Citation Nr: 21026771 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-18 784 DATE: May 3, 2021 ORDER Entitlement to a maximum schedular 50 percent rating for migraine headaches, effective August 14, 2020, is granted. Entitlement to a rating in excess of 30 percent for migraine headaches prior to August 14, 2020 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), effective August 14, 2020, is granted. REMANDED Entitlement to a TDIU on an extraschedular basis prior to August 14, 2020 is remanded. FINDINGS OF FACT 1. From August 14, 2020, the Veteran's migraine headaches result in a disability picture which more nearly approximates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; these manifestations are adequately contemplated by the currently assigned 50 percent schedular evaluation under 38 C.F.R. § 4.124a , Diagnostic Code 8100 for migraine headaches. 2. Prior to August 14, 2020, the Veteran experienced migraines with characteristic prostrating attacks occurring on average once a month over the last several months, but without very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. From August 14, 2020, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a maximum schedular 50 percent disability rating for migraine headaches, effective August 14, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a rating in excess of 30 percent for migraine headaches prior to August 14, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 3. Effective August 14, 2020, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to July 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and October 2020, the Board remanded these issues for additional development. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In a January 2021 rating decision, the agency of original jurisdiction (AOJ) increased the disability rating for headaches to 50 percent, effective December 29, 2020. Nevertheless, an appellant is presumed to be seeking the maximum possible benefit for the rating appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). As such, the matter of entitlement to an initial higher rating both before and after the December 29, 2020 effective date remains on appeal. The Board notes that the evidence indicates that the Veteran's headaches impact his ability to work and during the course of the appeal, he submitted an application for a TDIU. He has reported that due to his migraine headaches he has been unable to work since 1999. The Court has held that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, the Veteran has been awarded a TDIU from December 29, 2020, the date he met the schedular criteria for a TDIU. Nevertheless, as the AOJ did not award a TDIU for the entire appeal period, the issue of entitlement to a TDIU prior to December 29, 2020 is still on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). As discussed, further below, the Board has awarded a TDIU herein from August 14, 2020, the date of award of a maximum 50 percent schedular rating for his migraine headaches. Nevertheless, in order to afford the Veteran his full due process, the issue of a TDIU prior to that date is remanded below. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.§ 1155; 38 C.F.R., Part 4. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 38 C.F.R. § 4.7 provides that, 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. In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Entitlement to an increased rating for migraine headaches The Veteran seeks an increased rating for his migraine headaches. He contends that he is entitled to a higher rating because of frequent incapacitating headaches. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Based on the evidence of record and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 50 percent disability rating is warranted from August 14, 2020, pursuant to the diagnostic rating criteria for migraine headaches. 38 C.F.R. § 4.124a, DC 8100. The Board finds that the evidence of record shows that the Veteran's migraine headaches had increased in severity to meet the higher rating criteria as of this date. In this regard, in an August 25, 2020 statement, the Veteran reported that his headache symptoms had gotten worse, including vertigo, vomiting and visual disturbances. Significantly, VA clinical records beginning on August 14, 2020 support the Veteran's contentions showing that he experienced migraine headaches five days a week with phonophobia, photophobia and nausea. Subsequently, the December 2020 VA examiner noted that the Veteran's condition had been progressing and worsening. The examiner found that the Veteran had very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. In sum, a 50 percent rating is warranted for the Veteran's service-connected migraine headaches, effective August 14, 2020, the date the evidence shows the Veteran's disability increased in severity. This rating is the highest rating assignable under the rating criteria for migraine headaches. See 38 C.F.R. § 4.124 (a), DC 8100; Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Further, in the instant case, the Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected headaches with the established criteria found in the rating schedule; and finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. In turn, there is nothing exceptional or unusual about the Veteran's disability because the rating criteria reasonably describe his disability level and symptomatology. Consequently, in this case, the schedular rating criteria fully contemplate the Veteran's symptoms and referral for an extraschedular evaluation under 38 C.F.R. § 3.321 (b) is not warranted. Moreover, prior to August 14, 2020, the Board concludes that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month over the last several months throughout the appeal period, corresponding to the criteria for a 30 percent rating under DC 8100. The Veteran was afforded a VA examination for his headaches in September 2013. He reported constant daily throbbing headaches with sensitivity to light and sound and monthly exacerbations associated with nausea during which he has to stay in bed for 2 days. His symptoms were not relieved by daily constant use of diazepam, Tylenol three times a day, and gabapentin three times a day. He denied vomiting or sensory changes. The examiner concluded that the Veteran had characteristic prostrating attacks of migraine headache pain once a month, but did not have very frequent prostrating and prolonged attacks of migraine headache pain. His condition did not impact his ability to work. In his substantive appeal, the Veteran claimed that he has frequent incapacitating headaches, but provided no further details describing the frequency or severity of his headaches. Moreover, VA outpatient treatment during this period show complaints of frequent headaches, but they do not show that such headaches were considered prostrating. Considering all relevant