Citation Nr: 21031952 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 10-08 459A DATE: May 25, 2021 ORDERED Effective November 19, 1996, a 30 percent rating for headaches is granted. Entitlement to a rating of 50 percent as of October 27, 2009, for headaches is granted. REMANDED Entitlement to an initial rating in excess of 30 percent prior to October 27, 2009, for headaches is remanded. Entitlement to an effective date prior to August 26, 2013, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to October 27, 2009, the Veteran had characteristic prostrating attacks occurring on average once a month. 2. As of October 27, 2009, the Veteran has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent prior to October 27, 2009, for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for a rating of 50 percent as of October 27, 2009, for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1966 to August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from the August 2008 and March 2014 rating decisions issued by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a February 2019 video conference hearing. These matters were previously before the Board in August 2019 and were remanded for further development. Additionally, in the August 2019 Board decision, the Board awarded an earlier effective date of November 19, 1996, for the grant of service connection for headaches. Increased Rating Entitlement to an initial rating of 30 percent for headaches. Disability evaluations are determined by the application of a schedule of ratings, which 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. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends he is entitled to an initial compensable rating for service-connected headaches. The Veteran's service-connected headaches are rated as noncompensable for the entire period on appeal, evaluated under DC 8100. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for migraines with characteristic prostrating attacks occurring on an average of 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. 38 C.F.R. § 4.124a, DC 8100. The term "productive of severe economic inadaptability" is not defined in veterans' law. However, the United States Court of Appeals for Veterans Claims (Court) has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004) (stating that "nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating"). Prior to October 27, 2009 The Board finds that an initial rating of 30 percent prior to October 27, 2009, for headaches is warranted. The Veteran contends his headaches are the result of his service-connected left eye disability and have been prostrating since discharge from active service. Specifically, the Veteran stated headaches are triggered whenever the Veteran attempts to read any written text, of any size, or concentrate on an object. See July 2020, Correspondence; August 2016, VA Form 21-4138. Service treatment records (STRs) indicate the Veteran's complaint of headaches. In the medical history report on the separation examination, the Veteran indicated he had frequent or severe headaches. See STRs dated November 1966 and April 1968. VA treatment records indicate the Veteran complained of occasional headaches brought on by eye strain and double vision but doesn't describe the nature and severity of said headaches. See VA treatment records dated March 2003, June 2004, and October 2004. In November 1996, the Veteran testified at a RO hearing that headaches were developing more rapidly due to eye strain. The Veteran stated he must take off his glasses, sit back, and let his eyes rest otherwise he will have a terrible headache for one to two hours. At the February 2019 Board hearing, the Veteran testified that he worked fulltime at the North Carolina Wildlife Resource Commission until December 31, 2001. His supervisor at the time allowed him to take a 30-minute to one-hour break every other day to accommodate headaches. After he was laid off from that position, the Veteran stated he attempted to obtain additional employment but was continuously denied due to poor vision. See February 2019, Board hearing. The Board notes the Veteran was not afforded a VA examination between November 19, 1996, and October 26, 2009, and there is no retrospective medical opinion of record indicating the nature and severity of the Veteran's headaches during that time. Based on the evidence of record, the Board finds an initial rating of 30 percent prior to October 27, 2009, for headaches is warranted. Though the Veteran reported that headaches occur daily and have been prostrating since discharge from service in 1966, it is not clear from the medical and lay evidence of record that the Veteran's headaches were productive of "severe economic inadaptability" during the period on appeal. Indeed, when the Veteran was in employed full-time in 2001, his supervisor accommodated him by allowing the Veteran to take a 30 minute to one-hour break every other day and those accommodations allowed the Veteran to continue working. Thus, the Board finds an initial 30 percent rating for headaches is warranted. As of October 27, 2009 The Board finds that a rating of 50 percent as of October 27, 2009, for headaches is warranted. The Veteran was afforded a VA examination in October 2009. During that examination, the Veteran reported headaches began in 1966. The Veteran reported when headaches occur, he is able to perform some household chores but is unable to go to work. He further reported experiencing headaches on average of three times per day that last for four hours and not taking any medication. The examiner found that the Veteran's headaches are constant, cause discomfort, and reduce the Veteran's ability to perform daily activities. See October 2009, VA examination. At the February 2019 Board hearing, the Veteran competently and credibly testified that the use of his eyes causes headaches productive of pulsating pain on both sides of his head, an inability to focus/concentrate, and requires him to sit or lay down with his eyes closed for 30 minutes to an hour daily to alleviate the pain. During this time of rest, the Veteran stated that he cannot complete any tasks. See February 2019, Hearing transcript. Based on the above, the Board finds a maximum rating of rating 50 percent as of October 27, 2009, is warranted for headaches. The Board notes that the Veteran's competent and credible lay statements support finding that headaches are prostrating, occur daily, and render him unable to focus/concentrate or perform any tasks. Accordingly, the Board finds the Veteran's headaches as of October 27, 2009, are productive of severe economic inadaptability; thus, a maximum rating of 50 percent is warranted for service-connected headaches. The Board acknowledges the February 2018 VA examination report indicating the Veteran did not have characteristic prostrating attacks of migraine and non-migraine headache pain or very prostrating and prolonged attacks of migraine and non-migraine pain productive of severe economic and adaptability. The Board, however, accords little probative weight to the VA examiner's opinion as the evidence of record, including the Veteran's February 2019 Board testimony, contradicts the VA examiner's findings. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent prior to October 27, 2009, for headaches is remanded. As stated above, the Veteran was awarded service connection for headaches as of November 19, 1996. The Board notes that prior to October 27, 2009, the Veteran had not been afforded a VA examination for headaches and there is no medical evidence of record indicating the nature, frequency, and severity of service-connected headaches prior to October 27, 2009. At the February 2019 Board hearing, the Veteran testified that in 2001 his supervisor allowed him to take breaks every other day due to headaches. The Veteran later stated that the use of his eyes causes headaches productive of pulsating pain on both sides of his head, an inability to focus/concentrate, and requires him to sit or lay down with his eyes closed for 30 minutes to an hour daily to alleviate the pain. However, it is unclear from the Veteran's testimony whether headaches were this severe during the entire period on appeal or if they worsened over time. Further, during the February 2018 VA examination, the Veteran indicated he takes Tylenol for headaches, but there is no evidence of record to demonstrate the nature, frequency, and severity of headaches without considering the ameliorative effects of medication prior to October 27, 2009. The Board, accordingly, finds that a new VA examination is necessary to determine the nature, frequency, and severity of headaches, without the ameliorative effects of medication, prior to October 27, 2009. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012) (holding that the Board may not consider the ameliorative effects of medication when those effects are not explicitly contemplated by the rating criteria). 2. Entitlement to an effective date prior to August 26, 2013, for TDIU is remanded. The Veteran's claim for TDIU prior to August 26, 2013, is inextricably intertwined with his pending increased rating claim. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records since May 2020 and associate them with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and other individuals who have first-hand knowledge of the nature, extent, and severity of his service-connected disabilities, to include headaches, and their impact on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature, frequency, and severity of service-connected headaches prior to October 27, 2009. The examiner should solicit from the Veteran the nature, frequency, and severity of headaches in an unmedicated state prior to October 27, 2009. Based on the Veteran's statements and the evidence of record, the examiner should also state whether the Veteran's unmedicated headaches were, or have been at any point prior to October 27, 2009, productive of severe economic inadaptability. In so answering, the examiner should address the Veteran's competent and credible statements that in 2001, his supervisor allowed him to take 30-minute to one-hour breaks every other day due to headaches. See February 2019, Hearing transcript. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, Associate 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.