Veteranclaims’s Blog

January 15, 2019

Single Judge Application; what constitutes “very frequent” or “prolonged” headaches; 38 C.F.R. § 4.124a; Diagnostic Code (DC) 8100 (2018);

Filed under: Uncategorized — veteranclaims @ 9:16 pm

Excerpt from decision below:

38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100 (2018). A 50% disability rating is assigned for headaches resulting in “very frequent completely prostrating prolonged attacks productive of severe economic inadaptability.” Id. In its recent decision in Johnson v. Wilkie, the Court concluded that DC 8100 is successive, meaning that “each disability level builds on another in terms of duration and frequency, requiring…a veteran rated at a higher level to satisfy all the requirements of the lower levels.” 30 Vet.App. 245, 253 (2018). The Court also held that the rating criteria for a 50% disability rating under DC 8100 are conjunctive, meaning that establishing entitlement to a 50% disability rating requires evidence that a claimant’s migraine attacks are
(1) very frequent, (2) completely prostrating and prolonged, and (3) “productive of severe economic inadaptability.” Id. Thus, if one of these elements is missing, a claimant is not entitled to a 50% disability rating. See Camacho v. Nicholson, 21 Vet.App. 360, 366 (2007). Given the
conjunctive structure of the language used in specifying the criteria for a 50% disability rating under DC 8100, all criteria must be met to establish entitlement to a 50% rating under this DC. Id.
Finally, the Court concluded that, because DC 8100 contains successive rating criteria, § 4.7 and § 4.21 are not applicable. See Johnson, 30 Vet.App. at 253.
In this case, the Board found that the appellant did not satisfy the 50% disability rating level because he did not suffer from “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” R. at 13. “

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“The Court is unable to address the merits of the appellant’s arguments at this time because the Board did not adequately describe the standard it used to determine what constitutes “very frequent” or “prolonged” headaches. When determining a disability rating, the Board is required to include in its decision a written statement of its reasons or bases.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2243
WILLIAM GRAJALES, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, William Grajales, through counsel, appeals a June 9,
2017, Board of Veterans’ Appeals (Board) decision in which the Board (1) granted an initial
disability rating of 30% for the appellant’s migraine headaches for the entire period on appeal, and
denied a rating greater than 30% for this disability; (2) granted an initial rating of 30% for the
appellant’s irritable bowel syndrome (IBS), and a denied a rating greater than 30% for this
disability; and (3) denied entitlement to a total disability rating based on individual
unemployability (TDIU). Record of Proceedings (R.) at 1-21. The appellant does not challenge
the denial of entitlement to an initial rating in excess of 30% for IBS and the denial of entitlement
to a TDIU; therefore, the Court deems those issues abandoned and will dismiss the appeal as to
those issues. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
Additionally, the Board remanded (1) a disability compensation claim for a back disability,
claimed as secondary to service-connected migraine headaches; (2) a disability compensation
claim for a bilateral knee disability, claimed as secondary to service-connected migraine
headaches; (3) a disability compensation claim for a lung condition, including obstructive sleep
apnea (OSA), claimed as secondary to service-connected migraine headaches, chemical exposures,
and environmental exposures; (4) a disability compensation claim for sinusitis, claimed as
2
secondary to chemical exposures and environmental exposures; and (5) a disability compensation
claim for an acquired psychiatric disability, including depressive disorder, claimed as secondary
to service-connected migraine headaches. R. at 21-30. The remanded claims are not before the
Court. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board cannot
be reviewed by the Court). This appeal is timely, and the Court has jurisdiction to review the
Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons,
the Court will vacate the Board’s decision denying an initial rating greater than 30% for the
appellant’s migraine headaches, and remand the matter for proceedings consistent with this
decision.
I. BACKGROUND
The appellant served in the U.S. Army from April 1982 to April 1987. R. at 3759. In May
2006, the appellant filed a claim for service connection for migraine headaches. R. at 3942-44. In
July 2007, the regional office (RO) granted service connection for the appellant’s migraine
headaches, and evaluated them as 10% disabling, effective May 2, 2006. R. at 3537-43. In August
2007, the appellant asserted that his migraine headaches are “constant and unpredictable,”
occurring “7 to 8 times per month” and lasting anywhere from 24 to 72 hours. R. at 3615, 3418
(Aug. 2007 primary care note reflecting similar complaints from the appellant, that even with
medication his migraines occurred 7 to 8 times a month). He also stated that his migraines affected
his vision and “coordination and balance” and caused “[n]ausea and [v]omitting.” Id.; R. at 3418
(Aug. 2007 primary care note recording the appellant’s statement that he experienced nausea and
vomiting during migraines). Additionally, the appellant, a VA employee, submitted a VA
employment leave form that reflects that between September 2005 and August 2007, he requested
and was approved for more than 351 hours of sick leave. R. at 3522-24.
