Citation Nr: 25005232 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 94-12 701 DATE: April 17, 2025 ORDER For the initial rating period from September 10, 2013 to September 10, 2024, a 50 percent (maximum) rating for service-connected migraine headaches is granted. REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. Service connection for a heart disorder is remanded. Service connection for hypertension is remanded. For the rating period from February 26, 1998 to January 5, 2010, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the initial rating period from September 10, 2013 to September 10, 2024, the migraine headaches have more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, for the initial rating period from September 10, 2013 to September 10, 2024, the criteria for a 50 percent (maximum) schedular disability rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from May 1986 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 1998 and April 2014 rating decisions from the Regional Office (RO). In April 2002, the Veteran testified at a video conference Board hearing regarding the issue of TDIU before a Veterans Law Judge who is no longer with the Board. Thereafter, the Veteran was afforded a new hearing and testified at a Travel Board Hearing in Muskogee, Oklahoma, before the undersigned Veterans law Judge in October 2007. Transcripts of the April 2002 and October 2007 hearings are in the record. By way of history, TDIU was previously before the Board in April 2008, at which time the Board denied TDIU. See April 2008 Board Decision. The Veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated February 26, 2010, the Court vacated and remanded the issue of TDIU to correct a duty to assist error that will be discussed further below. Notably, in a rating decision dated a day prior, February 25, 2010, the RO granted TDIU effective January 5, 2024. As the claim for TDIU stemmed from a claim received in February 1998, a TDIU for the period from February 26, 1998 to January 5, 2010 remains on appeal before the Board. In May 2013 and December 2013 Board decisions, the issue of TDIU for the period prior to January 5, 2010 was subsequently remanded to the Agency of Original Jurisdiction (AOJ) as intertwined with a pending claim for service connection for a right knee disability. The issues of TDIU prior to January 5, 2010, a higher initial rating for migraine headaches, and service connection for a heart disorder, hypertension, and OSA subsequently came before the Board in April 2015 and November 2015. In the April 2015 and November 2015 Board decisions, a higher rating for migraine headaches and service connection the heart, hypertension, and OSA disorders were remanded for VA examinations and addendum opinions. TDIU was remanded to readjudicate the TDIU claim for the period prior to January 5, 2010, as the AOJ had not reconsidered the TDIU issue up to that point. Thereafter, the issues on appeal were repeatedly referred to the RO for development consistent with the Board's 2015 Board remand directives, most recently in an April 2023 Board decision. The Veteran appealed the April 2023 Board decision as to the referred issues to the Court. In an Order dated February 2024, the Court granted a Joint Motion for Partial Remand (JMPR), which remanded the issues on appeal back to the Board for development consistent with the JMPR. Per the JMPR, the parties agreed that the Board had jurisdiction over these issues, and that the proper course of action for the Board was to remand the issues on appeal back to the AOJ for completion of the prior remand directives, rather than referring the issues to the AOJ. In July 2024, the Board remanded the issues for compliance with the February 2024 JMPR, and for additional development, to include a toxic exposure risk activity (TERA) memo and an addendum TERA opinion, if applicable, to obtain an addendum VA heart medical opinion, and to obtain a new VA examination to help assess the current severity of the service-connected migraine headaches. Pursuant to the requested development, the RO granted a higher 30 percent rating for migraine headaches effective March 4, 2016, and a maximum 50 percent rating for migraines for the stage from September 10, 2024. See December 2024 rating decision. As the Board is granting a higher (maximum) 50 percent rating for migraine headaches for the entire rating period from September 10, 2013 to September 10, 2024, and the Veteran is already in receipt of a maximum 50 percent rating for migraines from September 10, 2024, so is a full grant of the benefit sought on appeal, there is no need to discuss the duties to notify and assist as it relates to a higher initial rating for migraine headaches. The issue of TDIU prior to January 5, 2010 and service connection for a heart disorder, hypertension, and OSA are remanded for further development. While such remand will add to this lengthy claim, the additional assistance is either required by the Court or is designed to assist the Veteran. In a Legacy claim such as this, the only practical way for the Board to assist the Veteran is by again remanding the issues. Disability Rating Criteria 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 lower 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. The Veteran has appealed from the initial rating assigned for migraine headaches. In an appeal for a higher initial rating after a grant of service connection, all evidence submitted in support of a veteran's claim is to be considered. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Board does not find stages ratings to be appropriate in this matter. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. 1. Rating Migraines from September 10, 2013 to September 10, 2024 The service-connected migraine headaches are assigned a 0 percent rating from September 10, 2013, and a 30 percent rating from March 4, 2016 under Diagnostic Code 8100. 38 C.F.R. § 4.124a. The Veteran generally appeals for a higher initial See May 2014 Notice of Disagreement (NOD), November 2014 VA Form 9. Migraine headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100, which provides a 0 percent rating with evidence of less frequent attacks. A 10 percent rating is warranted for prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Although prostrating attacks are not defined in the rating criteria, medical guidance used by the VA Compensation Service indicates that such an attack causes one a lack of strength to the point of exhaustion. See VA Compensation Service's Medical Electronic Performance Support System. The Board has considered whether higher or separate ratings are warranted under the other Diagnostic Codes used to rate headaches but finds that none apply. Therefore, higher or separate ratings under other Diagnostic Codes are not warranted. See 38 C.F.R. § 4.124a, Diagnostic Codes 8103-8108. After reviewing all the lay and medical evidence, the Board finds that, for the initial rating period from September 10, 2013 to September 10, 2024, the service-connected migraine headaches have more nearly approximated the criteria for a higher (maximum) 50 percent rating, that is, very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In written statements from 2014, the Veteran reported that she experiences headaches at least twice a week, sometimes daily, that are disabling, which had been treated with acupuncture, bio-touch, and biofeedback therapy weekly for about two years. See May 2014 NOD, November 2014 VA Form 9. A VA headache examination was provided in March 2014, during which the Veteran endorsed daily, constant, pulsating, throbbing pain on both sides of the head with associated sensitivity to light and sound. Although the Veteran reported daily throbbing head pain and that the headaches were disabling, the VA examiner assessed prostrating attacks less than once every two months. Notably, during a March 2014 traumatic brain injury VA examination, the Veteran also endorsed marked fatigability, blurred vision, and headaches that require rest periods on most days. See March 2014 VA Examination Reports. During a March 2016 VA examination, the Veteran continued to endorse weekly migraines characterized by severe pain and sensitivity to light and sound, that typically last 10 to 12 hours but can last up to 24 hours. The Veteran reported inability to work, cook, or do any chores during headaches. The VA examiner assessed prostrating attacks once per month. See March 2016 VA Examination Report. Similarly, during the September 2024 VA examination, the Veteran continued to endorse severe headaches of a history of more than 30 years with throbbing and pulsating head pain. The Veteran endorsed migraines 5 to 6 times a week that lasted less than one day; however, the VA examiner assessed prostrating attacks once a month. See March 2016, September 2024 VA Examination Reports. Overall, the credible lay and medical evidence of record indicates that the Veteran has a longitudinal history of migraine headaches characterized by severe, throbbing and pulsating head pain with associated sensitivity to light and sound, which occurs multiple times a week, lasts 10 to 24 hours a day, and requires the Veteran to rest, rendering the Veteran unable to work or engage in any daily activities during migraine flares. See March 2014, March 2016, September 2024 VA Examination Reports, May 2014 NOD, November 2014 VA Form 9. Based on this evidence and resolving reasonable doubt in the Veteran's favor, the Board finds that the migraine headaches have more nearly approximated very frequent prostrating and prolonged attacks productive of severe economic inadaptability, so warrants a higher (maximum) 50 percent rating for the initial rating period from September 10, 2013 to September 10, 2024. 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS FOR REMAND 2. Service connection for OSA is remanded. 3. Service connection for a heart disorder is remanded. 