Citation Nr: 22013459 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-20 020A DATE: March 9, 2022 ORDER Entitlement to a rating of 50 percent for migraines is granted from January 31, 2013. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted from July 31, 2013. Entitlement to Dependents' Educational Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is granted from July 31, 2013. REMANDED Entitlement to a rating in excess of 50 percent for migraines is remanded. Entitlement to higher initial ratings for persistent depressive disorder, rated at 50 percent prior to April 10, 2018, and at 70 percent from that date, is remanded. FINDINGS OF FACT 1. The Veteran's migraines were most comparable to very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability from January 31, 2013, the date of the claim for an increased rating. 2. The Veteran was unable to secure or follow a substantially gainful occupation from July 31, 2013. 3. The Veteran had a permanent and total disability effective July 31, 2013, the date on which she was entitled to a TDIU. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 50 percent for migraines have been met from January 31, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a TDIU have been met from July 31, 2013. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 3. The criteria for entitlement to DEA benefits under 38 U.S.C. Chapter 35 have been met from July 31, 2013. 38 U.S.C. §§ 3501, 5113; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1986 to December 1987, and from February 1989 to August 1997. In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Additional evidence, to include VA treatment records, was associated with the record following the most recent adjudications by the agency of original jurisdiction of the issues on appeal. However, the additional evidence is not relevant to the issues denied herein. Accordingly, a remand for issuance of a supplemental statement of the case is not necessary, and the Board may proceed with appellate consideration. See 38 C.F.R. § 19.37. Neither the Veteran nor her representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In that regard, the Board notes that the development directed in the Remand section below pertains to the remanded issues, and there is no indication that evidence developed as part of those actions may be relevant to the issues denied in this decision. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to a rating in excess of 30 percent for migraines prior to August 17, 2015 The Veteran seeks a rating in excess of 30 percent for migraines prior to August 17, 2015. The applicable period for consideration is from January 31, 2012, one year prior to receipt of the claim, through August 16, 2015. See 38 C.F.R. § 3.400(o)(2). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine. Under Diagnostic Code 8100, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under Diagnostic Code 8100. The phrase "characteristic prostrating attacks" is used in the criteria under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in Diagnostic Code 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). Turning to the evidence of record, the Veteran last worked fulltime July 31, 2013, at which point she retired due to her migraines and other disabilities. The evidence shows that she worked parttime in 2014, but had average earnings of less than $100 per week at that job before quitting due to her migraines and other disabilities. In April 2013, the Veteran underwent a VA examination to determine the severity of her migraine headaches. The examiner noted that the Veteran suffered from "very frequent prostrating and prolonged attacks" with nausea and sensitivity to light, with each headache typically lasting 1-2 days. However, because the Veteran was currently employed the examiner concluded that the Veteran's migraine headaches did not impact her ability to work. The examiner did note that the Veteran would often have to go to the emergency room for medication to treat her migraines. The medical treatment records show that the Veteran was treated for migraines by her primary care physician, in the emergency room, or in urgent care several times during the period from January 31, 2012, to August 17, 2015. Treatment included medications and Botox injections. A disability benefits questionnaire (DBQ) completed in April 2014 by D. K., M.D., the Veteran's private treating physician, notes that the Veteran experienced very frequent prostrating and prolonged attacks of migraine headaches. These attacks would last for more than two days. Dr. K. also indicated that the Veteran's migraines did not impact her ability to work. However, the Board notes that the Veteran had already retired from working due to her migraines by the time Dr. K completed the DBQ. In June 2014 the Veteran filed for disability benefits with the Social Security Administration (SSA), contending that her migraines and other disabilities prevent her from working. In January 2015, a SSA medical consultant completed a case analysis in which he noted that the Veteran "has evidence of severe headaches dating prior to" July 31, 2013, and that the headaches have characteristics of migraines, including photophobia, phonophobia, nausea, and vomiting. The medical consultant further noted that the Veteran's migraines occur "very frequently". The SSA found that the Veteran became unable to work primarily due to her migraines on July 31, 2013. SSA findings are not binding on VA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). However, the Board finds them informative in this case. The SSA records also include statements from the Veteran and her husband. In his September 2014 statement, the Veteran's husband asserted that the Veteran's migraines prevent her from working on a consistent basis and have caused her to call in sick. In her September 2014 statement, the Veteran asserted that her migraines come without warning and involve vomiting, blurred vision, loss of balance, and sensitivity to lights, smells, and sound. The Board finds that, affording the Veteran the benefit of the doubt, since January 31, 2013, the date of the claim for an increased rating, the Veteran's migraines were prostrating and occurred very frequently. In findings the Veteran's migraines to have been very frequent, the Board references the criteria for a 30 percent rating under Diagnostic Code 8100. As noted above, a 30 percent rating is