Citation Nr: 22017963 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 16-45 285 DATE: March 27, 2022 ORDER Entitlement to an increased evaluation higher than 20 percent for cervical spine degenerative joint disease is denied. Entitlement to an increased evaluation higher than 10 percent prior to April 20, 2021 for headaches is denied; however, a 30 percent rating, but no higher, from April 20, 2021, is granted. FINDINGS OF FACT 1. The Veteran's cervical spine degenerative joint disease is productive of forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees, and without incapacitating episodes. 2. Prior to April 20, 2021, the persuasive evidence shows the Veteran has headaches with characteristic prostrating attacks averaging one in two months, and from April 20, 2021, the evidence shows characteristic prostrating attacks occurring on an average once a month over the last several months. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation higher than 20 percent for cervical spine degenerative joint disease is denied have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.14, 4.21, 4.40, 4.41, 4.45, 4.59, Diagnostic Code 5242. 2. From April 20, 2021, entitlement to 30 percent rating, but no higher, for headaches is warranted; however, the criteria for a rating higher than 10 percent prior to April 20, 2021 have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REMAND Entitlement to a TDIU prior to August 9, 2016 is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1987 to December 1987 and from March 1988 to November 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The Veteran's attorney has asserted additional claims are on appeal and before the Board. Accordingly, the Board will review and explain the procedural history of the current appeal. In a July 2014 rating decision, the RO decreased the Veteran's neck evaluation to a 10 percent effective September 1, 2014, denied entitlement to a TDIU, and denied an increased evaluation higher than 10 percent for migraine headaches. The Veteran filed a NOD in January 2015, appealing the neck evaluation, headaches evaluation, and the denial of TDIU. In an August 2016 decision, the RO granted entitlement to TDIU, effective August 9, 2016. In a September 2016 SOC, the issues addressed were the propriety of the 10 percent evaluation for headaches and the cervical spine reduction. In a September 2016 correspondence, the Veteran's representative expressed a desire to file a notice of disagreement as to the September 1, 2016, decision. In September 2016, a VA Form 9 was filed specifically listing the issues he wished to appealentitlement to an increased evaluation for headaches and the propriety of reduction of the cervical spine evaluation from 20 to 10 percent. In September 2016 a NOD was received listing the issues of entitlement to an earlier effective date for TDIU and DEA, entitlement to earlier effective dates as to the award of service connection for sciatic nerve of the left lower extremity and right lower extremity, and entitlement to an increased evaluation for the lower back condition. In June 2017, the RO issued a SOC as to entitlement to an earlier effective date for TDIU and DEA, entitlement to earlier effective dates as to the award of sciatic nerve of the left lower extremity and right lower extremity, and entitlement to an increased evaluation for the lower back condition. Neither the Veteran, nor his representative submitted a substantive appeal following the June 2017 SOC. Therefore, the issues of entitlement to earlier effective dates as to the award of radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, and entitlement to an increased evaluation for spinal stenosis are not before the Board. The Board observes that the August 2016 action resulted in the Veteran received a TDIU, effective August 9, 2016. Pursuant to Harper v. Wilkie, an award of TDIU, prior to August 9, 2016, is still pending in conjunction with the claims for increased rating. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). 1. Entitlement to an increased evaluation higher than 20 percent for cervical spine degenerative joint disease is denied The Veteran is seeking entitlement to an increased evaluation for his degenerative joint disease of the cervical spine. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76460, 76462 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period before and after the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating under the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals considering laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec. of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. The Veteran's cervical spine has been rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. As for the changes effective February 7, 2021, under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010);" DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." Thus, the changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021, regulations are not warranted. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or where forward flexion of the cervical spine is greater than 15 degrees, but not greater than 30 degrees; or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where the combined range of motion of the cervical spine is not greater than 170 degrees; or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or where forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note 1 to this rating schedule states that any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under appropriate diagnostic codes. In the alternative, an evaluation can be assigned under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be evaluated either under the new general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months, a 10 percent evaluation is warranted. Note 1 of that code provides that, for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flareups. 