Citation Nr: 21013438 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-46 164 DATE: March 9, 2021 ORDER Entitlement to a 10 percent disability rating, but no higher, for eczema of the upper arms (hereafter “skin condition”) is granted. Entitlement to a 30 percent disability rating, but no higher, for migraines is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. FINDINGS OF FACT 1. The Veteran’s service-connected eczema of the upper arms covers from 5 percent to less than 20 percent of the total body area or the exposed area, and requires intermittent use of topical corticosteroids and oral medications/injections. 2. The Veteran’s migraines result in frequent characteristic prostrating attacks of migraine headache pain. 3. The Veteran will be assigned a 100 percent schedular rating for the combined effect of his service-connected disabilities throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for 10 percent disability rating, but no higher, for eczema of the upper arms have been met. 8 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 4.1, 4.14, 4.118, Diagnostic Code 7806. 2. The criteria for a 30 percent disability rating, but no higher, for migraines have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100. 3. Throughout the appeal period, entitlement to a TDIU is moot and is dismissed. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2000 to January 2013. In May 2019, the Board remanded the aforementioned claims, and the Board finds there was substantial compliance with its remand directives. The RO obtained outstanding VA treatment records and VA examinations were scheduled. However, the Veteran failed to show-up for the examinations without providing any good cause. The RO also provided the Veteran with VA forms 21-4142 for any private treatment records, to which the Veteran failed to respond; additionally, he was asked to complete VA 21-8940 form for his TDIU claim, but failed to do so. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance, rather than absolute compliance, with remand orders). To the extent the record is incomplete, that is a direct result of the Veteran’s failure to cooperate, and the Board will not order that this development be attempted again. Since the issuance of a February 2020 Supplemental Statement of the Case (SSOC), additional VA treatment records were associated with the Veteran’s claims file. In November 2020, the Board sought to solicit a waiver of AOJ consideration by noting that these records are “relevant” to the issues on appeal. However, upon further review, the Board concludes this letter was sent in error and finds another remand unnecessary despite the December 2020 Appellate Brief from the Veteran’s representative requesting such. The Board points out that where a substantive appeal was received on or after February 2, 2013, there is an automatic waiver of initial Agency of Original Jurisdiction (AOJ) review, if the veteran or his/her representative submits evidence to the AOJ or the Board; however, the automatic waiver does not apply to VA-generated evidence, such as VA examination reports or VA treatment records. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant’s representative requests in writing that the AOJ initially review such evidence). An exception to this general rule is when the additional evidence is either duplicative or not relevant to the issue on appeal. 38 C.F.R. § 20.1304(c). In this case, the Board finds that an exception to the general rule applies for the VA treatment records associated with the claims file since the issuance of the February 2020 SSOC are entirely duplicative with the records that were already of record and not new and/or not relevant. At the time of the SSOC, the RO had obtained and reviewed VA treatment records dated through February 26, 2020. The records added to the file in March 2020 dated after February 26, 2020 concerned phone calls with the Veteran about his medications and test results; there were no new records showing findings or treatment that would be relevant to rating the conditions. As nothing new and relevant has been received since the last SSOC, no waiver or remand is required. Thus, although the Board is cognizant of the representative’s request that the appeal be remanded for the AOJ’s consideration of the recently obtained evidence, the Board denies that request, because the new evidence was either duplicative or did not contain any relevant information. The Board will proceed to adjudicate this appeal at this time. With regards to the Veteran’s contention questioning the adequacy of an August 2013 VA migraine examination—specifically, the discrepancy in its describing the frequency and the severity of his headaches condition (see September 2017 Form 9, the examiner checked the box that states his prostrating attacks occur less than once every 2 months, but also indicated the frequency of his headaches to at least 5 times a week), the May 2019 Board decision already acknowledged and remanded for a new VA examination based on that contention. Again, the Veteran did not report for that examination, so a decision will be made based on the evidence of record. