Citation Nr: 21029480 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-22 852 DATE: May 13, 2021 ORDER Entitlement to an evaluation of 50 percent disabling for the entire period on appeal for post-traumatic migraine headache with photo- and phono-sensitivity, nausea and vomiting is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial evaluation of 10 percent, but no higher, for the entire period on appeal for traumatic brain injury (TBI) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 28, 2017 is remanded. FINDINGS OF FACT 1. During the entire period on appeal the preponderance of the evidence shows that the Veteran's post-traumatic migraine headaches with photo- and phono-sensitivity, nausea and vomiting, manifested as characteristic prostrating attacks at least three times a month. 2. During the entire period on appeal, the preponderance of the evidence shows that the Veteran's residuals of a TBI consist of mild memory loss, and three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships, consistent with level 1 impairment under the facets of Diagnostic Code 8045. No level 2 impairment under the facets of Diagnostic Code 8045 was shown. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a disability rating of 50 percent disabling, the maximum schedular rating allowed, for post-traumatic migraine headaches with photo- and phono-sensitivity, nausea and vomiting, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. For the entire period on appeal, the criteria for a disability rating of 10 percent, but no higher, for TBI residuals are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 2002 to June 2007 with service in Iraq. These issues were last before the Board in October 2019 when they were remanded for additional development. As to the issues of migraine headaches and TBI, the required examinations have been provided and they are ready for appellate review. As for the issue of TDIU, the Board finds that more development is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Of note, the Agency of Original Jurisdiction (AOJ) awarded the Veteran the maximum schedular amount of 50 percent disabling for his migraine headaches since September 16, 2019 in a November 2020 Rating Decision. As the period on appeal for the Veteran's claim for an initial increased rating for his service-connected headaches began prior to then, that period remains on appeal and is decided herein. Increased Rating 1. Entitlement to an evaluation of 50 percent disabling for the entire period on appeal for post-traumatic migraine headache with photo- and phono-sensitivity, nausea and vomiting is granted, subject to the laws and regulations governing the payment of monetary benefits As noted above, the Veteran appealed his initial 30 percent disability rating for service-connected migraine headaches and his appeal was partially granted in a November 2020 Rating Decision which awarded the Veteran a 50 percent disability rating, the maximum rating allowed under the diagnostic code, effective September 16, 2019. The Board finds that the Veteran's headache symptoms are appropriately rated at 50 percent disabling for the entire period on appeal. The Veteran's headaches are rated under Diagnostic Code 8100, which provides a noncompensable rating for migraines with less frequent attacks, a 10 percent rating with characteristic prostrating attacks averaging once in two months over the previous several months, a 30 percent rating for characteristic prostrating attacks occurring on average once a month over the previous several months, and a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Turning to the probative evidence of record, the Veteran attended a VA Headaches examination in October 2012. When queried about incapacitation, defined as able to "lay down if they can, but are able to work through it if they can," the Veteran responded, "once a week." When queried about prostrating headaches, defined as "such they cannot work through," the Veteran responded, "3 times per month." The examiner reported that the Veteran was no longer taking prescribed Maxalt. The examiner described the Veteran's symptoms as pulsating or throbbing head pain, pain on both sides of the head, pain worsens with physical activity. He noted that the Veteran had non-headache symptoms reported as nausea, vomiting, sensitivity to light, and sensitivity to sound. The examiner reported that the Veteran had characteristic prostrating attacks of migraine headache pain and noted that over the last several months the Veteran had prostrating attacks described as "more frequently than once per month." The examiner then checked "No" for very frequent prostrating and prolonged attacks of migraine pain. Under Functional Impact, the examiner checked "Yes" for whether the Veteran's headache condition impacted his ability to work. The Veteran attended a VA Headaches examination in February 2017. The Veteran was diagnosed with Migraine, including migraine variants. He reported that his condition had worsened, and the examiner noted that the Veteran was taking medication, noted as Amitriptyline HCL. The examiner described the Veteran's symptoms as: constant headache pain, pulsating or throbbing headache pain, pain localized to one side of the head, pain worsens on physical activity, and non-headache symptoms as: nausea, sensitivity to light, sensitivity to sound, changes in vision. The examiner reported that the Veteran had characteristic prostrating attacks of migraine pain, noted as once every month and checked "No" for whether the Veteran had very prostrating and prolonged attacks of migraine pain. Under Functional Impact, the examiner checked, "Yes," and wrote, "Difficulty concentrating during migraine headaches. Claimant must lie down in dark room and close eyes until migraines subsides." The Veteran attended a VA Headaches Examination in December 2017. The examiner diagnosed the Veteran with post-traumatic migraine headache with photo-and phono-sensitivity, nausea and vomiting and noted he was taking Sumatriptan Succinate in addition to Amitriptyline HCL and reported that, "The condition has gotten worse." The examiner noted headache pain on both sides of the head and non-headache symptoms as nausea, sensitivity to light, sensitivity to sound, and changes in vision. The examiner reported "No" for characteristic prostrating attacks of migraine pain. In response to the Board's remand on this issue, in September 2019, the Veteran was afforded a VA Headaches examination. It appears that the examiner discounted the December 2017 examination as only the February 2017 examination was noted under Evidence Comments. The examiner diagnosed the Veteran with Migraine including migraine variants and described the Veteran's headache pain as pulsating or throbbing headache pain and pain on both sides of the head with non-headache symptoms notes as nausea, sensitivity to light, and sensitivity to sound. The examiner reported Yes characteristic prostrating attacks of migraine and noted the