Citation Nr: 21040190 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-06 169 DATE: July 2, 2021 ORDER An initial 50 percent rating, but no higher, for migraine headaches is granted. A total disability rating based on individual unemployability (TDIU) is granted. REMANDED The issue of an initial increased rating for right shoulder status-post surgery with placement of screws more than 10 percent prior to May 23, 2016 and more than 20 percent thereafter is remanded. The issue of an initial increased rating more than 10 percent for bilateral pes planus is remanded. The issue of an initial increased rating more than 10 percent for traumatic brain injury (TBI) is remanded. The issue of an initial compensable rating for right hip stress fracture is remanded. The issue of an initial compensable rating for right foot 5th metatarsal is remanded. The issue of an initial compensable rating for ten linear scars status post right shoulder surgery is remanded. The issue of service connection for a back disability is remanded. The issue of service connection for a left foot disability is remanded. The issue of service connection for right elbow joint pain is remanded. The issue of service connection for chest pain is remanded. FINDINGS OF FACT 1. The Veteran's migraines manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. With resolution of the doubt in the Veteran's favor, his service-connected disorders make him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial 50 percent rating, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16.T REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served active duty from July 2007 to November 2015. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). In May 2019 and June 2020, the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge. Hearing transcripts are in the record. Increased Rating for Migraine Headaches The Veteran contends that his service-connected migraine headache disorder warrants a higher rating. The evidence is in approximate balance, and the Board will grant a 50 percent rating for the disorder for the entire period on appeal. A 50 percent rating is the maximum allowable schedular rating. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2016). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). The Veteran's migraine headache disorder is rated under Diagnostic Code 8100. Under this code, a noncompensable rating is warranted when there is evidence of migraine headaches with less frequent attacks. A 10 percent rating is warranted when there is evidence of migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted when there is evidence of migraine headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is warranted with evidence of migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.12a. Diagnostic Code 8100 requires that the headaches are productive of severe economic inadaptability at the 50 percent rating level. The term "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. However, the United States Court of Appeals for Veteran's Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to a TDIU. Id. at 446; see also 38 C.F.R. § 4.16. However, the headaches must, at minimum, be capable of producing "severe" economic inadaptability. At the June 2015 VA examination, it was reported that the Veteran had a treatment plan for his migraines that included taking medication. It was noted that the Veteran had headache pain localized to one side of the head with auras. Typical head pain lasted less than one day, and it was located on the right side of the head. The examiner noted the Veteran did not have characteristic prostrating attacks of migraine headache pain. It was also noted that the Veteran did not have prostrating attacks of non-migraine headache pain. There were no other pertinent psychical findings, signs or symptoms found and the examiner noted the Veteran's headaches did not impact his ability to work. However, the examiner observed that the Veteran reported having undocumented missed days of work due to his migraines. In the notice of disagreement received in May 2016, the Veteran noted that he had migraine headaches three times each week for a total of 12 times a month. In February 2017, VA treatment records note a history of migraine headaches typically located on the right side of the head with associated visual changes, nausea, vomiting and photosensitivity. The Veteran also reported having migraines two to three times a week. In May 2019, VA treatment records note the Veteran's migraines were located on the right side of the head and that he had visual changes, nausea, vomiting and photosensitivity. At the May 2019 Board hearing, the Veteran testified that he had migraines two to three times a week but sometimes more and sometimes less. He would have to put a cold towel over his eyes and sit in a dark place. He missed a significant amount of work mostly because of his migraines. His migraines lasted anywhere from a couple of hours to from eight to 10 hours. He had passed out from migraines in the past. He has had nausea, vomiting, and had dehydration due to migraines. In July 2019, the Veteran submitted statements from his coworker and his supervisor that indicated that in the prior year the Veteran had missed a lot of time from work due to his headaches making him unreliable. His foreman indicated that the Veteran had missed as much as three consecutive days due to his headaches alone. At the