Citation Nr: 21031016 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-33 832 DATE: May 20, 2021 ORDER Entitlement to an initial 10 percent rating for the Veteran's migraine headache disability is granted. From September 19, 2019, entitlement to a 30 percent disability rating for the Veteran's migraine headache disability is granted. From January 1, 2017, entitlement to a total disability based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to September 19, 2019, the Veteran's migraine headache disability manifested by an overall disability picture that more nearly approximates characteristic prostrating attacks averaging one in 2 months. 2. From September 19, 2019, the Veteran's migraine headache disability manifested as prostrating attacks occurring on an average once a month over the last several months. 3. From January 1, 2017, the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for the Veteran's migraine headache disability have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2020). 2. From September 19, 201, the criteria for a 30 percent disability rating for the Veteran's migraine headache disability have been met. 38 U.S.C. § § 1155, 5107 (2018); 38 C.F.R. § §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2020). 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. § 3.340, 3.341, 4.15, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from February 2003 to May 2004. The Veteran initially requested a hearing before a Veterans Law Judge (VLJ), but then withdrew this request in August 2015. In October 2017, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to obtain outstanding VA records from the VA Medical Center in Altoona, Pennsylvania. These additional VA records were added to the record. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran argued that the May 2012 VA examination presented conflicting evidence and failed to capture the severity of his migraine disability. The Board acknowledges that the May 2012 examination presents conflicting evidence but finds there is sufficient evidence in the other VA examinations and medical records to adjudicate the Veteran's increased rating claim. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). Staged ratings are appropriate for an increased rating claim 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 for the Veteran's headache disability in August 2011. Fenderson v. West, 12 Vet. App. 119 (1999). Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 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 2 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. 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. Additionally, DC 8100 rates "migraines" which is a broader term than "headaches" and VA must consider all symptoms experienced due to migraine attacks (for example irritability, nausea, vomiting, constipation or diarrhea, and photophobia). Holmes v. Wilkie, 33 Vet. App. 67 (2020). 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 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. (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). Prior to September 9, 2019 The Veteran received a VA examination in May 2012. He reported daily headaches for 3 to 4 hours that he rated as 5 or 6 out of 10 on the pain scale. His headaches started in the frontal area. His headaches caused photophobia, pulsating or throbbing head pain, and nausea. His headaches caused functional impairment, which required him to take off work because he was unable to function. The examiner reported that the Veteran experienced prostrating headaches less than once every 2 months, but also stated that they occurred more frequently than once per month. This finding is inconsistent, as one cannot have headaches but less than twice a month and more than once a month. This finding will not be used in the Board's analysis and it is afforded no probative weight. The Veteran received another VA examination in January 2013. He described his pain as occipital and left frontal. He had nausea and sensitivity to light during a headache. His headaches lasted less than one day. The examiner found that the Veteran had prostrating attacks of non-migraine head pain that occurred once in 2 months. However, he did not have very frequent prostrating and prolonged attacks of non-migraine headache pain. Additionally, the examiner noted that the Veteran's headache disability had no impact on his ability to work. The Veteran's next VA headaches examination was in August 2016. The examiner diagnosed migraine headaches and tension headaches. His pain was on both sides of his head. He reported having nausea and vomiting with headaches, though the examiner noted that the Veteran denied nausea is some of the medical records. The examiner explained that in VA and private records from November 2013, December 2013, May 2014, July 2014, April 2015, and April 2016, he denied having nausea. He also reported occasional photophobia. The pain lasted less than once a day. He had characteristic prostrating attacks of headache pain with less frequent attacks, and did not have very frequent prostrating and prolonged attacks. The examining physician noted that the headaches did not impact his ability to work. In a separate narrative report from the August 2016 headaches examination, the same physician noted that the examination was two hours long, including a two hour break. The examiner noted that the Veteran was "...inconsistent with his history regarding the headache." And later stated, "[i]t is my opinion that there are several discrepancies between the Veteran's history concerning his headaches. He and I met for a good two hours and there was no distress during that encounter." The Veteran's VA treatment records also documented his continued headache complaints. In February 2013, his VA psychologist stated that he had "recurrent migraine headaches." In May 2013, he reported headaches. He reported in an October 2016 treatment record that he had "extreme headaches" which required him to lie down in a dark room with a cold washcloth on his head. He vomited "on occasion" due to his headaches. At a November 2016 physical therapy session for his