Citation Nr: 22065645 Decision Date: 11/23/22 Archive Date: 11/23/22 DOCKET NO. 11-20 192 DATE: November 23, 2022 ORDER Entitlement to an initial disability rating of 50 percent for tension/migraine headaches is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, her tension/migraine headaches are manifested by frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial 50 percent rating for tension/migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2007 to January 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Travel Board hearing in August 2012. She failed to report without explanation and did not request that the hearing be rescheduled. Therefore, the request for a Board hearing is withdrawn. 38 C.F.R. § 20.704. This case was initially before the Board in June 2014, when the claim was remanded for additional development. An August 2022 supplemental statement of the case (SSOC) was most recently issued and the case is once again before the Board. The Board notes that the Veteran filed supplemental claims for her tension/ migraine headaches on appeal in November 2021 and February 2022. The RO treated these as new claims and issued rating decisions in January and May 2022 in response to these claims even though a legacy appeal was already pending. The Board notes that these claims should not have been processed. The Board will proceed with adjudicating the legacy appeal and will consider any since-completed development under the present legacy appeal. Finally, the Veteran submitted a medications list in August 2022, subsequent to the issuance of the most recent August 2022 SSOC. However, the records are duplicative of evidence already of record at the time of the August 2022 SSOC. Specifically, the use of these medications was already noted in the record prior to receipt of this document. Accordingly, a waiver of initial review by the Agency of Original Jurisdiction (AOJ) is not necessary. See 38 C.F.R. § 20.1305. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). 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 also 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). 1. Entitlement to an initial rating in excess of 30 percent for tension/migraine headaches. The Veteran asserts that her tension/ migraine headaches are worse than currently rated. The Veteran's tension/migraine headaches are evaluated as 30 percent disabling, pursuant to DC 8100. Under DC 8100, a 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. "Productive of severe economic inadaptability" can be read as having either the meaning of "producing" or "capable of producing," and nowhere in DC 8100 is "inadaptability" defined, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. But nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Recently, the Court held that a schedular rating of 50 percent for migraine headaches was adequate because it contemplated all of the Veteran's symptoms, including non-headache symptoms such as dizziness, anxiety, depression, isolation, and nausea. Holmes v. Wilkie, 33 Vet. App. 67 (2020). The Veteran initially attended a March 2010 General VA Medical Examination. The Veteran reported headaches several times a week which are "pounding" at times. She was diagnosed with tension headaches, frequent in nature. It was noted that her headaches effect usual daily activities including chores, shopping, exercise, sports, recreation, and traveling. At a May 2011 VA examination, the Veteran reported that she was taking Topamax, Nortriptyline and Sumatriptan, with Tramadol as needed. She reported headaches, at least weekly, lasting 1-2 days. She reported a history of dizziness. The examiner noted that the Veteran's migraines result in increased absenteeism. The examiner noted that less than half of the Veteran's attacks are prostrating. The Veteran underwent a VA examination in December 2021. The Veteran was diagnosed with tension and migraine headaches. It was noted that the Veteran has headaches lasting hours with photo and phonophobia, nausea, and vomiting triggered by smells at times. The Veteran reported taking Motrin, Imitrex, and Topamax. She stated that her headaches are incapacitating several times per month. Headache pain was described as pulsating or throbbing head pain, pain localized to one side of the head and pain that worsens with physical activity. Additional symptoms were noted to include nausea, sensitivity to light, sensitivity to sound and changes in vision. The examiner noted prostrating attacks of migraine/non-migraine headache pain at least once every month. Although, the examiner indicated that the Veteran did not have prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability, the examiner subsequently noted that the Veteran's headaches impacted her ability to work. The examiner noted that the Veteran's headache condition impacts her ability to work as she has incapacitating headaches several times per month. The Veteran underwent an April 2022 VA examination. She was diagnosed with tension/migraine headaches. The Veteran reported being prescribed Topamax and Sumatriptan, neither of which have provided any relief. She indicated that instead she has experienced significant side effects. The Veteran reported frequent attacks impacting her ability to perform her duties as a mother. The examiner noted the use of Imitrex