Citation Nr: 21042754 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-42 661A DATE: July 13, 2021 ORDER Entitlement to a disability rating greater than 30 percent for migraines is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran's service-connected migraines are manifested by, at worst, complaints of left-sided headaches with light sensitivity. 2. The record evidence shows that service connection is in effect for migraines, evaluated as 30 percent disabling effective March 24, 2005, irritable bowel syndrome, evaluated as 30 percent disabling effective October 21, 2009, lumbosacral strain, evaluated as 20 percent disabling effective October 21, 2009, and for residuals of right knee strain, evaluated as 10 percent disabling effective October 21, 2009; the Veteran's combined disability evaluation for compensation is 70 percent effective October 21, 2009. 3. The record evidence shows that the Veteran's service-connected disabilities, alone or in combination, do not preclude her from securing or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating greater than 30 percent for migraines have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2019). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1992 to February 2004. This appeal has a long procedural history. Most recently, in January 2019, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ schedule the Veteran for an examination to determine the current nature and severity of her service-connected migraines. This examination occurred in September 2019. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran's service representative argued in a July 2021 appellate brief that the September 2019 VA headaches Disability Benefits Questionnaire (DBQ) was inadequate for VA adjudication purposes because the VA examiner did not review the claims file. This argument is not supported by a review of the examination report itself which shows that the VA examiner noted that he reviewed the Veteran's electronic claims file as part of this examination. This examiner also stated, "All relevant records pertaining to the Veteran's conditions have been reviewed." In advancing an argument in the July 2021 brief concerning the adequacy of the medical evidence obtained by the AOJ, the Veteran, through her service representative, appears to be raising a general challenge to the professional competence of the September 2019 VA examiner. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011), and Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). Neither the Veteran nor her representative has raised a specific challenge to the professional medical competence or qualifications of the September 2019 VA examiner. In other words, the appellant has not satisfied the requirement of raising a specific challenge to a VA examiner's competence in the first instance. As a result, VA is not required to support its decision in this appeal by presenting information about the examiner's qualifications. Id. Other Federal Circuit precedent also suggests that VA may rely upon the medical evidence obtained by the AOJ during the pendency of this appeal, to include the September 2019 VA headaches DBQ, in adjudicating the Veteran's currently appealed claims. In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. See Bastien, 599 F.3d at 1306-7. Citing Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the Federal Circuit in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts." See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38 C.F.R. § 20.901). The Federal Circuit also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion." Id. That has not happened in this case. Neither the Veteran nor her representative has identified or submitted any evidence or argument that the September 2019 VA examiner (or any other VA examiner who saw the Veteran during the pendency of this appeal) was not competent or lacked the professional medical training necessary to review the claims file, including the Veteran's service treatment records and post-service VA and private treatment records, and provide competent opinions concerning the current nature and severity of the service-connected migraines. The Federal Circuit noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value." See Rizzo, 580 F.3d at 1291 92. Instead, as the Federal Circuit held in Francway, although there is no longer a presumption of competence for VA examiners (as Rizzo previously was interpreted), a Veteran nevertheless is required to challenge a VA examiner's competence in the first instance before VA is required to present evidence of the examiner's professional qualifications in order to rebut this challenge. See Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (overruling, in relevant part, Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010) to the extent that those cases established a presumption of competence for VA examiners). It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Accordingly, and as the Federal Circuit explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner's competence in the first instance, then VA is not required to prove any examiner's competence before relying on medical evidence obtained from the examiner in adjudicating this appeal. See Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019). There has been no showing or even an allegation that the September 2019 VA examiner was not competent or did not report accurately what he found in his review of the claims file. The Board also finds that the medical evidence obtained during the pendency of this appeal is adequate for evaluation purposes because it addressed fully all of the Veteran's contentions regarding the severity of her service-connected migraines and the impact of her service-connected disabilities on her employability. 