assigned when a Veteran has characteristic prostrating attacks an average of once a month over several months. In this case the April 2013 VA examiner indicated that the Veteran's migraines are prostrating and occur more frequently than once per month. As such, the Board concludes that the Veteran's headaches were prostrating and occurred very frequently as of the date of the January 31, 2013 claim. The Board further finds that, from January 31, 2013, the Veteran's headaches were productive of severe economic inadaptability. The Board reiterates that a Veteran need not be totally unemployable for the headaches to be productive of severe economic inadaptability. See Pierce, 18 Vet. App. at 446. As discussed above, the Veteran reported very frequent prostrating headaches with symptoms that would prevent her from working. Her supervisor provided a statement in April 2013 indicating that the Veteran missed 55 days in the prior year due to her migraine headaches. The Veteran would be unable to work during such periods because she must lay down and cannot concentrate when the headaches occur. Given the frequency and severity of the headaches, the Board finds that they were productive of severe economic inadaptability. The Board has considered whether a rating in excess of 10 percent for the service-connected migraines was warranted during the one-year prior to the January 31, 2013 claim for an increased rating. For a higher rating to be awarded during that period, it must be factually ascertainable that an increase in disability occurred during that period such that the higher rating may be awarded. 38 C.F.R. § 3.400(o)(2). In this case, the medical treatment records show that the Veteran had migraine headaches during that period and that they were prostrating, but they do not show that the headaches occurred on average at least once per month during that period. Therefore, the Board concludes that it is not factually ascertainable that the criteria for a rating in excess of 10 percent under Diagnostic Code 8100 were met during the one-year period prior to the January 31, 2013 claim, and that such a rating therefore must be denied. Neither the Veteran nor her representative has raised any other issues with regard to the rating for the service-connected migraines, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). In conclusion, the Board finds that the criteria for a rating of 50 percent were met from January 31, 2013, and no earlier, for the Veteran's migraines, and that such a rating must be granted. 2. Entitlement to a TDIU prior to August 17, 2015 The Veteran seeks a TDIU prior to August 17, 2015. The issue of entitlement to a TDIU was raised as part of the Veteran's claim for an increased rating for migraines. Therefore, the applicable period for consideration is from January 31, 2012, one year prior to receipt of the claim for an increased rating for migraines, through August 16, 2015. See 38 C.F.R. § 3.400(o)(2); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During the relevant period, the Veteran had the following service-connected disabilities: total hysterectomy, rated at 50 percent; migraines, rated at 50 percent, and residuals scar, rated as noncompensable. Her combined disability rating was 80 percent. She met the regulatory percentage requirements for a TDIU because she had at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). As noted above, the Veteran last worked full time on July 31, 2013, and was engaged in parttime work from in early 2014. The SSA found that the Veteran's migraines were the primary cause of her inability to work beginning July 31, 2013. The Veteran contends that her symptoms on August 17, 2015, the date on which a TDIU was originally awarded, are the same as they were on July 31, 2013, when she was last employed in a substantially gainful occupation. The Board finds that the Veteran's contentions are supported by the medical records, which are consistent with her reports that her migraines were of a similar level of severity throughout the period from July 2013 to August 2015. A note from her primary care physician in June 2013 states that the Veteran had "put in for retirement" due to her migraines. Regarding the Veteran's parttime employment in early 2014, that employment constituted marginal employment and thus does not indicate that the Veteran was capable of substantially gainful employment during that period. As noted above earnings records for that employment show that the Veteran had average earnings of less than $100 per week at that job before quitting due to her migraines and other disabilities. Such earnings, when annualized, do not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. Accordingly, based on the Veteran's lay statements, medical records, and earnings record, the Board concludes that the Veteran was unable to secure and follow substantially gainful employment due to her service-connected disabilities as of July 31, 2013. As such, an earlier effective date for TDIU is granted from that date. 3. Entitlement to DEA benefits under 38 U.S.C. Chapter 35 prior to August 17, 2015 Basic eligibility for DEA benefits exists if a Veteran has a permanent, total service connected disability. 38 U.S.C. §§ 3500, 3501. A total disability may be assigned where the Veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the Veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). In this case, the Veteran had a permanent and total service-connected disability effective July 31, 2013, the date of the grant of TDIU, as the disabilities upon which that grant may reasonably be expected to continue throughout her life. Therefore, an earlier effective date for the award of basic eligibility to DEA benefits is granted from that date. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for migraines is remanded. 2. Entitlement to higher initial ratings for persistent depressive disorder is remanded. The Veteran told a July 2021 private examiner that she received regular treatment at a VA medical facility through approximately July 2020. However, the record contains VA treatment records dating only through January 2020. Thus, the evidence indicates that there may be outstanding relevant VA treatment records. The oustanding VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: Obtain the Veteran's VA treatment records for the period from January 9, 2020, to the present. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.