Citation Nr: 18131248
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-41 179
DATE:	August 31, 2018
ORDER
The claim for service connection for hypertension is reopened, and the appeal is granted.
The claim for service connection for traumatic brain injury (TBI) is granted. 
Entitlement to a 30 rating for migraine headaches is granted.
FINDINGS OF FACT
1. The Veteran did not appeal an August 2005 decision which denied service connection for hypertension, but evidence received since that decision relates to a previously unestablished element of the claim.
2. The Veteran’s hypertension had its initial onset during a period of active duty service and has continued unabated ever since.  
3. The Veteran has a current TBI that incurred in service and is etiologically related to service.  
4. The Veteran’s migraine headaches are manifested by very frequent, completely prostrating and prolonged attacks capable of producing severe economic inadaptability.  
CONCLUSIONS OF LAW
1. The August 2005 rating decision which denied service connection for hypertension is final, but new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 3.156, 3.160, 20.200, 20.302, 20.1103.
2. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.
3. The criteria for service connection for TBI are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.
4. The criteria for a maximum disability rating of 50 percent for migraine headaches are met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27. 4.124a, Diagnostic Code (DC) 8100.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service in the United States Marine Corps from July 1993 to May 1997. He also served in the United States Army from March 2003 to April 2004, April 2005 to June 2006, September 2008 to October 2008, March 2009 to August 2009, and from June 2014 to September 2014. 
These matters comes before the Board of Veterans’ Appeals (Board) on appeal from December 2012 and March 2014 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). 
In March 2018, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ) with the Veteran being located in Denver, Colorado and the VLJ in Washington, D.C. At the hearing, the Veteran requested 90 days to obtain a medical opinion from his private care provider on the etiology and nature of his hypertension, which was granted. In April 2018, the Veteran submitted the aforementioned medical opinion. 
The Board also acknowledges that the claims of service connection for residual disabilities of TBI and an increased rating for migraine headaches were perfected in March 2017, but are not yet certified to the Board. For the sake of efficiency, the Board elected to take testimony on both claims at the March 2018 hearing. The Veteran continued submitting additional evidence relating to these claims during the 90-day open record period allocated for evidence relating to his claim for service connection of hypertension through April 2018. Since then, no further additional evidence has been submitted. As such, the Board will accept jurisdiction over these claims. All three claims are addressed in the decision below. 
I.	New and Material Evidence
Generally, a claim that has been denied by an unappealed rating decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. 
“New” evidence means evidence not previously submitted to agency decisionmakers, and “material” evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a “low threshold” in which the phrase “raises a reasonable possibility” should be interpreted as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, though not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992).
Historically, the Veteran was denied service connection for hypertension in an August 2005 rating decision. He did not file a notice of disagreement with respect to that rating decision, and therefore it is final. 38 C.F.R. §§ 3.104(a), 20.302, 20.1103.
The claim was denied based on a lack of a diagnosis within service or within one year of discharge (to a 10 percent level).  
Since the prior adjudication of the Veteran’s claim, new evidence has been received. Several medical opinions have been added to the record; including a September 2011 VA examination, a March 2012 VA medical opinion and a medical opinion by his private treatment provider in April 2018. In addition, new service treatment records, pertaining to subsequent periods of active duty service, and that did not exist at the time of the prior adjudication, were obtained.  
This evidence is new, as it was not part of the record at the time of the prior final denial. It is also material, as it relates the Veteran’s hypertension to his service and to a service-connected disability. See 38 C.F.R. § 3.310.
Considering this new and material evidence, the claim for service connection for hypertension is reopened.
II.	Service Connection
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R.     § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).
For combat veterans, section 1154(b) provides that satisfactory lay evidence that an injury or disease was incurred in combat will be accepted as sufficient proof of service incurrence if the evidence is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of such incurrence or aggravation.  Further, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). However, §1154(b) does not eliminate the need for evidence of a medical nexus. A medical opinion linking the TBI to service is still necessary for a favorable adjudication.  See Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed.Cir.2009); Dalton v. Nicholson, 21 Vet. App. 23, 37 (2007); 38 C.F.R. § 3.304(d). 
