Citation Nr: 21032195 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 13-03 691A DATE: May 26, 2021 ORDER Before August 6, 2013, a rating in excess of 30 percent for a headache disability is denied. From August 6, 2013, to September 21, 2016, a rating in excess of 50 percent for a headache disability is denied. Before January 27, 2015, the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. Before August 6, 2013, the Veteran's headache disability did not result in very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. From August 6, 2013, to September 21, 2016, the Veteran is in receipt of the maximum schedular rating available for a headache disability, and the available schedular criteria contemplate the Veteran's headache symptoms. 3. Before January 27, 2015, the Veteran's service-connected disabilities did not preclude her from securing and following a substantially gainful occupation consistent with her education and work experience. CONCLUSIONS OF LAW 1. Before August 6, 2013, the criteria for a rating in excess of 30 percent for a headache disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § § 4.124a, Diagnostic Code 8100. 2. From August 6, 2013, to September 21, 2016, the criteria for a rating in excess of 50 percent for a headache disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § § 4.124a, Diagnostic Code 8100. 3. Before January 27, 2015, the criteria for the award of a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to March 1993. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Agency of Original Jurisdiction (AOJ) that, in pertinent part, continued an existing 10 percent rating for the Veteran's headache disability. A December 2012 rating decision increased the rating of the Veteran's headache disability to 30 percent effective July 9, 2012. An October 2017 rating decision increased the rating of the Veteran's headache disability to 50 percent effective September 21, 2016. In February 2018, the Board granted the Veteran's claim for a TDIU. In a May 2018 rating decision effectuating the Board's grant, the AOJ assigned an effective date of May 12, 2016, to the award of a TDIU. In May 2019, the Board, in pertinent part, denied the Veteran's claim for a rating in excess of 30 percent for a headache disability before September 21, 2016, and remanded the issue of entitlement to a TDIU before May 12, 2016. The Veteran appealed this decision, and in May 2020, pursuant to a Joint Motion for Partial Remand (Joint Motion), the United States Court of Appeals for Veterans Claims (Court) vacated the Board's May 2019 decision to the extent it denied a rating in excess of 30 percent for headaches before September 21, 2016. In February 2021, the Board remanded the Veteran's claims in order to effectuate the additional development required by the May 2020 Joint Motion. The AOJ was to obtain outstanding VA treatment records and an addendum opinion addressing the severity of the Veteran's headache symptoms before September 2016. The Board finds that the AOJ has substantially complied with its February 2021 remand directives, and it will proceed to a decision. In March 2021, the AOJ increased the rating of the Veteran's headaches to 50 percent effective August 6, 2013, and it granted a TDIU effective January 27, 2015. This decision only partially grants the benefits that the Veteran has sought on appeal, and the issues of entitlement to greater ratings for a headache disability before September 21, 2016, and to a TDIU before January 27, 2015, are once again before the Board. Increased Rating The Board will assess whether the Veteran's headache disability warrants ratings in excess of 30 percent disabling before August 6, 2013, and in excess of 50 percent from August 6, 2013, to September 21, 2016. The issue of entitlement to a rating for a headache disability in excess of 50 percent on and after September 21, 2016, is not before the Board. The Veteran's headache disability has been evaluated under Diagnostic Code 8100, applicable to migraine headaches. Under these rating criteria, in pertinent part, migraines with characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a maximum 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The term "prostrating attack" is not defined in regulation or case law. Fenderson v. West, 12 Vet. App. 119, 126 27 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). The Board otherwise notes that prostration is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). Turning to the facts in this case, the Veteran filed her claim for an increased rating in July 2012. Also in July 2012, the Veteran reported that she was working as an administrative assistant in the field of human resources. In August 2012, the Veteran reported that she regularly experienced "piercing" pain associated with headaches. Also in August 2012, C.W. reported that the Veteran's headache pain occasionally forced her to lay down and resulted in sleep difficulties. In August 2012, an examiner found that the Veteran experienced prostrating attacks of headache pain more frequently than once