April 2021 VA examination, the Veteran reported having headaches two to three times a week for several years. Although the Veteran reported that the headaches lasted a few hours, if untreated they lasted 24 or more hours. The Veteran's treatment plan included taking medication. The Veteran experienced pulsating or throbbing head pain, pain localized to one side of the head and pain worsening with physical activity. The Veteran experienced non-headache symptoms that consisted of nausea, vomiting, sensitivity to light and sound, changes in vision, and sensory changes. Typical head pain lasted less than one day. The Veteran had characteristic prostrating attacks of migraine and non-migraine headache pain that occurred once every month. The examiner noted that the Veteran did not have very prostrating and prolonged attacks of migraines and non-migraine pain productive of severe economic inadaptability. There were no other findings, signs, or symptoms. The examiner noted the Veteran's headache disorder impacted his ability to work because he lost from two to four weeks of work in the previous year. On occasion while at work, the Veteran would be forced to lie down for hours and he would sometime be unable to perform his work duties and would need to go home. When viewed in a light most favorable to the Veteran, the frequency and severity of his migraine headaches produce severe economic inadaptability as his attacks are frequent, completely prostrating, and prolonged. Affording the Veteran the benefit of the doubt, a maximum 50 percent rating is assigned. A 50 percent rating is the maximum rating available for migraine headaches under Diagnostic Code 8100. No other diagnostic code is applicable, and no other diagnostic code can be found which would afford a rating higher than 50 percent for the migraine headaches. Therefore, a 50 percent rating is warranted and, the claim is granted. 38 C.F.R. § 4.7. Total Disability based on Individual Unemployability (TDIU) Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total rating based on unemployability due to service-connected disability (TDIU) may be expressly or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. A Veteran may receive a TDIU under objective criteria showing that he or she is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). However, the law does not require an absolute certainty of proof in order for a benefit to be granted. The Veteran's combined service-connected disability rating is 90 percent. Various references in the record indicate that the Veteran has marked difficulty maintaining steady performance at work due to his service-connected migraine headache disorder, PTSD, and orthopedic disorders. The Board has reviewed the record in depth and will afford the Veteran the benefit of the doubt. A total rating will therefore be granted. REASONS FOR REMAND 1. The issue of an initial increased rating for right shoulder status-post surgery with placement of screws more than 10 percent prior to May 23, 2016 and more than 20 percent thereafter is remanded. 2. The issue of an initial increased rating more than 10 percent for bilateral pes planus is remanded. 3. The issue of an initial increased rating more than 10 percent for TBI is remanded. 4. The issue of an initial compensable rating for right hip stress fracture is remanded. 5. The issue of an initial compensable rating for right foot 5th metatarsal is remanded. 6. The issue of an initial compensable rating for ten linear scars status post right shoulder surgery is remanded. 7. The issue of service connection for a back disability is remanded. 8. The issue of service connection for a left foot disability is remanded. 9. The issue of service connection for right elbow joint pain is remanded. 10. The issue of service connection for chest pain is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: Increased Rating Claims At the May 2019 Board hearing the Veteran testified that his right shoulder, pes planus, right hip, and right foot disabilities had worsened. The Veteran was last afforded VA examinations in June 2015 which is too remote for the Board to have adequate information on the current severity of the Veteran's musculoskeletal disabilities. Remand is required to afford the Veteran new VA examinations. Service Connection Claims The Veteran was afforded VA examinations for these claims in June 2015. The examiner noted the Veteran did not have a current diagnosis for any of the claimed disabilities. The Board finds these examinations inadequate as pain is a disability for VA purposes if it rises to a level that causes functional impairment. Additionally, the Veteran's service treatment records reflect many reports of back, left foot, right elbow, and chest pain and the Veteran reported that this pain has persisted during and since service separation in 2015. Remand is required to determine the nature and cause of the Veteran's disabilities. The Veteran testified at the June 2020 Board hearing that he received treatment at the Spokane VA medical center. There are no medical treatment records from the Spokane VA medical center associated with the electronic claims file and the Board finds the records are needed prior to the adjudication of the claims. A remand is also required to obtain outstanding medical treatment records. The remand directives follow. 2. Obtain the Veteran's VA treatment records from the Spokane VA medical center. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder and scars, bilateral pes planus, right foot 5th metatarsal, right hip. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for VA examinations for his back disability, left foot pain, right elbow pain and chest pain. The electronic file, including a copy of the Remand, must be reviewed by, the VA examiners. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. If a diagnosis cannot be provided but the Veteran's conditions manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: (a.) Whether the Veteran's back pain, left foot pain and chest pain were caused or worsened by his military service, to include as due to his Gulf War service. (b.) If no diagnosis can be rendered for any of the above, indicate whether any may be characterized as an undiagnosed illness or medically unexplained chronic multi symptom illness. (c.) The examiner must also opine whether the Veteran's back pain, left foot pain and chest pain are proximately due to or aggravated (e.g. worsened, and if so, to what degree) by the Veteran's service-connected disabilities. (d.) Regarding the Veteran's right elbow, the examiner must opine whether a right elbow disability clearly and unmistakably (undebatable) preexisted the Veteran's service. (e.) If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? (f.) Did the Veteran's right elbow disability which existed prior to service, increase in severity during service? (g.) If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? (h.) If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it was caused or worsened by his military service, to include Gulf War service or by a service-connected disability? The examiner is advised: He/she must fully explain the opinions. A summary conclusion is not sufficient under the law and the opinion will be returned for further clarification. The examiner must consider the Veteran's description of his in-service injuries and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injuries and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner's attention is drawn to the following: *At the June 2020 Board hearing, the Veteran testified that he had to do a lot of heavy lifting of supplies up to 100 pounds and most of the time he had to carry supplies on his back. After his deployment to Afghanistan he noticed an increase in pain in his lower back and upper-right back by his shoulder. The Veteran testified that he broke his left foot during service and has had pain since. He also testified that he fell on his right elbow during service and continued to have pain in his right elbow since. Lastly, the Veteran testified that he had chest pain during service and was diagnosed with Mobitz. *Service treatment records note the Veteran's reports of chronic back pain beginning in 2014 to 2015. In August 2014 the Veteran was thought to have a diagnosis of "backpack palsy." A February 2015 service treatment records notes that right shoulder treatment gave resolution to the Veteran's back pain. *Service treatment records note the Veteran sprained his left foot in February 2008. The Veteran was diagnosed with early medial mid left third metatarsal stress fracture in November 2011. Service treatment records continue to note complaints of foot pain from 2008 to 2015. *Service treatment records note the Veteran injured his right elbow prior to entry into service and was disqualified from enlisting in 2006. The Veteran received treatment for his elbow and was accepted into service in 2007. The Veteran complained of numbness and tingling in the right elbow since 2012. In February 2014, the Veteran fell down 8 steps on his right side. In 2015, service treatment records continue to note the Veteran's complaints of pain in right elbow. *Service treatment records note the Veteran was diagnosed with costochondritis since 2008. January 2008 service treatment records note the Veteran's complaints of mild chest pain. In March 2008, it was noted that the Veteran complained of spinal chest pain. In May 2013, the Veteran was seen in the emergency room for chest pain. In June 2014, the Veteran's chest pain was noted to be possibly due to anxiety. In September 2014 service treatment records note the Veteran had an abnormal electrocardiogram and was thought to have a second degree atrioventricular (AV) block. The Veteran reported in January 2015 he had chest pain followed by a loss of consciousness for a few seconds. In March 2015, during a sleep study the Veteran was diagnosed with ventricular tachycardia and Mobitz second degree AV block. Service treatment records also note numerous complaints of chest pain from 2008 until 2015. In March 2013, the Veteran reported the inhalation of unknown gases causing respiratory difficulties and that he was continuously treated for these issues by a medic while deployed to Afghanistan. *Post service VA treatment records continued to note complaints of back, left foot, and chest pain. *Service connection is in effect for obstructive sleep apnea, posttraumatic stress disorder, right shoulder status-post with placement of screws, degenerative joint disease of the right and left knee, bilateral pes planus, tinnitus, TBI, right hip stress fracture, status-post stress injury right foot 5th metatarsal, left ear hearing loss, and migraine headaches. 5. After completing the requested actions, and any additional actions deemed warranted, readjudicate the claims. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.