Citation Nr: 21025605 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 12-02 339 DATE: April 28, 2021 ORDER Entitlement to an initial disability rating of 30 percent, but no higher, for service-connected migraines is granted. REMANDED Entitlement to a total disability rating based in individual unemployability (TDIU) due to service-connected disabilities, is remanded. FINDING OF FACT 1. The competent evidence of record shows that the Veteran’s service-connected migraines manifested with characteristic prostrating attacks occurring on average once a month over last several months; severe economic inadaptability has not been shown. CONCLUSION OF LAW 1. The criteria for entitlement to an initial disability rating of 30 percent, but no higher, for service-connected migraines have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.124a, Diagnostic Code 8100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to June 2009. These matters come before the Board of Veteran’s Appeals (Board) from a September 2010 rating decision, in Roanoke, VA, granting service connection for migraines, with a noncompensable rating, effective July 1, 2009. In February 2011, the Veteran timely filed a notice of disagreement (NOD). In November 2011, the RO issued a statement of the case (SOC) and in January 2012, the Veteran perfected her substantive appeal. In February 2017, the RO issued a supplemental SOC. In a November 2017 decision, the Board remanded the claim for additional development. 1. Entitlement to an initial compensable disability of 30 percent, but no higher, for service-connected migraines is granted. As a preliminary matter, as noted above, in a July 2017 decision, the Board remanded this claim for additional development. Specifically, the RO was to determine whether the Veteran’s additional vision disability and ear/dizziness disability were residuals of the Veteran’s service-connected migraines. On remand, following a VA eye examination in July 2019, the examiner opined that the Veteran’s dizziness and impaired vision are at least as likely as not caused by her headaches. As such the Board finds that the requested development has been substantially completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) Here, the Veteran is seeking a higher disability rating for her service-connected migraine disability. Specifically, she contends that her disability is more severe than reflected by her currently assigned disability rating. See September 2020 Statement in Support of Claim. A disability rating is 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran’s headache disability has been rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under the Schedule of Ratings for neurological conditions and convulsive disorders, a noncompensable rating is warranted for migraine headaches with less frequent attacks; a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months; and the maximum 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define “prostrating,” nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (1999) (quoting Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). According to Webster’s New World Dictionary of American English 1080 (3d Coll. ed. 1986), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1367 (28th ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Turning to the evidence of record, in June 2010 VA examinations, the Veteran reported no eye pain, distorted vision, sensitivity to light or blurred vision. The Veteran also reported migraines and having headaches three times a month that last four days. She reported that, with medication, she was able to go to work. Functional impact was noted in that the Veteran had an inability to focus with visual disturbances. In a November 3, 2015 private neurological consultation (submitted September 2020), the Veteran reported an increase in headaches following a car accident. She reported that she had begun experiencing visual hallucinations and daily pain. The clinician noted having seen her two years prior for insomnia and that she experiences nausea, photophobia, and sonophobia when the headaches become severe. In July 2016, the Veteran submitted a statement regarding her disabilities. Concerning migraines, she contended that she has severe episodes several times a week where she must lie down and take medication. Her insomnia has intensified, and she suffers visual distortions severe enough to prevent her from operating a vehicle and performing simple cognitive functions such as reading, watching television, or engaging in conversation. She also becomes irritable and suffers mood swings. Medications for treatment of migraines has made it impossible to pursue normal activities such as working or attending school. In a November 2016 headache VA examination, the Veteran also reported headaches that worsen with activity and last from one to two days. Medication for the condition resulted in stomach upset, excess sedation, and loss of cognitive ability. On examination, the examiner noted nausea, sensitivity to light and sound, sensory changes, to include muscle spasms and recurrent episodic headaches associated with insomnia. No prostrating attacks were noted. The functional impact of the Veteran’s disability was reported by the Veteran as interference with daily living and ability to work due to an inability to function and dizziness experienced during headaches. In December 2016, the Veteran submitted a statement indicating that in