38 C.F.R. § 4.14. CAVC has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain may result in functional loss, but only if it limits the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance." Id. (quoting 38 C.F.R. § 4.40). Additionally, CAVC, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if indicated, with range of motion measurements of the opposite undamaged joint. Turning to the evidence of record, VA treatment records from February 2012, reveal the Veteran reported neck pain. X-rays were taken that revealed degenerative changes of the cervical spine. He had tender left cervical paraspinals and trapezius. In May 2013, he had an MRI of the c-sine, that revealed significant neuroforaminal stenosis on the right at C3-4 and on the left at C5-6 and was diagnosed with cervical radiculopathy. At a November 2013 VAMC visit, he reported headaches and neck stiffness. In a December 2013 statement, he reported his neck and migraines had worsened, and that as a result he felt the need to stop working. In May 2014, the Veteran underwent an examination. He reported chronic, daily neck pain which involved the entire cervical spine region. He described constant achy pain that is made worse in a prolonged seated position. Pain improved with movement. He did not describe pain radiating into his upper extremities. Cervical pain was described as associated with some of his headaches. Range of motion testing revealed flexion to 35 degrees, extension to 45 degrees, bilateral lateral flexion to 25 degrees, and bilateral lateral rotation to 70 degrees. After repetitive use testing, flexion was to 35, extension to 45, lateral flexion to 25, and rotation to 70. He did not have additional limitation in range of motion following repetitive use testing. Functional loss was described as more movement than normal. There was no tenderness, spasm, or guarding. Flare-ups were described as occurring after sleeping on a pillow wrong one night. He did not have muscle spasms, tenderness, or guarding. He did not have IVDS, ankylosis, or neurologic abnormalities. The examiner explained the Veteran may have a limitation in a physical setting performing construction work when he may require an absence from work during an exacerbation of neck pain. He would not have limitations in a sedentary occupational setting. He was not experiencing a flare-up, and the examiner stated it is not possible to assess or confirm physical conditions if he was not a witness to the episodes. At a September 2015 visit, he had limited neck range of motion and pain. In November 2015, he was seen with complaints of headache pain, and neck pain. Records dated between 2015 through 2021, reveal the Veteran has continued to seek treatment for his cervical spine degenerative joint disease. In September 2021, the Veteran underwent another examination and was noted as having cervical degenerative joint disease. He reported constant neck pain that is worse at night if his head slips off the pillow or when he sleeps in the car or a chair, without a circular pillow around his neck. He reported taking Goody powder each morning, and as needed in the afternoon. He denied radiating pain to his arms. He reported severe neck pain can cause a headache. He was unable to describe any functional impairment from the neck symptoms. He denied flare-ups of the cervical spine. Pain results in functional loss, which was described as decreased rotation, impaired his ability to be aware of surroundings. Range of motion was flexion to 45 degrees, extension to 30, right lateral flexion to 20, left lateral flexion to 35, right lateral rotation to 45, and left lateral rotation to 35. He had pain with flexion, extension, bilateral lateral rotation, and left lateral flexion. The examiner indicated it is not medically advisable to conduct passive range of motion testing, as it is not feasible to do so in a safe and reasonable manner. There was no evidence of crepitus, or of tenderness or pain on palpation of the joint. He was able to perform three repetitions, with the range of motion being: flexion to 40 degrees, extension to 30, right lateral flexion to 20, left lateral flexion to 30, right lateral rotation to 45, and left lateral rotation to 35. He was not examined immediately after repeated use over time; however, the examiner estimated that pain would limit functional ability with repeated use over time. The estimated range of motion in degrees for this joint immediately after repeated use over time was flexion to 40 degrees, extension to 30, right lateral flexion to 20, left lateral flexion to 30, right lateral rotation to 45, and left lateral rotation to 35. There was no indication of guarding or muscle spasms. He had full muscle strength testing, and there was no indication of muscle atrophy. There was no indication of radiculopathy or sensory impairment. He has no ankylosis, or IVDS. He reported using a circular neck pillow to prevent neck pain in case he falls asleep while sitting up. The persuasive evidence demonstrates that the Veteran is not entitled to an evaluation higher than 20 percent at any time during the pendency of this claim. The Veteran is competent to report on symptoms, and the Board has considered his complaints in reaching this decision. The Veteran is not competent; however, to determine whether his cervical spine disability meets the criteria for a higher rating. Even considering the Veteran's subjective complaints of pain, flare-ups, and functional impairment, the evidence of record does not show any additional