Citation Nr: 21022497 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 19-06 158 DATE: April 16, 2021 ORDER Entitlement to a 50 percent disability rating for migraine headaches, for the entire period on appeal, is granted. Entitlement to an effective date earlier than March 10, 2010 for service-connected psychiatric disorder, now diagnosed as post-traumatic stress disorder (PTSD), is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s migraine headaches have been productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran was granted service connection for a psychiatric disorder, then diagnosed as adjustment disorder, unspecified and now diagnosed as post-traumatic stress disorder (PTSD), on March 10, 2010, the day following his release from active duty service. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, the highest rating allowed, for migraine headaches have been met for the entire period on appeal. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100. 2. The criteria for an effective date prior to March 10, 2010 for the grant of service-connection for a psychiatric disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 2006 to March 2010 with service in Afghanistan. In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a Board Virtual Tele-hearing. A transcript of that proceeding has been prepared and is associated with the file. Of note, at the March 2021 hearing, the Veteran and his representative declined to provided testimony on the issue of an earlier effective date for the award of the Veteran’s psychiatric disability. However, as a timely appeal was filed in April 2018, this issue is properly on appeal before the Board, and it is decided herein (Following receipt of a timely Substantive Appeal, the agency of original jurisdiction will certify the case to the Board of Veterans’ Appeals. Certification is accomplished by the completion of VA Form 8, “Certification of Appeal.” The certification is used for administrative purposes and does not serve to either confer or deprive the Board of Veterans’ Appeals of jurisdiction over an issue. 38 C.F.R. § 19.35). 1. Entitlement to a 50 percent disability rating for migraine headaches, for the entire period on appeal The Veteran competently and credibly testified that his migraine headaches caused him to have very frequent prostrating attacks and that he has been unable to work for the past two years because of his headaches. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3; see also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Migraine headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. The maximum schedular disability rating of 50 percent is warranted for migraine headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. A non-compensable disability rating is warranted for migraine headaches with less frequent attacks. The rating criteria do not define “prostrating,” nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to Webster’s New World Dictionary of American English, Third College Edition (1986), p.1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A similar definition is found in Dorland’s Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which “prostration” is defined as “extreme exhaustion or powerlessness.” In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent, the Board must determine on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). Finally, the Board notes that in increased rating claims, the current level of disability is most important when assigning a disability rating. As noted above, the Veteran testified before the undersigned VLJ that he experienced very frequent prostrating attacks as a result of his migraine headaches. He also testified he has been prescribed several medications, including Somotriptan, which he is limited to taking only nine timers per month. He testified that he takes Tylenol daily. He further testified that his headaches occur three to five times per week. The Veteran attended a VA Headaches examination in December 2018. The examiner noted that the Veteran had headaches five to seven days per week and migraine headaches about two days per week. The Veteran reported that his headaches had progressed, and that he was “suffer[ing] increasingly worse headaches over the years,” since his return from service in Afghanistan. The examiner reported the Veteran’s symptoms as: pulsating or throbbing head pain; pain worsens with physical activity; and sensitivity to light and sound. The examiner noted prostrating attacks as, “more frequently than once per month.” He reported that the Veteran’s very prostrating and prolonged attacks of migraines was not productive of severe economic inadaptability. Assessing the relevant evidence of record as outlined above, the Board finds that the probative evidence shows that the Veteran’s migraine headaches were very frequent and completely prostrating with prolonged attacks productive of severe economic inadaptability. Although the VA examiner reported no severe economic inadaptability, the Board finds that the Veteran’s testimony that his headaches have interfered with his employment for the past two years credible and therefore, more probative that the VA examination note. Based on the probative evidence of record, the Board finds that the Veteran’s migraine headaches produce very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. Of note, the Veteran and his representative stated before the undersigned VLJ that a 50 percent disability rating, assigned herein, would satisfy the appeal. Accordingly, a 50 percent disability rating is warranted, for the entire period on appeal, for the Veteran’s service-connected migraine headaches. 2. Entitlement to an effective date earlier than March 10, 2010 for service-connected psychiatric disorder, now diagnosed as post-traumatic stress disorder (PTSD), is denied The Veteran asserts that his change in diagnosis from adjustment disorder, unspecified, to PTSD shows that his PTSD claim should have an earlier effective date. The Board finds that by law, the Veteran’s date for a service-connected psychiatric disability can be no earlier than March 10, 2010, the day following his release from active duty service. Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). Benefits are generally awarded based on the date of receipt of the claim. 38 C.F.R. §§ 3.1(r), 3.400. Specifically, with respect to service connection granted on a direct basis, governing regulation provides that the effective date will be the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from active duty; otherwise the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Here, the Veteran’s last day on active duty service in the Army was March 9, 2010. On January 14, 2010, prior to the Veteran’s release from active duty, he submitted a claim for, among other things, “Anxiety, Depression, Insomnia.” A January 2011 Rating Decision granted service connection for adjustment disorder, not otherwise specified, and assigned a noncompensable rating, effective March 10, 2010. Subsequently, the Veteran’s psychiatric disability, adjustment disorder, unspecified, was increased to a 30 percent disability rating from November 8, 2015 to June 6, 2016. Then, the Veteran’s psychiatric disability diagnosis was changed from adjustment disorder, unspecified, to PTSD as result of a VA examination in June 2016, and the 30 percent disability rating was continued under the new diagnosis of PTSD. The Veteran’s PTSD is now rated at 50 percent disabling since April 16, 2018. As shown above, the earliest date for an award of service connection granted on a direct basis will be the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from active duty as is the situation here. 38 C.F.R. § 3.400(b)(2)(i). In this case, the Veteran’s psychiatric disability was granted service connection at the earliest possible date, March 10, 2010. The Board observes that as all psychiatric disabilities are rated on their symptomology, regardless of the specific diagnosis, there has been no prejudice to the Veteran resulting from a change in his psychiatric disability diagnosis from adjustment disorder to PTSD. See 38 C.F.R. § 4.126, 4.130 Accordingly, the Board finds that an effective date prior to March 10, 2010 for the Veteran’s service-connected psychiatric disability is not warranted. REASONS FOR REMAND As stated above, in the March 2021 Virtual Tele-hearing, the Veteran raised the issue of his employability due to his service-connected disabilities when he testified that he had not worked in two years because of his service-connected migraine headaches. Thus, the Board takes jurisdiction of the issue of entitlement to a TDIU as it is part and parcel to the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This issue must be remanded for development before it can be properly adjudicated. The Veteran’s service-connected disabilities, his employment history, his education and training, and other relevant factors for a TDIU must be ascertained and developed. Of note, the Veteran meets the schedular criteria for TDIU. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form (VA 21-8940). 2. Then, if necessary, schedule the Veteran for an examination by an appropriate clinician regarding the current severity of his service-connected disabilities. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected disabilities on employment. The examiner should identify all limitations or functional impairment caused solely by any service-connected disability. (Continued on the next page)   3. Then, adjudicate the TDIU issue. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.