4. Service connection for a hypertension is remanded. The Veteran appeals for service connection for OSA, a heart disorder, and hypertension, to include as secondary to the service-connected psychiatric disorder. See 38 C.F.R. § 3.310. Service Connection for OSA In February 2016, a VA medical opinion was provided on the theory of secondary service connection (38 CFR § 3.310), to include both secondary causation and aggravation. Regarding the theory of secondary aggravation, the VA examiner opined that it is less likely than not that the OSA was aggravated by the service-connected psychiatric disorder. The VA examiner reasoned that PTSD, as a psychological diagnosis, does not cause the anatomical or physiological changes associated with sleep apnea, namely the recurrent collapse of the pharyngeal airway during sleep. The rationale, which is based on causation of anatomical or physiological changes that cause OSA, does not clearly address whether the OSA was increased in severity (i.e., aggravated) by the service-connected psychiatric disorder, to include a discussion of the medical history and severity of the OSA relative to the service-connected psychiatric disorder. Notably, a February 2006 VA treatment note indicated that the Veteran's disordered sleeping was likely multifactorial, to include PTSD, depression, and anxiety, and that the medications including muscle relaxants and others may play a role in the OSA, suggesting that medications for the psychiatric disorder and service-connected physical disabilities may contribute to the sleep disordered breathing. Because the VA examiner in February 2016 combined the rationale for the theories of aggravation and causation, it is unclear if the VA examiner considered the concepts of causation and aggravation as distinct theories of secondary service connection. See El-Amin v. Shinseki, 26 Vet. App. 136,140 (2013) (the medical opinion on causation was given that did not address aggravation, and the Court remanded for a decision that did address aggravation); Atenciov. O'Rourke, 30 Vet. App. 74, 91 (2018). As such, a remand is warranted for and addendum opinion that addresses the theory of aggravation with supporting rationale. SC Heart Disorder The Veteran was provided a VA examination in September 2024, during which the VA examiner diagnosed coronary artery disease (CAD), not of significance (NOS). The examiner noted that there is no documented history of a myocardial infarction (MI), positive stress test, ischemia, or blockage severe enough to warrant intervention such as stent placement, so the heart condition is not ischemic in nature. See September 2024 VA Examination Report. In a December 2024 addendum medical opinion, the VA examiner opined that it is less likely than not that the current heart disorder was caused by the service-connected psychiatric disorder. The VA examiner reasoned that, while depression, anger, stress, and other factors have been correlated with cardiovascular outcomes, correlation is not equal to causation. The VA examiner concluded that the Veteran's history of posttraumatic stress disorder (PTSD) with dysthymic or depressive disorder does not cause CAD, and that the claims file does not show objective evidence of aggravation beyond a natural progression by PTSD during service. See December 2024 VA Examination Report. This opinion is not sufficient to adjudicate the claim on the merits. While the VA examiner indicates that a depression, anger, and stress, among other factors, have been correlated with cardiovascular events, the VA examiner provided no rationale for the conclusion that the service-connected psychiatric disorder did not cause the claimed heart disorder, to include the risk factors for the current heart disorder or a discussion of the medical history pertinent to the Veteran's heart disorder. Additionally, the VA examiner provided no supporting rationale for the opinion that the heart condition was not aggravated by the service-connected psychiatric disorder. To the extent, the VA examiner indicated that the evidence does not show that the heart disorder was aggravated by PTSD during service, no such evidence of aggravation during service is required. The evidence need only supports a probability that the heart disorder was aggravated, i.e., increased in severity, by the service-connected psychiatric disorder at any time. See 38 CFR § 3.310. As such, a remand is necessary to obtain a medical opinion on the theory of secondary service connection with supporting rationale. Obesity as an Intermediate Step In addition, in a September 2015 brief, the representative suggested that the service-connected psychiatric disorder has caused sleep impairment and associated weight gain, which caused the current hypertension, OSA, and heart disorder. While a review of the record shows that the VA examiner in February 2016 indicated that the Veteran is obese, and that obesity is a significant factor in the development of OSA, no examiner of record has provided an opinion regarding whether the service-connected psychiatric disorder caused the current hypertension, OSA, and heart disorder by way of PTSD-associated weight gain. The Veteran is also service connected for various physical disabilities that may contribute to the Veteran's weight gain. On remand, the RO should obtain an opinion that addresses the theory of obesity as an intermediate step between the service-connected psychiatric and physical disabilities and the current hypertension, OSA, and heart disorder. 