per month. At the same time, the examiner stated that the Veteran did not have very frequent prostrating and prolonged attacks of headache pain. The examiner found that the Veteran's headaches did not impact her ability to work. A September 2012 notation from VA's Vocational Rehabilitation and Employment (VR&E) program noted that the Veteran had been employed as an administrative assistant since July 2012. The Veteran was employed in a suitable field, and the Veteran was happy with her current employment. Also in September 2012, the Veteran reported that she was "doing well" in her current job, and she stated that her job did not aggravate her service-connected disability. In February 2013, the Veteran stated that her headaches occurred regularly and completely impaired her functional ability. On August 6, 2013, the Veteran sought treatment for daily headache pain that was not improved with over-the-counter medication. In August 2013, the Veteran stated that her headaches caused her to experience constant, extreme pain. Also in August 2013, the Veteran reported experiencing daily headaches that were not improved with over-the-counter medications. In a separate record from August 2013, the Veteran reported working in customer service, and she denied having any difficulty maintaining her employment. In October 2014, the Veteran's employer stated that the Veteran's job performance was exemplary under normal circumstances. With that said, the employer noted that the Veteran had been the subject of corrective action as a result of attendance and performance issues caused by her headache pain. In support of this statement, the Veteran's employer submitted an attendance record showing, in pertinent part, four absences between June 2013 and August 2013. In March 2021, an examiner concluded that before September 21, 2016, the Veteran's headaches resulted in very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. A March 2021 rating decision increased the rating of the Veteran's headaches to 50 percent effective August 6, 2013. Turning to an analysis of whether a rating in excess of 30 percent is available before August 6, 2013, the Board notes that the May 2020 Joint Motion directed the Board to adequately discuss records, including records relating to the Veteran's employment, suggesting that the Veteran's headache disability produced the "severe economic inadaptability" that is associated with a 50 percent rating. Before August 6, 2013, the Veteran indeed complained of regular, severe headache pain, which arguably met the "very frequent, completely prostrating and prolonged" standard associated with a 50 percent rating for headaches. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. With that said, a 50 percent rating additionally requires that such symptoms result in "severe economic inadaptability". The evidence of record is against a finding that the Veteran's headache symptoms resulted in severe economic inadaptability before August 6, 2013. In making this finding, the Board acknowledges that the Veteran's employer stated that the Veteran's headache resulted in attendance and performance issues. While it is undisputed that the Veteran's headache symptoms resulted in occupational impairment, such impairment is contemplated by the 30 percent disability rating that has been assigned before August 6, 2013. The Veteran's headache symptoms did not otherwise result in severe economic inadaptability. In support of this finding, the Board notes that the Veteran consistently maintained employment before August 6, 2013, which is inconsistent with a finding that the Veteran's headache disability left her severely economically impaired. The Veteran herself, for example in September 2012, reported that her job did not aggravate her headache disability. Similarly, in August 2013, the Veteran denied having difficulty maintaining her employment. The Board thus finds that the evidence does not support a finding that the Veteran's headaches resulted in severe economic inadaptability before August 6, 2013. The Board next turns to whether a rating in excess of 50 percent is warranted for the Veteran's headache disability between August 6, 2013, and September 21, 2016. During this time, the Veteran's headaches were rated 50 percent disabling, which is the highest schedular rating available under Diagnostic Code 8100. The rating criteria under Diagnostic Code 8100, which broadly include symptoms associated with headache "attacks", contemplate all the symptoms associated with the Veteran's headaches, and the Veteran herself has not contended otherwise. See Holmes v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2131 (Nov. 25, 2020). A rating in excess of 50 percent is unwarranted for the Veteran's headaches from August 6, 2013, to September 21, 2016. The Board concludes that the preponderance of the evidence is against granting ratings in excess of 30 percent for the Veteran's headache disability before August 6, 2013, and in excess of 50 percent from August 6, 2013, to September 21, 2016. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU The Board will consider whether the Veteran is entitled to a TDIU at any time before January 27, 2015. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service connected disability, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). When, as in this case, there are two or more service-connected disabilities, the award of a TDIU requires at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). While the Veteran's service-connected disabilities met these schedular criteria between August 6, 2013, and January 27, 2015, they did not meet such criteria before August 6, 2013. Regardless, even when the schedular criteria are not met, a TDIU may nonetheless be awarded on an extraschedular basis when the veteran's service-connected disabilities render her unable to secure and follow a substantially gainful occupation. See 38 C.F.R. § 4.16(b). The Board cannot, however, assign a TDIU in the first instance under such circumstances, but it may instead determine whether the facts warrant referral of the case to the Director of the Compensation Service. See Bowling v. Principi, 15 Vet. App. 1 (2001). The Board will thus determine whether referral to the Director of the Compensation Service is warranted on an extraschedular basis before August 6, 2013, and whether the award of a schedular TDIU is warranted between August 6, 2013, and January 27, 2015. Turning to the facts in this case, the Veteran's claim of entitlement to a TDIU arose with her July 2012 claim for an increased rating for a headache disability. The weight of the evidence shows that the Veteran was employed between July 2012 and January 27, 2015. For example, in July 2012, the Veteran reported that she was working as an administrative assistant in the field of human resources. A September 2012 notation from VA's VR&E program noted that the Veteran had been employed as an administrative assistant since July 2012. The Veteran was employed in a suitable field, and the Veteran was happy with her current employment. Also in September 2012, the Veteran reported that she was "doing well" in her current job, and she stated that her job did not aggravate her service-connected disability. In August 2013, the Veteran reported working in customer service, and she denied having any difficulty maintaining her employment. In October 2014, the Veteran's employer stated that while the Veteran's job performance was exemplary under normal circumstances, the Veteran had been the subject of corrective action as a result of attendance and performance issues caused by headache pain. In support of this statement, the Veteran's employer submitted an attendance record showing that the Veteran was absent from work on 22 occasions between June 2013 and September 2014. In December 2014, a clinician noted that the Veteran worked as a customer service representative. In a separate record from December 2014, the Veteran reported that she had missed many days from work. In May 2016, the Veteran reported that she lost six months from work between April 2013 and January 2015 as a result of illness. In December 2017, the Veteran reported that she lost two months from work between April 2013 and January 2015 as a result of illness. In March 2021, the Veteran confirmed that she had been employed full-time until January 26, 2015. Turning to an analysis of these facts, the weight of the evidence, including the Veteran's own statements, shows that the Veteran maintained substantially gainful employment before January 27, 2015. In making this determination, the Board acknowledges the Veteran's allegations that her service-connected disabilities caused her to experience numerous absences from work. For example, in May 2021, the Veteran's representative argued that the Veteran was not gainfully employed "prior to 2016" because the Veteran took extended periods of leave under the Family and Medical Leave Act (FMLA) and otherwise took periods of leave without pay. While the Veteran's employer confirmed that the Veteran experienced approximately 22 absences between June 2013 and September 2014, the record does not otherwise show such extended periods of leave without pay, nor does it suggest that the Veteran was unable to earn a living wage during this time. With that said, the Board does not doubt that the Veteran's service-connected disabilities affected her employability before January 27, 2015, as evidenced by her staged 20 percent, 50 percent, and 70 percent ratings during such time. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, 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." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Thus, upon a thorough review of the evidence of record, the Board finds that the Veteran was not precluded from engaging in substantially gainful employment as a result of her service-connected disabilities before January 26, 2015. The Veteran's claim for a TDIU is denied, and the case need not be referred to the Director of Compensation and Pension Service for extraschedular consideration of a TDIU. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.