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran’s disability to determine if the assignment of separate ratings for separate periods of time, a practice known as “staged” ratings, is warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial compensable evaluation for bilateral upper extremities eczema The Veteran asserts that his eczema condition has manifested in open sores on his skin and claims that his eczema has worsened significantly since his last VA examination in October 2012. He also claims that he has had injections and prescribed medicines for his condition at the VA hospital and adds that he has been using topical steroids for years. The Veteran is currently in receipt of a non-compensable disability rating under DC 7806. During the pendency of the claim, the regulations pertaining to skin disabilities were amended, effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018). The Secretary of VA has determined that “claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” 83 Fed. Reg. at 32593. The Veteran’s increased rating claim was filed prior to August 13, 2018. As such, his disability rating claim for his skin disability must be considered under two sets of rating criteria for the skin - the rating criteria both before and after August 13, 2018. Under both the prior and current rating criteria, DC 7806 provides several potential avenues for evaluating a skin disability - the percentage of the body (or exposed areas) affected, and the frequency of use of a “systemic therapy.” However, the term ‘‘systemic therapy’’ is only defined under the most recent August 13, 2018 skin regulations. See 38 C.F.R. § 4.118 (a) (effective August 13, 2018) (for the purposes of this section, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin). In evaluating skin disabilities under the rating criteria in effect prior to August 13, 2018, the Board must consider the applicable jurisprudence. A determination of which criteria are more beneficial to the Veteran may depend upon how the terms “topical therapy” and “systemic therapy” are defined. Pre-August 2018 skin regulations did not define these terms and applicable cases of the United States Court of Appeals for Veterans Claims (Court) and the United States Court of Appeals for the Federal Circuit (Federal Circuit) indicated that this determination must be made on a case-by-case basis with the VA examiner providing a complete rationale for the skin therapy classification. In Warren v. McDonald, 28 Vet. App. 194 (2016), the Court held that “systemic therapy” for DC 7806 purposes was not limited to corticosteroids or immunosuppressive drugs and that the Board must consider whether a given treatment is “like” a corticosteroid or other immunosuppressive drug, to determine whether such treatment was a systemic therapy. Subsequently, in Johnson v. Shulkin, 862 F.3d 1351, 1356 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held the “use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case” under the former DC 7806. The Federal Circuit noted that a topical treatment administered on a large enough scale to affect the body as a whole could constitute systemic therapy. Id. at 1355. The Federal Circuit went on to explain that “systemic therapy means ‘treatment pertaining to or affecting the body as a whole,’ whereas topical therapy means ‘treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.” Id. at 1351. According to its most recent decision on this subject (Burton v. Wilkie, 30 Vet. App. 292 (2018)), the Court held that the Federal Circuit’s note in Johnson that topical treatment could become systemic therapy if applied on a large enough scale was merely an example and not the only way topical treatment can qualify as systemic therapy. The Burton Court reasoned that a different interpretation would make DC 7806 redundant because of its body area criteria. Interpreting Johnson, the Burton Court held that, for a topical treatment to be systemic, it must (1) operate by affecting the body as a whole in its treatment of the condition at issue, and if so, determine (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug. Accordingly, the Board must consider how a topical treatment works and how it affects the body as a whole, not the size of the skin area it was applied to. Such determination is a factual question. The Court provided the example that a topical treatment may affect the body as a whole if it circulates through the bloodstream, and would not matter where the topical treatment was applied on the body, as the entire body would be involved in treatment (further explaining that “the Board must decide how the topical treatment works not by its contact with the affected location of the condition in the body, but instead in some other way that affects the body more broadly”). Id. Turning to the rating criteria of 38 C.F.R. § 4.118, DC 7806, under the pre-2018 regulation, a 10 percent disability rating was warranted for at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent disability rating is warranted for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. And finally, a 60 percent rating is warranted for more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. See 38 C.F.R. § 4.118 (a) (effective prior to August 13, 2018). Under the amended version of 38 C.F.R. § 4.118, DC 7806, a 10 percent disability rating is warranted for characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent disability rating is warranted for characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. See 38 C.F.R. § 4.118 (a) (effective August 13, 2018). Initially, the Board notes that the Veteran’s skin condition has not caused scarring or disfigurement of the head, face, or neck, or any other effects of scars, as contemplated by the former and revised versions of DCs 7801, 7802, 7803, or 7805. Neither the Veteran nor his VA medical records show that he has burnt scarring or disfigurements from his condition. Thus, higher ratings under DCs 7801, 7802, 7803 and 7805 are unavailable in this