Citation Nr: 21021102 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-06 258 DATE: April 9, 2021 ORDER Entitlement to a 50 percent rating for migraines is granted, subject to the laws and regulations governing monetary awards. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) granted the Veteran’s claim for service connection for migraine headaches in a May 2010 rating decision. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it. The May 2010 rating decision became final. 2. The AOJ denied an increased rating greater than 30 percent for the Veteran’s migraine headaches in a July 2012 rating decision. The Veteran did not appeal this decision, but new and material evidence was received within one year of it. Therefore, the July 2012 rating decision was not final. 3. Beginning November 17, 2011, the Veteran’s migraine headaches manifested in very frequent prostrating and prolonged attacks productive of severe economic inadaptability. 4. The record reflects that the Veteran is gainfully employed and has been for the entirety of the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 50 percent rating for migraines from November 17, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8100. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1994 to June 1996 and from October 2004 to January 2006. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, these matters were remanded by the Board in a decision issued in November 2019 for further development. Specifically, the RO was ordered to complete any additional development of the evidentiary record deemed necessary and then readjudicate the issue of entitlement to a rating in excess of 30 percent for migraines prior to July 19, 2016 and TDIU. The Board notes that at the time that the November 2019 Board decision was issued, additional evidence had been received since the December 2014 statement of the case (SOC) including a July 2016 VA headaches examination which the Board found may contain evidence relevant to the earlier time period of the migraine headaches claim on appeal. Since the Board received evidence relevant to that claim that had not been discussed in the SOC, the matter was remanded to the AOJ to prepare an SSOC reviewing that evidence pursuant to 38 C.F.R. § 19.31(b)(1). Moreover, the issue of TDIU was remanded as it was found to be inextricably intertwined with the migraine headaches claim. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff’d, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board’s remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Therefore, there is no prejudice to the Veteran in the Board proceeding to a decision on these matters, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The file has been returned to the Board and the matter is now properly before the Board for adjudication. 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. The Veteran’s migraine headaches disability is rated under Diagnostic Code (DC) 8100. In Johnson v. Wilkie, 30 Vet. App. 245 (2018), the United States Court of Appeals for Veterans Claims (Court) held that the criteria of DC 8100 are successive. Successive criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Although 38 C.F.R. §§ 4.7 and 4.21 generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria. In Pierce v. Principi, 18 Vet. App. 440, 446 (2004), the Court held that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 [percent] rating, and [i]f ‘economic inadaptability’ were read to import unemployability, the appellant, if he met the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating.” In addition, the Court in Pierce acknowledged the Secretary’s concession that the phrase productive of severe economic inadaptability in DC 8100 should be construed as either producing or capable of producing severe economic inadaptability. Id. at 445. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for any increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to a disability rating in excess of 30 percent for migraines headaches prior to July 19, 2016. The Veteran asserts that he is entitled to a rating in excess of 30 percent for migraine headaches prior to July 19, 2016. See Appellate Brief Received February 2021. The Veteran’s migraine headache disability was assigned an initial compensable rating of 30 percent effective December 22, 2009, under Diagnostic Code 8100, in a rating decision issued May 2010. The Veteran did not appeal this decision and new and material evidence was not received within a year; therefore, the decision became final. In a July 2012 rating decision, the Veteran’s disability rating for his migraine headaches was continued at 30 percent. Although the Veteran did not disagree with this decision, new and material evidence was received within a year. Specifically, medical records received in January 2013 contain a September 2011 treatment note indicating the Veteran has migraines two to three times per month. Therefore, the July 2012 rating decision was not final. Therefore, the period on appeal relates back to the Veteran’s increased rating claim received November 17, 2011. The Veteran’s disability rating for his migraine headaches was again continued at 30 percent in a July 2014 rating decision, and following the Board’s decision in 2019, increased to 50 percent effective July 19, 2016 in a June 2020 rating decision. Therefore, the period on appeal is from November 17, 2011, through July 18, 2016. Diagnostic Code 8100 provides for a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a Diagnostic Code 8100. The phrase “characteristic prostrating attacks” means migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). In other words, the term “prostrating” takes on its plain meaning of “lacking in vitality or will: powerless to rise: laid low.” Id. (citation omitted). In records tabbed “service treatment records (STRs)” received in January 2013, reports of migraine headaches are noted. Specifically, an August 2009 treatment record and a September 2011 treatment record both indicate that the Veteran has frequent headaches. Additionally, another September 2011 treatment record states that the Veteran’s migraines developed in 2006 after he came back from deployment and then gradually escalated; the Veteran was noted to have migraines two to three times per month. See STRs received in January 2013. The Veteran’s VA treatment records include several notations regarding the severity of his headaches. A May 2012 treatment note states that previously headaches lasted about 3 to 5 days and the Veteran now reports they are cycling and seem to be occurring every weekend. See CAPRI treatment records received June 2014. An August 2012 treatment note states that before treatment the Veteran was having the headaches at least once a week. It is further noted that the headaches were left sided, throbbing, and associated with photophobia and