Citation Nr: 21021987 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-32 252 DATE: April 14, 2021 ORDER A rating in excess of 30 percent for headaches is denied. For the period prior to October 7, 2019, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s headaches have manifested by, at worst, characteristic prostrating attacks occurring on an average once a month over the last several months. 2. For the period prior to October 7, 2019, the Veteran does not meet the schedular percentage threshold for a TDIU, and there is no evidence that he was unemployable due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for a rating in excess of 30 percent for the Veteran's service-connected headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.20, 4.21, 4.27, 4.110, 4.112, 4.113, 4.114, Diagnostic Code (DC) 8199-8100. 2. For the period prior to October 7, 2019, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1973 to June 1994. This matter was before the Board of Veterans’ Appeals (Board) in January 2021 when the issue of entitlement to a TDIU was granted, effective October 7, 2019, and the issues of an increased rating for headaches and entitlement to a TDIU, prior to October 7, 2019, were remanded for further development. The issues are once again before the Board. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. "Staged" ratings are appropriate for any rating claim when 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). As with all claims for VA disability compensation, the Board must assess the credibility and weigh all the evidence, including lay and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). 1. A rating in excess of 30 percent for headaches is denied. The Veteran contends that the severity of his headaches warrants a rating in excess of his current 30 percent disability rating under DC 8199-8100. Throughout the period on appeal, the preponderance of the evidence is against the claim and the claim will be denied. The Veteran's headaches are rated under DC 8199-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 8100 compensates for migraine headaches. In this case, the hyphenated DC implies a headache disorder, most closely evaluated as migraine headaches. Under the applicable criteria, a noncompensable rating is assigned for headaches with less frequent attacks than once every 2 months. A 10 percent rating is assigned for characteristic prostrating attacks averaging once every 2 months over the prior several months. A 30 percent rating is assigned for characteristic prostrating attacks occurring on an average once a month over the last several months. Finally, a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define the term "prostrating." See 38 C.F.R. § 4.124a, DC 8100. Clinically, "prostrating" is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). In nonmedical terms, prostrating is defined as lying flat or at full length, to reduce to physical weakness or exhaustion, or to reduce to helplessness. An April 2008 private medical record indicates severe right-sided retro-ocular headache. An October 2009 private medical record indicates that the Veteran has been free of symptoms of cluster headaches for a while and that he has been functioning well in his work as a postal employee. A November 2009 VA examination indicates that the Veteran had one headache per month, lasting from two to three days that were described as from mild to severe. A January 2010 private medical record indicates mixed tension, migraine headaches, occurring in a cluster, which might be precipitated by neck hypertension in endoscopy or by the anesthetic effect of medications. A March 2010 private medical record indicates that the Veteran has not experienced headaches for the past three weeks. The examiner assessed that the Veteran’s periodic headaches are situationally induced and of the muscle tension type with secondary migraine component. The Veteran was diagnosed with a brain tumor in 2010. He underwent a near total resection of a posterior fossa ependymoma in November 2011. A February 2011 examination indicates reported severe headaches with a frequency of two times daily and with a duration of up to three hours. The Veteran’s headaches caused red eyes, runny nose, loss of balance, and blurred vision. A March 2011 private medical record indicates that the Veteran’s blurred vision is a component of dry eyes. It was recommended that the Veteran use artificial tears to treat his condition. An April 2011 private medical record indicates that the Veteran continues to have mild, occasional headaches. In the Veteran’s June 2011 initial application for a TDIU, he indicated that his headaches made it difficult for him to work. A December 2014 private medical record indicates ongoing headache over the past two weeks, which lasts throughout the night. The Veteran reported the use of Aleve for symptom management. A November 2015 private medical record indicates intermittent headache, with possible relationship to glucagon injection. Another, November 2015 private medical record, indicates intermittent daily to every-other-day headaches over the last several weeks. A May 2016 private medical record indicates reported headache for the past four to five days. Management with the use of Tylenol was reported. A November 2016 private medical record indicates that the Veteran experiences rare, mild headaches. In an April 2017 private medical record, the examiner noted that the Veteran experienced characteristic prostrating attacks of headache pain more than once per month and opined that the Veteran was unable to work. An August 2017 private medical note indicates that the Veteran has rare, mild headaches. A May 2018 private medical note indicates that the Veteran has had mild headaches over the past few weeks that are relieved with the use of Tylenol. A July 2018 medical note indicates that the Veteran’s headaches are likely due to his neck pain. It was noted that the Veteran may also be experiencing medication overuse headaches due to the use of Tylenol on a daily basis. Importantly, in December 2018, the Veteran withdrew claims for service connection for cervical spine, brain tumor, and residuals of