Citation Nr: 18131229
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 11-15 724
DATE:	August 31, 2018
ORDER
A 50 percent disability rating from March 30, 2013, for service-connected chronic daily headaches, muscle tension type is granted.
A total disability rating based on individual unemployability due to service-connected disability (TDIU) from March 30, 2013 to April 1, 2014 is denied.
A TDIU effective from the start date of employment in a protected environment on April 1, 2014, but no earlier, is granted.
FINDINGS OF FACT
1. Throughout the period of the appeal, the Veteran has experienced very frequent, completely prostrating headaches productive of severe economic inadaptability.
2. From March 30, 2013 to April 1, 2014, the Veteran was gainfully employed, without any indication that his employment during that time period was in a sheltered or protected work environment.
3. From April 1, 2014, the Veteran has been employed in a “sheltered environment”; has met the percentage requirements for TDIU; and has been precluded from gainful employment by his service-connected disabilities.
CONCLUSIONS OF LAW
1. The criteria for the assignment of a 50 percent disability rating for headaches are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2017).
2. The criteria for entitlement to TDIU have been met since the start date of employment in a protected environment on April 1, 2014, but not earlier. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 7, 1999, to October 28, 1999, from September 3, 2002, to July 27, 2003, and from October 12, 2005, to August 24, 2007. This matter is on appeal from November 2009 and August 2015 rating decisions. In pertinent part, the Board of Veterans’ Appeals (Board) granted a 30 percent rating for chronic daily headaches subsequent to March 30, 2013, and granted TDIU prior to March 30, 2013, in a July 2016 Board decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). On the basis of Joint Motion for Partial Remand (JMPR), the Court, in November 2017, vacated the Board’s determinations of the above issues, and remanded them for further appellate consideration.
1. A rating in excess of 30 percent from March 30, 2013, for service-connected chronic daily headaches, muscle tension type
The Veteran’s headache disability is rated as 30 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; and a 50 percent evaluation is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. 50 percent is the maximum rating available under this Diagnostic Code 8100.
The Rating Schedule does not define “prostrating.” “Prostration” has been defined as “complete physical or mental exhaustion.” MERRIAM-WEBSTER’S NEW COLLEGIATE DICTIONARY 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007). According to Stedman’s Medical Dictionary, 27th Edition (2000), p. 1461, “prostration” is defined as “a marked loss of strength, as in exhaustion.” See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013) (The Board adopts the Court’s definition as its own.).
Additionally, the terms “productive of severe economic adaptability” have not been clearly defined by regulations or by case law. 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, migraines 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. The Board notes, however, that the migraines must be, at minimum capable of producing “severe” economic inadaptability.
The Veteran contends that his headaches impact his ability to work as a watchmaker, but his employer accommodates him by allowing him to take long lunch breaks, leave work, and make up time as needed. He further contends that the only reason he continues to be employed is due to these accommodations made by his employer.
In a June 2013 VA treatment record, the Veteran complained of migraines and a history of traumatic brain injury (TBI). A TBI consultation was scheduled.
A July 2014 VA treatment record showed the Veteran complained of severe migraine-like headaches. He reported daily headaches of varying intensity that peaked at the end of the day. The physician assessed post traumatic chronic headaches and referred the Veteran for a TBI consultation.
In an August 2014 Persian Gulf registry note, the Veteran was found to have headaches of a new pattern or severity. Chronic post-traumatic headaches were assessed and it was suggested he consult the headache clinic for evaluation of possible cluster headaches.
A September 2014 VA treatment record showed the Veteran complained of chronic headaches and requested a neurological evaluation due to the various diagnoses he had received for his headaches.
In January 2015, the Veteran underwent a VA headache examination. At that time, the diagnosis of tension headaches was confirmed. The Veteran described a “halo” of pain around his head, which was constantly pounding. He also endorsed sensitivity to light and sound, as well as dizziness. The examiner found that the Veteran did not have characteristic prostrating attacks of headache pain. He noted that the Veteran’s headache condition impacted his ability to work, in that it would be more difficult to do his job when he had a headache. The examiner found that the Veteran had headaches every other day, and sometimes on a daily basis, for which medication no longer was effective.