phonophobia. Moreover, it was noted that he would experience nausea but no vomiting and that the headache usually lasts around 6 hours and he feels better if he is able to fall asleep. Id. A separate August 2012 treatment note states that the headaches have been less frequent since starting medication. An August 2013 treatment note states that the headaches are getting worse. It is also noted that the Veteran is still having frequent headaches, noting the Veteran would average his headaches at 6-8 a month and one week he had three headaches in a week. Furthermore, it was noted that the Veteran is taking medication as directed and his headaches usually start in the back left side of the head and radiate to the left eye area. Moreover, it was noted that he has long history of headaches. A December 2013 treatment record states that the Veteran is having less headaches and had three since the last visit, however, he used to have between 10-12 headaches in one month. Id. The Veteran’s post service medical treatment records show several other documented issues related to the intense headaches that the Veteran experienced during the period on appeal. The Board acknowledges that there were several lay statements of record which provided detailed information on the impact and severity of the Veteran’s migraine headaches during the appeal period. A statement from the Veteran’s son indicated that time spent in the sun makes the Veteran dizzy and causes migraines. The Veteran’s wife also submitted a statement in which she described the Veteran’s increased sensitivity to light which caused my migraines over the past years. See Statements received April 2016. The Veteran was also afforded a VA examination to assess his migraine condition in April 2014. The examiner noted that the Veteran has a diagnosis of migraines. It was further noted that the Veteran does not have migraines that are characteristic of prostrating attacks. However, the examiner stated that the Veteran has headache pain that results in the following symptoms: constant head pain, pain on both sides of the head, pain that worsens with physical activity, nausea, sensitivity to light, sensitivity to sound, changes in vision, and loss of concentration. The Veteran was provided a VA headaches examination in July 2016. The Veteran experienced pulsating or throbbing head pain, pain localized one side of the head, nausea, sensitivity to light, sensitivity to sound, and changes in vision. Head pain would last for 1-2 days. The Veteran had characteristic prostrating attacks once every month, and very prostrating and prolonged attacks productive of severe economic inadaptability. The Board finds that based on the examinations, treatment records, lay statements of record, that the Veteran’s disability picture most accurately reflects that a 50 percent rating is appropriate for the Veteran’s migraine headache disability for the entire appeal period. The Board finds significant the April 2014 examination report which described the Veteran’s headaches as causing constant head pain, pain on both sides of the head, pain that worsens with physical activity, nausea, sensitivity to light, sensitivity to sound, changes in vision, and loss of concentration. The Board also acknowledges that the July 2016 examination predates the period on appeal, but finds that the symptoms associated with the Veteran’s migraine headaches to include frequent, prolonged, prostrating headaches that affected his job duties and other social interactions which are reflected in the July 2016 examination report were also displayed consistently with the same level of severity and frequency prior to the July 2016 examination as documented by the April 2014 examination report, treatment records, in addition to lay statements. The Board also acknowledges that there are a few treatment notes that show some improvement with his headaches after certain medication interspersed within the record; however, the majority of the information in the record demonstrates that during the appeal period, the Veteran’s headaches have been frequent, intense, and severe to the extent that it impacts his work duties. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board finds it most appropriate to assign a 50 percent disability rating as of November 17, 2011, when the Veteran initially filed his claim for increased rating. The Board has considered the one-year look back provision pursuant to 38 C.F.R. § 3.400(o)(2). However, the evidence of record does not show that it was factually ascertainable that the Veteran’s migraine headaches disability worsened on a specific date within this period. As such, the date of entitlement to an increased 50 percent disability rating can be no earlier than November 17, 2011, the date of the claim. The 50 percent rating now assigned is the maximum schedular rating for migraine headaches under 38 C.F.R. § 4.142a, Diagnostic Code 8100. To warrant a higher rating, the headaches would have to be shown to be manifested by symptoms and impairment not encompassed by schedular criteria so as to warrant referral to the Director of Compensation for consideration of an extraschedular rating. The Veteran’s 50 percent disability evaluation assignment directly accounts for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability which is what the record reflects the Veteran has experienced. 38 C.F.R. § 4.124a. As symptoms/impairment not encompassed by schedular criteria are neither shown, nor alleged, an extraschedular rating is not for consideration. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). The Veteran asserts that he is entitled to TDIU due to the impact of his service connected disabilities on his ability to obtain and maintain substantially gainful employment. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Total disability ratings for compensation based upon individual unemployability 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. Threshold eligibility is established when a Veteran has a single service-connected disability ratable at 60 percent or more, or two or more disabilities rated a combined 70 percent or more, provided at least one disability is ratable at 40 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16 (b). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation in § 4.16(b) as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. This question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service connected disabilities. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). The Veteran filed a claim for TDIU in September 2013 which was denied in the June 2014 rating decision on appeal. Prior to August 13, 2013, the Veteran’s service-connected disabilities included migraine headaches assigned a 50 percent disability rating (pursuant to the discussion above in this decision) and nephrolithiasis (claimed as kidney stones) assigned a 10 percent disability rating. His combined rating at that time was 60 percent. As such, the Veteran does not meet the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a) for this portion of the appeal period. From August 13, 2013 to April 13, 2016, the Veteran’s service-connected disabilities included migraine headaches assigned a 50 percent rating, nephrolithiasis (claimed as kidney stones) assigned a 10 percent disability rating, and PTSD assigned a 50 percent rating. His combined rating at that time was 80 percent. As such, the Veteran does meet the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a) for this portion of the appeal period. Since April 13, 2016, the Veteran’s service-connected disabilities included migraine headaches assigned a 50 percent rating, nephrolithiasis (claimed as kidney stones) assigned a 10 percent disability rating, residuals of traumatic brain injury assigned a 70 percent rating, PTSD assigned a 50 percent rating, tinnitus assigned a 10 percent rating, and chin scar assigned a noncompensable rating. His combined rating as of April 13, 2016 is 100 percent. As such, the Veteran does meet the minimum scheduler criteria for TDIU under 38 C.F.R. § 4.16(a) for this portion of the appeal period. If the Veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16 (a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16 (b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). There must therefore be a determination as to whether there are circumstances in this case, apart from any non service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Following a review of the evidence of record, the Board finds that a TDIU is not warranted during any period on appeal, nor is referral of the TDIU claim to the Director of VA Compensation Service for extraschedular consideration not warranted for the period prior to August 13, 2013. As previously discussed, a TDIU is only awarded based upon service-connected disabilities and the VA is precluded from taking any nonservice-connected disability into consideration. Despite his demonstrated symptomatology, the evidence of record does not support a finding that the Veteran was unable to secure and maintain a substantially gainful occupation by reason of his service-connected disabilities. The record supports that the Veteran is employed and has been for the duration of the appeal period. The record includes documentation regarding the Veteran’s work history. It is noted that from January 2008 through March 2009 the Veteran was a supervisor at a corporation working 45 hours a week, earning $3500 a month. Additionally, from April 2009 through March 2011, the Veteran was employed in a clerical/mechanic position earning $3400 a month. From January 2012 to present it was noted that the Veteran was employed as a driver at a government medical center earning $3400 a month working 40 hours per week. The Board notes that while the Veteran indicated that he lost time from illness at each of these jobs, he still indicated he was employed. See VA Form 21-8940 Received January 2014. The Veteran was afforded a PTSD examination in April 2014. The examiner noted relevant occupational history. He stated that the Veteran served as a pastor for 1 ½ years, but had to close the church due to the fact that his migraine headaches worsened. It is also noted that the Veteran drove a shuttle van full time since 2012 taking veterans to a medical center until February 2014 when he moved to Southern Illinois. Additionally, it is noted that since February 2014, the Veteran pastors at a church in Illinois. In a statement received April 2016, the Veteran stated it was “impossible to keep full time employment and very difficult to even work part time.” However, when the VA evaluated the Veteran’s PTSD symptoms in July 2016, the examiner noted the Veteran had been working as a pastor since February 2014. An Application for Vocational Rehabilitation received in December 2016 from the Veteran was almost completely blank, including the section concerning the Veteran’s current job. See VA Form 28-1900 received December 2016. However, in correspondence received from the Veteran in September 2020, the Veteran stated he “spent the last eight years or so piecing together part time employment.” Taken as a whole, the Board finds that the evidence of record indicates the Veteran has been employed throughout the period on appeal. As the Veteran is currently employed in a substantially gainful occupation, he is ineligible for entitlement to a TDIU. 38 C.F.R. § 4.16 (a) and (b) (requiring that a veteran be unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities in order to be eligible for a TDIU). Moreover, the record does not show that the Veteran's employment is marginal or in an otherwise protected environment. Id. § 4.16 (b). Specifically, he earned more than $40,000 annually as a shuttle driver from 2012 to 2014, and there is no evidence to indicate he is unpaid as a pastor at his church or that his earnings as a pastor were less than the poverty level since that time. Moreover, neither the Veteran nor the Veteran’s representative has not made any argument to the contrary. Instead, the Veteran through his representative in his most recent brief stated that the claim for individual unemployability is moot. See Appellate Brief Received February 2021. The Board has also considered the period from March 2011 to December 2011 when the Veteran indicated he was not employed. However, the Board finds this corresponds to a reasonable amount of time the Veteran would have been looking for a new job. Searching for a job is not the same as being unable to secure and follow substantially gainful employment. Indeed, the Veteran was able to obtain and maintain substantially gainful employment again in January 2012. The Board has considered the Veteran’s reports of pain due to his service-connected disabilities affecting his job performance. However, a high combined schedular rating in itself is recognition that a veteran's service-connected disabilities cause functional impairment of his work performance. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment. Under the facts of this case, the record clearly shows that the Veteran is capable of securing and following substantially gainful employment. (Continued on the next page)   The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that the evidence does not reach the level of equipoise in the claim of entitlement to a TDIU. See 38 U.S.C. § 5107 (a) ( [A] claimant has the responsibility to present and support a claim for benefits.... ); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to present and support a claim for benefits and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that [w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b), requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, Associate 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.