limitation of motion or functional impairment that would support an evaluation higher than 20 percent. The Veteran's flexion has been at worse to 35 degrees. To meet the criteria for a 30 percent rating, the range of flexion would have to be limited to 15 degrees or less or favorable ankylosis of the entire cervical spine under diagnostic code 5237. At the May 2014 examination, he reported pain that worsens when in a prolonged position. There was no additional limitation in range of motion following three repetitions, and flare-ups were described as an increase after sleeping on the pillow incorrectly. The examiner was unable to assess whether he would suffer from additional limitations during a flare-up. In 2021, following three repetitions, and the estimated motion after repeated use over time were flexion to 40 degrees, extension to 30, right lateral flexion to 20, left lateral flexion to 30, right lateral rotation to 45, and left lateral rotation to 35, with no reports of flare-ups. Further, the Board has considered the Court's holding that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). The rating criteria listed under Diagnostic Code 5237 for limitation of cervical spine motion fail to contemplate the effects of pain medication on the Veteran's cervical spine. The Veteran has reported self-treating with Goody for his cervical spine throughout the period on review. However, the Board emphasizes that this decision is not based on any finding that the Veteran's medication provided relief, but rather it is based on the fact that the necessary symptoms and manifestations for the cervical spine are not demonstrated by the evidence of record regardless of any medication the Veteran takes. The evidence simply does not demonstrate the necessary findings for a higher 20 percent rating for the cervical spine, with or without medication. The functional impact was explained in 2014 as having more movement than normal. He was noted as having a limitation in construction work and he may have needed absence during an exacerbation of neck pain. In 2021 functional loss was described as due to his decreased rotation, his ability to be aware of surroundings is impacted. The 2021 examiner noted the Veteran to have no impact on his ability to perform any type of occupational task. Regarding Correia criteria, at the 2021 examination, the examiner indicated it is not medically advisable to conduct passive range of motion testing, as it is not feasible to do so in a safe and reasonable manner. The Court has established that flare-ups must be considered. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Therefore, this Veterans Law Judge expands upon the wisdom advanced in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. In 2014, the flare-ups were described as occurring after sleeping incorrectly. In 2021, he denied flare-ups, but again reported a worsening of pain if his head slips off the pillow, or he falls asleep without use of the circular neck pillow. The reports of an increase in pain after sleeping awkwardly have not been reported in a way that can be quantified to warrant an estimation of a decrease in additional degrees of cervical spine motion. Accordingly, there is no basis on which to warrant a higher evaluation based upon flare-ups. There is no persuasive evidence that he had forward flexion of the cervical spine is 15 degrees or less; or where there is favorable ankylosis (or symptoms approximating ankylosis) of the entire cervical spine. Further, it is noteworthy that the Veteran's cervical spine motion improved several degrees from 2014 to 2021. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. The Veteran's reports of exacerbation or flare-ups did not result in limitation of motion or function beyond that contemplated by the already provided evaluation and are not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. Higher evaluations are also available for intervertebral disc syndrome. The Veteran has not been diagnosed with IVDS, and there is no probative evidence showing treatment for incapacitating episodes, or that he has been prescribed bed rest by a physician. As such throughout the entire period on appeal, a higher evaluation under DC 5243 is not warranted. Effective February 2021, the criteria for evaluation under DC 5243, was revised to indicate intervertebral disc syndrome is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Here, there is no such indication of disc herniation with compression and/or irritation of the adjacent nerve root, and accordingly a higher evaluation under the new criteria is not warranted. At no time during the pendency of the appeal, have there been findings of ankylosis or symptoms approximating ankylosis. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Given the limitation of motion noted by the VA examiners (including negative findings of ankylosis), and VA medical providers, the Board finds that at no time during the course of the appeal has the Veteran had ankylosis of the spine or symptoms approximating ankylosis of the cervical spine. The assigned 20 percent rating adequately contemplates the Veteran's level of impairmentincluding consideration of functional impairment during flare-ups or following repetitive motion. As such, a higher evaluation is not warranted due to functional loss. Note (1) of 38 C.F.R. § 4.71a also instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Although there is one report of cervical radiculopathy in 2013, after this instance, there are no further reports of upper extremity cervical radiating pain or neuropathy. In the present case there have been no reports of bowel or bladder complaints, and neurological evaluations have consistently been normal. Accordingly, entitlement to an evaluation higher than 20 for the cervical spine disability is not warranted. 