Citation Nr: 21031545 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-54 788 DATE: May 24, 2021 ORDER Entitlement to a compensable rating prior to July 12, 2017, and in excess of 50 percent thereafter, for service-connected migraine headaches is denied. Effective March 10, 2015, entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to July 12, 2017, the Veteran's service-connected migraine headaches were not manifested by characteristic prostrating attacks averaging one in two months over several months. 2. Since July 12, 2017, the Veteran has been receiving the maximum schedular rating for migraine headaches. 3. Resolving all doubt in the Veteran's favor, the evidence shows that his service-connected disabilities precluded him from securing and following substantially gainful employment as of March 10, 2015. CONCLUSIONS OF LAW 1. Prior to July 12, 2017, the criteria for a compensable rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. Since July 12, 2017, the criteria for a rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 3. The criteria for a TDIU have been met since March 10, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2003 to February 2004 with additional service in the Army National Guard. The case was previously before the Board in November 2018, at which time the Board remanded the instant issues as well as the issues of service connection for a psychiatric disorder and service connection for hypertension. Subsequently, in a March 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for major depressive disorder, and in an April 2021 rating decision, the AOJ granted entitlement to service connection for hypertension. As such is a full grant of the benefits sought, the issues of service connection for a psychiatric disorder and hypertension are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Following the Board's November 2018 Remand for entitlement to a TDIU, the AOJ awarded TDIU in a January 2020 rating decision and assigned an effective date of September 17, 2019, the date of the Veteran's claim for a TDIU. A request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once the issue of entitlement to a TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a decision by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved remains on appeal. Here, the appeal period stems from March 2015; accordingly, the Board will consider whether the benefit is warranted from that time. 1. Increased Ratings The Veteran seeks higher initial ratings for his service-connected migraine headaches. The disability is rated as zero percent disabling prior to July 12, 2017 and as 50 percent disabling thereafter, pursuant to Diagnostic Code 8100. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine. 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 2 months over the last several months. A 30 percent rating requires symptomatology manifested by characteristic prostrating attacks occurring on an average of once per month over the last several months. Finally, a 50 percent rating is warranted for migraine headaches manifested by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 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. Johnson, 30 Vet. App. at 252. 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 (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 Board concludes that, for the period prior to July 12, 2017, the Veteran's migraines occurred with less frequent attacks, corresponding to the criteria for a noncompensable rating under Diagnostic Code 8100. In this regard, at a September 2015 VA examination, the Veteran expressed that he experienced headache pain which included non-headache symptoms such as nausea and sensitivity to light and took pain medication when necessary. The examiner indicated that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain and that the disability did not affect the Veteran's ability to work. Notably, VA treatment records show that the Veteran denied experiencing any headache symptoms at primary care appointments in April 2015, August 2015, January 2016, June 2016, November 2016, and April 2017. The Veteran has not submitted any lay or medical evidence for the time period prior to July 12, 2017 showing that his headache symptoms met the criteria for a compensable rating pursuant to Diagnostic Code 8100. Accordingly, the Board concludes that the Veteran's migraine headaches occurred with less frequent attacks throughout that time period, corresponding to the criteria for a noncompensable rating under Diagnostic Code 8100. The Veteran's headaches are rated as 50 percent disabling under Diagnostic Code 8100 since July 12, 2017. 50 percent is the maximum schedular rating available for headaches. The Veteran has not contended, and the evidence does not suggest, that he experiences headache symptoms outside of those listed in the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if '§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board, quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006)). Therefore, as there is no legal basis upon which to award a higher rating for migraine headaches for the time period since July 12, 2017, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to a TDIU prior to September 17, 2019. Under the applicable criteria, all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. §§ 3.340(a)(1), 4.15. In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experiences, but not to her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation purposes may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). As noted above, the Veteran is in receipt of a TDIU as of September 17, 2019. The earliest effective date of service connection for any of the Veteran's service-connected disabilities is March 10, 2015. In his September 2019 application for a TDIU, the Veteran indicated that he was unable to work as of May 5, 2015. Accordingly, the Board will consider whether the Veteran is entitled to a TDIU at any point during the appeal period prior to September 17, 2019. For the entire time period at issue, the Veteran meets the schedular eligibility criteria for a TDIU under 38 C.F.R. § 4.16(a), as he is in receipt of a combined 80 percent rating as of March 10, 2015 and a combined 90 percent rating as of July 12, 2017. For the reasons that follow, and after resolving all doubt in the Veteran's favor, the Board finds that the evidence demonstrates that the Veteran's service-connected disabilities have prevented substantially gainful employment as of March 10, 2015. VA examiners indicated in September 2015 that neither the Veteran's service-connected hypertension nor his hearing loss affected or impacted the Veteran's ability to work. At a December 2015 posttraumatic stress disorder (PTSD) examination, the Veteran indicated that he worked on a part-time basis at a private company and that he received $130 per week. He also said that he worked on a volunteer basis with a plants company. At a July 2017 VA examination to assess the Veteran's service-connected low back disability, the examining clinician indicated that the Veteran was unable to sit for a prolonged time to perform a desk duty job. The examiner added that the Veteran's back conditions impacted his ability to function in a sedentary occupational environment and impaired him from sedentary employment activities. In an August 2019 VA 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, the Veteran's prior employer indicated that the Veteran had last worked on May 15, 2015 and stopped worked due primarily to his low back and radiculopathy disabilities. Social Security Administration (SSA) records were associated with the Veteran's claims file and show that the Veteran was deemed disabled by the SSA as of May 13, 2016 due to a primary diagnosis of affective disorders and a secondary diagnosis of disorders of the back. The records show a self-reported employment history of agricultural worker from 1985 to 1988 before his time in service where he was trained as an infantryman. He then worked as a flower farmer. The Veteran indicated that he used a walker for support due to episodes of unbalance. He told the SSA interviewer that he was frustrated that he could not go back to work and do what he loved which was growing plants and flowers. A disability determination examination showed that the Veteran's disabilities did not limit the capacity to communicate but severely limited the ability to perform everyday chores due to lumbar and radiculopathy pain. A November 2016 psychological evaluation was also part of the SSA file. Therein, an examiner noted that the Veteran had last worked as a flower grower for 30 years, but he quit his job after confronting mental and physical health problems. Finally, SSA records noted that the Veteran had a high school degree. The Board concludes that the evidence favors a finding that the Veteran's service-connected disabilities have rendered him unable to secure and follow gainful employment for the entirety of the appeal period, i.e., since March 10, 2015. While VA examiners expressed that the Veteran's hypertension and hearing loss disabilities did not impact his ability to work, the remainder of the evidence shows that the Veteran's major depressive disorder, headaches, low back, and radiculopathy caused him to stop working and that they preclude his ability to obtain or maintain substantially gainful employment. The evidence also shows that the Veteran has training as an Infantryman and outside of service, worked exclusively with plants and flowers. The record does not show that he has additional training; moreover, VA examiners have indicated that he is even precluded from working in a sedentary occupational environment. While the Board finds that there is some ambiguity as to the date on which the Veteran stopped working, given the Veteran's statements to the December 2015 VA examiner that he only worked part-time and his 2015 individual tax returns showing that he earned $8,190 in income for all of 2015, suggesting that he was engaged in marginal employment, the Board will resolve all doubt in the Veteran's favor and finds that a TDIU is warranted since March 10, 2015. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.