately contemplate the Veteran’s headache disability. Similar to the Board’s findings, the Director’s analysis did not extend beyond the first Thun element. The threshold issue under Thun is thus not met and an increased rating for headaches on an extraschedular basis must be denied. REASONS FOR REMAND Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis. Throughout the pendency of his appeal, the Veteran has asserted that his service-connected disabilities have rendered him unable to work. Accordingly, a claim of entitlement to a TDIU was reasonably raised by the record. VA will grant a TDIU for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Veterans who are unable to secure gainful employment by reason of service-connected disabilities but fail to meet the percentage criteria in 38 C.F.R. § 4.16(a), may receive extraschedular consideration. See 38 C.F.R. § 4.16(b). Specifically, rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. The rating board will include a full statement as the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. Id. Here, the evidence shows that prior to March 24, 2014 the Veteran was service connected for cluster headaches rated as 30 percent disabling; residuals of a right radial head fracture rated as 20 percent disabling, a thoracolumbar back disability rated as 10 percent disabling, a cervical back disability rated at 10 percent disabling, tinnitus rated at 10 percent disabling, bilateral hearing loss rated at a noncompensable rating, a head scar rated at a noncompensable rating, and a traumatic brain injury rated at a noncompensable rating. The Veteran’s total disability rating prior to March 24, 2014 was 60 percent. Accordingly, prior to March 24, 2014, the Veteran’s service-connected impairments did not meet the schedular requirements to be considered for a TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In an October 2013 statement, the Veteran has asserted that he left a job in 2011 earlier than he intended due to his headaches and that he had not been able to find employment since. Additionally, Social Security Administration records reflect the Veteran is in receipt of disability benefits from June 2011 due to osteoarthrosis and allied disorders. Given the evidence of record which shows that the Veteran’s service-connected disabilities may impact his ability to maintain employment, the Board finds that a remand is warranted for referral to the Director of Compensation Service for consideration of TDIU prior to March 24,2014 on an extraschedular basis. As of March 24, 2014, the Veteran was service-connected for the following disabilities: cluster headaches rated as 50 percent disabling; residuals of a right radial head fracture rated as 20 percent disabling, a thoracolumbar back disability rated as 10 percent disabling, a cervical back disability rated at 10 percent disabling, tinnitus rated at 10 percent disabling, bilateral hearing loss rated at a noncompensable rating, a head scar rated at a noncompensable rating, and a traumatic brain injury rated at a noncompensable rating. The Veteran’s total disability rating as of March 24, 2014 was 70 percent. Accordingly, as the Veteran’s headaches were rated at more than 40 percent disabling, and his total combined disability rating was 70 percent, the Board finds that the Veteran met the TDIU schedular threshold as of March 24, 2014. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Additionally, subsequent to the most recent supplemental statement of the case (SSOC) for TDIU, the Veteran was granted five separate ratings for degenerative arthritis of his right and left hand, each rated at 10 percent effective May 30, 2014, bringing his combined disability rating to 90 percent. The Board additionally notes that in a July 2018 rating decision, the RO awarded the Veteran a 100 percent disability rating for active prostate cancer on a temporary basis, effective July 10, 2018. A TDIU is generally inapplicable when a Veteran’s service-connected disabilities are rated at 100 percent. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). However, in Bradley, the Court found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293; see 38 C.F.R. § 4.14. Here, as the Veteran met the schedular threshold for TDIU prior to receiving a temporary 100 percent disability rating, and as he has asserted that service-connected disabilities other than his prostate cancer have rendered him unable to work, the Board finds the claim for a TDIU cannot be dismissed as moot from July 10, 2018 despite the Veteran now having a temporary overall total rating. Rather, the Board must look at the evidence to see whether, both prior to receipt of the total disability rating and thereafter excluding the effects of his prostate cancer, the Veteran has service-connected disorders which are productive of unemployability. On review of the evidence of record, the evidence is conflicting as to the impact of the Veteran’s service-connected disabilities on his ability to secure and maintain substantially gainfully employment. As to the Veteran’s lay statements, he has consistently described inability to work due to his service-connected disabilities, however, he has also described enjoying hobbies that include physical and fine-motor work such as yardwork and woodworking. Additionally, while a March 2014 VA examination report reflects a finding that the Veteran’s cluster headaches would not prevent physical or sedentary employment, but workplace accommodations would be helpful, a private May 2014 headache Disability Benefits Questionnaire (DBQ) reflects a finding that his headaches would “make meaningful work unattainable.” The Board finds evidence of record is insufficient to make a determination on the functional effects of the Veteran’s disabilities in an occupational environment. Furthermore, the evidence of record suggests that multiple disabilities may contribute to a combined effect on the Veteran’s ability to perform in an occupational environment. As such, the Board finds that a remand is warranted for a VA examination and medical opinion as to the functional effects of the Veteran’s disabilities, individually and combined, on his ability to perform in an occupational environment. Upon remand, the Veteran should be asked to complete a VA Form 21-9840 (Veteran’s Application of Increased Compensation Based on Individual Unemployability). The matter is REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records from November 2020 to present. 2. Request the Veteran complete and return a VA Form 21-9840 (Veteran’s Application of Increased Compensation Based on Individual Unemployability). 3. After completion of the foregoing, schedule the Veteran for a VA examination to evaluate the effect of his service-connected disabilities on his ability to obtain and maintain substantially gainful employment since March 24, 2014. The entire claims file should be made available to the examiner. The examiner is asked to describe the functional effects of each of the Veteran’s service-connected disabilities on his ability to perform in an occupational environment throughout the appeal period, as well as the combined functional effect of those disabilities. 4. Thereafter, refer the Veteran’s TDIU claim to the Director of Compensation Service for consideration of TDIU prior to March 24, 2014 on an extraschedular basis. A full statement as to the Veteran’s service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue should be included. 5. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). (Continued on next page)   An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Gomez, Law Clerk 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.