traumatic brain injury disabilities. The Veteran was afforded a VA examination in February 2021 pursuant to a Board remand. The examiner indicated that an in-person examination was conducted, and that a review of the Veteran’s VA e-folder was completed. The examiner noted that, since the last C&P exam, the Veteran reported that headache frequency has increased to daily with continued dizziness with onset and duration of his headaches. Right-sided headaches were described as dull and throbbing. The Veteran stated that his headaches last anywhere between five to six hours, and that he has to lay down with onset of headaches. Symptoms of headache pain were noted as pulsating or throbbing head pain, pain localized to one side of the head, and pain that worsens with physical activity. Non-headache symptoms associated with the Veteran's headaches were noted as sensitivity to light and sound and reported blurred vision and "little white lights" with onset and duration of migraines. The location of typical head pain was noted as the right side of the head with typical duration of less than one day. The examiner noted that the Veteran has characteristic prostrating attacks of migraine/non-migraine headache pain occurring once per month. The examiner noted that the Veteran is currently retired from the United States Postal Service (USPS). In terms of functional impact, the examiner noted that the Veteran has missed up to one week of work time in the past 12 months. The examiner also noted that the Veteran's migraine headaches cause the need to lay down due to pain and dizziness and render the Veteran unable to focus or concentrate with onset and duration of headaches. The Veteran reported that "when they come on, I can't do anything but lay down." In a subsequent February 2021 VA examination, the examiner indicated that an in-person examination was conducted, and that a review of the Veteran’s VA e-folder was completed in conjunction with the examination. The Veteran reported daily headaches, which he wakes up with, and dizziness. He reported that his headaches start with neck pain then travel to his head, and that sneezing causes increased head pain. The Veteran reported a history of sinusitis. He reported that his eye will turn red on the side of his head where pain is occurring. He stated that Tylenol helps with pain. He denied worsening of headaches and denied current treatment for headaches. He reported current headache pain of five out of ten. The examiner noted that the Veteran’s headache pain symptoms begin as neck pain that travels to the side of his head and that he experiences non-headache symptoms of red eye with runny nose, with a typical duration of less than one day. The examiner noted that the Veteran does not have characteristic prostrating headaches or very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The examiner noted a March 2020 brain MRI showing stable post-surgical changes without evidence of residual or recurrent illness. A history of atypical meningioma of the brain, brain stem infarct, was noted. The examiner noted that the Veteran’s headache condition does not impact his ability to work. The examiner noted that the Veteran denied current treatment for headaches. The examiner stated that there are no objective findings to support continued or chronic headaches since the Veteran’s brain surgery. The examiner noted that the Veteran has reported several symptoms for his headaches, to include single red eye with runny nose, neck pain which radiates to his head, and pain on one side of the head which lasts four to five hours. The examiner noted that the Veteran denied light and sound sensitivity, which is usually associated with migraines. Therefore, the examiner opined that a current migraine diagnosis is not supported at the time of the examination. A history of brain tumors with resections was also noted. However, the examiner noted that objective findings document that the Veteran’s brain tumors have been resolved with no documented evidence of headaches after surgery. The examiner also noted a record of localized pain on the surgical site after the surgery. The examiner stated that the Veteran is currently taking several medications which can cause headaches, including Atenolol, Lubiprostone, Amlodipine, and Clopidogrel. The examiner noted that Atorvastatin can cause dizziness. The examiner noted that the Veteran's current reported symptomology varied from possible cervicogenic to sinus to tension headaches. The examiner stated that this is based solely on subjective complaints due to lack of chronicity and continuity of care for headaches. The examiner opined that based on a clinical evaluation, subjective, and objective findings, it is at least as likely as not that the subjective complaints of headaches is attributed to the Veteran's current medication. Throughout the period on appeal, a rating in excess of 30 percent is not warranted. Throughout the period on appeal, the Veteran’s headaches have manifested, at worst, as prostrating attacks occurring on an average once a month over the last several months. The evidence does not show that these attacks are “completely prostrating” as specified in the DC for a higher rating. Instead, throughout the record, the Veteran’s headaches have been predominantly characterized as mild. While the Veteran has reported the need to lay down at times while such an attack is occurring, the record does not indicate that such an attack occurs frequently, and the record indicates that the Veteran’s condition responds to over the counter medications. Ultimately, such prostrating attacks, if and when they occur are not completely prostrating, and certainly not prolonged, as is anticipated by a 50 percent rating under the diagnostic criteria. In conclusion, throughout the period on appeal, a rating in excess of 30 percent is not warranted and the claim is denied. In reaching this conclusion, consideration has been given the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 2. For the period prior to October 7, 2019, entitlement to a TDIU, is denied. As noted above, the January 2021 Board decision awarded the Veteran a TDIU, effective October 7, 2019. The issue of entitlement to a TDIU prior to October 7, 2019 was remanded because the issue was inextricably intertwined with the remanded increased rating claim for headaches. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). As the issue of an increased rating for headaches has been fully developed in accordance with the January 2021 Board remand, and as adjudicated in this decision, the issue of entitlement to a TDIU, prior to October 7, 2019, will be decided on the merits. Schedular TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU. Id. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to October 7, 2019, the Veteran’s service-connected headaches was evaluated as 30 percent disabling, his degenerative joint disease of the lumbar spine was evaluated as 10 percent disabling, his tinnitus was evaluated as 10 percent disabling, and he had multiple disabilities evaluated as noncompensable. Prior to October 7, 2019, the Veteran's combined rating was 40 percent. Under 38 C.F.R. § 4.16(a), the Veteran does not meet the schedular requirement for a TDIU, prior to October 7, 2019. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. As previously noted herein, the Veteran has not met the scheduler threshold criteria for the award of a TDIU prior to October 7, 2019. Accordingly, a TDIU cannot be granted under the scheduler provisions of 38 C.F.R. § 4.16(a), prior to October 7, 2019. TDIU may be granted on an extra-schedular basis where a veteran who fails to meet the scheduler percentage requirements but is nonetheless unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board cannot assign an extra-schedular rating in the first instance, Bowling v. Principi, 15 Vet. App. 1, 10 (2001). However, "rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). Consideration may be given to a Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. For the period prior to October 7, 2019, the evidence does not demonstrate that the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. As noted above, an October 2009 private medical record indicates that the Veteran has been functioning well in his work as a postal employee. The record indicates that the Veteran has not been employed since 2010, shortly before he stopped working before undergoing brain surgery. In a March 2011 Social Security Administration (SSA) record, the Veteran reported that his brain tumor and migraine headaches limit his ability to work. As noted above, in the June 2011 initial application for a TDIU, the Veteran indicated that his headaches made it difficult for him to work. He stated that he was medically terminated from his last employment due to a brain tumor. A September 2011 SSA finding stated that the medical evidence shows that the Veteran’s brain tumor and migraine conditions are not severe enough to be considered disabling. In a December 2011 statement, the Veteran stated that he is not working due to a medical retirement based on the effects of a brain tumor and headaches. In a March 2014 statement, the Veteran stated that he has been unable to work or engage in leisure activities, such as golf, since his brain tumor diagnosis. Also as noted above, the April 2017 private medical examiner noted that the Veteran experienced characteristic prostrating attacks of headache pain more than once per month and opined that the Veteran was unable to work. In an October 2019 mental disorders VA examination, the Veteran reported that he was last employed in 2010 before he underwent brain surgery. He stated that he has not been employed since that time. The record indicates that the Veteran stopped working in 2010 before he underwent brain surgery. The record also shows that the Veteran has stated that he has not worked since 2010 due to a brain tumor and headaches. In particular, SSA records indicate that in March 2011, the Veteran reported that his brain tumor and migraine headaches limit his ability to work. However, in September 2011, an SSA finding stated that the medical evidence shows that the Veteran’s brain tumor and migraine conditions are not severe enough to be considered disabling. In the June 2011 initial application for a TDIU, the Veteran indicated that his headaches made it difficult for him to work and stated that he was medically terminated from his last employment due to a brain tumor. The Veteran stated, in December 2011, that he is not working due to a medical retirement based on the effects of a brain tumor and headaches. In March 2014, the Veteran stated that he has been unable to work or engage in leisure activities, such as golf, since his brain tumor diagnosis. While the April 2017 private examiner opined that the Veteran was unable to work due to his headache disability, the remaining evidence of record indicates that the Veteran stopped working in 2010 and remained unemployed due to a brain tumor and brain surgery, which is not service-connected. In short, referral for extra-schedular consideration is not warranted. 38 C.F.R. § 4.16(b). For the period prior to October 7, 2019, the evidence does not show that the Veteran was unemployable by reason of a service-connected disability. Instead, the record shows that the Veteran stopped working in 2010 due to a non-service-connected brain tumor and brain surgery. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has also related his inability to work, in part, to his service-connected headaches. However, the Veteran’s headache disability has been consistently characterized as predominantly intermittent, mild, and rare. Thus, prior to October 7, 2019, the evidence does not show that the Veteran was unemployable by reason of a service-connected disability. Therefore, referral for extra-schedular consideration is not warranted. For the period prior to October 7, 2019, the evidence does not demonstrate that the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. Therefore, as the Veteran is found to have been capable of substantially gainful employment, prior to October 7, 2019, entitlement to a TDIU cannot be granted for the period, referral to the Director of C&P for extraschedular consideration is not necessary. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.