In the April 2008 Notice of Disagreement (NOD), the appellant disagreed with the 10%
disability rating assigned for his migraine headaches, stating that this disorder “continue[d] to
affect his work performance” as well as his “vision and ability to express properly or present work
to others.” R. at 3360-61.
At a February 2009 VA examination, the appellant reported that his migraines worsened
and that he responded poorly to medication and treatment. R. at 3210. As in his 2007 statement
3
and the 2007 treatment note, the appellant continued to report that he experienced migraine
headaches weekly and that the attacks lasted between 1 to 2 days. Id. The examiner determined
that the appellant’s migraine headaches had “significant effects” on his occupation and resulted in
“increased absenteeism.” R. at 3212. She also found that the appellant’s migraine headaches
prevented him from traveling, exercising, shopping, performing chores, and participating in
recreational activities. Id. In his March 2009 Substantive Appeal, the appellant reported
experiencing weekly migraine attacks that lasted for 3 days. R. at 3167. He also stated that
migraines affect his ability to perform his duties as an IT manager. R. at 3169. At an April 2010
VA examination, the appellant reported that because of his migraine headaches he had missed 15
weeks of work in the last 12-month period. R. at 3068.
The appellant was afforded another VA examination in May 2010, when he reported
experiencing speech disturbances that sometimes occur before and after his headaches. R. at 3055.
As in his earlier accounts to medical examiners, the appellant reported experiencing weekly
headaches that persisted for 2 days. R. at 3056. Additionally, the appellant reported that his
headaches were mostly prostrating in nature. R. at 3056. The VA examiner diagnosed the
appellant with migraine headaches with secondary dysphasia due to circulatory changes in frontal
cortex. R. at 3057. The examiner also opined that the appellant’s speech difficulties are secondary
to his service-connected migraine headaches. R. at 3057-59. Further, the examiner concluded that
the appellant’s migraine headaches resulted in significantly affected his employment, including
causing increased tardiness and absenteeism. Id.
In July 2010, the RO granted service connection for the appellant’s speech difficulties as
part and parcel of his service-connected migraine headaches and recharacterized his disorder to
migraine headaches including speech difficulties. R. at 3006-16. At a March 2011 VA
examination, the appellant continued to report experiencing weekly migraines. R. at 2981-82.
Additionally, the appellant continued to report that his migraines were mostly prostrating, and that
each persisted for 1 to 2 days. Id. Although the appellant was employed full time, the examiner
noted that the appellant had missed 33 weeks from work in the last year because of his migraines.
R. at 2983. The examiner observed that the appellant’s migraine headaches affected his usual
occupation and resulted in increased absenteeism. Id. The examiner also observed that the
appellant’s prostrating headaches affected his ability to perform his usual daily activities. Id.
4
In January 2015, the RO increased the disability rating to 30% for the appellant’s migraine
headache including speech difficulties, effective May 7, 2010. R. at 2453-56. In July 2015, the
appellant asserted that his migraine headaches with speech difficulties prevented him from
completing his duties effectively. R. at 1661. In a September 2016 disability benefits
questionnaire (DBQ) completed by the appellant, he noted that he experiences “headaches [four]
to [five] times a week up to the level that [he is] unable to work.” R. at 930. He reported that his
headaches resulted in constant pulsating or throbbing head pain, which worsened with physical
activity, and prevented him from walking, talking, reading, and performing professional skills
associated with his job. Id. The appellant stated that his headaches occurred more frequently than
once per month, and that each lasted 4 to 5 days. R. at 931. The appellant also reported that he
experienced very frequent prostrating and prolonged migraines, and that because of his condition
he was unable to work 3 to 4 days a week. R. at 930-31. At a September 2016 VA treatment visit,
the treatment provider described the appellant’s migraines as “relatively” severe and noted that his
migraines had increased in the last few months because of stress. R. at 177. The treatment provider
further noted that the appellant’s oral medication does not completely resolve his symptoms, and
he often experienced nausea with vomiting when taking the medication. Id.
