Citation Nr: 21030103 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 06-12 191 DATE: May 17, 2021 ORDER Beginning April 1, 2008, a total disability rating based on individual unemployability (TDIU) is granted. An extraschedular rating for migraine headaches is denied. FINDINGS OF FACT 1. Beginning April 1, 2008, the probative evidence of record shows that it is at least as likely as not that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. 2. The Veteran's service-connected migraines have been manifested by no more than very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Beginning April 1, 2008, the criteria for establishing entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). 2. The criteria for an extraschedular rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321(b) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2000 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was initially before the Board in May 2008 and was remanded for further development. In March 2010, the Board granted an initial 50 percent rating for migraines and remanded the issue of entitlement to a rating in excess of 50 percent on an extraschedular basis and entitlement to TDIU for further development. In November 2011, the Board referred the issue of entitlement to an extraschedular rating for migraines to the Director of Compensation Service pursuant to 38 C.F.R. § 3.321(b). In a January 2015 decision, the Director of Compensation Service denied an extraschedular rating for migraines. In April 2015, the Board again remanded the claims, in part, to obtain another opinion from the Director of Compensation Service considering the collective impact of all of the Veteran's service-connected disabilities pursuant to Johnson v. McDonald, 762, F.3d 1362 (Fed. Cir. 2014). In a July 2018 decision, the Director of Compensation Service again denied entitlement to an extraschedular rating for migraines. In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In September 2020, the Board noted that effective January 8, 2018, VA amended 38 C.F.R. § 3.321(b) and eliminated extraschedular consideration on the basis of the collective impact of multiple service-connected disabilities, abrogating the holding in Johnson v. McDonald, 462 F.3d. 1362 (Fed. Cir. 2014). See 82 Fed. Reg. 57830 (Dec. 8, 2017) (eff. Jan. 8, 2018); see also Thurlow v. Wilkie, 30 Vet. App. 231, 239-40 (2018) (holding that applying the amendment barring extraschedular ratings based on the combined effect of multiple service-connected disabilities to all claims pending before VA, the Court, or the Federal Circuit on January 8, 2018, did not have an impermissible retroactive effect). The Board again remanded the claims for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. In a March 2021 rating decision, TDIU was granted, effective February 5, 2019. As the Veteran was not awarded TDIU throughout the period on appeal, the issue of entitlement to TDIU prior to February 5, 2019, is still on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). TDIU VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 1. Entitlement to TDIU prior to February 5, 2019 Throughout the period on appeal prior to February 5, 2019, service connection was in effect for migraine headaches, rated as 50 percent disabling; herniated disc at L5-S1 with degenerative disc disease, rated as 20 percent disabling; posttraumatic stress disorder (PTSD) with persistent depressive disorder, rated as 10 percent disabling; hypertension, rated as 10 percent disabling, and gastroesophageal reflux disease (GERD), rated as 0 percent disabling. The Veteran's combined disability rating was 70 percent. Accordingly, the schedular criteria for TDIU have been met throughout the period under review. The record shows that the highest level of education attained by the Veteran is a high school diploma with some college courses, and he has experience working as a truck driver, a warehouse worker/driver, and a customer service representative. He also testified that he has done some work in the information technology (IT) field. On his April 2019 application for TDIU, the Veteran indicated that he has not worked full-time since April 1, 2008. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience as of April 1, 2008. The record shows that in November 2003, the Veteran applied for VA Vocational Rehabilitation benefits. A November 2004 vocational counseling report shows that the Veteran's barriers to employability at that time were limitations on carrying, pushing, pulling, bending, kneeling, squatting, crawling, and walking due to his service-connected low back disability. The record shows that the Veteran subsequently enrolled in college, but he was dropped from the program because he could not attend his classes. In a November 2005 e-mail, the Veteran's VA vocational counselor expressed concern regarding the Veteran's desire to work as a truck driver and/or an auto mechanic, noting that the Veteran's constant lower back pain would likely prevent him from maintaining jobs in those fields. In December 2006, the Veteran's VA Vocational Rehabilitation benefits were placed in a temporary