case. With regards to the applicability of DC 7800 and DC 7804, the Board notes that the Veteran is in receipt of a 10 percent rating each for a scar in the right neck and tender scar of the right neck (not noted in the VA skin examination, but in the VA scar examination, see September 2012 VA scar examination), and there is neither objective nor subjective evidence suggestive of a higher rating for scars resulting from the eczema on the arms. The only examination that the Veteran ever went through for his skin condition during the appeal period was a September 2012 VA skin examination, during which he was diagnosed with eczema. The examiner indicated that the Veteran’s treatment involves “systemic corticosteroids or other immunosuppressive medications” (Mupirocin, Triamcinolone Acetonide) for “6 weeks or more, but not constant” in the past 12 months,” but did not require any treatments/procedures other than systemic or topical medications in the past 12 months. Upon physical exam, the Veteran’s eczema was found to cover less than 5 percent of the total body area, but none of the exposed area. The examiner also added that the Veteran has eczema of bilateral upper arms. There was no indication of tumors or neoplasms, or any debilitating and non-debilitating episodes relating to his skin condition. The Veteran’s treatment records show daily application of various topical corticosteroids, to include Triamcinolone Acetonide, Mupirocin, and Clobetasol applied in small amounts to the affected areas until clearing (see September 2013 VA treatment records, “Triamcinolone Acetonide for itching/rash of the left upper arm, left shoulder and bilateral wrist”; see December 2015 VA treatment records, “apply Triamcinolone Acetonide to small amount to affected area, once a day if needed for itching or rash”; see February 2020 VA treatment records, apply Triamcinolone Acetonide thin film topically daily for itching/rash and Mupirocin in small amount topically twice for infection; see February 2020 and October 2013 VA treatment records, apply Clobetasol ointment to the affected areas until clearing). His treatment records also document oral medications and injections provided for his skin condition, which seem to have been provided on an intermittent basis (see February 2020 VA treatment records, Doxycycline Monohydrate capsule (oral) twice a day for infection (from February 2020 to March 2020); see January 2014 VA treatment records, Ceftrizone via injection at once). After reviewing the evidence of record, the Board concludes that a 10 percent rating, but no higher, is warranted under either the old or the new rating criteria. In doing so, the Board finds the evidence of additional areas of the Veteran’s body affected by eczema are sufficient to put the totality of the evidence in relative equipoise that the Veteran’s service-connected eczema manifests in at least 5 percent, but less than 20 percent, of the entire body or of the exposed areas. Under both the old and new rating criteria, this would warrant a 10 percent rating under DC 7806, and, as reasonable doubt as to the degree of disability must be resolved in favor of the Veteran, he is entitled to the 10 percent rating. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Although the Veteran failed to show up to the recently scheduled VA skin examination (which would have provided specific information pertaining to the area/size of affected skin disorder), and while none of his treatment records seem to provide information related to the specific size of the affected areas (see also September 2012 VA examination, skin condition covers “less than 5 percent of the total body area,” and “none of the exposed area”), the Board acknowledges that his skin condition affects more than his upper arms. The evidence of record in particular demonstrates that while the disability primarily affects portions of the upper extremities (arm/shoulder), it has, at times, also affected the wrist(s) (see September 2013 VA treatment records, chronic dermatitis as evidenced by erythematous patches on left upper arm, left shoulder, and right wrist; see January 2014 VA treatment records, skin eruption in several areas on his upper extremities believed to be consistent with active eczema with secondary excoriation; see December 2014 VA treatment records, “just a few small areas on arms, but will get worse in winter weather”; small patch of eczema left inner wrist area; see also October 2013 VA treatment records, based on 7 photographs submitted of left upper arm and left wrist, prescribed clobetasol ointment to the affected red areas until clearing). As the Veteran’s dermatology consultations seem to have taken place mostly only though tele-dermatology sessions, as opposed to in-person sessions, consultation records seem limited to a review of the Veteran’s skin condition history through only a review of photographic images and/or the Veteran’s reports made during those sessions (see January 2014 VA tele-dermatology session). Also, while the Board is cognizant of a one-time documentation that the Veteran has red rash “all over body” (i.e. trunk and extremities), to include leg, it appears that this treatment note was primarily based on the Veteran’s report, especially considering that the Veteran refused to show his leg at the time—other than the alleged skin problem in his leg, it appears that his skin condition were limited to hand, feet, chest under arms and around waist at the time, despite the claim he “has red rash all over body” (see January 2014 VA tele dermatology consult records, “this consult is