evidence of record, the Board finds that a rating in excess of 30 percent is not warranted prior to August 14, 2020. The preponderance of the evidence weighs against finding that the Veteran had very frequent completely prostrating and prolonged headaches productive of severe economic inadaptability, that is migraines attacks that rendered the Veteran entirely powerless for a prolonged period more than once a month. The September 2013 VA examiner found that the Veteran had characteristic prostrating attacks once a month, but not very frequent completely prostrating and prolonged headaches. The examiner also opined that the Veteran's work was not impacted by his headaches, which weighs against finding economic inadaptability. While VA outpatient treatment records reflect that the Veteran has reported frequent headaches there is not sufficient detail to determine whether any of these headaches could be characterized as completely prostrating and prolonged, that is that the Veteran was completely powerless during the attack for an extended period of time. While the Veteran has described his own headaches as "frequent" and "incapacitating" in his substantive appeal, he provided no additional details about the frequency and severity of his symptoms. It is clear from the record that while the Veteran's headaches could reasonably be described as frequent in that they occur several times a week, the severity of these headaches varies and many of them are not completely prostrating as the Veteran is still able to perform at least sedentary activities during them. Accordingly, the Board finds that a general statement from the Veteran describing his headaches as frequent and incapacitating is too vague to be the sole basis for an increased rating. The Board concludes that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month during this period, corresponding to the criteria for a 30 percent rating under DC 8100. A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As noted above, the Veteran did not have very frequent completely prostrating and prolonged attacks at any time prior to August 14, 2020. In conclusion, a maximum 50 percent schedular rating is warranted for the Veteran's service-connected migraine headaches, effective August 14, 2020. However, the Board concludes that a rating in excess of 30 percent prior to August 14, 2020 is not warranted under DC 8100. During this period, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to a TDIU In light of the above grant of a 50 percent rating for migraine headaches, effective August 14, 2020, the Veteran met the schedular criteria for a TDIU as of that date. In order to establish service connection for a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of a total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned where one disability is ratable at 60 percent or more, or where there are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16 (a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16 (b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). As of August 14, 2020, the Veteran had one disability, migraine headaches, evaluated as 50 percent disabling and his total combined rating was 70 percent. See 38 C.F.R. § 4.25. However, the Board must still determine whether the Veteran's service-connected disabilities result in impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. The Board notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The evidence of record shows that the Veteran last worked in 1999 as a shipping clerk. He has a high school education. After reviewing the totality of the evidence, the Board finds that the evidence of record shows that the Veteran is precluded from substantially, gainful employment due to the functional limitations of his service-connected disabilities. In this regard, the VA knee examination in December 2020 showed that the Veteran's service-connected right knee limited and restricted his ability to stand or ambulate for long periods of time. Likewise, at the December 2020 VA headaches examination, the examiner stated the Veteran had very prostrating and prolonged attacks of migraine pain, which is productive of severe economic inadaptability. The examiner went on to say that the Veteran would be restricted to sedentary activities during episodes of headaches. Again as noted above, the Board has found that the severity of the Veteran's headaches symptoms documented at this examination had increased as of August 14, 2020. Although the examiner indicated that migraine headaches would not prevent sedentary employment, the AOJ previously found and the Board agrees that it is reasonable to assume the Veteran would be unable to work even in a sedentary job during a prostrating attack of headache pain. Importantly, when relying on examiner's findings that a veteran is able to perform "sedentary" work to deny a TDIU claim, the Board must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139 (2018). In this case, the VA examiner did not really discuss the Veteran's work history and experience when finding that he could perform sedentary work, especially given the limitations described due to his service-connected right knee disability. Here, the evidence shows that the Veteran worked as a shipping clerk for 17 years, which likely required prolonged standing and walking; and, since the evidence clearly shows that the Veteran's right knee disability would prevent such activities, that disability would negatively impact the Veteran's ability to secure and follow a substantially gainful occupation in his chosen field. Further, given the Veteran's level of education, there is no indication that he has received training for any other type of other employment. In sum, when considering the totality of the functional impairment caused by his service-connected disabilities as described by the lay and medical evidence of record, as well as taking into consideration his work history, education and experience, and when resolving all doubt in his favor, the Veteran would be precluded from substantially gainful employment due to his service-connected disabilities from August 14, 2020, the date he met the schedular criteria. REASONS FOR REMAND Entitlement to a TDIU on an extraschedular basis prior to August 14, 2020 is remanded. As discussed above, the issue of entitlement to a TDIU on an extraschedular basis prior to August 14, 2020 remains on appeal. Importantly, the AOJ has not developed or considered this issue in the first instance. Thus, in order to afford the Veteran's his full due process, this matter must be returned for adjudication by the AOJ. The matters are REMANDED for the following action: Accomplish any necessary development with respect to entitlement to a TDIU on an extraschedular basis prior to August 14, 2020 and adjudicate the claim in an appropriate supplemental statement of the case. J.N. MOATS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.