interrupted status. A May 2008 vocational evaluation report indicates that the Veteran previously worked as a driver for a few months in 2005 and 2006, but he had to quit due to back pain. He reported most recently working as a communications technician assisting customers with communications and device troubleshooting. He stated that the job aggravated his lower back because he was unable to stand and stretch and aggravated his migraines due to bright lights and noise. He reported missing six days of work during the course of three months. The consulting psychologist indicated that the Veteran had little experience in business management; therefore, his long-term goals of owning a business would require a training program in business, such as a Bachelor's degree, and work under the supervision of another person. The psychologist noted that the Veteran's other option was to work in areas of his transferrable skills, such as communications/networking; however, the Veteran would need freedom to sit, stand, and stretch; accommodations in lighting; and possibly two years of college training for certification purposes. The Veteran subsequently enrolled in college in 2009. However, he did not complete his classes, and his VA Vocational Rehabilitation benefits were again placed in an interrupted status in 2010. The record shows that the Veteran enrolled in college classes again around 2016. However, when he submitted his application for TDIU in April 2019, the Veteran indicated that he had not successfully completed an Associate's degree. With respect to the Veteran's service-connected migraine headaches, the Veteran is in receipt of a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, which is the highest rating available for migraine headaches. During the January 2019 Board hearing, the Veteran testified that he gets migraines about five or six times a week, which last several hours to a few days, and are accompanied by nausea and sensitivity to light. He stated that he goes to the emergency room for migraines about two to three times a year. With respect to the Veteran's service-connected PTSD with depressive disorder, the Veteran underwent a VA mental health examination in May 2015, during which he endorsed symptoms of depressed mood, chronic sleep impairment, disturbances of motivation, and difficulty establishing and maintaining effective work and social relationships. The examiner noted that the Veteran's physical pain and depression would cause functional impairment in the form of stamina, setting a good pace, and maintaining persistence over an eight-hour workday and a 40-hour workweek. With respect to the Veteran's service-connected low back disability, a May 2015 VA examiner indicated that the Veteran could not walk, bend, or stand for prolonged periods of time due to back pain, and he could only perform light physical work or sedentary work. VA treatment records throughout the appeal period show that the Veteran was prescribed Propranolol for migraine prevention, Sumatriptan for migraine attacks, Prochlorperazine for nausea associated with migraines, hydrocodone and Vicodin for back pain and migraines, and Gabapentin for back pain. In June 2008, the Veteran reporting having the worst migraine of his life, which was manifested by nausea, unsteady gait, dizziness, lightheadedness, and right arm and leg weakness. It was noted that the Veteran was unemployed due to his migraine headaches and back pain. In November 2008, the Veteran sought treatment for a migraine lasting four days with nausea, vomiting, dizziness, and photosensitivity. In December 2008, the Veteran reported that his migraines were increasing in frequency and severity. Later that month, he went to the emergency room for a headache lasting ten days. A March 2009 mental health treatment record notes symptoms of irritability, anxiety, low energy and motivation, difficulty sleeping, and avoidance of social interactions, which did not improve with Zoloft. In February 2010, the Veteran went to the emergency room for a migraine with photophobia, and he reported having migraines about three to six days a week. In May 2013, the Veteran having migraines five to six times a week. In July 2014, the Veteran went to the emergency room for a migraine with nausea, vomiting, and photosensitivity which lasted for four days. In February 2016 and June 2016, the Veteran reported increasing lower back pain due to sitting for long periods of time while taking online college classes. In October 2016, the Veteran stated that his persistent lower back pain limited his ability to get out and do things, noting that he had difficulty walking more than five minutes. In July 2017, the Veteran went to the emergency room for a migraine lasting a week. In August 2018, the Veteran reported continuing to have headaches about five days a week, which required him to lie down. Later that month, the Veteran went to the emergency room for an acute headache with vomiting on top of his already chronic migraines. Given the Veteran's limitations on lifting, bending, and prolonged sitting and standing; his frequent need to lie down during migraine headaches; mild PTSD