The appellant underwent another VA examination in February 2017, at which time he
reported experiencing headache pain that lasts 1 to 2 days for each headache and worsens with
physical activity. R. at 859-60. He also reported experiencing nausea, vomiting, sensitivity to
light and sound, and changes in his vision. R. at 860. The examiner indicated that the appellant
experiences characteristic prostrating migraine and non-migraine headache pain once every month.
Id. The examiner further determined that the appellant’s headache condition affects his ability to
work as he “must take unscheduled breaks and medications (at times injectable) while at work,”
and “[h]e works with a very elastic and liberal schedule and this practically does not interfere with
his performance.” R. at 861.
In the June 2017 decision, the Board granted a 30% disability rating for the appellant’s
migraine headaches for the entire period on appeal, but denied the claim for a rating higher than
30%. R. at 2-28. In the decision, the Board found that while the appellant did experience frequent
headaches, not all his headaches rose to the level of “completely prostrating.” R. at 13-14. The
Board also found that although the appellant contended that his migraine headaches had a
5
significant impact on his job performance, “such impact had not risen to the level of severe
economic inadaptability.” R. at 14.
II. ANALYSIS
A. Migraine Headaches
The assignment of a disability rating is a factual finding that the Court reviews under the
“clearly erroneous” standard of review. Johnston v. Brown, 10 Vet.App. 80, 84 (1997). A finding
of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the
definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
Under the current rating schedule for migraines, a 30% disability rating is assigned for
headaches resulting in prostrating attacks occurring on average once a month over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100 (2018). A 50% disability rating is assigned for headaches resulting in “very frequent completely prostrating prolonged attacks productive of severe economic inadaptability.” Id. In its recent decision in Johnson v. Wilkie, the Court concluded that DC 8100 is successive, meaning that “each disability level builds on another in terms of duration and frequency, requiring…a veteran rated at a higher level to satisfy all the requirements of the lower levels.” 30 Vet.App. 245, 253 (2018). The Court also held that the rating criteria for a 50% disability rating under DC 8100 are conjunctive, meaning that establishing entitlement to a 50% disability rating requires evidence that a claimant’s migraine attacks are
(1) very frequent, (2) completely prostrating and prolonged, and (3) “productive of severe
economic inadaptability.” Id. Thus, if one of these elements is missing, a claimant is not entitled to a 50% disability rating. See Camacho v. Nicholson, 21 Vet.App. 360, 366 (2007). Given the conjunctive structure of the language used in specifying the criteria for a 50% disability rating under DC 8100, all criteria must be met to establish entitlement to a 50% rating under this DC. Id.
Finally, the Court concluded that, because DC 8100 contains successive rating criteria, § 4.7 and § 4.21 are not applicable. See Johnson, 30 Vet.App. at 253.
In this case, the Board found that the appellant did not satisfy the 50% disability rating level because he did not suffer from “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” R. at 13.
The appellant contends that [t]he Board’s
finding that [his] migraine attacks were not “very frequent” and “prolonged” was “clearly
6
erroneous.” Appellant’s Brief (Br.) at 11. The appellant argues that the record is replete with
evidence that his headaches occurred at least weekly and that each headache lasted 1 to 2 days. 1
Additionally, he notes that the Board conceded that his repeated statements regarding his
headaches were “highly probative” and credible. R. at 13. Essentially, the appellant argues that
given the Board’s findings and the uncontradicted evidence regarding the frequency and duration
of his migraine attacks, the Board’s findings regarding the frequency and duration of his headaches was clearly erroneous.
The Court is unable to address the merits of the appellant’s arguments at this time because the Board did not adequately describe the standard it used to determine what constitutes “very frequent” or “prolonged” headaches. When determining a disability rating, the Board is required to include in its decision a written statement of its reasons or bases. As with all its findings and
conclusions on all material issues of fact and law presented on the record, that statement must be
adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as
facilitate informed review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App.
517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). The Board’s failure to provide
the basis for the standard it used to determine that the appellant’s headaches were neither “very
frequent” nor “prolonged” prevents the appellant from understanding the basis for the Board’s
decision and prevents this Court from being able to conduct an informed review of the Board’s
findings. “Without a standard for comparing and assessing terms of degree, such conclusory
findings are unreviewable in this Court.” See Johnson, 30 Vet.App. at 255.