Likewise, disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 
For chronic diseases, including hypertension and specific brain injuries, the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed than the above three-part test. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). 38 C.F.R. § 3.303 (b). If the evidence is not sufficient to establish that the disease was chronic at the time of service, then a continuity of symptoms after service must be shown, which is a distinct and lesser evidentiary burden than the nexus element of the above three-part test. See id.; Walker, 708 F.3d at 1338. Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” Walker, 708 F.3d at 1338-39.
Alternatively, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). 
Finally, the standard of proof to be applied in decisions on claims for Veterans’ benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 
A.	Hypertension
In this case, the Veteran contends that his hypertension is directly caused by his military service or proximately due to or caused by his service connected PTSD. The Veteran further contends that his blood pressure worsened upon his return from his first deployment in Iraq in 2004.
There is no dispute the Veteran has a current diagnosis of hypertension and recent medical records indicates he requires a prescription of Verapamil, a common high blood pressure medication, to control his symptoms. 
The question that remains is if the Veteran’s hypertension began in-service and if there is evidence that his current condition is etiologically related to service under the theory of direct service connection; or in the alternative, if his condition is etiologically related to a service connected disability, secondary service connection.   There is evidence to support both theories. 
In a September 2011 VA examination, an examiner diagnosed the Veteran with hypertension, dating back to 2004.  The Veteran reported having an elevated blood pressure in 2004 after he returned from deployment in Iraq. He reported having multiple deployments to Iraq and that whenever he thinks of Iraq, he can feel his blood pressure rising. The examiner noted that the Veteran has been followed by the VA for several years for his elevated blood pressure and kept blood pressure logs, but his hypertension did not require continuous medication.
VA obtained a supplemental opinion in March 2012 to specifically address the etiology of his condition; however, it appears the examiner could not reach a determination without resorting to speculation. Specifically, he opined that there was no clear pattern of sustained hypertension in the record.  He further noted that in the recent service treatment records there were numerous presentations with elevated systolic pressure, though these were intermixed with normal values. The examiner stated it was unclear if the Veteran had sustained elevated blood pressure, or if he has frequent episodes of reactive systolic hypertension. If the Veteran does, at this have sustained elevated blood pressure, then it is at least as likely as not (50/50 probability) caused by or a result of his military service.  
In April 2018, the Veteran’s private physician submitted a letter providing a positive nexus opinion. The private physician explained that it is clear the Veteran has had documented sustained stage II hypertension dating back 2004 when he was on active duty. The first documentation of elevated blood pressure was seen in 2004 and he was seen multiple times by military providers thereafter with some documenting a diagnosis of hypertension and others not, even though blood pressures noted were consistent with stage II hypertension as outlined by ACC/AHA guidelines.  While variability of blood pressure with occasional lower blood pressures were documented, the readings still fell within the range of stage I hypertension. He opined this is commonly seen in people with a documented diagnosis of essential hypertension.  He also noted the Veteran was off his blood pressure medications for four days prior to the date of this letter to provide a base line sample of blood pressure readings without medication. His blood pressure readings showed 154/96 and 162/97.
Furthermore, he opined it is as at least likely as not that the Veteran’s hypertension was exacerbated or directly caused by his PTSD. He explained PTSD can have a variety of manifestations including physical manifestations. One way in which PTSD can cause such symptoms is through changes in the adrenocortical axis, which can cause imbalance in multiple hormones including cortisol and melatonin leading to a disruption of sleep wake cycle as well as heighted flight or fight response. Physical impact of this includes increased heart rate, increased respiratory rate, and increased blood pressure.