2. Entitlement to an increased evaluation for headaches higher than 10 percent prior to September 8, 2021, and higher than 30 percent thereafter The Veteran's headaches are rated pursuant to Diagnostic Code (DC) 8100, for migraine. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All benefit of the doubt will be resolved in the veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Migraine headaches are rated pursuant to 38C.F.R. §4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 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 DC 8100. The rating criteria of DC 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 DC 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 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). The rating of headaches or migraines under DC 8100 focuses on "attacks." It is the frequency, duration, severity, and economic impact of these attacks that differentiate the levels of disability in DC 8100. Holmes v. Wilkie, 33 Vet. App. 67, 72 (2020). In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Turning to the evidence of record, in December 2013, the Veteran filed a claim for increase evaluation of his headaches. He reported he had experienced more headaches that were lasting longer. In May 2014, the Veteran was afforded an examination and was diagnosed with migraine and tension headaches. He was taking Sumatriptan at 100 mg dose and reported good results. If he experiences a headache at work, he typically self-medicates with Goody powder. He avoids Sumatriptan while working as he states this causes him to be sleepy. During his last job, he experienced two migraines and was able to continue work with the use of Goody powder. He reported pulsating or throbbing head pain, pain on both sides of the head and pain that worsens with physical activity. He reported symptoms of nausea, and sensitivity to light and sound. Typical head pain lasts less than one day, with the typical location being both sides of his head. He did not have characteristic prostrating attacks of migraine or non-migraine headache pain. There was no noted impact on his ability to work. He reported he had no lost time at work due to his headaches. The examiner stated the Veteran may have limitations in physical and sedentary occupational settings with possible requirement of a brief absence during times of severe headaches associated with his neck condition. In January 2015, the Veteran submitted a notice of disagreement as to his headache evaluation. At a March 2015 VAMC visit, he reported experiencing a migraine headache. At a June 2016 VAMC visit he reported a headache and was administered Tylenol. At the April 2021 Board hearing, the Veteran reported prostrating attacks once per week, four times a month. He reported treating with medication as needed. In September 2021, the Veteran underwent an examination. He reported bilateral headaches which begin in the back of the head and move to the front. They tend to occur when neck pain is more severe. He described the headache as squeezing and worse with physical activity. Associated symptoms included sensitivity to light and seeing spots. His headache is relieved with Sumatriptan, and completely resolves with a second dose of Sumatriptan. He has headaches twice a month on average, treating with low lights, lying down, and Sumatriptan. The typical head pain is less than one day, on both sides of the head. He has characteristic prostrating attacks of migraine headaches once every month. He does not have prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. After considering all procurable and relevant information, to include medical treatment records and/or lay testimony and relying on my medical experience in treating conditions of this type the functional impairment is he may miss work due to light sensitivity associated with headaches. In a January 2022 rating decision, the RO granted a 30 percent evaluation effective September 8, 2021. After review of the evidentiary record, the Board concludes entitlement to a 30 percent is warranted effective the date of the Veteran's hearing April 20, 2021. The Veteran reported prostrating attacks on a weekly basis at the Board hearing, thus qualifying for a 30 percent evaluation. Prior to April 20, 2021, the Veteran's VA and private treatment records are silent for characteristic prostrating attacks of headache pain. In 2013, the Veteran reported experiencing more frequent headaches. At the May 2014 examination, he reported headaches and good result with Sumatriptan. There was no indication of an impact on his work or of characteristic prostrating attacks. Although prior to April 20, 2021 the Veteran's symptoms do not meet the criteria for a 10 percent evaluation (migraines with characteristic prostrating attacks averaging one in 2 months over the last several months), the Board will not disturb the 10 percent evaluation in place. As the Veteran's VA and private treatments are silent for characteristic prostrating attacks of headache pain prior to April 20, 2021, an evaluation greater than 10 percent prior to April 20, 2021, is not warranted. 