Citation Nr: 21027821 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-05 560 DATE: May 6, 2021 ORDER Entitlement to an initial compensable disability rating for migraine headaches from June 26, 2012 to June 1, 2014 is denied. Entitlement to a disability rating in excess of 30 percent for migraine headaches from June 2, 2014 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran is not entitled to a compensable disability rating for migraine headaches from June 24, 2012 to June 1, 2014. 2. The preponderance of the evidence shows that the Veteran is not entitled to a disability rating in excess of 30 percent from June 2, 2014. 3. On June 2, 2014, it was ascertainable that the Veteran's migraine headaches had increased in severity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable disability rating for migraine headaches from June 26, 2012 to June 1, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a disability rating in excess of 30 percent for migraine headaches from June 2, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service in the United States Army from February 1977 to July 1992. The Veteran testified before the undersigned Veteran's Law Judge (VLJ) in a September 2020 hearing. A transcript of the hearing has been associated with the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2020 when it was remanded for further development. The December 2020 remand directed that the Agency of Original Jurisdiction (AOJ) obtain the Veteran's VA treatment records from October 2019 to present, and to document if no additional records exist. VA treatment records from October 2019 to December 2020 were associated with the file in December 2020. Therefore, there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In the December 2020 remand, the Board also incorporated the Veteran's claim for a total rating based upon individual unemployability (TDIU), citing Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). At the September 2020 hearing, the Veteran testified that his headaches are a partial reason he cannot work, and specifically stated that his headaches only allow him to work part-time. Therefore, the Board has proper jurisdiction to adjudicate the Veteran's TDIU claim. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "Staged" ratings are appropriate for an increased rating when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). 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. 38 C.F.R. § 4.7. 1. Migraine Headaches The Veteran contends that his migraine headaches warrant higher ratings than those currently assigned. They are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine headaches, with a noncompensable rating from June 26, 2012 to June 1, 2014, and a 30 percent rating on and after June 2, 2014. Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. 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 Diagnostic Code 8100. The rating criteria of Diagnostic Code 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. Id. "Migraine" is defined as "an often familial symptom complex of periodic attacks of vascular headache, usually temporal and unilateral in onset, commonly associated with irritability, nausea, vomiting, constipation or diarrhea, and often photophobia." Dorland's Illustrated Medical Dictionary, 1166 (32nd ed. 2012). Migraine is a broader term than headaches, and "includes symptoms besides simply headaches." Holmes v. Wilkie, 33 Vet. App. 67, 72 (2020). "Photophobia" is an "abnormal visual intolerance of light." Dorland's Illustrated Medical Dictionary 1441 (32nd ed. 2012). The Veteran's TBI resulted in light sensitivity. This is contemplated by the rating criteria for migraines set forth in Diagnostic Code 8100. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 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 (32nd 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 contains 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. Lastly, the 50 percent rating criteria requires 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 Diagnostic Code 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). From June 26, 2012 to June 1, 2014 On June 26, 2012, the Veteran first filed a claim for service connection for headaches. In an August 2013 rating decision, the AOJ granted service connection for headaches with an evaluation of 0 percent effective June 26, 2012. The Veteran was assigned a noncompensable evaluation based on the fact that the Veteran was diagnosed with a disability with no compensable symptoms. A Department of Corrections Ambulatory Health Record from August 2009 indicates that the Veteran denied headaches. Further, a neurologic note from a July 2012 VA physical notes that the Veteran did not have a history of frequent headaches. The Veteran was afforded a VA examination for his service-connected headaches in August 2013. At this time, the Veteran complained of left-sided headaches 1-3 times per month that last two hours. At this time, the Veteran experienced headache pain that was characterized as pulsating or throbbing head pain. The Veteran did not experience non-headache symptoms associated with his headaches. The VA examiner concluded that the Veteran did not have characteristic prostrating attacks of migraine headache pain, he did not have very frequent prostrating and prolonged attacks of migraine headache pain, he did not have prostrating attacks of non-migraine headache pain, and he did not have very frequent prostrating and prolonged attacks of non-migraine headache pain. The examiner stated that the Veteran's headache condition did not impact his ability to work. In a July 2012 statement, the Veteran reported that in July 1985, he fell off of the back of a 2-1/2 ton truck. During this accident, he hit the back of his head while wearing a steel pot helmet, and he hurt his head and lower back. The Veteran stated that he experiences headaches as a result of this. Specifically, the Veteran stated that during training exercises, he could not keep his helmet on because when he wore the helmet, his head and neck pain would reoccur. The Veteran stated that to this day, he is unable to ride motor vehicles or bicycles with a helmet. The Board finds that the most probative evidence of record from June 26, 2012 to June 1, 2014 shows that the Veteran's service-connected headaches were manifested by less frequent attacks. The Veteran's available medical records during this period indicate that he did not have a history of frequent headaches. Further, the examiner in the August 2013 VA examination concluded that the Veteran did not have characteristic prostrating attacks of migraine headache pain. The Board has also considered the Veteran's assertions regarding his migraine headaches, which he is competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, prior to June 2, 2014, nothing in those statements can be construed as a contention that his migraine headaches were manifested by characteristic prostrating attacks. For these reasons, the Board finds that the Veteran's disability picture for this period is more closely approximated by the rating already in effect. Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3. From June 2, 2014 The Veteran submitted a Notice of Disagreement (NOD) in July 2014, contending that he is entitled to a 50 percent evaluation for his migraine headaches. In an October 2014 call to his primary care physician, he stated that he frequently wakes up during the night due to his headaches. In a March 2015 private medical record, the treating physician noted that the Veteran had headaches off and on since falling from a truck 30 years ago. He stated that he had "moderate" headaches once a week, sometimes with dizziness. The Veteran was afforded a new VA examination in July 2015. He described his head pain as beginning at the back of his head that usually stayed in one place but sometimes wraps around to the front of his right eye. He reported headaches three times a week, lasting two to thee hours in duration. The examiner found that the Veteran experienced headache pain, characterized as pain localized to one side of the head. Further, the examiner noted that the Veteran experiences non-headache symptoms associated with headaches such as sensitivity to light. The examiner also opined that the Veteran's headache condition impacts his ability to work. Specifically, the examiner noted that the onset of headaches requires the Veteran to lay down and rest in a dark room until his medication sets in, duration approximately 2-3 hours, and the Veteran is unable to work during that time. In an addendum opinion provided in December 2015, the VA examiner found that the Veteran started having prostrating headaches beginning June 2, 2014. The examiner noted that the Veteran has prostrating headaches once per month. In a December 2015 rating decision, the AOJ increased the Veteran's evaluation to 30 percent effective June 2, 2014. In the Veteran's February 2016 Form 9, he stated that he has headaches more frequent than the average of once a month over the last several months. The Veteran states that his headaches occur three to four times per week interfering with his sleep pattern which brings on fatigue and anxiety throughout the day. The Veteran was afforded another VA examination for his headaches in March 2019. At this appointment, the Veteran reported that his CPAP machine has caused headaches since he started it, and it has been causing him to wake up in the middle of the night with a headache. The Veteran also reported having three to five headaches a week that last about two hours. The Veteran stated that he works as a barber, so he cannot go to a dark room if he has a headache while at work. However, the Veteran stated that he can usually get a drink of water and work around his headaches. The Veteran reported that if his headaches are too bad, he "will have to quit what [he] is doing. They have been that bad about [three] times in the past [four] months." At the March 2019 VA examination, the examiner noted that the Veteran experiences headache pain that is characterized by constant pain, pain on both sides of the head, and pain that worsens with physical activity. The examiner also observed that the Veteran experiences non-headache symptoms associated with headaches, including sensitivity to light and dizziness. The examiner opined that the Veteran has characteristic prostrating attacks of migraine/non-migraine headache pain, once every month. The examiner also noted that the Veteran does not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. The examiner stated that the Veteran endures decreased efficiency during headache episodes with occasional lost time from work when severe, and opined that this conclusion was based solely on the Veteran's current report of three headaches in the past four months that were severe enough that he could not complete a task. The examiner stated that this is closer to once per month than once per two months. At the September 2020 hearing, the Veteran testified that his headaches have gotten progressively worse throughout the years, he has had to make dietary changes because certain foods cause headaches, and that he has had to cut his work hours from 10 hours a day to six hours a day three days a week because of his headaches. The Veteran also testified that eight to 12 times a month he wakes up with a headache. The Veteran's wife testified that they constantly need to have the windows and shades closed because the light bothers him. The Veteran's wife testified that his headaches occur frequently, and when the headaches come on it is very noticeable and results in the Veteran growing irritable and occasionally having nausea. The Veteran's wife also stated that the Veteran's headaches have created a hardship because he does not want to be around others. The Veteran's wife also stated that whenever he uses his CPAP machine, he gets more headaches. The Veteran had an appointment with his primary care physician in October 2020. At this appointment, the Veteran reported having migraine headaches 8 to 10 times in a month. The Veteran reported staying in the dark for a couple of hours during his migraines, which has interfered with his ability to work. The Veteran also stated that he is able to work fewer days per month. Affording the Veteran the benefit of the doubt, the preponderance of the evidence shows that the Veteran's migraine headaches warrant a rating of 30 percent, but no higher, from June 2, 2014. The Veteran began having prostrating attacks on June 2, 2014, and they were described as being once a month. Further, the examiner at the March 2019 VA examination noted that the Veteran had prostrating attacks once a month. In his VA Form 9, as well as at the September 2020 hearing and October 2020 primary care appointment, the Veteran has reported having migraine headaches more than once a month. The prostrating attacks were therefore very frequent. The Veteran also reported that sometimes he is able to drink water and work past the migraines, but that sometimes he has to stay in the dark for a couple of hours during these migraines. There is nothing in the record to indicate that his attacks were completely prostrating during this period. Although the Veteran has often reported significant restriction of his activities as a result of his headaches during this period, the preponderance evidence of record does not show that he becomes completely powerless during his migraines. For this reason, a rating of 50 percent is not warranted from June 2, 2014. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded At the September 2020 hearing, the Veteran testified that his headaches are a partial reason that he cannot work. In September 2019, the Veteran submitted a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). In this Form, the Veteran noted that he has not worked full-time since 2016. In the section of the Form that directed the Veteran to list all of his employment (including self-employment) for the last five years, the only job listed was at Luke Air Force Base as a barber in 2017. At the September 2020 hearing, the Veteran testified that he is currently working part-time as a licensed barber. Therefore, a new VA Form 21-8940 is necessary to obtain an updated employment history. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant education and employment information. 2. Readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.