The Veteran’s private physician based his conclusion on an examination of pertinent facts in the claims file, the Veteran’s medical history, and his medical experience and expertise. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). While a remand for more thoroughly explained opinions could be undertaken, this private medical report is adequate for the purposes of adjudication; it is consistent with the 2012 VA opinion addressing that the Veteran’s reactive high blood pressure readings. The private physician explained that the Veteran has had stage I and stage II hypertension since 2004, the variability still fell within the range of diagnosable stage I hypertension, indicating sustained high blood pressure to warrant such a diagnosis. Such variability is commonly seen in people with essential hypertension. Nevertheless, the examiner opined these elevated readings were likely caused by his service connected PTSD. Given its detail and consistency with the totality of the evidence, this opinion must be given significant weight. 
In contrast, the second March 2012 VA examiner’s opinion is not as persuasive as he was unable to make a definitive opinion based on the facts presented to him at the time.  The later medical treatment records show consistent elevated blood pressure; which strongly suggests the intermittent elevated blood pressure readings in service were manifestations of the disease in service; thereby, the Veteran’s hypertension is at least as likely as not (50/50 probability) caused by or a result of his military service.  
Finally, the Board acknowledges the Veteran is competent to report symptoms of elevated heart rate and blood pressure during service, and his lay assertions are believable for linking the onset of the disorder to active service as there is facial plausibility of the contentions and they are supported by the subsequent treatment records. There is no explicit evidence against the claim and the Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). 
The preponderance of the evidence supports the claim that the Veteran has hypertension which incurred in service and is etiologically related to service. Nevertheless, his hypertension is attributable to his service-connected PTSD. In resolving all reasonable doubt in the Veteran’s favor, service connection is warranted. 
B.	Traumatic Brain Injury
The Veteran is seeking service connection for a TBI, sustained during combat.  
The record reflects a current diagnosis of TBI, migraine headaches and postconcussion syndrome with an onset of 2003. Therefore, criteria (1), a current disability, have been met.
As for element (2), the Veteran competently and credibly reports sustaining a TBI while engaged in combat during service.  At the March 2018 hearing, he reported he was within close proximity to several explosive blasts while serving in combat, including one occasion where he was hit with an RPG, rocket propelled grenade, at the Syrian border. Additionally, he was in a head-on motor vehicle accident (MVA) in 1987 while serving in the United States Marine Corps. There were no TBI screenings back then, but noted he was having a lot of difficulty with concentrating in class, and memory loss. One doctor gave him a diagnosis of attention deficit disorder/attention-deficit/hyperactivity disorder (ADD/ADHD), but did not consider his history of concussions. His psychiatrist, Dr. P., and his neurologist, Dr. K, disagrees with such diagnosis and have provided written medical opinions that his symptoms are more likely than not (50/50 probability) constitutes a TBI a from his experiences in service; the car accident and combat missions.
The Veteran’s statements are consistent with the objective evidence of record.   Military records reflect that he was awarded the Army commendation medal with valor for heroic actions taken August 2003 during a grenade attack in Hit, Iraq during Operation Iraqi Freedom. His actions were directly responsible of the security of his fellow soldiers which allowed the wounded to be treated and evacuated. Additionally, service treatment records (STRs) reflect the Veteran sustained an eye injury from a car bomb/suicide bomber, which released a chemical irritant/smoke to his right eye in October 2005. This incident resulted in a transient decrease of vision, pain, and discharge.   The Veteran was awarded the Combat Action Medal in December 2005.  
STRs also reflect that he sustained trauma to his nose in November 1994, after attempting to remove a sight (or viewing attachment) off a bipod, an elevation device to steady a weapon.
Finally, the Veteran submitted two buddy statements, from two fellow soldiers who served with the Veteran, which echo the Veteran’s contentions that they experienced a number of incidents in the immediate or very near proximity of violent explosions with some of the incidents directly caused by insurgent forces. 
