Citation Nr: 21042610 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-12 394 DATE: July 13, 2021 ORDER Throughout the period on appeal, entitlement to an initial 50 percent rating, the maximum schedular rating, for tension headaches is granted, subject to the regulations governing payment of monetary awards. REMANDED Entitlement to an initial rating in excess of 30 percent for bilateral hearing loss is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's tension headaches have been shown to be manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Throughout the period on appeal, the criteria for an initial 50 percent rating, the maximum schedular rating, for tension headaches are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1979 to January 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in May 2019. A transcript of the hearing is of record. Lastly, Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), provides that entitlement to TDIU, when reasonably raised by the record, is part of any claim for an increased rating. Here, the issue of TDIU has been raised by the record so it has been included as a separate issue. An initial 50 percent rating, the maximum schedular rating, for tension headaches is granted. The Veteran generally contends that he is entitled to a rating in excess of 30 percent for his service-connected tension headaches. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). With respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's tension headaches have been rated under Diagnostic Code (DC) 8100. Under this DC, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. The maximum 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 phrase "completely prostrating" (which is required for a 50 percent rating) is defined as "completely lacking in vitality or will" and "powerless to rise." See Johnson v. Wilkie, 30 Vet. App. 245 (2018). The United States Court of Appeals for Veterans Claims (Court) has indicated this phrase means the headaches "must render the veteran entirely powerless." Id. at 253 (emphasis in original). This differs from "characteristic prostrating" (which is required for a 30 percent rating), which means that the migraine attacks "typically produce powerlessness or a lack of vitality." Further, prolonged has been defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. "[P]roductive of severe economic inadaptability" has been defined as either "'producing' or 'capable of producing' severe economic inadaptability." Id. (citing Pierce v. Principi, 18 Vet. App. 440 (2004)). For the entire appeal period, the Veteran's migraines are shown to be manifested by very frequent completely prostrating and prolonged attacks of headache pain productive of severe economic inadaptability, as shown by the evidence of record outlined in detail below. Specifically, the record reflects that the Veteran underwent a VA examination in October 2014. During the examination, the Veteran reported that his headaches onset in 1983 and that he was initially treated in 1984 following a "black out" incident. After his separation from service, he continued to have headaches and treated them with pain medications. He reported experiencing a worsening of his headaches in the past few years. He also reported experiencing photophobia and phonophobia and indicated that his headaches occurred twice weekly and usually last for several hours (sometimes all day). The examiner noted that the Veteran treated his condition with Ibuprofen 800 mg. The examiner also noted that the Veteran experienced headache pain, characterized as pulsating and throbbing head pain on both sides of the head that worsens with physical activity. He also experienced non-headache symptoms, including nausea, sensitivity to light, and sensitivity to sound. It was noted that the Veteran's head pain typically lasted less than one day and occurred on both sides of the head. The examiner noted that the Veteran experienced characteristic prostrating attacks noted to occur once every month but did not experience any prostrating and prolonged attacks productive of severe economic inadaptability. It was noted that the Veteran's headaches had no impact on his ability to work; although the examiner noted that the Veteran was unemployed and last worked in 2010 as a plumber before he was unable to continue due to his headaches. VA treatment records also provide information regarding the Veteran's tension headaches. For example, a November 2014 note reflects that the Veteran reported experiencing headaches every three to four days (and at least twice per month) with severe nausea. A June 2015 record indicates that the Veteran's headaches and backaches render him unemployable. In July 2015, the Veteran reported weekly migraines. A September 2015 record reflects that the Veteran reported frequent blackouts in his home, noting his last episode was a week and a half ago. He reported that, since then, he experienced massive headaches, limited range of motion of his neck, and vomiting daily. He indicated that the headache is atypical of his usual migraines. In April 2018, the Veteran reported struggling with ongoing headaches and migraines. In May 2019, the Veteran testified at a Board hearing. He indicated that his headaches had worsened, noting that they were more severe and occurred more frequently (almost daily). He reported that he alleviated the headache pain by trying to relax, keeping is room dark, taking Ibuprofen (about twelve to thirteen 200mg pills daily), using a hot or cold rag, bathing, and taking a hot shower. He also reported that he stopped working because of his headaches, noting that he decided to retire because he kept missing work due to his headaches. In May 2019, Dr. M.F. reported that the Veteran's headaches occurred twice or more per week and were preceded with photophobia and nausea. He noted that, on occasion, the prostrating headaches last the entire day and require the Veteran stay in a darkened room. Dr. M.F. indicated that the Veteran's headaches were prostrating and should be rated at 50 percent, noting that the Veteran's headaches, along with his mental health issues, render him unemployable. Lastly, in June 2019, the Veteran was interviewed via telephone during a vocational assessment and reported experiencing headaches five times per week. He indicated that they last a few hours or all night with a constant throbbing pain in his head. He stated that, when he gets the headaches, he must go into a darkened room, take Ibuprofen, and sometimes drinks. He reported that he last worked in 2012 or 2013 as a certified plumber but frequently had to call out sick because of his headaches. Accordingly, the Board finds the evidence is at least in equipoise that the Veteran has experienced very frequent completely prostrating and prolonged attacks of migraine headaches productive of severe economic inadaptability. As such, the Board resolves any doubt in the Veteran's favor and finds that an initial rating of 50 percent for migraines is warranted for the entire appeal period. See 38 C.F.R. § 4.124a, DC 8100. As noted above, a 50 percent rating is the highest schedular rating available under DC 8100. The Board finds that the schedular diagnostic criteria encompass all symptoms and related functional impairment of his migraine disability shown during the rating period considered, and neither the Veteran nor his attorney have contended otherwise. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for bilateral hearing loss is remanded. The Veteran was most recently afforded a VA examination to assess his bilateral hearing loss in October 2014. However, during the May 2019 Board hearing, the Veteran testified that his hearing loss had worsened since his last VA examination, noting that he constantly has to ask people to repeat themselves, now has issues with certain pitches, has to turn the television up louder or use headphones, and needs his hearing aids checked because they no longer work. Given the evidence of potential worsening, the Board finds that a VA examination should be scheduled to evaluate the current severity of the Veteran's bilateral hearing loss. 2. Entitlement to TDIU is remanded. A TDIU rating, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Here, the Veteran contends that he is unable to work due to his service-connected tension headaches and bilateral hearing loss, as noted in the May 2019 Board hearing transcript. In addition, in June 2019, S.M., a vocational rehabilitation counselor, opined that the Veteran's conditions rendered him unemployable. Thus, the issue of TDIU has been raised in the context of this appeal and the claim must be remanded to allow the Agency of Original Jurisdiction to consider the merits of the claim in the first instance. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file updated VA treatment records from April 2018 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. 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 should elicit information from the Veteran regarding the functional effects or limitations associated with his bilateral hearing loss. 3. Provide any needed notice and complete any development required on the claim for TDIU and adjudicate the matter of entitlement to a TDIU rating. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.