The appellant also challenges the Board’s finding that his migraine headaches were not
“completely prostrating” and were not productive of “severe economic inadaptability.” R. at 13-

  1. With respect to the prostrating nature of the appellant’s headaches, the Board relying on the
    May 2007, February 2009, and May 2010 VA examination reports stated that not all the appellant’s
    headaches rose to the level of “completely prostrating,” because the examiners who conducted
    1 Between 2007 and 2011, the appellant repeatedly reported that he experienced headaches on a weekly basis
    that each persisted for 1 to 2 days. R. at 3680-81, 3418, 3210, 2983, 3056. In the September 2016 DBQ, the appellant
    noted that he experiences headaches 4 to 5 times a week and that his headaches last 4 to 5 days in duration. R. at 930-
  2. The appellant also reported to experience characteristic prostrating attacks of migraine and non-migraine
    headache pain more frequently than once per month. R. at 931.
    7
    these examinations concluded that the appellant was able to bathe, dress, toilet, and groom himself
    during his migraine headaches. Id. at 13
    The appellant argues that “the Board imposed an erroneously stringent standard for
    concluding that the appellant’s headaches were not “completely prostrating.” He contends that his
    “ability to complete the most basic tasks of daily living” such as the ability to bathe, dress, toilet,
    and groom himself does not mean that his migraines were not “completely prostrating if they left
    him completely mentally exhausted, which they did.” Id. at 15. After consulting several
    dictionaries, the Board concluded that “prostrating” means “extreme exhaustion or powerlessness,”
    or “physically or emotionally exhausted; incapacitated.” R. at 9. The Court agrees with the
    appellant that the Board did not adequately explain how it concluded that the appellant’s ability to
    bathe, dress, toilet and groom himself during his migraine episodes evidences that he was not
    experiencing extreme physical or emotional exhaustion, and powerlessness. In other words, the
    Board did not explain why it incredible that a person could experience extreme emotional and
    physical exhaustion and still be able to bathe, use the toilet, dress, and groom him or herself.
    Because the Board did not adequately explain the basis for its finding, it is not possible to discern
    the precise basis for the Board’s decision, and judicial review is frustrated. See 38 U.S.C.
    § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57.
    The appellant also argues that the Board “failed to properly adjudicate whether [his]
    headaches were capable of, or productive of, severe economic [in]adaptability.”
    Appellant’s Br. at 20. The appellant argues that the Board “focused solely on whether [the
    appellant’s] headaches actually produced severe economic inadaptability, but failed to
    appropriately consider and discuss whether they were capable of producing such inadaptability.”
    Id.
    In response, the Secretary maintains that “this argument amounts to a mere disagreement
    with how the Board weighed the evidence.” Secretary’s Br. at 10. The Secretary acknowledged
    that the evidence of record showed that the appellant’s migraines affected his work, but found that
    “the facts do not demonstrate that they were completely prostrating or were productive of severe
    economic inadaptability.” Id. According to the Secretary, “[t]o the extent that [a]ppellant is
    arguing that the Board’s decision is inadequate because it failed to provide more explicit standards
    and definitions for ‘severe economic inadaptability'[,]…[n]o law or caselaw exists that requires the
    Board to articulate such definitions, or considers their absence remandable error.” Id. at 11.
    8
    The Court rejects the Board’s reasoning that that appellant’s ability to maintain “a
    high-paying and demanding career despite his migraine headache disability is highly probative
    evidence against a finding of severe economic inadaptability.” R. at 14. In Pierce v. Principi, the
    Court explained that DC 8100 does not require the inability to work, and the phrase “productive
    of severe economic inadaptability” in DC 8100 should be construed as either “producing” or
    “capable of producing” economic inadaptability. 18 Vet.App, 440, 445 (2004). The Court in
    Pierce observed that “nothing in DC 8100 requires that the claimant be completely unable to work
    in order to qualify for a 50[%] rating.” Id. at 446. The Court further reasoned that if the claimant
    were unemployable, he would be eligible for a total disability evaluation based on individual
    unemployability rather than just a 50% rating. Id.