Viewed collectively, the evidence is consistent with the circumstances, conditions, or hardships of such service. The Board finds the Veteran’s contentions regarding the incurrence of a TBI is consistent with the circumstances of his combat experiences while serving as a combat Veteran in Iraq.  In other words, the Board presumes the incurrence of this combat-related injury. 
Nevertheless, there are signs and symptoms that the Veteran had a concussive injury in service. STRs confirm that the Veteran sought emergency room treatment after being in a motor vehicle accident in August 1996 where he fell asleep at the wheel and woke-up post incident. As such, the criteria for element (2), an in-service injury have been met. 
Thus, the relevant query becomes whether the Veteran has any current residual disability resulting from this in-service TBI.  In other words, whether there is a medical opinion linking the Veteran’s current TBI symptoms to his in-service TBI.
In support of his claim, he has submitted medical opinions by his treating providers, Dr. K., a neurologist, and Dr. P., a psychiatrist.  In a July 2014 letter, the neurologist, Dr. K., opined that there was almost certainly a post-concussive component to his current migraine headaches. Dr. K. opined that both injuries, exposure to multiple close proximity blasts during military deployment and the MVA, should be classified as TBI and that both could be contributing factors to his migraine headaches.  Based on the Veteran’s statements, the migraine headaches occurred initially after the blast exposures, which suggest they are at least partially responsible for the headaches. 
In the March 2014 opinion, the Veteran’s psychiatrist, Dr. P., discussed the Veteran’s prior diagnosis of ADD/ADHD, but determined it was incorrect. Rather, the Veteran has a concentration deficit related to his previous TBI. His TBI is also probably the etiology of his chronic migraines. His head trauma consists of multiple explosions as well as a MVA where he was knocked unconscious. 
In a second letter dated July 2014, Dr. P. submitted more thorough opinion explicitly stating that the Veteran was misdiagnosed; rather, he is suffering from the effects of traumatic brain injuries, dating back to 2003. His pre-deployment screen in 2003 was unremarkable; however, at his post-deployment screening, he complained of memory issues. TBI was not routinely tested at that time; but subsequently has been remedied. Upon his return, he saw a psychiatrist who diagnosed him with ADHD and followed that recommendation with a trial of Ritalin; however, instead of the calming affect people with true ADHD describe from taking Ritalin, he stated he was “wired.” A trial of atomoxetine was later added and found to be effective for his difficulties with concentration and memory, but then he began having headaches, which have been diagnosed by neurology to be related to post-concussive syndrome.  His record reflects positive screenings from the VA, but a second level screener did not feel he met the full VA criteria for TBI. Dr. P disagrees. His symptoms of poor concentration and decreased memory with persistent headaches are consistent with a diagnosis of mild TBI. 
In addition, psychiatric testing also confirms a diagnosis of a mild cognitive disorder NOS from TBI with concentration difficulties. The Veteran was afforded cognitive rehabilitation  services as well.  He reported sensitivity to bright lights, and difficulties with sleep. A CT scan and an MRI in July 2004 at the San Diego VA returned unremarkable.  Yet, he had a positive TBI screenings; one in September 2007 and two in June 2012.  
As the opinions are clearly stated, properly considers the in-service incurrence of the Veteran’s TBI, and is rendered by medical professionals with expertise in this subject matter, the Board finds that the medical opinions are probative evidence supporting the Veteran’s claim.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). 
Weighing against his claim is the March 2014 VA TBI opinion, which essentially concludes that the Veteran did not incur an in-service TBI.  Yet, the examiner based her conclusions on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993)(“An opinion based upon an inaccurate factual premise has no probative value”). She stated that TBI was not identified in the record. However, the record reflects positive TBI screenings in September 2007 and June 2012. Additionally, the examiner provided there was no history of no memory lapse or head injury, but shortly thereafter stating he has a history a right corneal burn and exposure to sulfur uranium from an IED. The factual premise of her conclusions is flawed.  In addition, the March 2014 VA examiner is a nurse practitioner.  Typically, an examination for a complex condition such as a TBI is performed by a medical doctor such as a neurologist. 
