Citation Nr: 22017552 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-03 342A DATE: March 25, 2022 ORDER For the entirety of the period on appeal, a 50 percent initial disability rating for migraine headaches is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Providing the Veteran the benefit of any reasonable doubt, he experiences migraine headaches that manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW For the entirety of the period on appeal, the criteria for a 50 percent initial disability rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, the appellant in this matter, served on active duty from April 1997 to April 2001, January 2003 to August 2003, and December 2005 to December 2009, with additional service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Veteran filed a claim for migraines, which was denied in May 2013. The Veteran did not appeal the claim and it became final. The Veteran filed another claim for headaches/migraines in December 2015. The RO denied the claim in January 2016. The Veteran requested reconsideration based on additional evidence submitted and in February 2017, the RO reopened the claim for migraine headaches but denied the claim on the merits. The Veteran timely filed a notice of disagreement. During the pendency of the claim, the RO granted service connection for headaches in March 2018, with an initial disability rating of 10 percent. While the grant of service connection would constitute a full grant of the benefit sought, the Veteran timely appealed the initial rating of 10 percent. In the VA Form 9, the Veteran requested a live videoconference hearing before a Veterans Law Judge. A Board video-conference hearing was held in January 2021 before the undersigned Veterans Law Judge; a transcript of the hearing has been reviewed and associated with the record. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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 low rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Increased rating for migraine headaches The Veteran is currently assigned a 10 percent disability rating for his service-connected migraine disability under DC 8100. Migraines are rated under 38 C.F.R. § 4.124a, DC 8100. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the previous several months. A maximum 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, DC 8100; see also Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Treatment records show that the Veteran has been treated and diagnosed with migraine headaches during the appellate period and has been prescribed medications to treat them. Turning to the evidence, A December 2015 VA primary care report noted the Veteran had weekly headaches, which he thought were migraines. The headaches were worse with light, noise, and motion, and were relieved by medication and if he went to a dark room. In a December 2015 VA neurology consultation, the Veteran reported that he had 3 to 4 big headache attacks per month now. The location of his headaches was behind both eyes, pulsing and throbbing in nature, severity 8 to 9 out of 10, and associated with nausea, photophobia and phonophobia but denied aura before his headache attack. He could not recall any precipitation factors or other factors that made his headache worse or better. A January 2016 periodic health assessment noted complaints of non-limiting migraines and that he took magnesium for migraine headaches. In his November 2016 statement in support of claim, the Veteran reported his headaches were worse and he was having them 2 or 3 times per month and was unable to work or act during the episodes. He also stated he missed work and training while suffering from migraine headaches and he took magnesium and migraine medicine to resolve the pain. A VA examination was provided in December 2016. The Veteran reported that with magnesium his headaches were down to 2 per month. The examiner indicated the Veteran experienced pulsating or throbbing head pain, pain on both sides of head, pain worsened with physical activity, with pain located in the front of his head behind his eyes. With his migraine headaches, he also experienced nausea, vomiting, sensitivity to light, changes in vision, and blurry vision, dizziness, and difficulty concentrating with severe headaches. The migraine headaches lasted for less than one day. The examiner indicated the Veteran had characteristic prostrating attacks of migraine/non-migraine pain, once in two months. The examiner noted the pain was not productive of severe economic inadaptability. The examiner also noted the episodes of severe headaches limit his general activity level including his ability to work. In a January 2017 VA treatment record, the Veteran reported a history of migraine headaches 1 to 2 times per month since 2007. The migraine headaches caused light and movement sensitivity and vomiting. He took magnesium and Excedrin as needed. He also reported that migraines were starting to interfere with work. In a July 2017 VA treatment record, the Veteran presented for vomiting and a headache, stating that he vomited and had a headache ever since. He reported this was the same as previous migraines except this episode started more abruptly. He stated he had 2 to 3 migraines per month that resolved with magnesium and Excedrin. He denied visual and auditory changes, vertigo, balance issues, numbness, tingling, or weakness. Four buddy statements from military colleagues concerning the Veteran's symptoms of his migraine headaches were submitted in January 2018. In his February 2019 VA Form 9, the Veteran reported he suffered from debilitating migraine headaches monthly and he had prostrating or completely debilitating episodes that rendered him unable to function. The Veteran provided a report from "Migraine Buddy," listing the dates of his migraine headaches between January 2020 and April 19, 2020. In a May 2020 statement in support of claim, the Veteran reported that he suffered from prostrating migraine headaches on an average of about 4 per month that caused him to miss work and caused anxiety with his ability to have employment and support his family when he continuously missed work because of the migraines. He stated he will also miss family time and events such as football games or track meets, weddings and funerals because he was unable to function during some of his migraine attacks. In his January 2021 hearing, the Veteran testified that he suffered from 3 to 4 migraines per during the entirety of the appeal period, sometimes causing nausea and the need to be in a dark cool room for up to 16 hours. He also recounted being in the field and having 4 episodes in a 17-day period which caused vomiting. He also testified that when he first took medication the frequency of his migraines lessened to 2 to 3 but has slowly gone back up to 3 to 4. On review, the Board finds that the migraine disability more nearly approximates the 50 percent rating criteria under DC 8100. The evidence reflects that the frequency of these attacks occurred approximately 3-4 times a month, persisted for up to 16 hours, and were associated with symptoms such as nausea and vomiting that required the Veteran to lay down in a dark room. The Board notes that the December 2016 VA examination report indicated the Veteran's migraine headaches did not result in economic inadaptability; however, the evidence also shows that his migraines often occurred during a typical workday and caused disruptions in his employment as a United States Marshall and subsequent employment. Thus, the migraine disability resulted in an impairment in the Veteran's ability to work and resulted in economic inadaptability. In sum, after any reasonable doubt is construed in favor of the Veteran and the benefit of the doubt doctrine applied, an initial 50 percent rating for the migraine disability is granted. See 38 U.S.C. § 5107. The Board considered whether a rating higher than 50 percent was warranted. Nevertheless, a 50 percent rating is the maximum schedular rating allowed under DC 8100. See 38 C.F.R. § 4.124a, DC 8100. Finally, the Board notes that neither the Veteran nor his representative raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The Veteran specifically raised the issue of unemployability in his January 2021 hearing. As the Veteran has clearly raised the issue of unemployability, the Board has jurisdiction of the derivative TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that additional development is needed to obtain a more detailed description of the Veteran's educational and work history. On remand, the RO should send the requisite VCAA notice and an application for TDIU (VA Form 21-8940) to the Veteran and ask him to complete the form, including his work history and educational background. The matter is REMANDED for the following action: (Continued on the next page) Provide the Veteran with notice concerning how to substantiate the claim for TDIU (including asking him to complete a VA Form 21-8940). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, Associate 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.