    Here, the Board improperly relied on the fact that the appellant’s migraines had not, in fact,
    resulted in negative work consequences, R. at 14, rather than considering whether his symptoms
    were “capable of producing” such impairment, regardless of his employer’s flexibility. In addition,
    the Board did not consider the appellant’s complaints throughout the appeal describing the effect
    his migraine headaches had on his ability to work, nor did the Board note the February 2009, May
    2010 and March 2011 VA examination reports that reflected that the appellant’s migraine
    headaches had significantly affected his ability to work, increasing incidents of tardiness and
    absenteeism. R. at 2983, 3057, 3212. The Board did not sufficiently explain its findings in light
    of such evidence of record, which the appellant asserts could cause economic inadaptability but
    for the flexible terms of his employment, just as the Board did not consider/explain evidence that
    the appellant “works with a very elastic and liberal schedule.” R. at 861.
    Further, the Board failed to consider the potentially favorable provision in the VA
    Adjudication Procedures Manual (M21-1) that use of leave is evidence of work impairment. M21-
    1, pt. III, subpt. v, ch. 4, § N(7)(b). See Appellant’s Br. at 22. “[T]he Board is required to discuss
    any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or
    bases,” Overton v. Wilkie, 30 Vet.App. 257, 264 (2018); see also Patton v. West, 12 Vet.App. 272,
    282 (1999) (“The [Board] cannot ignore provisions of the [M21-1]…that are favorable to a veteran
    when adjudicating that veteran’s claim.”).
    Here, the Board failed to consider the portion of the April 2010 VA examination report
    noting that the appellant had missed 15 weeks of work in the last 12 months because of his
    migraines, R. at 3068, as well as the portion of the March 2011 VA examination report in which
    9
    it was noted that although the appellant was still employed on a full-time basis, in the last year his
    migraines had caused him to be absent from work for 33 weeks. R. at 2983. Because the Board
    relied on a lack of negative work consequences and failed to discuss the relevant provisions of the
    M21-1, its statement of reasons or bases on whether the appellant’s migraines produce severe
    economic inadaptability is inadequate and judicial review is frustrated. See 38 U.S.C.
    § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57. Accordingly, the Court will
    remand the matter for the Board to provide an adequate statement of reasons or bases for all
    findings on material issues of fact and law. See Tucker v. West, 11 Vet.App. 369, 374 (1998)
    (“[W]here the Board has. . . failed to provide an adequate statement of reasons or bases for its
    determination. . . . a remand is the appropriate remedy.”).
    B. Separate Rating for Speech Impairments
    The appellant argues that the Board failed to determine whether he was entitled to a
    separate disability rating for his migraine-associated speech impairment. The Court notes that at
    the May 2010 VA examination, the appellant reported a history of speech disturbances that precede
    his headache episodes, and which consist of “mispronunciation of words, [and] inability to
    construct a logical sentence.” R. at 3055. The appellant also stated that after his episodes, he
    continues having speech difficulties for another 12 hours on average. R. at 3056. The VA
    examiner diagnosed the appellant with migraine headaches with secondary dysphasia due to
    circulatory changes in the frontal cortex. R. at 3057. In the February 2017 VA medical opinion,
    the VA examiner determined that the appellant’s “dysphasia or speech difficulty…is a direct
    consequence of abnormalities in the cerebral circulation associated with migraines,” and although
    “[t]his is an unusual presentation…[it] is part of the migraine syndrome, not an independent
    condition.” R. at 862. Considering these medical findings, and the appellant’s contentions that he
    developed speech impairment because of his migraine headaches, on remand the Board should
    also adjudicate whether the appellant is entitled to a separate compensable rating for his migraineassociated
    speech difficulties.
    Given this disposition, the Court need not, at this time, address any other arguments and
    issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order)
    (holding that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed
    errors before the Board at the readjudication, and, of course, before this Court in an appeal, should
    the Board rule against him”). The appellant is free on remand to submit additional evidence and
    10
    argument, including the arguments raised in his briefs to this Court, in accordance with
    Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
    consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
    (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of
    the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
    and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
    III. CONCLUSION
    After consideration of the appellant’s and the Secretary’s pleadings, and a review of the
    record, the Board’s June 9, 2017, decision is VACATED and the matter is REMANDED to the
    Board for further proceedings consistent with this decision.
    DATED: January 11, 2019
    Copies to:
    Kevin A. Medeiros, Esq.
    VA General Counsel (027)
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