neck pain, he stated that he had "constant" headaches. Later in November 2016, he stated that he had "continued headaches." In December 2017, he reported headaches. In August 2018, he stated that he had headaches every day. In October 2018 he stated that had "a lot" of headaches. In February 2019, his headaches were described as "ongoing." In March 2019, he reported headaches at a behavioral health consult. In a March 2019 psychiatry note, he reported "everyday has a mild, throbbing headache." In April 2019, he reported "daily" headaches. Later in May 2019, he reported having "chronic" headaches. The Board also considers the Veteran's lay statements describing his condition. He consistently reported that he had to take time off because of his headaches. He reported that he had to work through the pain sometimes at work because he was unable to go into a darkened room at work. The Veteran's migraines have occurred with characteristic prostrating attacks averaging one in 2 months over the last several months prior to September 19, 2019, corresponding to the criteria for a 10 percent rating under DC 8100. The evidence has consistently shown that the Veteran reports daily or recurrent headaches, but the frequency of his prostrating attacks does not rise to the level for a 30 percent rating, which requires a prostrating attack on average once a month over the last several months. The Veteran reported having headaches that required him to lie down in a dark room but did not state the frequency of these prostrating attacks. He also reported that, while they interfered with his work, he was able to continue working. As noted above, the May 2012 examiner provided conflicting evidence concerning the frequency of the Veteran's prostrating attacks. However, the January 2013 VA examiner, noted the Veteran had prostrating attacks of non-migraine headache pain once every 2 months. The Board finds this opinion more probative than the May 2012 conflicting opinion. First, the January 2013 examination occurred less than a year after the May 2012 examination and they both noted similar symptoms by the Veteran, indicating a similar disability level. Furthermore, the August 2016 VA examiner noted prostrating attacks, and while the exact frequency was not provided, the examiner noted they were less frequent attacks. The January 2013 VA examination is the most favorable to the Veteran in terms of how frequent his attacks were, as "less frequent attacks" are contemplated by the noncompensable criteria. A 30 percent rating is not warranted. A 50 percent rating was not warranted. Although he reported daily and recurrent headaches at his VA treatment appointments, the record does not show that he had daily prostrating attacks. In a March 2019 report, they were described as "mild." Additionally, he did not have "very frequent completely prostrating and prolonged attacks." He sometimes needed to lay down in a dark room, but this did not occur very frequently, the VA examiner found his prostrating attacks occurred once every two months. This is contemplated by the 10 percent criteria, the 50 percent criteria therefore contemplate attacks more frequent than once every two months. From September 19, 2019 The Veteran's most recent VA examination was in September 2019. The examiner diagnosed migraine headaches. He stated that his entire head hurt during headaches. In addition to nausea and sensitivity to light, which he had reported at his earlier VA examinations, he also reported sensitivity to sound. He stated that the pain was less than 1 day. He had prostrating attacks once a month. The examiner also found that he had "very prostrating and prolonged attacks" that were productive of severe economic inadaptability. His headache disability impacted his ability to work because it caused distractibility. Considering all relevant evidence of record, the Board finds there is probative evidence to support an increase to a 30 percent rating beginning September 19, 2019 because the VA examiner noted that the Veteran had prostrating attacks once a month. A 50 percent rating under DC 8100 is not warranted unless there are very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. To meet the criteria, the attacks must be both "very frequent" and "prolonged." Johnson, 30 Vet. App. 245. The VA September 2019 examiner noted that the Veteran's prostrating migraine attacks were productive of severe economic inadaptability. However, the examiner also noted that these attacks occurred once a month. This level of frequency is expressly contemplated by the 30 percent criteria. It is reasonable to conclude that the 50 percent criteria would contemplate a greater frequency than the 30 percent criteria. The remaining evidence of record does not show that the Veteran has prostrating attacks that occur more than once a month. The prostrating attacks are therefore not "very frequent," and therefore the 50 percent criteria are not met. TDIU A TDIU rating may be assigned, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran meets the schedular rating for TDIU. The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. After service the Veteran worked in multiple jobs and most recently worked at the VFW. In a September 2019 VA examination, the examiner noted the Veteran's struggles with attention and focus. Additionally, the examiner noted that his PTSD and TBI led to the Veteran getting too confrontational with his co-workers in the past. He also experienced issues with memory, anxiety, and chronic sleep problems because of his disabilities. As noted above, the examiners also noted that his headache disability caused distractibility problems, and he had to take some time off work because of his headaches. Consequently, the Board finds that the combination of his service-connected disabilities rendered him unemployable. The Board acknowledges that the Veteran asserted he stopped working in 2016. However, on his Form 21-8940, he did not indicate the specific date in 2016 that he stopped working. Thus, the Board finds him unemployable from January 1, 2017, and entitlement to a TDIU is warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.