November 19, 2012, she was seen by her primary care physician for migraines and insomnia. She was averaging two to three hours of sleep and experiencing recurring pulsating migraine headaches, extreme fatigue to the left topside of her head, and nausea. In her recurring migraines, that could last for 7 days, she would experience visual changes, flashes of light or zigzags. These attacks can last for several months and affect daily living. The Veteran also submitted a buddy statement from her husband, in which he asserts that the Veteran’s migraine attacks cause stomach issues and force her to lie in bed away from light sources, often for several days, and that she also suffers visual disturbances. In July 2019, the Veteran was also afforded a VA migraine examination. The Veteran reported that the migraines have progressively worsened since onset and that she episodically experiences headaches. Weekly headaches last one to two days and she continues to have scotoma, visual disturbances, and nausea prior to headaches. No prostrating headaches were reported. On examination, the Veteran’s headache symptoms were noted to be pulsating or throbbing with pain on both sides of the head. Nausea, sensitivity to light and sound were noted but no functional impact was found. In September 2020 the Veteran also submitted several statements. In a buddy statement, the Veteran’s husband noted that she suffers from headaches attacks four to five days a month, that usually cause her to need a dark room. She is week, not talkative, unable to get out of bed due to exhaustion, and unable to perform normal activities for days at a time. During headache attacks, the Veteran cannot eat due to nausea and dizziness and sometimes, her hearing is affected. She also frequently visits doctors for her headaches. In a separate statement the Veteran also asserted that her insomnia has been overlooked as related to her migraines. In addition, the Veteran submitted medical literature linking sleep disorders with headache and migraine. Having carefully considered the Veteran’s competent, consistent, and credible contentions in light of the evidence of record and the applicable law, the Board concludes that the record supports a finding of characteristic prostrating attacks occurring on an average of once a month over the last several months associated with photophobia, sensitivity to sound, nausea and pain with activity and on both sides of the head. The Board recognizes that the VA examiners of record did not describe the Veteran’s headache attacks as prostrating. However, as noted above, “prostrating,” is defined as “extreme exhaustion or powerlessness” and the Veteran described symptoms that caused her to be confined to her bed and symptoms of exhaustion. Moreover, despite taking medication for her headaches, the Veteran’s headaches still impede her functionality, and cause photophobia and severe pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, affording the Veteran the benefit of the doubt, the Board finds that a rating of 30 percent is warranted for migraine headaches for the entire period on appeal. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2019). The Board next finds that the Veteran’s headaches do not warrant the next higher, 50 percent rating, as they have not been characterized by frequent, prolonged incapacitating attacks of headaches or by severe economic inadaptability. Although the Veteran noted difficulty focusing during migraines which affected her work and studies, VA examinations and private and VA treatment records do not indicate that the Veteran’s migraine headaches have resulted in severe economic inadaptability at any point, and the Veteran’s lay statements do not indicate that manifestations of migraine headaches amount to severe economic inadaptability. Rather, the reported symptoms are consistent with a 30 percent evaluation. Based on the foregoing, the Board finds that the symptoms of the Veteran’s migraine headaches more nearly approximate the criteria for a 30 percent rating for the entire period on appeal. Accordingly, a disability rating of 30 percent, but no higher, for the Veteran’s service-connected migraines, is granted. REASONS FOR REMAND 1. Entitlement to a TDIU due to service-connected disabilities, is remanded. The Veteran is seeking entitlement to a TDIU. Specifically, he contends that she is unable to obtain and maintain gainful employment due to her service-connected disabilities. See October 2020 Appellate Br. Following a review of the record, the Board finds that further development is necessary regarding the Veteran’s claim for TDIU. Specifically, there is insufficient evidence of record concerning the Veteran’s education and employment history. A VA Form 21-8940 Application for Increased Compensation Based on Unemployability should be completed. The matters are REMANDED for the following action: 1. The AOJ should obtain all outstanding VA treatment records and any private treatment records identified by the Veteran, to include records relating to the Veteran’s claim for a TDIU. 2. Send the Veteran a Form 21-8940 application for a TDIU. If the application is completed and returned, verify the nature of the Veteran’s employment history, work schedule, and income consistent with the procedures outlined in the M-21 VA Adjudication Procedure Manual (“VBA Manual”). 3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and her representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.