Citation Nr: 22014680 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-13 828 DATE: March 14, 2022 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) exclusively based on service-connected migraine headaches from September 1, 2010 is granted, subject to the laws and controlling regulations governing the payment of monetary awards. Entitlement to special monthly compensation (SMC) based on housebound status pursuant to 38 U.S.C. § 1114(s)(1) from September 1, 2010 is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. From September 1, 2010, the Veteran's service-connected migraine headaches alone rendered him unable to secure and follow a substantially gainful occupation. 2. From September 1, 2010, the Veteran has entitlement to a TDIU based exclusively on service-connected migraine headaches and additional separate and distinct service-connected disabilities ratable at 60 percent or more. CONCLUSIONS OF LAW 1. From September 1, 2010, the criteria for a TDIU based exclusively upon service-connected migraine headaches on an extraschedular basis under 38 C.F.R. § 4.16(b) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400(o), 4.16. 2. From September 1, 2010, the criteria for SMC pursuant to 38 U.S.C. § 1114(s)(1) have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from January 2002 to November 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which continued a noncompensable rating for service-connected migraine headaches. Entitlement to a TDIU exclusively based upon service-connected migraine headaches has been raised as part of this increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veteran Law Judge. A hearing transcript is of record. In November 2021, the Board, in relevant part, remanded entitlement to TDIU exclusively based on service-connected migraine headaches on an extraschedular basis from September 1, 2010. The requested development, noted below, has been completed, and this issue has returned to the Board. In January 2022, the VA Director of Compensation Service (Director) issued an administrative decision denying entitlement to a TDIU exclusively due to migraine headaches on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board has now added the issue of entitlement to SMC based on housebound status pursuant to 38 U.S.C. § 1114(s)(1), referred to as SMC(s)(1) below, as a derivative issue of the above TDIU claim. SMC benefits "are to be accorded when a veteran becomes eligible, without need for a separate claim." Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (citing Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)). Duty to notify and assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. The issue adjudicated in the instant decision is also subject to compliance with the November 2021 Board remand. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The instant decision results in a maximum benefit award and any assistance error is non-prejudicial. Appellate adjudication for these issues may proceed without prejudice to the Veteran. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). Entitlement to a TDIU exclusively due to service-connected migraine headaches TDIU may be assigned when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service-connected for migraine headaches with a 50 percent rating from September 1, 2010. He has not met the percentage requirements under 38 C.F.R. § 4.16(a) based exclusively on his service-connected migraine headaches at any time. When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a TDIU on an extraschedular basis, may nonetheless be granted when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. See 38 C.F.R. § 4.16(b). The rating period for TDIU based exclusively on service-connected migraine headaches extends to September 1, 2010. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). On August 29, 2011, VA received correspondence from the Veteran that requested a prior traumatic brain injury (TBI) claim be reopened. The Veteran is not service-connected for TBI but as noted below his service-connected migraine headaches are related to a 2002 craniectomy. Thus, the RO construed this claim as an increased rating claim for service-connected migraine headaches, and the claim has been developed as such. (See October 2013 rating decision; February 2017 statement of the case). In any event, the rating period under consideration for TDIU begins August 29, 2010, to include the one year look back period for increased rating claims. Id.; 38 C.F.R. § 3.400(o). In January 2022, the Director issued an administrative decision denying extraschedular consideration for TDIU under 38 C.F.R. § 4.16(b). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). In this case, the issue of entitlement to an extraschedular TDIU based exclusively on service-connected migraine headaches pursuant to 38 C.F.R. § 4.16(b) has already been remanded and referred to the Director. Therefore, the extraschedular TDIU issue is now before the Board and can be addressed on the merits. In analyzing TDIU claims, the central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Turning to the evidence, in August 2013, Dr. A, a treating psychiatrist, furnished a letter in support of the claim. His review of the Veteran's social history noted that the Veteran moved to Panama in 2011 due to economic and work difficulties. The Veteran was unable to work on a regular basis due to constant migraine headaches and chronic insomnia. May 2015 VA primary care records showed the Veteran had a history of seizures and chronic migraine. He experienced headaches two to three times per week with light sensitivity, but no vision changes. They were also occasionally accompanied by nausea and vomiting. The clinician assessed chronic migraines. He recommended medication and neurology follow up with his local provider in Panama. In March 2016, Dr. A issued another letter. In relevant part, he stated that the Veteran's occupational skills were impaired due to his neurological condition and that the Veteran was unable to work in competitive employment. In March 2016, Dr. A also completed a Mental Disorders Disability Benefits Questionnaire (DBQ). In relevant part, he stated that the Veteran's depressive disorder was affected by migraines that in turn affected his daily independent function. April 2018 VA primary care records showed that the Veteran reported chronic migraines usually occurring once a week. He was on medication and had treatment with a private neurologist. The clinician assessed chronic migraines and issued medication. In July 2018, Dr. A completed a headache DBQ. He assessed migraine and tension headaches. He noted that the Veteran had a craniotomy in July 2002 due to a brain condition. For headaches, Dr. A endorsed the presence of constant head pain, pulsating or throbbing head pain, pain localized to one side of head, and pain that worsened with physical activity. Associated headache symptoms included nausea, vomiting, as well as sensitivity to light and sound. The headache duration was one to two days and affected the left side. It occurred more than once a month. Dr. A assessed the Veteran as having very frequent prostrating and prolonged migraine attacks. He noted an associated scar affecting the left forehead. Dr. A reported that due to recurrent migraines plus depressive symptoms the Veteran was unable to work. In August 2018, Dr. A-U also completed a headache DBQ for the Veteran. He assessed migraines, cervicogenic headache, and Arnold's neuralgia. He noted the medical history of an in-service July 2002 craniotomy that resulted in residual painful cranial neuropathy. He reviewed the Veteran's current medication regimen. The headache symptoms included pulsating or throbbing head pain and pain localized to one side. Non-headache symptoms included vision changes. The headaches typically lasted between one and two days and affected the left side of the head. Dr. A-U reported that the Veteran had very frequent prostrating and prolonged migraine attacks with a frequency of more than once a month. He noted the postoperative head scar. He commented that the headache disorder affected the Veteran's ability to work. In September 2019, the Veteran filed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. He reported that he had not worked full time since September 2010 and left work because of service-connected migraine headaches. He last worked as an office clerk at a private mail firm. He had a college education. He stated that his medical records confirmed severe migraine episodes. In January 2020, the Veteran had a VA headache examination with a nurse practitioner (NP). The NP diagnosed migraine with a 2002 onset. She noted the 2002 craniotomy and the Veteran's current medications. The Veteran currently experienced constant head pain and pain on both sides of his head. His headaches were accompanied by nausea and vomiting as well as sensitivity to light and sound. The headaches lasted less than a day and affected both sides of his head. Prostrating migraine episodes occurred once a month. However, the NP indicated that the Veteran did not have very prostrating and prolonged migraine attacks productive of severe economic inadaptability. She listed the functional impact as difficulty concentrating and focusing on tasks with prostrating headache. In February 2021, the Veteran testified at Board hearing. He reported that he last worked at a retail shipping company in 2009. At that time, he often missed half a week of work or more due to migraine episodes. He had an accommodating supervisor who understood his migraine problems. When he had severe migraine attacks, he would need to rest in a dark room. He stated that his migraine symptoms had been consistent since 2009 or so with between two or four attacks occurring each week. In 2011, he moved to Panama and sought regular treatment there. He had not worked since 2009. He believed that he had been unable to work since then due to migraine attacks and related attendance problems. For the following reasons, a TDIU exclusively due to service-connected migraine headaches from September 1, 2010 is warranted. The Veteran's highest educational attainment is a college degree. He has occupational experience as an office clerk. He last worked in August 2010 and reportedly left this job due to the severity and frequency of migraine headaches. The Veteran meets the economic component for TDIU outlined by the Court in Ray, supra. since September 1, 2010 since he had not had any period of gainful employment. As to the non-economic TDIU component of physical capability in Ray, supra., the functional impairment from the service-connected migraine headaches shows occupational impairment affecting ability