Citation Nr: 21025180 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 10-17 326 DATE: April 27, 2021 ORDER A rating in excess of 50 percent for a headache disorder (residuals of head trauma) on an extraschedular basis is denied. REMANDED The claim of entitlement to a total disability based on individual unemployability (TDIU) due to chronic mastoiditis with headaches, prior to July 31, 2017, is remanded. REFERRED The issues of service connection for temporomandibular joint disease and a sinus condition were raised in a June 2018 informal hearing presentation and are referred to the Agency of Original Jurisdiction (AOJ) for further action.   FINDING OF FACT The symptoms of the Veteran’s headache disorder (residuals of head trauma) are contemplated by the schedular rating criteria. CONCLUSION OF LAW For the entire period of appeal, the criteria for an extraschedular rating in excess of 50 percent for the headache disorder (residuals of head trauma) have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Codes 6200-8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to May 1986. This appeal to the Board of Veterans’ Appeals (Board) arose from June 2008 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the Veteran testified during a Board video-conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. The VLJ who conducted the November 2015 hearing is no longer employed by the Board. In a February 2021 letter to the Veteran, the Board offered him an opportunity to appear at another hearing before a different VLJ and provided 30 days to respond. See February 2021 Board letter. To date, there has been no response to the February 2021 Board letter, no other request for a hearing has been received, and the 30-day period to respond has expired. As such, the Board may proceed with adjudicating the claims. In February 2018, the Agency of Original Jurisdiction (AOJ) granted a TDIU due to service-connected disabilities, to include migraines and related disabilities, from July 31, 2017. However, as the matter of the Veteran’s entitlement to a TDIU has been deemed a component of the current claim for increased rating (see Rice v. Shinseki, 22 Vet. App. 557 (2009), and a TDIU has been granted only from July 31, 2017, the Board finds that the matter of the Veteran’s entitlement to a TDIU due to the disability for which a higher rating is sought, for the pertinent period prior to July 31,2017, remains before the Board. In August 2018, the Board remanded the appeal to have the AOJ obtain outstanding VA treatment records, dated from June 2014 to the present, from the VA Medical Center in San Juan, Puerto Rico; translate documents from Spanish to English, received by VA on December 9, 2015, and, to consider whether referral of the higher rating claim for extra-schedular consideration for migraine headaches pursuant to 38C.F.R.§3.321 was warranted. The requested development has been accomplished, and the appeal has returned to the Board for further appellate consideration. This appeal has been advanced on the Board’s docket, pursuant to 38U.S.C.§7107(a)(2) and 38C.F.R.§20.900(c). A rating in excess of 50 percent for a headache disorder (residuals of head trauma) on an extraschedular basis is denied. The Veteran’s headache disorder (residuals of head trauma) is currently rated as 50 percent disabling under Diagnostic Codes 6200-8100. 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 the residual conditions in civil occupations. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.321 (a), 4.1. As discussed above, the Veteran’s headache disability is rated under Diagnostic Code 6200-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that chronic suppurative otitis media, mastoiditis, or cholesteatoma (Diagnostic Code 6200) is rated under the criteria for migraine headaches (Diagnostic Code 8100). The rating schedule provides for a 10 percent rating for chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination), during suppuration, or with aural polyps. See 38 C.F.R. § 4.87, Diagnostic Code 6200. The Board further notes that the Veteran is separately service-connected for right ear hearing loss, tinnitus, and positional vertigo. Diagnostic Code 8100, for migraine headaches, provides a schedular maximum 50 percent rating for very frequent completely prostrating attacks productive of severe economic inadaptability. Id. As the Veteran is currently assigned the maximum schedular rating under Diagnostic Code 8100, no higher rating can be assigned on a schedular basis for the disability. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the Veteran’s disability level and symptomatology, then the Veteran’s disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a Veteran’s level of disability and symptomatology and is found inadequate, it must determine whether the Veteran’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321 (b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). When the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation Service for completion of the third step, a determination of whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. The Board notes it has jurisdiction to review the entirety of the Director’s decision denying or assigning an extraschedular rating and the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Although the Board is required to obtain the Compensation Service Director’s decision before awarding extraschedular TDIU benefits in the first instance, see Bowling, 15 Vet. App. at 10, the Board is not bound by the Director’s decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). The Board finds that evidence is against a referral for an extraschedular consideration for the Veteran’s headache disorder because the available schedular evaluations for the service-connected disability are adequate. Thus, the first prong of Thun has not been met, and referral for an extraschedular rating is not warranted. The evidence shows that the Veteran has consistently reported symptoms associated with his headaches, such as pulsating or throbbing head pain that is worse on both sides of his head, increases with physical activity and is associated with nausea, vomiting, changes in vision, and sensitivity to light and sound. He maintains that when he experiences a severe headache episode, he is unable to perform any activity. VA examiners in February 2010 and June 2013 reported that the Veteran had characteristic prostrating attacks of migraine headache pain that occurred more than once a month. The June 2013 VA examiner indicated that the Veteran had only one episode of facial swelling during service, and that he denied having had any further episodes. The examiner noted that the Veteran’s daily activities were affected by his vertigo and hearing loss. The examiner reported that the Veteran had expressed a desire to work but that it would require accommodation due to his “disabilities,” and that he had actively sought gainful employment, but he had not been hired. See February 2010 Neurological Disability Benefits Questionnaire (DBQ), and June 2013 VA Headache and Hearing Loss Disability Benefit Questionnaires (DBQs). A December 2017 VA examiner noted that the Veteran’s facial pain complaints were multifactorial, and that he had temporomandibular joint disease (TMJ) and right-sided sinus inflammation, to include maxillary and ethmoid sinuses. The examiner noted that the Veteran’s vertigo had further increased his level of disability. See December 2017 VA Ear Conditions Disability Benefits Questionnaire (DBQ)). VA treatment reports reflect similar findings and that over-the-counter and prescription medications did not alleviate his headache pain. The Board previously remanded the claim for extraschedular consideration by indicating that the Veteran’s symptoms of facial pain, TMJ disease and right sinus inflammation were not expressly considered in the rating criteria. There is currently no indication that TMJ and right sinus inflammation are associated with the service-connected condition. Hence, extraschedular referral is not warranted at this stage. Long v. Wilkie, 33 Vet. App. 167 (2020). However, as the Veteran’s representative pointed to those conditions in a June 2018 informal hearing presentation, a claim of secondary service connection for those conditions is reasonably raised. In order to avoid prejudicing the claims by preadjudicating them in the present context, the Board finds that the matters should be referred to the AOJ for further action as claims of secondary service connection. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). The Board has referred them accordingly herein above. Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). Otherwise, as outlined above, the Veteran’s vertigo, tinnitus and hearing loss are separate and distinct residuals that have been separately evaluated. Accordingly, when considering only the residual of headaches, the symptoms as described by the Veteran are daily head pain, severe headaches and economic inadaptability. Such symptoms are explicitly considered by the diagnostic code used to evaluate migraine headaches, Diagnostic Code 8100. To this end, severe economic inadaptability addressed by DC 8100 encompasses non-enumerated symptoms and an inability to work during headaches. Thus, the evidentiary record does not demonstrate that the Veteran’s symptomatology associated with his headache disorder is not wholly contemplated by the criteria utilized to assign the 50 percent rating. The Veteran is already service-connected for his other reported symptoms, including vertigo, major depressive disorder; gastroesophageal disease; hearing loss; and, tinnitus. As such, the Board finds that an extraschedular rating in excess of 50 percent for the Veteran’s chronic mastoiditis with headaches is not warranted. REASONS FOR REMAND The claim of entitlement to TDIU due to chronic mastoiditis with headaches, prior to July 31, 2017, is remanded. The Veteran reported on his application for a TDIU rating that he had last worked on August 11, 2015, as a sales associate for a superstore and that he could no longer work due, in part, to his service-connected headaches. As noted in the analysis for an extraschedular rating for headaches adjudicated herein, VA examiners in 2010 and 2013 noted that the Veteran was unable to perform activities or work during severe headache episodes. The Veteran did not meet the schedular rating criteria for TDIU for the prescribed period on appeal. 38 C.F.R. § 4.16(a). As such, referral to the Director, Compensation Service, for extraschedular TDIU consideration is necessary. Of note, the Board has not weighed whether an extraschedular TDIU might be warranted, but rather is referring the claim based on the Veteran’s assertion that his service-connected disabilities, notably his headaches, prevented him from working during the period prior to July 31, 2017. The matters are REMANDED for the following action: Referral the claim for a TDIU rating for the period prior to July 31, 2017, on an extraschedular basis to the Director, Compensation Service. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.