1. Entitlement to a disability rating greater than 30 percent for migraines The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a disability rating greater than 30 percent for migraines. The Veteran essentially contends that her service-connected migraines are more disabling than currently evaluated. The record evidence does not support her assertions. It shows instead that this disability is manifested by, at worst, complaints of left-sided headaches with light sensitivity. For example, on VA examination in March 2010, the Veteran's complaints included headaches. She reported that her headaches began as "a strong throbbing from back of the neck to [the] front," with facial numbness, nausea, and light and sound sensitivity. "When headaches occur, she has to stay in bed and is unable to do anything." She experienced headaches once a day lasting for 1 hour at a time. She was taking Excedrin migraine to treat her migraines. A brain magnetic resonance imaging (MRI) scan was normal. She was unable to drive "because the migraine is triggered by the vibration from the freeway." Neurological examination was normal. The VA examiner stated that the Veteran was able to perform her activities of daily living. The diagnosis was migraine headaches. On VA examination in June 2011, a history of migraines and possible seizures was reported. The functional effects of the Veteran's migraines were decreased concentration, difficulty with vision, and pain. The VA examiner stated that the Veteran's "headaches are not constant and not every day" and her pain from these headaches was subjective. This examiner concluded that, given the infrequency of these headaches, she could not determine the extent of the disability which the Veteran experienced as a result of her headaches. The Veteran was hospitalized for 4 days at a VA Medical Center (VAMC) in July 2013 for additional monitoring of her migraines and possible seizures. She reported incurring an in-service head injury with resulting headaches. She also reported trying several different medications to treat her headaches without success. Her headaches included sensitivity to sound and typically lasted for 1 day. "If possible, she prefers to lay down and prefers to sleep during" headaches. "Sleep does not appear to resolve headaches if occurring prior to going to bed." Her headaches occurred every 4 5 days. She currently was on medication which produced an "equivocal" response to her headaches. She was not driving regularly although she drove "a few miles to the store when [her] husband is tired." A brain MRI was normal. Prior electroencephalograms (EEGs) also were normal. On VA headaches DBQ in September 2019, the Veteran's complaints included "ongoing migraines that she feels are stress induced by internal family dynamics particularly involving her oldest daughter." The VA examiner reviewed the Veteran's electronic claims file, including his service treatment records and post-service VA treatment records. This examiner stated, "[The] Veteran spends her day by helping her youngest daughter get ready for school, walking her to and picking her up from school. She also runs several errands. She used to walk her dog regularly before he died." She took ibuprofen as needed for her migraines. She experienced headache pain localized to the left side of the head and light sensitivity which lasted for less than 1 day. She did not experience characteristic prostrating attacks of migraines/non-migraine headache pain or very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The diagnosis was migraine including migraine variants. Contrary to the Veteran's lay assertions, the record evidence shows that her service-connected migraines are manifested by, at worst, complaints of left-sided headaches with light sensitivity. VA examinations conducted during the appeal period document her consistent complaints of experiencing left-sided head pain with light sensitivity which she attributed to her service-connected migraines. Diagnostic testing (MRI scans of the brain, EEGs) repeatedly has been normal. She also consistently reported that her left-sided head pain with light sensitivity associated with service-connected migraines also did not last longer than 1 day at a time. Critically, the September 2019 VA headaches DBQ examiner specifically found that the Veteran did not experience characteristic prostrating attacks of migraines/non-migraine headache pain (i.e., a 30 percent rating under DC 8100) or very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability (i.e., a 50 percent rating under DC 8100). See 38 C.F.R. § 4.124a, DC 8100 (2019). This persuasively suggests that the current 30 percent rating assigned for the Veteran's service-connected migraines more than adequately compensates her for the level of disability which she experienced throughout the appeal period. Id. The Board does not doubt that the Veteran finds her service-connected migraines to be debilitating particularly as a full-time stay at home mom trying to care for a young child. Nevertheless, the record evidence does not support assigning a disability rating greater than 30 percent for her service-connected migraines at any time during the appeal period. She finally has not identified or submitted any evidence demonstrating entitlement to a disability rating greater than 30 percent for her service-connected migraines. Thus, the