Citation Nr: 22015671 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-02 904 DATE: March 18, 2022 ORDER Entitlement to a disability rating more than 50 percent for tension headaches and migraine headaches is denied. From April 10, 2013, entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Prior to October 10, 2019, entitlement to a disability rating more than 10 percent for degenerative disc disease of lumbar spine at L5 with coccydynia is remanded. From October 10, 2019, entitlement to a disability rating more than 20 percent for degenerative disc disease of lumbar spine at L5 with coccydynia is remanded. Prior to April 10, 2013, entitlement to TDIU is remanded. FINDINGS OF FACT 1. During the appeal period, the Veteran experienced tension headaches and migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The RO has assigned a 100 percent combined schedular rating from April 10, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 50 percent for service-connected tension headaches and migraine headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. From April 10, 2013, the claim for TDIU is rendered moot by the assignment of a 100 percent combined schedular rating. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to September 2003 and from January 2004 to January 2007. The matters come to the Board of Veterans' Appeals (Board) from an April 2014 rating decision. The Board remanded the claims in February 2019 and September 2021. The Veteran's claims folder has returned to the Board for further appellate consideration. Increased Ratings Pertinent legal criteria Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. Tension headaches and migraine headaches The Veteran contends that she is entitled to a higher rating for her service-connected tension headaches and migraine headaches but has not submitted argument providing a basis for a rating in excess of 50 percent. Migraine headaches are rated pursuant to 3 8C.F.R. §4.124a, Diagnostic Code 8100, for migraine. Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. 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 rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings 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 contains 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). The Veteran has the highest available schedular rating for her tension headaches and migraine headaches. The evidence establishes that the Veteran has headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran is competent to report her readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not, however, described symptoms or functional limitations that are not included by the schedular rating criteria or that would otherwise indicate that the 50 percent schedular rating is inadequate. Nor has she alleged that the schedular rating is inadequate beyond the implied request for a higher rating. For all the foregoing reasons, the Board finds that the greater weight of the evidence is against a rating in excess of 50 percent for the service-connected tension headaches and migraine headaches. TDIU from April 10, 2013 Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). From April 10, 2013, the Veteran is in receipt of a 100 percent combined rating for her service-connected disabilities. Thus, the Board finds that the issue of TDIU from April 10, 2013, is moot as the Veteran has a 100 percent combined rating from this date. The Board is cognizant of the decision in Bradley v. Peake, 22 Vet. App. 280 (2008); however, the facts in this case are distinguishable from Bradley, which involved the assignment of a TDIU (total rating) based on a single "less than total" (70 percent) disability rating with subsequently claimed additional orthopedic disabilities that combined to 60 percent. The instant case, however, is distinguishable from Bradley in that here, the Veteran is now in receipt of a 100 percent combined schedular rating for multiple disabilities effective from April 10, 2013. Any TDIU granted would necessarily be based on all the service-connected disabilities. See 38 C.F.R. § 4.16. If the Veteran were to be awarded a TDIU based on all the service-connected disabilities, which are already rated at a combined disability rating of 100 percent, it would impermissibly result in the same disabilities being "counted twice" in the assignment of a total rating. See generally 38 C.F.R. § 4.14 (2020). For these reasons, the Board finds that the TDIU claim is rendered moot from April 10, 2013. REASONS FOR REMAND Prior to October 10, 2019, entitlement to a disability rating more than 10 percent for degenerative disc disease of lumbar spine at L5 with coccydynia, and from October 10, 2019, entitlement to a disability rating more than 20 percent for degenerative disc disease of lumbar spine at L5 with coccydynia are remanded. Pursuant to the September 2021 Board remand, an addendum October 2021 VA opinion was obtained. However, the Board finds this opinion to be inadequate. In the October 2021 VA opinion, the examiner stated that the October 2019 VA examination noted a diagnosis of arthritis of the spine. The examiner said that this was due to aging and existed 10 years post separation, so it was less likely incurred in service. The Board notes that the examiner made a negative finding of service connection here, when the lumbar disability is already service connected. This inaccurate statement leads the Board to believe that the examiner did not fully review the record. The examiner then went on to say that a flare up was defined as a sudden onset of back problems so severe that the Veteran had to go to the "ER or seek emergency medical assistance." The Veteran did indeed state that she had to seek emergency treatment for back pain. However, the examiner then states that the Veteran lacked any emergency room visits where she got an injection of pain killer for a flare up, and so she did not have a flare up by definition. This is inconsistent with the examiner's initial definition of a flare up where the Veteran had to go to the ER or seek emergency medical assistance; there is no language where prescribed painkillers are needed. Finally, the Board notes that flare ups, by definition, mean not occurring all the time; thus, it is unclear why the examiner determined that a flare up must mean that the Veteran had to seek emergency medical treatment. The Board overall finds that the October 2021 VA opinion is inconsistent and inadequate based on the above determinations. Therefore, the Board finds that an additional VA opinion is needed to determine the past and present severity of the Veteran's back disability. TDIU prior to April 10, 2013 The Board notes that the issue of TDIU prior to April 10, 2013, is inextricably intertwined with the above remanded claims. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a VA opinion from an appropriate examiner, different from the October 2021 VA examiner, to determine the past and present severity of the Veteran's back disability. The claims file and a copy of this remand must be made available for review. Following a review of the claims file the examiner must determine the following: (a) Reconcile why flare ups of the spine was not found at the October 2019 VA examination, when the Veteran reported that her daily back pain gets worse when she stands or sits for more than 45 minutes. (b) Provide a retrospective opinion regarding any additional limitation of motion due to functional loss, to include during flare ups or on repeated use over time, from April 10, 2012. Retrospectively and presently assess such additional functional impairment in terms of the degree of additional range of motion loss, if possible. The examiner must consider and discuss the Veteran's lay statements regarding pertinent symptomatology, and 2017 and 2018 private and VA treatment records that reflect that the Veteran reported reinjuring her back, sought emergency treatment for back pain, and reported radiation of pain from her back into her legs. If it is not possible to provide a specific measurement, or an opinion regarding flare ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Review the claims file to ensure that all the foregoing requested development is completed and arrange for any additional development indicated. Then readjudicate the claims currently on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and her representative with the requisite period of time to respond. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.