to perform exertive activity during severe headache episodes. The Veteran's ability to lift, walk, carry, among other routine movements would be limited due to head pain during severe migraine episodes. Ray, 31 Vet. App. at 73. The Board finds that from September 1, 2010, the Veteran has some physical limitations due to service-connected migraine headaches. As to the non-economic mental capability in Ray, supra., the Veteran's migraine headaches cause severe head pain that would affect his ability to concentrate, process information, or effectively communicate. The evidence suggests that during severe migraine episodes the Veteran must rest and is unable to perform any occupational task. (See August 2013 Dr. A letter; July 2018 and August 2018 headache DBQ reports; September 2019 TDIU claim). Thus, service-connected migraine headaches pose significant mental impairment in completing occupational tasks associated with general office or administrative work. See id. The Board finds that the Veteran has severe mental limitations due to head pain associated with service-connected migraine headaches that impair his ability to secure work consistent with his education and occupational experience. These mental limitations include or are analogous to those outlined by the Court in Ray in determining whether the Veteran can secure and follow a substantially gainful occupation. Ray, 31 Vet. App. at 73. The Veteran's February 2021 hearing testimony indicates that the severity of his service-connected migraine headaches has been consistent since September 1, 2010. Again, September 1, 2010 is the date when he left his last job as an office clerk and within the one year look back period for the underlying August 2011 increased rating claim. Harper, supra.; 38 C.F.R. § 3.400(o). When considering the Veteran's work and education history and physical and mental impairments due exclusively to service-connected migraine headaches, the evidence is at least in a state of relative equipoise as to whether the Veteran is unable to secure and follow a substantially gainful occupation within the meaning of the applicable regulation since September 1, 2010. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"); 38 C.F.R. § 4.16. For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran's service-connected migraine headaches, alone, has precluded him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU under 38 C.F.R. § 4.16(b) due exclusively to migraine headaches from September 1, 2010 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to SMC(s)(1) SMC(s)(1) is payable at a specified rate if the Veteran, as the result of service-connected disability, has a single service-connected disability rated as total and has additional service-connected disability or disabilities independently ratable at 60 percent or more. 38 U.S.C. § 1114(s)(1). The regulations further state that such additional service-connected disability or disabilities be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily functions. 38 C.F.R. § 3.350(i)(1). Although the Veteran does not have a 100 percent rating for any single disability, he now has a TDIU due exclusively to migraine headaches. This rating satisfies the requirement for a single service-connected disability rated as 100 percent for SMC(s)(1) purposes. Bradley v. Peake, 22 Vet. App. 280, 290 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Id. From September 1, 2010, the Veteran is additionally service-connected for the following disabilities: sinonasal polyposis, 30 percent disabling; forehead scars based upon disfigurement, 10 percent disabling; seizure disorder, 10 percent disabling; Kienbock's disease left wrist, 10 percent disabling; anosmia associated with chronic rhinosinusitis, 10 percent disabling; and chronic rhinosinusitis, 10 percent disabling. These additional disabilities have a combined rating of 60 percent. The Board also finds that the additional service-connected disabilities are separate and distinct from migraine headaches for SMC(s)(1) purposes. 38 C.F.R. § 3.350(i)(1). There are various definitions of migraine, but the term indicates it consists of headache with a vascular component. https://medical-dictionary.thefreedictionary.com/migraine (last visited March 9, 2022). Close review of the additional service-connected disabilities indicates that these disabilities are distinguishable from headaches and concern different bodily systems. The sinonasal polyposis, anosmia, and rhinosinusitis concern the nose or nasal passage. Seizures pertain to epilepsy or electrical brain activity as opposed to head pain with a vascular component. The scars concern facial disfigurement, and the left wrist disability is orthopedic in nature. Thus, these additional service-connected disabilities are distinguishable from migraines and constitute separate and distinct disabilities for SMC(s)(1) purposes. Id. From September 1, 2010, the Veteran now has entitlement to a TDIU based upon single disability, migraine headaches, and additional separate and distinct service connected disabilities, rated at least 60 percent disabling. Id. The Veteran now meets the statutory criteria for SMC pursuant to 38 U.S.C. § 1114(s)(1) from September 1, 2010. Entitlement to SMC pursuant to 38 U.S.C. § 1114(s)(1) is warranted from September 1, 2010. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.