limited to a review of the patient’s skin condition history with a review of photographic images, rather than a face-to-face encounter with the physician”; complaining of rash on trunk and extremities; “rash in anterior/posterior torso, thigh, foot/ankle; reports it from neck to feet. Patient not wanting show legs, but says rash the same all over,” “imager’s observation: has red rash all over body, hand and feet better since injection, rash can be felt but very light in some areas. Chest under arms and around waist very red and itchy, patient not want to show legs for images. Picture of left wrist and fingers are areas that have healed”). In fact, other than that one time report made in January 2014, it seems that it was not until a recent tele-dermatology consult session in 2020 that he complained of legs lesions again, which he reported as having broke out “about two months ago,” and at the time, he did not have any skin condition (other than in legs/hand). Moreover, the medical provider at the time indicated that it is not entirely clear as to the etiology for his leg condition—either allergic reaction to his cat or possibly a systemic contact dermatitis (noting that the Veteran recently got a cat and that it is possible that this could be systemic manifestation of his skin condition, but also could be unrelated issues); see February 2020 VA treatment records, “new condition; complains of vesicular lesions [in] legs for two months; see February 2020 VA treatment records, “presents for evaluation of erythematous vesicular lesions on his lower extremities and hand for one month, he got a kitten approximately a month ago, which has been scratching him; see February 2020 VA tele-dermatology imaging report, “large nummular patches of the bilateral lower limbs. Could be an allergic contact dermatitis to something he came into contact with or something he applied to the skin or could be a result of a systemic contact dermatitis”; diagnosis of eczematous dermatitis). The Board reiterates that the Veteran failed to show up to the recently scheduled VA skin examination without good cause (which would have provided specific information pertaining to the area/size of affected skin disorder), and the only VA examination of record shows only “less than 5 percent of the total body area,” and “none of the exposed area” are affected. Thus, in resolving reasonable doubt in favor of the Veteran and in light of the limited parts of body affected due to his skin condition, the Board finds that he is warranted only a 10 percent rating under either pre- or post-amended versions of DC 7806. Although there is also objective and subjective evidence of medications administered through routes other than the skin (i.e. oral/injection) for his skin condition—i.e. “systemic therapy” under the post-amendment version of DC 7806—the Board does not find that the evidence of record reflects that such systemic treatment has involved a total duration of 6 weeks or more (or longer and either constant/near-constant), required for the next higher rating of 30 percent (or higher) under the post-amendment version of DC 7806. In fact, it seems these systemic treatments were provided at most only intermittently, for less than 6 weeks in the past 12 months (see February 2020 VA treatment records, Doxycycline Monohydrate capsule (oral) twice a day for infection (from February 2020 to March 2020); see January 2014 VA treatment records, Ceftrizone via injection at once). Thus, he is not warranted a rating in excess of 10 percent. Moreover, the Board notes his oral/injection medications during the appeal period were at times prescribed for non-skin conditions. For example, in 2013 he was treated for a staph infection and in 2015 he was treated for suspected syphilis. The Board also considered whether various topical corticosteroids prescribed for the Veteran constitutes “systemic therapy” under the pre-amended version of DC 7806 warranting a higher disability rating, but finds there is no evidence suggestive of such treatment affecting the body as a whole. His topical corticosteroids—ie. Triamcinolone Acetonide, Mupirocin, and Clobetasol—were consistently noted to be applied in small amounts to the affected areas until clearing (see September 2013 VA treatment records, “Triamcinolone Acetonide (corticosteroid) for itching/rash of the left upper arm, left shoulder and bilateral wrist”; see December 2015 VA treatment records, “apply Triamcinolone Acetonide to small amount to affected area, once a day if needed for itching or rash”; see February 2020 VA treatment records, apply Triamcinolone Acetonide thin film topically daily for itching/rash and Mupirocin in small amount topically twice for infection). Even acknowledging the September 2012 VA skin examination, which indicates the Veteran’s use of “corticosteroids or other immunosuppressive drugs” for “6 weeks or more, but not constantly, during the past 12-month period”—which would warrant a next higher rating of 30 percent under either the pre- or the post-amended version of DC 7806 - review of the records does not provide his topical corticosteroid treatments circulate through the bloodstream or that there are some other way that these treatments affect the body more broadly—which would be suggestive of “systemic” therapy. Thus, the Board finds he is not warranted a rating in excess of 10 percent under the pre-amended version of DC 7806. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include occasional flare-ups of more extensive involvement of exposed areas than shown on the examinations, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he has no clinical expertise in measuring or estimating the percentage of the affected area and has not provided any such estimation. The medical providers considered his lay reports in providing their own opinions. The Veteran’s lay reports do not indicate that the Veteran’s disability more nearly approximates the criteria in the next higher rating. In light of above, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is warranted a rating of 10 percent, but no higher, under either the pre- or post-amendment versions of DC 7806. 2. Entitlement to an initial compensable evaluation for migraines The Veteran claims that he feels nauseous and has headaches about 5 times a week, ranging from 30 minutes to 4 hours per each episode. While his prescribed medications give some relief, he argues that these do not negate the severity of his actual condition. He also explained that there are only few treatments documented in his treatment records for his migraine since he has been taking preventative medicines and receiving injections, and added that he was told that his headaches sound more like cluster headaches. The Veteran is currently in receipt of a non-compensable disability rating under DC 8100. Under DC 8100, a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.71a, DC 8100. The rating criteria do not define “prostrating,” nor has the Court. Fenderson v. West, 12 Vet. App. 119, 127 (1999) (quoting DC 8100 verbatim and holding evidence established headaches were “prostrating”, but not specifically addressing what constitutes a prostrating attack). A prominent medical dictionary defines “prostration” as “extreme exhaustion or powerlessness.” See Dorland’s Illustrated Medical Dictionary, 1554 (31st Edition 2007). Similarly, the terms “productive of severe economic adaptability” have not been clearly defined by regulations or case law. The Court has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Headaches need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. “Economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; 38 C.F.R. § 4.16. At a minimum, however, headaches must be capable of producing “severe” economic inadaptability. The rating criteria under Diagnostic Code 8100 are successive, meaning that to satisfy the criteria for a higher level, a claimant must satisfy all the requirements of the lower levels, and 38 C.F.R. §§ 4.7 and 4.21 do not apply to circumvent these requirements. Johnson v. Wilkie, 30 Vet. App. 245 (2018). Initially, as addressed above, although the Board is cognizant of the Veteran’s contention that his migraines condition has worsened since the most recent VA examination, the Board has to make a determination based on an incomplete record/limited information currently in the Veteran’s claims file, as he failed to report, without good cause, to a new VA examination that was scheduled pursuant to the previous Board remand. During the pendency of the appeal period, the Veteran underwent two VA examinations—September 2012 and August 2013. During the September 2012 VA examination, the Veteran was diagnosed with migraine, including migraine variants, during which time he reported symptoms of head pain and sensitivity to light and noise. The Veteran was found to manifest symptoms of pulsating or throbbing head pain (1-2 days), pain localized to one side of the head and pain worsening with physical activity, as well as symptoms of nausea, vomiting, sensitivity to light and sound. The examiner indicated that the Veteran has characteristic prostrating attacks of migraine headache pain as well as prostrating attacks of non-migraine headache pain more frequently than once per month, as well as very frequent prostrating and prolonged attacks of migraine and non-migraine headache pain. His headache condition was also noted to impact his ability to work in that he cannot go to work due to light and sound sensitivity. During the August 2013 VA examination, the Veteran described his headaches as occurring in clusters, with at least 3 clusters in a year or more, and each episode of cluster lasting up to three weeks. He also reported having headaches 5 times/per week or almost every day, in which the duration of each episode varying from 30 minutes to 4 hours, with the longest period being free from headaches as about 5 months. He further described his headaches as severe throbbing pain on the right side behind the eye, and sharp pain in the right eye/right temple area, followed by a pulsating pain, associated with severe photophobia and nausea, as well as eye congestion/turning red with increased lacrimation. He reported taking injectable or oral Imitrex which seems to work the best, along with other pain medication, including narcotics. The examiner indicated that the Veteran has symptoms of pulsating or throbbing head pain, pain localized to one side of the head, pain worsening with physical activity, and other associated with eye and nasal congestion with rhinorrhea and lacrimation, as well as nausea, sensitivity to light and sound. With regards to any functional impact, the examiner noted “only if the Veteran does not have the right type of medications.” His treatment records only document lists of continuous medications/injections (Sumatriptan) for headaches pain, complaints of headaches (see December 2014 VA treatment records, “sometimes have [it for] a month [or] daily and sometimes can go 6 months without headaches”; see August 2013 VA treatment records, report of “severe” headache and sensitivity to noise; report of consistent headaches), but do not otherwise provide