and Topamax. Her headache pain was described as constant head pain, pulsating or throbbing head pain, pain worsens with physical activity and locations often vary with intensity. Additional symptoms of nausea, vomiting, sensitivity to sound and changes of vision were reported. The examiner marked that the Veteran had characteristic prostrating attacks once every month. However, later in the report, the examiner remarked that the Veteran on average each month is experiencing 6-7 prostrating attacks. Although the examiner indicated that the Veteran did not have prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability, the examiner subsequently noted that the Veteran's headaches impacted her ability to work. It was noted that she is unable to focus or concentrate and may be less productive in an occupational setting during headache episodes. The Board has additionally considered outpatient treatment records throughout the period on appeal. For example, a July 2010 private treatment record noted complaints of migraines with nausea and a September 2010 private treatment record noted complaints of headaches with nausea, photophobia and occasional phonophobia. The use of medication was noted. The Veteran reported mild headaches everyday with severe headaches about once a week. In a December 2010 private treatment record, it was noted that the Veteran was on medication and gets headaches about twice a week. A March 2011 private treatment record reflects that the Veteran gets headaches more than three times per week and is taking Topamax, Nortriptyline, and Sumatriptan. The use of Imitrex was also noted. In a May 2011 private treatment record it was noted that the Veteran was still getting headaches about twice a week. The use of medications was noted. The Board has also considered the Veteran's lay statements regarding the impact her tension/migraine headaches, including the submission of migraine logs documenting the severity and frequency of her prostrating headaches. In a statement received in May 2011, the Veteran reported that her migraines had gotten worse and she had to lay down or be a dark room when they occur. She reported feeling nauseous, having diarrhea, and vomiting because they get so bad. She reported being dizzy and lightheaded and stated that she had missed school/work twice in the last month because of the headaches. The Veteran additionally reported taking several medications. Finally, the Veteran stated that she gets migraines typically every day, at least four times a week. In an August 2022 statement, the Veteran reported 6-7 attacks per month. She reported constant head pain weekly that lasts for hours and can happen at any point of the day and often on back to back days. She reported experiencing constant pulsating and throbbing pain. The Veteran reported that they were prostrating and she has to lay down for several hours at a time in a dark room because lights and sounds are excruciating. She reported often having severe nausea or vomiting. Additionally, on her worst migraine days she reported vision changes and ocular migraines. See also Statement submitted February 2022. The Board has additionally considered a February 2022 statement submitted from the Veteran's husband regarding the impact of her countless migraines. He reported that the Veteran gets dizzy, lightheaded, and even vomits from her migraines. He stated that there are times where she has to lay down because of her symptoms. The Board finds that the evidence of record supports a 50 percent rating for the Veteran's service-connected tension/migraine headaches for the entire period on appeal. Although some of the examiners did not specifically identify the Veteran's headaches as productive of severe economic inadaptability, the Veteran's overall migraine headache symptomatology shows that her condition has a direct impact on her employment, and her lay statements indicate a severe impact on her economic wellbeing and day-to-day life. In light of the foregoing, the Board finds that because of the severity and frequency of the Veteran's tension/migraine headaches, as well as the effects these attacks have on the Veteran's ability to function, a 50 percent rating for her service-connected tension/migraine headaches is warranted. Therefore, resolving all doubt in the Veteran's favor, the Board finds that the evidence is in equipoise as to whether the Veteran's tension/migraine headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability and that a 50 percent disability rating is warranted. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran has indicated that her service-connected tension/migraine headaches disability impacts her ability to sustain gainful employment. See August 2022 Statement. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. The Board finds that the issue of entitlement to a TDIU has been reasonably raised by the record and is properly before the Board by virtue of the Veteran's increased rating claim pursuant to Rice. Veterans Claims Assistance Act of 2000 (VCAA) notice should be provided to the Veteran. The matters are REMANDED for the following action: Send the Veteran a notice letter advising her of the information and evidence needed to award TDIU. Additionally, send her a VA Form 21-8940. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.