Even though the VA medical opinion is inadequate, the Board concludes that there is sufficient evidence to resolve reasonable doubt in the Veteran’s favor and therefore a remand is not necessary to obtain another medical opinion as the available evidence is sufficient for that purpose.  38 C.F.R. § 3.159(c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that, because it is not permissible for VA to undertake additional development to obtain evidence against an appellant’s case, VA must provide an adequate statement of reasons or bases for its decision to pursue such development where such development could be reasonably construed as obtaining additional evidence for that purpose).   
The Board also acknowledges that the Veteran underwent a neurological VA examination in September 2011. However, no opinion was rendered on the Veteran’s TBI status. 
In sum, the more probative evidence of record supports that the Veteran does indeed have a residual disability resulting from his in-service TBI, including difficulties with concentration, memory and headaches. His TBI has been diagnosed by multiple medical professional, is presumed to have incurred in service, and has been medically determined to be etiologically related to service. Resolving all reasonable doubt in his favor, the Board concludes that service connection for a TBI is warranted.
III.	Increased Rating
Migraine Headaches
Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. See 38 C.F.R. § 4.10. 
Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999).  
If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14.
In this case, the Veteran’s migraine headaches have been rated under DC 8100 Migraines. Currently, he is assigned a noncompensable rating effective August 20, 2010. 
Under DC 8100, a noncompensable rating is warranted when there is evidence of migraine headaches with less frequent attacks. A 10 percent rating is warranted when there is evidence of migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months.  A 30 percent rating is warranted when there is evidence of migraine headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is warranted with evidence of migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  See 38 C.F.R. § 4.12a.
In this case, the Veteran contends that his serve-connected migraine headaches cause prostrating attacks to the extent that they require him to go to sleep. Specifically, in the March 2017 Substantive Appeal (VA Form 9), the Veteran contended that his migraines cause him to leave work, go home and go to bed at least twice per month.  He also has migraines on the weekends. which do not require him to leave work. The Veteran goes to bed all night and the next morning he begins again.  He has tearing of the eyes, blurring of vision, feels sick and must stop what he is doing and wait for the headache to dissipate. He takes prescribed Verapamil daily. The migraines are not as often, but more severe when they occur, coming on three to four times per month that cause the Veteran to go home and go to bed until morning. 
Similarly, during the March 2018 Board hearing, the Veteran testified that he has migraines two to four times per month, and that there are times where he must go into a room by himself and lay down. He noted that VA denied his claim on the basis that they did not believe his headaches were prostrating or that he did not state they were prostrating. So, he asked his wife to take pictures of him while “prostrating,” lying on his face in bed. He further testified that he must leave work early and go home or sleep in his truck two to four times per month due to migraine headaches. 
Upon review of the pertinent evidence considering the governing authority, the Board finds that the evidence supports a favorable determination that the Veteran’ migraine headaches manifests in characteristic prostrating attacks, two to four times per month.  While the Veteran maintains employment as a United States Army Reservist and an IT professional, the frequency and severity of his migraines are capable of producing severe economic inadaptability as his attacks are frequent, completely prostrating and prolonged. Upon affording the Veteran the benefit of the doubt, a maximum 50 percent rating is assigned. 
In the April 2012 rating decision, which granted service connection for migraines, the RO provided that the word “prostrating,” as used in 38 C.F.R. 4.124a, DC 8100, may be described as a condition that causes lack of strength to the point of exhaustion. 
