Citation Nr: 21029721 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-04 126A DATE: May 14, 2021 ORDER Entitlement to an initial disability rating of 50 percent, but no higher, for tension headaches is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is remanded. FINDING OF FACT The Veteran's tension headaches more closely approximate very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an increased rating of 50 percent, but no higher, for tension headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to February 1981. He appeals a June 2013 rating decision by the Agency of Original Jurisdiction (AOJ) granting service connection for headaches at 0 percent from May 3, 2012. In May 2018 and September 2020, this matter was remanded for further development. While pending return to the Board, in December 2020, the AOJ increased the Veteran's rating to 30 percent disabling from October 28, 2020. The Veteran has continued his appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). 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. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). 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. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 2007). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran contends that the frequency, duration, and severity of his tension headaches have worsened. See December 2020 VA examination report. His tension headaches are rated at 0 percent under 38 C.F.R. § 4.124a, Diagnostic Code 8100 from May 3, 2012 and at 30 percent from October 28, 2020. The Board notes that strictly requiring an unlisted condition to demonstrate the same objective symptoms as the analogous condition is an error. See Stankevich v. Nicholson, 19 Vet. App. 470, 472-73 (2006). Nevertheless, under Diagnostic Code 8100, migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensable. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Finally, migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. At least two medical experts agree that the Veteran has prostrating attacks of headache pain. See, e.g., October 2020 VA examination report; May 2013 VA examination report. One medical expert found the Veteran had "very frequent prostrating and prolonged attacks" of headache pain. See May 2013 VA examination report. The Veteran corroborates these symptoms, as he has debilitating headaches that last six to seven hours on average and occur three to four times a week. See December 2020 VA examination report. Importantly, the Veteran also experiences nausea. As stated above, the Board recognizes that strictly requiring an unlisted condition to demonstrate the same objective symptoms as the analogous condition is an error. See Stankevich v. Nicholson, 19 Vet. App. 470, 472-73 (2006). Here, the Veteran at least has very frequent prostrating and prolonged attacks of headache pain that occur more than once a month. Based on this fact, the Veteran is entitled to at least a 30 percent disability rating for tension headaches during the entire appeal period. The second prong of the rating criteria concerns whether headaches are productive of severe economic inadaptability. This term has not been clearly defined by regulations or case law. The Court of Appeals of Veterans Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The headaches must be, at minimum, capable of producing "severe" economic inadaptability for a 50 percent rating. Here, the Veteran has headaches that cause nausea and happen three to four times a week for six to seven hours. Further, a VA examiner opined that the Veteran's headaches "[s]ignificantly decreased function with headache flares." See May 2013 VA examination report. Thus, the evidence is at least in equipoise and the Board finds that the criteria for a disability rating of 50 percent, but no higher, for his tension headaches have been met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b) provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation Service, for consideration of an extraschedular rating of unemployability. The Board is prohibited from awarding extraschedular TDIU in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). For the purposes of TDIU, "substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed to Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected tension headaches, tinnitus, temporomandibular joint disorder (TMJ) and bilateral hearing loss. The Veteran "has not engaged in substantially gainful activity" since July 1, 2010. See August 2013 Social Security Administration (SSA) decision at 3. The Veteran stated that his headaches bother him a lot, to include thinking and general movements. See February 2012 SSA record. As stated above, the Veteran has headaches that cause nausea and happen three to four times a week for six to seven hours. Further, a VA examiner opined that the Veteran's headaches "[s]ignificantly decreased function with headache flares." See May 2013 VA examination report. Additionally, he should "not perform work where he would have to talk for long periods of time" due to his service-connected TMJ. See May 2018 VA examination report. Additionally, his tinnitus causes concentration problems. See May 2013 VA examination report. For these reasons, the Board finds that there is compelling evidence that the Veteran was unable to secure and follow substantially gainful employment based on his service-connected disabilities. Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service. The matter is REMANDED for the following action: 1. Refer the Veteran's claim of entitlement to TDIU to the Director of the Compensation Service for extraschedular consideration. 2. After completing the directive above to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. MAX P. SALAZAR, JR. Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.