frequency as "more frequent than once per month." The examiner reported that the Veteran had very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. In analyzing the totality of the medical evidence regarding the Veteran's migraine headaches, the Board finds that the preponderance of the evidence shows that the Veteran had characteristic prostrating attacks, averaging more than once a month and productive of severe economic inadaptability for the entire period on appeal. The Board notes that the preponderance of the evidence shows that the Veteran's headaches caused functional impact to his ability to work, and the Board finds that the experience of the symptomology reported throughout the examinations shows severe economic inadaptability. Under Diagnostic Code 8100, a 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board finds that the medical evidence outlined above describes such symptomology throughout the period on appeal. The Board observes that 50 percent disabling is the maximum schedular amount under the Code for Migraine headache symptomology. Accordingly, the Board finds that the Veteran's service-connected Migraine headache symptomology warrants an initial 50 percent disability rating for the entire period on appeal. 2. Entitlement to an initial evaluation of 10 percent, but no higher, for the entire period on appeal for traumatic brain injury (TBI) The Veteran appealed his initial noncompensable rating for his service connected TBI. The Board finds that the level of impairment of the Veteran's TBI residuals show that a 10 percent disability rating is appropriate for the entire period on appeal. The Veteran's TBI is rated under Diagnostic Code 8045, which recognizes that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive, emotional/behavioral, and physical. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal-setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem-solving, judgment, decision-making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment is to be evaluated under the table, Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified ("Table'). Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, are to be evaluated under the subjective symptoms facet in the Table. Any residual with a distinct diagnosis that may be evaluated under another diagnostic code (such as migraine headache or Meniere's disease) must be separately evaluated, even if that diagnosis is based on subjective symptoms, rather than under the Table. Emotional/behavioral dysfunction must be evaluated under § 4.130 (schedule of ratings for mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated under the criteria in the Table. Physical (including neurological) dysfunction is evaluated based on the following list under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed here that are reported on an examination, evaluation should take place under the most appropriate diagnostic code. Each condition must be evaluated separately, as long as the same signs and symptoms are not used to support more than one evaluation, and the evaluations for each separately rated condition should be combined under § 4.25. The evaluation assigned based on the Table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Each of these areas of dysfunction may require evaluation under listed facets. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Each facet shall be assigned a level of impairment, ranging from 1 to 3. The disability rating assigned shall be based on the facet with the highest level of impairment. The Table contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. A 100 percent evaluation is assigned if total is the level of evaluation for one or more facets. If no facet is evaluated as total, the overall percentage evaluation is assigned based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. The manifestations of conditions evaluated pursuant to the Table may overlap with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation should not be assigned based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is to be assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. If, however, the manifestations are clearly separable, a separate evaluation should be assigned for each condition. Symptoms listed as examples at certain evaluation levels in the Table are only examples and are not symptoms that must be present in order to assign a particular evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations of 0 for no complaints of impairment of memory, attention, concentration, or executive functions; 1 for a complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing; 2 for objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; 3 for objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and total for objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations of 0 for normal; 1 for mildly impaired judgment for complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; 2 for moderately impaired judgment, for complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions; 3 for moderately severely impaired judgment, for even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision; and total for severely impaired judgment, for even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, for example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Impairment of social interaction is assigned numerical designations of 0 for social interaction is routinely appropriate; 1 for social interaction is occasionally inappropriate; 2 for social interaction is frequently inappropriate; and 3 for social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations of 0 for always oriented to person, time, place, and situation; 1 for occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation; 2 for occasionally disoriented to two of the four aspects (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; 3 for often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and total for consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations of 0 for motor activity normal; 1 for motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function); 2 for motor activity mildly decreased or with moderate slowing due to apraxia; 3 for motor activity moderately decreased due to apraxia; and total for motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations of 1 for mildly impaired, occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions, is able to use assistive devices such as GPS (global positioning system); 2 for moderately impaired, usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance, has difficulty using assistive devices such as GPS; 3 for moderately severely impaired, gets lost even in familiar surroundings, unable to use assistive devices such as GPS; and total for severely impaired, may be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Subjective symptoms are assigned numerical designations 0 for subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family, or other close relationships, examples