information as to the frequency or the exact nature/severity of the alleged headaches condition. See February 2020, December 2014, December 2015, August 2013 VA treatment records. After reviewing all pertinent records and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s migraines warrants a 30 percent rating, but no higher, under DC 8100. In doing so, the Board notes that he was found to have very frequent prostrating and prolonged attacks of migraine and non-migraine headache, in addition to characteristic prostrating attacks of migraine headache pain, and prostrating attacks of non-migraine headache pain more frequently than once per month. While the Board acknowledges VA examiners’ findings that his migraine condition have some functional impacts (see September 2012 VA examination, “cannot go to work due to light and sound sensitivity”; see August 2013 VA examination, “only if the Veteran does not have the right type of medications”), and that he was found to manifest symptoms of very frequent prostrating and prolonged attacks of migraine and non-migraine headache, the Board concludes that his headaches are not productive of severe economic inadaptability, warranting a next higher rating of 50 percent under DC 8100 throughout the appeal period. Notably, despite his manifestation of frequent prostrating and prolonged attacks or migraine and non-migraine headaches (accompanied by pain and sensitivity to light and noise, and nausea), it appears that he remained employed throughout the appeal period. The review of the records suggests that the Veteran worked as a full-time packaging supervisor until June 7, 2013 (see VA counseling records narrative report dated July 30, 2013). Although it seems he sought VA vocational counseling on July 30, 2013, it appears he was soon thereafter working either part-time or full-time at a local bar as a cook (see September 4, 2013 VA PTSD psychological assessment note, despite the indication “unemployed,” he was noted to be “working few times as a cook in a local bar a few times a week for some cash”; see also September 2013 VA treatment records, “works everyday as a cook in a local bar”). Beginning November 1, 2013, he worked full-time as a mechanic at an auto parts store (see November 2013 VA treatment records, “starting a full-time job tomorrow at an auto parts store; see also May 2015 VA treatment records, “reports he is an automotive mechanic”). Since then, it appears he held various other positions (truck driver, food supervisor (“flipping burgers”)) and earned a degree from a Diesel Mechanic School (see January 2015 VA treatment records, “has held various jobs for about 6 months, including supervisor of union food, flipping burgers at a bar, and clerk at an auto parts store, currently enrolled in Diesel Mechanic School; see also March 2015 VA treatment records, patient’s strengths/abilities: history of consistent employment; see also May 2015 VA treatment records, “reports he is an automotive mechanic and job requires him to bend and put weight on his knee on a daily basis”; see also December 2015 VA treatment records, he has graduated from a Diesel Mechanic School; see December 2019 VA psychiatric treatment note, “he has been a truck driver for 5 years now the Veteran has been working as a truck driver from around 2015”; “has associates degree in diesel mechanics, but never made use of that”). Thus, the fact that he maintained employment throughout the appeal period arguably establishes that although his headaches have some functional impairments, it has not amounted to economic inadaptability. Additionally, while his treatment records provide rather limited information as to the severity and frequency of his migraine condition—and one treatment note, in fact, documents his report of varying frequency of headaches (i.e., see December 2014 VA treatment records, “sometimes have [it for] a month [or] daily and sometimes can go 6 months without headaches)), the Board reiterates that the Veteran failed to show up to the recently scheduled VA migraine examination without good cause, which would have provided additional information as to the frequency and the severity of his headaches. Thus, in considering the varying degrees of the frequency and the extent of severity not amounting to the level of economic inadaptability, the Board finds that the Veteran’s migraines warrant a 30 percent rating, but no higher, under DC 8100. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) With the grants herein, the Veteran will have a combined total disability rating. Therefore, the issue of entitlement to a TDIU is moot. See, e.g., Bradley v. Peake, 22 Vet. App. 280, 294 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). The Board recognizes that it is not categorically true that assignment of a total schedular rating always renders a TDIU request moot, particularly as it relates to possible entitlement to special monthly compensation. See Bradley, 22 Vet. App. at 293. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation under 38 U.S.C. § 1114(s). See id. Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. See also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). Here, there is no suggestion in the record any single disability has resulted in unemployability. In fact, as discussed above, he has been employed throughout the appeal period in various job. Thus, the award of a 100 percent schedular evaluation in the circumstances of this case does indeed render the TDIU claim moot throughout the appeal period, and it is dismissed. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.