5. TDIU from February 26, 1998 to January 5, 2010 is remanded. The Veteran submitted a claim for TDIU in February 1998, asserting unemployability due to the service-connected psychiatric and physical disabilities. During the October 2007 Board hearing, the Veteran testified that she applied to vocational rehabilitation about a year prior due to limitations in meeting the demands of the then current job. The Veteran testified that the application for the Veterans Readiness and Employment (VRE) program was denied, without recollection as to the reason. In an April 2008 decision, the Board denied TDIU. As noted above, in February 2010, the Court vacated and remanded the April 2008 Board decision as to the denial of TDIU. The Court noted, and the Secretary agreed, that VA had a duty to obtain the outstanding VRE records, as they were relevant to the TDIU claim. Upon review of the record, it does not appear that the relevant VRE records have been associated with the claims file. On remand, the RO should request and associate any available VRE records for the period from February 1998 to January 2010 with the claims file. The issue of TDIU prior to January 5, 2010 and service connection for OSA, a heart disorder, and hypertension are REMANDED for the following action: 1. Schedule a VA medical opinion to address the claimed OSA. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should offer opinions: a) Is it at least as likely as not that the current OSA was aggravated by (increased in severity by) the service-connected psychiatric disorder or physical disabilities, to include medications prescribed for the service-connected disabilities? b) Is it at least as likely as not that the Veteran's weight gain/obesity was caused by the service-connected psychiatric disorder and/or physical disabilities? c) If yes, would the Veteran have OSA if she were not obese? The examiner should discuss the lay and medical evidence, as well as any medical literature, and/or principles relied upon to support the OSA opinions. The VA examiner should provide a separate rationale that considers the theory of aggravation (increase in severity) that is independent of causation. Please clarify if there is any biomechanical or physiological manner present in this case by which the service-connected disorders would result in a worsening in the severity (aggravation) of the heart disorder, to include due to prescribed, pain medication, muscle relaxants, and/or psych medications (see February 2006 VA Treatment Record). Please also discuss the likelihood that the psychiatric and physical disabilities affect the capacity for diet and exercise that would prevent weight gain/obesity. 2. Return the VA medical opinion report to the VA examiner who provided the heart disorder medical opinion in December 2024. If the original VA examiner is unavailable, a new examiner may be assigned to address the requested opinion. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should offer opinions: a) Is it at least as likely as not that the current heart disorder was caused by the service-connected psychiatric, disorder? b) Is it at least as likely as not that the current heart disorder was aggravated by (increased in severity by) the service-connected psychiatric disorder? c) Is it at least as likely as not that the Veteran's weight gain/obesity was caused by the service-connected psychiatric disorder and/or physical disabilities? d) If yes, would the Veteran have a heart disorder if she were not obese? The examiner should discuss the lay and medical evidence, as well as any medical literature, and/or principles relied upon to support the hypertension opinions. The VA examiner should provide separate rationales that consider the theories of causation and aggravation (worsening in severity) that are independent of one another. Please clarify if there is any biomechanical or physiological manner present in this case by which the psychiatric disorder would result in a worsening in the severity (aggravation) of the heart disorder. Please also discuss the likelihood that the psychiatric disorder and physical disabilities affects the capacity for diet and exercise that would prevent weight gain/obesity. 3. Schedule a VA medical opinion to address the claimed HTN. The relevant documents in the record should be reviewed by the examiner and a detailed history of relevant symptoms should be obtained from the record. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should offer opinions: a) Is it at least as likely as not that the Veteran's weight gain/obesity was caused by the service-connected psychiatric disorder and/or physical disabilities? b) If yes, would the Veteran have hypertension if she were not obese? The examiner should discuss the lay and medical evidence, as well as any medical literature, and/or principles relied upon to support the hypertension opinions. Please also discuss the likelihood that the psychiatric and physical disabilities affect the capacity for diet and exercise that would prevent weight gain/obesity. 4. Contact the Veterans Benefits Administration (VBA) or appropriate VA department to obtain vocational readiness and employment (VRE) records for the period from February 1998 to January 2010. If records cannot be obtained, the Veteran should be informed, with a formal memorandum to the file to document all efforts. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, S. 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.