symptoms, and his lack of experience or training for sedentary work that provides the freedom to sit, stand, and stretch as needed, the Board finds that it is at least as likely as not that the Veteran's service-connected disabilities rendered him unemployable as of April 1, 2008, when he stopped working full-time. Accordingly, TDIU is granted as of that date. Extraschedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, VA may assign an extraschedular rating commensurate with the average impairment of earning capacity due exclusively to that disability. Id.; see also 82 Fed. Reg. 57830 (Dec. 8, 2017) (eff. Jan. 8, 2018); Thurlow, 30 Vet. App. at 239-40 (holding that applying the amendment barring extraschedular ratings based on the combined effect of multiple service-connected disabilities to all claims pending before VA, the Court, or the Federal Circuit on January 8, 2018, did not have an impermissible retroactive effect). The governing norm in these exceptional cases is a finding that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b). "[W]here a disability proves capable of evaluation by conventional means, it cannot be deemed exceptional." Long v. Wilkie, 33 Vet. App. 167, 173-75 (2020). An extraschedular rating "performs a gap-filling function" and accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the impact of a veteran's disability is nonetheless inadequately represented. Johnson v. McDonald, 762 F.3d 1362, 1366 (Fed. Cir. 2015), superseded in part by regulation, 82 Fed. Reg. 57230 (Dec. 8, 2017). 2. Entitlement to an extraschedular rating for migraine headaches The Veteran is now in receipt of TDIU as of April 1, 2008. Therefore, there is no "gap" to fill by 38 C.F.R. § 3.321(b) from that date. See Johnson, 762 F.3d at 13656. Accordingly, an extraschedular rating for migraines from April 1, 2008, is not warranted. Upon review of the record, the Board finds that an extraschedular rating for migraine headaches is likewise not warranted at any time prior to April 1, 2008. The Veteran's migraine headaches have been evaluated under Diagnostic Code 8100, relating to migraines. Under Diagnostic Code 8100, a maximum 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. "Migraine" is "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 headache," and Diagnostic Code 8100 contemplates all symptoms of migraine attacks, not just headaches. Holmes v. Wilkie, 33 Vet. App. 67, 72-73 (2020). "Prostrating" means "lacking in vitality or will: powerless to rise: laid low." Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018) (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1822 (1966)). In order to warrant a 50 percent rating under Diagnostic Code 8100, migraine attacks "must render the veteran entirely powerless." Johnson, 30 Vet. App. at 253 (emphasis in original). On the Veteran's November 2003 application for VA Vocational Rehabilitation benefits, he indicated that his migraines kept him from working "sometimes several days out of the month." Treatment records during the period under review show that in May 2005, the Veteran reported recurrent headaches, which he described as moderate to severe and lasting more than three hours. In June 2005, the Veteran reported migraines about three times a month. He stated that he took Benadryl to help him sleep, and his headaches usually improved by the time he woke up. He also reported taking Etodolac as needed for headaches. In August 2006, the Veteran reported having migraines with associated nausea four times a month, which were aggravated by light. In October 2006, the Veteran went to the emergency room for a migraine attack lasting several days. Later that month, the Veteran reported that his headaches were increasing in frequency to two to three times a week, and he was prescribed Propanolol. In November 2006, the Veteran reported that his migraines decreased in frequency. In March 2007, he reported having a migraine for the past three days with nausea and some vomiting. In October 2007, the Veteran reported a migraine, which he characterized as 10, out of 10, in severity. He reported getting headaches every other day. In summary, the record shows that the Veteran experienced frequent migraine headaches, which were sometimes associated with symptoms of nausea, vomiting, and photophobia. All of the Veteran's symptoms of migraine attacks are contemplated by Diagnostic Code 8100 and are therefore capable of evaluation by conventional means. See Holmes, 33 Vet. App. at 72-73; see also Long, 33 Vet. App. at 173-75. Moreover, the Veteran reported that his migraines required him to lie down and sometimes kept him from working several days a month. The Board finds that such frequency and severity of the Veteran's symptoms are precisely the level of disability contemplated by the 50 percent rating assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. Accordingly, an extraschedular rating for migraine headaches is not warranted at any time prior to April 1, 2008. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning an extraschedular rating for migraines prior to April 1, 2008, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.