Citation Nr: 21041201 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-35 164A DATE: July 8, 2021 ORDER Entitlement to a rating in excess of 30 percent for migraine headaches is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Throughout the period of appeal, the Veteran has not experienced migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The preponderance of the competent and credible evidence of record indicates that the service-connected disabilities preclude the Veteran from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1-4.14, 4.121, 4.122, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities has been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1994 to August 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In March 2019, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to a rating in excess of 30 percent for migraine headaches Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 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 picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's migraine headache disability has been rated pursuant to Diagnostic Code 8100 which provides ratings for migraine headaches. That Diagnostic Code provides a 10 percent rating for characteristic prostrating attacks occurring an average of once every two months over the several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran contends that he is entitled to an increased rating for a service-connected migraine headaches disability, currently rated 30 percent, effective February 23, 2012. The current claim on appeal for an increased rating for migraine headaches was received by VA on January 31, 2014. In an October 2012 primary care note, the Veteran complained of migraines with vision changes. During a June 2014 VA headache examination, the Veteran reported having severe migraines approximately once a week, that he treated with hydrocodone and rest. The Veteran denied having a prescription for Imitrex, Maxalt, or amitriptyline. On examination, the Veteran was found to have pulsating or throbbing head pain on both sides of the head, in addition to pain through the forehead and eyes, and burning pain in the posterior scalp lasting more than two days. The Veteran also experienced non-headache symptoms associated with the headaches including nausea, sensitivity to light, sensitivity to sound, blurred vision and dizziness. The Veteran was also found to have characteristic prostrating attacks of migraine/ non-migraine headache pain once every month that was not productive of severe economic inadaptability. During the examination, the Veteran's condition was found to prevent him from working during severe phases of his migraines. In a January 2016 outpatient note, the Veteran was noted as having about 4 migraines a month with incapacitation. He also had pre-migraine photopsia. He had been using hydrocodone, but he felt side effects. He generally felt better after sleeping. Muscle relaxants made him too groggy to function. In an April 2017 eye clinic note, the Veteran reported experiencing chronic migraines treated with Sumatriptan. The Veteran experienced a visual aura but reduced episodes while on Sumatriptan. In a June 2019 outpatient note, the Veteran complained of migraines one two times per week of which medication helped somewhat. During a November 2019 VA headache examination, the Veteran was noted as taking sumatriptan by mouth to treat his headache condition. On examination, the Veteran was found to have constant, pulsating or throbbing head pain, on both sides of the head, that worsened with physical activity, lasting more than two days. The Veteran also experienced non-headache symptoms associated with the headaches including nausea, sensitivity to light, sensitivity to sound, and changes in vision. The Veteran was also found to have characteristic prostrating attacks of migraine/ non-migraine headache pain once every month that was not productive of severe economic inadaptability. During this examination, the Veteran's condition was found to have no impact on the ability to work. In support of his claim, the Veteran has submitted numerous statements detailing the effects of his service- connected condition on his life and alleged that the June 2014 VA examination did not accurately reflect the severity of his migraine headaches. The Board finds that, during the appeal period, the service- connected migraine headaches do not warrant a rating in excess of 30 percent. The symptoms the Veteran experiences do not more nearly approximate those described under the criteria for a 50 percent rating. While the evidence shows that the Veteran has frequent headaches, the weight of the evidence does not show that the frequent headaches are productive of severe economic inadaptability. Notably, the treatment records do not show that the frequent headaches are completely prostrating in nature and productive of severe economic inadaptability. No examiner has found the Veteran to have very frequent prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. All indications are that the Veteran frequently experiences migraine headaches, but he is able to manage them with medications and rest, as he continues to work. Therefore, the Board finds that a rating in excess of 30 percent is not warranted for tension headaches. The Board is appreciative of the Veteran's faithful and honorable service. However, the Board finds that the Veteran's disability picture more nearly approximates a rating of 30 percent for migraine headaches, and not higher, effective February 23, 2012, but not earlier, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board finds that the preponderance of the evidence is against the assignment of any higher ratings. As the Board finds that the preponderance of the evidence is against the assignment of any higher ratings, the claim for any higher ratings must be and is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 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 make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. Substantially gainful employment is that employment which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). TDIU may be assigned, if the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one service-connected disability it is ratable at 60 percent or more; or if there are two or more service-connected disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16 (a). A claim for a total disability rating based upon individual unemployability, presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31 (1994). In evaluating a Veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The central inquiry is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The fact that a Veteran is unemployed or has difficulty finding employment is not enough, as a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran's combined service-connected rating is 70 percent, effective February 23, 2012, with low back strain and associated radiculopathies that combined rate at least 40 percent. Therefore, the Veteran meets the schedular criteria for consideration of the assignment of TDIU effective February 23, 2012. The Board's consideration turns to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. The Veteran reports completing four years of high school and completing a year and a half of college. Since discharge from service, the Veteran has been employed in construction; as a delivery driver; in a warehouse; as a TV, cable, and phone installer; and was self- employed in information technology. The Veteran also reports doing "odd jobs" for money but has not worked since December 2013. A review of the treatment records does not show any indication that the service-connected disabilities cause unemployability. During VA headache examination in April 2012, the service-connected disability was found to have some impact on the Veteran's ability to work. The examiner noted that the Veteran was self- employed in the computer repair and IT industry. The Veteran reported difficulty concentrating and looking at computer screens during headaches and stated that he lost jobs due to having migraine headaches. The Veteran also reported an inability to drive due to wavy vision during migraine. During this examination, the Veteran reported having 3- 4 migraine headaches a month. During VA back examination in July 2012, the service-connected disability was found to impact the Veteran's ability to work in that the Veteran's decreased range of motion would severely limit his ability to work in labor intensive fields. However, the Veteran would be able to work in an office/computer type job with the ability to frequently stand up and reposition. At a February 2013 VA psychiatric examination, the Veteran's psychiatric condition was found to result in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. During this examination, the Veteran reported working 2- 4 hours a week, making roughly $19,000 a year. The Veteran was found capable of managing is financial affairs. In May 2014, the Social Security Administration (SSA) found that the Veteran was not disabled for their purposes. SSA found that while the Veteran's medical conditions result in some limitation in his ability to perform work related activities, they were not severe enough to keep the Veteran from working. During VA male reproductive system examination in June 2014, the Veteran's condition was found to have no impact on his ability to work. During VA headache examination in June 2014, the service- connected migraine headache disability was found to impact the Veteran's ability to work in that he was unable to work and driving during severe migraines. The Veteran also stated that using the computer seemed to make his headaches worse. During this examination, the Veteran stated that he gets a severe migraine approximately once a week. The Veteran was also not found to have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. During VA peripheral nerve condition examination in June 2014, the Veteran's service- connected disability was found to have some impact on his ability to work. The Veteran self- reported that his condition interfered with all activities and increased with sitting, bending, and twisting. At a January 2015 VA psychiatric examination, the Veteran's psychiatric condition was found to result in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. During this examination, the Veteran reported not working in the last 6 months citing lack of motivation, pain, and stressful environment. The Veteran was found capable of managing is financial affairs. During this examination, the Veteran was found to be independent in his activities of daily living and capable of completing complex tasks. His concentration, persistence and pace can be expected to be occasionally impaired in a work setting secondary to his fatigue. He can be expected to experience mild social limitations in a work setting secondary to his experience of pain. During VA back examination in January 2015, the service-connected disability was found to impact the Veteran's ability to work in that the Veteran's should avoid physical labor. The examiner stated that the Veteran was capable of sedentary work as long as he was afforded normal breaks. The examiner explicitly said that the Veteran's back condition does not cause him to be unemployable. During VA knee/lower leg examination in January 2015, the service-connected disability was found to impact the Veteran's ability to work in that the Veteran should avoid physical activities and prolonged standing. The examiner explicitly said that the Veteran's lower leg conditions do not cause him to be unemployable. During VA headache examination in November 2019, the service- connected migraine headache disability was not found to impact the Veteran's ability to work. The Veteran was also not found to have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. In support of his claim, the Veteran has provided numerous self- written statements regarding the severity of his service- connected disabilities and the belief that they make him unable to obtain and maintain substantially gainful employment. In consideration of the lay and medical evidence, the Board finds that the Veteran is entitled to a TDIU, based on his service-connected disabilities. Indeed, the record reveals the Veteran is unable to perform manual labor, unable to stay in one position for an extend period of time and, roughly once a week, suffers from a severe migraine. Because the evidence shows that he cannot secure or follow substantially gainful employment due to his service-connected disabilities, the claim for a TDIU is granted. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.