38 C.F.R. § 4.124a, DC 8100. From April 20, 2021, the evidence that shows characteristic prostrating attacks is the testimony provided at the April 2021 hearing, and then at the September 2021 examination. At the examination the Veteran relayed experiencing headaches twice a month, which necessitate treatment by with Sumatriptan, lying down, and a dark room. The examiner noted he experiences characteristic prostrating attacks monthly; however, they are not productive or capable of producing severe economic inadaptability. The 2014 examiner noted there may be the possible requirement of a brief absence from work during times of severe headaches. The 2021 examiner noted prostrating attacks once a month, with the typical functional impairment being he may miss work due to light sensitivity. The reference to a brief absence from work, and possibly missing work on account of a monthly headache does not reach the criteria of a 50 percent evaluation (namely, there is no indication of migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability). In light of the foregoing, the Board finds that a rating in excess of 30 percent is not warranted from April 20, 2021. The evidence does not show that the migraines have manifested in or more nearly approximated very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability or capable of producing severe economic inadaptability from April 20, 2021. Additionally, the Board notes the Veteran has been noted as taking medication to treat his headaches, to include Sumatriptan and Goody's powder. However, the Board emphasizes that this decision is not based on any finding that the Veteran's medication provided relief, but rather it is based on the fact that the necessary symptoms and manifestations for the severity of the headaches are not demonstrated by the evidence of record regardless of any medication the Veteran takes. The evidence simply does not demonstrate the necessary findings for a higher 30 percent rating for headaches, with or without medication. In conclusion, the criteria for an evaluation higher than 10 percent prior to April 20, 2021 for headaches have not been met. However, beginning April 20, 2021, a 30 percent rating, and no higher, have been met. As the persuasive evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 3. Entitlement to a TDIU prior to August 9, 2016. TDIU is 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. 38 C.F.R. § 4.16(a). For these purposes, disabilities of common etiology are considered a single disability. Id. Prior to August 9, 2016, service connection was in effect for radiculopathy of the right lower extremity with a 20 percent evaluation from January 2014, left shoulder injury residuals with a 10 percent evaluation from September 1994, postoperative right wrist carpal tunnel release with a 10 percent evaluation from December 2001, headaches with a 10 percent evaluation from June 2010, spinal stenosis of the lumbar spine with a 10 percent evaluation from December 2013, cervical degenerative joint disease with a 20 percent evaluation from June 2010, left wrist ganglion cyst with a noncompensable evaluation, and scar status post left wrist excision with a noncompensable evaluation. The Veteran is in receipt of a combined evaluation of 40 percent from June 14, 2010; of 50 percent from December 5, 2013, and of 60 percent from January 28, 2014. As such, the Veteran does not meet the percentage requirements for TDIU prior to August 9, 2016. 38 C.F.R. § 4.16(a). A TDIU may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section § 4.16(a). This is one of those circumstances. In exceptional circumstances, where a veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). The Board has no authority to assign a TDIU rating under section 4.16(b) and may only refer the claim to the Director, Compensation Service, for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Although the Veteran does not meet the schedular requirements for a TDIU prior to August 9, 2016, there is evidence in the record that his disabilities may have impacted his ability to maintain substantially gainful employment. In this case, the Veteran has not worked since 2014. He is in receipt of TDIU as of August 9, 2016. In a December 2013 statement, the Veteran reported his neck, back, and migraines had worsened to the point he felt he needed to stop working. In a June 2014 VA Form 21-4192, he reported last working as a material handler in January 2014. In April 2014, the Veteran submitted a VA Form 21-8940 explaining he last worked in January 2014. He reported his upper and lower back, neck, bilateral hands, and legs have prevented him from securing or following any substantially gainful occupation. In a June 2014 report of general information, the Veteran reported being out of work for the prior six months due to back and hand pain, and migraines. At the May 2014 neck examination, the examiner found the Veteran may have limitation in a physical setting performing construction, when he may require an absence from work during an exacerbation of neck pain. He would have no limitations in a sedentary occupational setting. At the May 2014 wrist examination, the Veteran reported he last worked in January 2014 as a forklift operator, and reported he stopped working due to his back condition. He reported utilizing a cane due to his back condition, and wears a wrist wrap due to symptoms of carpal tunnel. The examiner stated that as to whether the Veteran is able to maintain substantially gainful employment, and opinion could not be rendered as the examiner is not a professional to so opine. At the May 2014 headache examination, the examiner concluded his condition had no impact on his ability to work. At the May 2014 peripheral nerve examination, the examiner indicated his conditions have no impact on his ability to work. As this evidence points to the reasonable possibility that the Veteran was unemployed due to his service-connected disabilities, this issue is referred to the Director Compensation Service for extraschedular consideration of TDIU. Accordingly, the case is REMANDED for the following action: Refer the issue of entitlement to a TDIU prior to August 9, 2016, to the Director of Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.