Board finds that the criteria for a disability rating greater than 30 percent for migraines have not been met. 2. Entitlement to a TDIU The Board finally finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a TDIU. The Veteran essentially contends that her service-connected disabilities, alone or in combination, preclude her from securing or following a substantially gainful occupation, entitling her to a TDIU. The record evidence does not support her assertions. It shows instead that she does not meet the schedular criteria for a TDIU at any time during the appeal period. It also shows that her service-connected disabilities do not preclude her employability and she stopped working to become a full-time stay at home mom. The Board notes initially that service connection currently is in effect for migraines, evaluated as 30 percent disabling effective March 24, 2005, irritable bowel syndrome, evaluated as 30 percent disabling effective October 21, 2009, lumbosacral strain, evaluated as 20 percent disabling effective October 21, 2009, and for residuals of right knee strain, evaluated as 10 percent disabling effective October 21, 2009. The Veteran's combined disability evaluation for compensation is 70 percent effective October 21, 2009; thus, she does not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (2019). The record evidence also does not support granting a TDIU. The Veteran reported on an October 2010 VA Form 21-8940 (formal TDIU claim) that her service-connected migraines prevented her from securing or following a substantially gainful occupation. This disability affected her full-time employment in January 2010 when she became too disabled to work. She last worked full-time in April 2009. Her work history included multiple jobs as a car salesperson at a variety of car dealerships. Her income for the previous year was from "unemployment." She had not left her last job because of her disability. She had tried to obtain employment since becoming too disabled to work. She had 1 year of college education. She also had 7 months of training in 1991 in computer electronics. She stated, "I try and look for work but many times I've been at an interview and my migraines will start. My previous employer would let me sit it out but they've gotten worse." One of the Veteran's former car dealership employers submitted a VA Form 21-4192 in February 2011. This former employer stated that it had employed the Veteran as a salesperson from October 2007 to April 2008 when she "quit to accept another position." The June 2011 VA examiner stated that he could not provide the requested opinion concerning the impact of the Veteran's service-connected migraines on her employability without resorting to speculation. The rationale for this inability was that the Veteran's headaches were not constant and did not occur every day. On VA back (thoracolumbar spine) conditions DBQ in March 2014, the VA examiner stated that the Veteran was limited from prolonged running, bending, stooping, and lifting due to her low back pain. Following VA knee and lower leg conditions DBQ in March 2014, a different VA clinician similarly stated that the Veteran was limited from prolonged running, bending, stooping, and lifting due to her right knee pain. Another VA clinician stated in March 2014 that the service-connected irritable bowel syndrome had no impact on the Veteran's ability to work. While hospitalized briefly in July 2013 at a VAMC for additional monitoring of her migraines and possible seizures, the Veteran reported that she stopped working in approximately 2009 "coincident w/bedrest" prior to the birth of her youngest daughter. She also reported that she currently was a full-time stay at home mom. On VA headaches DBQ in September 2019, the VA examiner stated, "[The] Veteran can enjoy gainful employment in several capacities, such as assisting others with minor tasks, running errands, walking dogs, housecleaning, selling cars, etc. Coincidentally, this is exactly how she spends her days." Despite the Veteran's lay assertions to the contrary, the record evidence shows that her service-connected disabilities, alone or in combination, do not preclude her employability. The Board acknowledges that the Veteran worked in a variety of car salesperson jobs from her service separation until approximately 2009. At that time, the Veteran stopped working when she apparently was put on bedrest prior to the birth of her youngest daughter. She also began working as a full-time stay at home mom at that time. The Board does not doubt that working as a stay at home mom is a full-time job. There is no indication in the record evidence, however, that the Veteran's service-connected disabilities, alone or in combination, precluded her employability at any time during the appeal period. It is undisputed that she does not meet the schedular criteria for a TDIU. More importantly, multiple VA examiners concluded that her service-connected disabilities had little to no impact on her employability, particularly given her education and work experience as a car salesperson prior to her becoming a full-time stay at home mom. The September 2019 VA headaches DBQ examiner specifically found that the Veteran could be employed "in several capacities" and spends her days performing various jobs on a daily basis in her role as a full-time stay at home mom. She finally has not identified or submitted any evidence demonstrating her entitlement to a TDIU. In summary, the Board finds that the criteria for a TDIU have not been met. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.