An independent review of the objective medical evidence supports the Veteran’s assertions that he suffers from prostrating headaches. February 2014 medical treatment records reflect that the Veteran complained of headaches, tension/cluster type which form into a silver dollar size on his right fronto temporal shooting to vertex and posterior temporal. He had a single episode where it started further posterior with shooting pain in different directions. They generally start gradually and become sharp, with a severity of 5-10/10. They have made him drop to the ground and usually last between 30 seconds to 30 minutes, but have lasted hours. His right eye may twitch and tear, and sometimes close during headaches. Severe ones occur several times a week and less severe ones occur several times a day. He asserted that they began during deployment in 2003 after exposure to multiple explosions, car bombs and suicide attacks. The physician noted migraines are bifrontal, characteristic of dull, non-throbbing pain which may last days and occur three times per month. 
In light of this evidence, the Veteran was afforded a VA examination in March 2014, where the examiner opined that the Veteran’s migraine headaches were not characteristic of prostrating attacks.  By history, the Veteran reported having mixed headaches with the tension type occurring two to three times per week and migraines only occurring about once a month. He was prescribed Verapamil to help alleviate his symptoms.  At follow-up visit in March 2014, he reported a decrease in severity of the headaches.   The examiner opined that Veteran’s migraine headaches did not impact his ability to work.
Yet, it appears that his migraine headaches have consistently manifested in prostrating attacks throughout the appellate period. At July 2015 and August 2015 visits, the Veteran reported to his physician that he was suffering from migraines occurring a few times a month lasting all day; dull throbbing pain with pain of 6-8/10, which caused him to become irritable. He stated he experienced partial relief and no side effects from Verapamil, but was still not getting in the full dose and might forget to take meds some days. He complained of problems with word finding, concentration, and remembering names at work. December 2016 Army Reserve readiness report and March 2017 physical examination reflect frequent headaches due to a history of TBI.
Collectively, the Board finds the evidence in equipoise as to whether the Veteran experiences very frequent completely prostrating and prolonged attacks.  While the March 2014 VA examiner found he does not, evidence to the contrary includes the Veteran’s own admissible and believable statements that his headaches cause incapacitation two to four times per month. This totals 24 to 48 days of incapacitation per year due to headaches.  The headaches become so severe that the Veteran must lay down by himself and sometimes sleep in his truck in the parking lot at work. His statements are also consistent with the statements he provided to his treating providers from whom he received treatment; rendering them exceptionally trustworthy and highly probative as to the current severity of his symptoms.  See Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam); (holding that the Board can draw credibility distinctions between statements made for the purpose of receiving treatment and those made for the purpose of seeking compensation). Resolving any doubt in favor of the Veteran, the portion of the 50 percent rating criteria requiring evidence of very frequent completely prostrating and prolonged attacks is met.
DC 8100 also requires that the headaches are productive of severe economic inadaptability at the 50 percent rating level.  The term “productive of severe economic adaptability” has not been clearly defined by regulations or by case law.  However, the United States Court of Appeals for Veteran’s Claims (Court) has noted that “productive of” can either have the meaning of “producing” or “capable of producing.”  Pierce v. Principi, 18 Vet. App. 440, 445 (2004).  Thus, headaches need not actually “produce” severe economic inadaptability to warrant the 50 percent rating.  Id. at 445-46.  Further, “economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to a TDIU.  Id. at 446; see also 38 C.F.R. § 4.16.  However, the headaches must, at minimum, be capable of producing “severe” economic inadaptability.
The Board again finds the evidence at least in equipoise as to whether the Veteran’s headaches are productive of severe economic inadaptability.  While the March 2014 VA examiner found they did not impact employment, the Veteran has competently and credibly testified that his headaches cause total incapacitation, and requires him to leave work early or sleep in his truck in the parking lot at work.  Again, resolving any doubt in favor of the Veteran, the portion of the 50 percent rating criteria requiring evidence that the headaches are productive of severe economic inadaptability is met.
Fifty percent is the maximum rating available for migraine headaches pursuant to DC 8100.  No other diagnostic code is applicable and the Board cannot identify a diagnostic code which would afford a rating higher than 50 percent disabling for the migraine headaches. The appeal is granted. 38 C.F.R. § 4.7.  
 
M. TENNER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Pendleton, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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