are mild or occasional headaches, mild anxiety; 1 for three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships, examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light; and 2 for three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships, examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Neurobehavioral effects are assigned numerical designations of 0 for one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction, examples of neurobehavioral effects are: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability, any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects; 1 for one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them; 2 for one or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them; and 3 for one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Impairment of communication is assigned numerical designations of 0 for able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language; 1 for comprehension or expression, or both, of either spoken language or written language is only occasionally impaired, can communicate complex ideas; 2 for inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time, can generally communicate complex ideas; 3 for inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time, may rely on gestures or other alternative modes of communication, able to communicate basic needs; and total for complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both, unable to communicate basic needs. Impairment of consciousness is assigned a designation of total for persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. 38 C.F.R. § 4.124a, Diagnostic Code 8045. A qualified examiner examined the Veteran in October 2012 and in September 2019. The Board finds this VA examiners' examinations and assessments are highly probative as they present the medical opinions of a competent expert, informed by review of the claims file and a physical examination. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the October 2012 examination, each facet was assessed at 0 or assessed as normal, except for the category of subjective symptoms, which was reported as "three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family or other close relationships. Examples of findings that might be seen at this level of impairment are intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light." The Board notes that the Veteran's VA treatment records cite sleep problems throughout the period on appeal and show a continuing prescription for Trazadone. Thus, although the Veteran has a separate rating for his sensitivity to light and sound due to his migraine headaches, the Board finds that his subjective symptoms of sleep problems (frequent insomnia) and the blurriness of vision, intermittent dizziness "when there is ringing in the ears," noted on the October 2012 VA TBI examination, in addition to his sensitivities to light and sound, is properly rated under this diagnostic code and does not overlap with the migraine headache rating. The Board observes that these symptoms describe Facet 1 level of impairment. In the September 2019 examination, each facet was assessed at 0 or normal, except for the category of memory, attention, concentration, executive functions, which was assessed as "a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing." The Board observes that these symptoms describe Facet 1 level of impairment. Based on the foregoing evidence, the Board finds that a rating of 10 percent for residuals of TBI, but no higher, is warranted for the entire period on appeal, as the highest level of impairment was shown as Facet level 1 in each VA examination. 38 C.F.R. § 4.124a, Diagnostic Code 8045. However, the Board finds that an increased rating in excess of 10 percent for the residuals of TBI is not warranted at any point during this appeal, as the Veteran was not assessed as having a Facet evaluated at level 2 or higher. At no point during the period on appeal did the Veteran's symptoms manifest as objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. Moreover, the Board finds that at no point during the period on appeal did the Veteran's symptoms result in moderate impairment due to visual spatial orientation, or in moderate inference with work, daily living, or close relationships. Accordingly, the Board finds that an initial 10 percent disability rating for the residuals of TBI is warranted for the entire period on appeal. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 28, 2017 is remanded. The Veteran, and his representative, assert that a TDIU is warranted for the period on appeal prior to the award of a total disability rating in the March 2020 Board Decision, effective February 28, 2017. The Board finds conflicting evidence as to the Veteran's work status and ability to work for the period on appeal. A recent private opinion states that the Veteran is unable to work due to his service-connected disabilities; however, as the Veteran is rated at 100 percent disabled due to his PTSD, that is not at issue. Several VA examinations note that his service-connected disabilities had a functional impact to his ability to work, however, none stated that he was unable to work. VA treatment notes in 2014 state the Veteran was able to finish his jobs at work and noted that he worked contract jobs at night. The Board observes that an Application for Increased Compensation Based on Unemployability, dated December 9, 2013, is in the file. However, it purports to cover the period from 2002 to 2010 and reports that the Veteran was attending full-time online college since 2009; the period on appeal is not addressed. In order to adjudicate the claim for TDIU, the Board requires information regarding the impact of the Veteran's service-connected disabilities, if any, on his ability to work for the period between October 2012 and February 2017. The matters are REMANDED for the following action: (Continued on the next page) 1. Provide the Veteran and his attorney a letter explaining the factors pertinent to establishing entitlement to a TDIU for the period from October 2012 and February 2017. The letter must be enclosed with a VA From 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The letter should inform the Veteran that it is vital to his appeal for entitlement to a TDIU that he provide the information requested on the VA Form 21-8940, to include, but not limited to, a detailed explanation of his employers, the nature of the work performed, the dates of employment, and his reasons for leaving his employment during the appeal period. 2. Conduct any additional development deemed necessary for the adjudication of the TDIU claim, to include an attempt to clarify whether the Veteran completed college and, if so, in what field of study. If the Veteran is in receipt of Vocational Rehabilitation and Employment (VR&E) services through VA, all VR&E records must be associated with the Veteran's file. J. TUNIS Acting 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.