Citation Nr: 21040743 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-16 117 DATE: July 6, 2021 ORDER Entitlement to an increased rating of 50 percent for migraine headaches is granted. REMANDED 1. Entitlement to service connection for an acquired psychological disorder, including depression, including as secondary to migraines, is remanded. 2. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran experienced very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent disability rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has qualifying service in the United States Army from February 1980 to May 1980 and the Navy from November 1981 to October 1987. This matter comes to the Board of Veterans' Appeals (Board) on the Veteran's appeal of a February 2014 rating decision which denied the Veteran's request to grant an increased disability rating for her migraines and her request for entitlement to service connection for an acquired psychiatric disorder, claimed as bipolar disorder and major depressive disorder, but now claimed as depression/mental disorder. Though not specifically adjudicated, the Veteran raised the issue of entitlement to TDIU in the March 2014 Notice of Disagreement (NOD) filed in response to the February 2014 rating decision, which was thereafter directly adjudicated and denied in a June 2015 rating decision. The rating decisions were issued by the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). The Veteran appeared for a videoconference Board hearing in March 2021 (Board Hearing) before the undersigned Veterans Law Judge, and a copy of the hearing transcript has been added to the record. The Veteran verified her preference to proceed at the Board Hearing without her representative from her appointed Veteran's Service organization. See Board Hearing Transcript, page 2; see also Report of VA Telephonic Contact with the Veteran, March 1, 2021; see further, Veteran's filed written statement received by VA on March 17, 2017. 1. Entitlement to an increased rating of 50 percent for migraine headaches The Veteran contends that her service-connected migraine headaches are more severe that what is compensated for under her current 30 percent disabling rating. After review of the record, and resolving reasonable doubt in the Veteran's favor, the Board finds that the severity of the Veteran's migraines more nearly approximates the criteria for a 50 percent rating during the pendency of this claim. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code (DC). 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Disability ratings for migraines The Veteran's migraine headaches have been rated under Diagnostic Code 8100 (Migraine). Under Diagnostic Code 8100, a noncompensable disability rating is warranted for "[w]ith less frequent attacks." A 10 percent disability rating is warranted for "[w]ith characteristic prostrating attacks averaging one in 2 months over last several months." A 30 percent disability rating is warranted for "[w]ith characteristic prostrating attacks occurring on an average once a month over last several months." A 50 percent disability rating, the highest schedular rating available, is warranted for "[w]ith very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." A 50 percent rating is the highest schedular rating allowed by law. The rating criteria do not define "prostrating." Prostration is defined by a medical dictionary as "extreme exhaustion or powerlessness." See Dorland's Illustrated Medical Dictionary, 1531 (32nd ed. 2012). "Completely prostrating" is also not defined by VA regulations. "Complete" is defined as "total, absolute." MERRIAM-WEBSTER'S NEW COLLEGIATE DICTIONARY ONLINE. It is also defined as "to the greatest extent." OXFORD DICTIONARIES ONLINE. Similarly, while "prolonged" is not defined by VA regulations, Oxford Dictionaries defines "prolonged" as "continuing for a long time or longer than usual; lengthy." OXFORD DICTIONARIES ONLINE. Finally, the phrase "productive of severe economic inadaptability" has also not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans 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, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, because it would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at minimum, capable of producing "severe" economic inadaptability. Evidence of Record During her Board Hearing, the Veteran stated in that she has between 20 to 25 migraine headaches a month, some of which only last 4 or 5 hours and others she wakes up with at night and they go all day. Hearing Transcript, page 2. The Veteran also stated that she has tried numerous medications, including Botox. Since December 2020, she started taking shots of Aimovig, and some of her headaches are now not as severe. When she has headaches, she treats them by staying in a room where it's quiet, low lights, and "just tr[ies] to ride them out." Id. page 5. In her Appeal to the Board, Form 9, of March 2017 (Form 9), the Veteran stated that she suffers 2-3 migraines per week, some of which last 24 to 48 hours and very disabling. Because of this it is hard for her to make plans or to keep a job. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, a lay witness is not competent to establish facts or opinions which require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to." Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In this case, the Veteran is competent to testify as to her migraine related symptoms, which does include the frequency and severity of her migraines, as well as what she does to treat them, how they impact her ability to function, and the methods she uses to self-treat them, including going to a quiet room with low light. During the Veteran's latest VA examination of June 2015, the examiner noted that the Veteran reported frequent migraines 3 to 4 times per week, which last between 12 hours to 2 days, 80 percent of which are incapacitating. It was noted that she was taking medication for her migraines, but the examiner stated to them to not be specific for headaches. The headache pain was located on both sides of her head, and non-headache symptoms associated with her headaches included nausea, vomiting, sensitivity to light, and changes in vision. The examiner stated the Veteran does have characteristic prostrating attacks of migraine / non-migraine headache pain at least one every month, though they were stated to not be described as very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability, though there was no specific reasons given for this distinction. The examiner did note that the Veteran has not worked for many years, though that was stated to be due to non-migraine issues, again, without specific facts to support that assertion. The examiner also stated that the Veteran was not treating with any clinician for headaches, and that she was not on any medications specific for migraines. The Veteran's VA treatment records indicate that she did receive treatment and consolations for her migraines at least through January 2016, at which time she received a neuropsychology consultation during which her long history of migraines was noted and that she was treated with Botox specifically for her migraines. The use of Botox for her migraines was also noted in a December 29, 2016 VA telehealth nursing note. Analysis and Findings Based on the evidence of record, the Board finds that the evidence of record is at least in relative equipoise as it relates to the severity of the Veteran's migraine headaches and their impact during the appeal period, and therefore the Board gives the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. The Board finds the Veteran to be both competent and credible in her descriptions of the frequency, severity, treatment for, and impact of her migraines. Her VA treatment records indicate that she has received treatment for her headaches, also that she was treated with medications specific to her migraines, including Botox. The Board finds the June 2015 VA examination to be of limited probative value as the examiner indicated facts which appear to be inconsistent with the remainder of the evidence of record, and the examiner did not adequately support the opinions and assertions with sufficient facts to counter the Veteran's statements. The claim for an increased disability rating for migraines to 50 percent disabling for the entire appeal period is granted. This is the maximum schedular rating available for the Veteran's disability. No other disability ratings are applicable here, and there is no indication in the record that the schedular rating criteria are inadequate. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric condition, stated to be depression. 2. Entitlement to an award to temporary disability due to unemployability (TDIU). The Veteran claims that she is entitled to service connection for an acquired psychiatric disorder, claimed as bipolar disorder and major depressive disorder, but now claimed as depression/mental disorder, as well as an award of TDIU. In her March 2017 Form 9, the Veteran asserted that her depression follows her pain noting that her constant migraines make her very sad because she is unable to function because of them. The medical evaluations related to her acquired psychiatric disorder, including depression, have related to whether this condition is service connected on a direct basis, which were the opinions relied on by the AOJ to deny her claim. However, as the theory of entitlement based on a secondary basis due to her migraines was reasonably raised, the Board must remand the matter to obtain medical opinions which address that theory of entitlement. These medical opinions will need to address whether the Veteran's current acquired psychiatric disorders, initially claimed as bipolar disorder and major depressive disorder, but now claimed as depression/mental disorder are caused by or aggravated beyond their natural progression due to her service connected migraines. As the Veteran's last VA psychological evaluation was in February 2014, a new evaluation is warranted. The Veteran is asked to submit any additional evidence she has related to this claim, including records and contact information for any medical provider with whom she has consulted with or been treated for this condition which is not already part of the record before the Board. Additionally, the Veteran's claim for TDIU is inextricably intertwined with her claim for entitlement to service connection for a psychiatric disability, and therefore this issue must also be remanded for additional adjudication after a determination is made concerning her claim for an acquired psychiatric condition is rendered. As the Veteran's last Application for Increased Compensation Based on Unemployability, VA Form 21-8940, was submitted in June 2014, the Veteran is asked to submit to the AOJ updated information to support her claim. The Veteran is advised that failure to provide updated information related to either of these claims can result in the denial of either or both claims if the evidence in the record does not substantiate a grant of the claims. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the VA. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim). The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding the TDIU claim and request that she complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. After the Veteran has been provided a reasonable period of time to respond to this request, schedule the Veteran for a new VA psychological evaluation. The VA examiner is asked to provide the following: (a.) Identify any and all current psychological disorders which the Veteran is diagnosed as having for any time during the appeal period. (b.) For each diagnosed psychiatric condition identified above, provide a medical opinion regarding (a) whether it is at least as likely as not (50 percent probability or higher) the Veteran's psychiatric condition had its onset in service or is related to her military service, and (b) whether it is at least as likely as not (50 percent probability or higher) that the Veteran's psychiatric condition is caused by or aggravated by (i.e., permanently worsened beyond the natural progression) her service-connected migraine headaches. The examiner is asked to fully explain the reasons behind any opinions expressed and conclusions reached. 3. Readjudicate the appeals. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bannach, K 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.