A February 2015 VA treatment record showed the Veteran reported very severe headaches indicating that they were almost always present and he was unable to perform at work, school or home due to the headaches and probably could not function without help. Approximately once a month he experienced constant frontal pressure and throbbing that escalated to needing time off work. The headaches produced photophobia. Medication was no longer effective. Botox options were discussed for migraine prophylaxis, but treatment was deferred. 
A March 2015 VA treatment record showed complaints of chronic headaches with throbbing that worsened as the day progressed. For daily control the Veteran tolerated the pain, used sunglasses and drank water. For acute flares he would rest or sleep.
An April 2015 VA treatment record showed the Veteran reported severe headaches indicating they were frequently present and disrupted activities. He could only do things that were fairly simple or took little effort. He felt like he needed help.
In March 2016, the Veteran and his wife submitted statements to VA regarding his headaches. The Veteran’s wife, to whom he had been married over 10 years, stated that she noticed the daily chronic headaches as soon as the Veteran returned from Iraq. She indicated that they impacted his daily functioning. She recounted incidents where the Veteran had to miss work because he was unable to get out of bed due to his headaches. The Veteran’s wife described the pain as noticeable and significant. She indicated that he had severe headaches at least one a week, during which time he missed at least a half day of work.
In his statement, the Veteran again described his work history since service, and the deleterious effect of this headaches on his employment. He indicated that he finished college in December 2012. In March 2013, the Veteran obtained employment at a watchmaking company. A year later, he began working full-time at a different watch company, although he indicated his hours were limited by his headaches. The Veteran opined that he was unable to function at least one day a week, due to his headaches. His boss allowed him to leave work due to his headaches on a weekly basis. He further described how his headaches made his employment difficult because significant concentration was required, and his headaches were a distraction.
In February 2018, a letter from the Veteran’s employer noted the Veteran received accommodations such as extended lunch breaks when needed due to his headaches. The employer also noted that while the Veteran’s overall performance met expectations, he had issues meeting the minimum production and quality standards and due to those weaknesses he was moved to another position once it became available.
Upon review of all the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected headache disability results in very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. The various symptoms such as a “halo” with constant pounding, photophobia, phonophobia, and dizziness as well as the need to rest or sleep during acute flares are representative of severe headaches that can reasonably be described as completely prostrating.
The Veteran has credibly stated that his completely prostrating and prolonged attacks can last all day. According to the Veteran, these severe headaches occur at least once a week. The Board has no reason to question the credibility of the Veteran’s report of the frequency and duration of his headache symptoms. Lay evidence is competent when provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159(a)(2) (2016); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). 
The Veteran’s headaches impair his functioning at work to a degree that amounts to “severe economic inadaptability.” The Veteran experiences at least one severe headache per week that causes an inability to function and requires the Veteran to go home and lie down. The Veteran stated that he cannot continue to work on the days in which he is suffering the most severe headaches, and goes home and lies down in a dark and quiet room to relieve the pain. The Veteran’s employer submitted a letter that explained the accommodations afforded the Veteran, including allowing the Veteran to take extended lunch breaks, leave work, and make up lost time due to his headaches. The January 2015 examiner also acknowledged that the Veteran’s headache condition made it harder for him to do his job.
The fact that the Veteran’s current employer has tolerated the Veteran’s absence from work during the headache attacks does not alter the fact that the Veteran’s condition severely impacts his ability to function on the job. The Veteran has maintained employment, but he continues to experience frequent headaches while at work and cannot perform his duties during an attack. Within the meaning of Diagnostic Code 8100, “productive of economic inadaptability” can be read as meaning either “producing” or “capable of producing.” While Diagnostic Code 8100 does not define “inadaptability,” nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).
The Board therefore finds that the symptoms of the Veteran’s headaches more nearly approximate the criteria for a 50 percent rating. The Veteran’s headaches are more frequent than the once-per-month envisioned by the 30 percent rating. The headaches are shown to be completely prostrating and prolonged, as well as productive of severe economic inadaptability. Thus, an increased rating of 50 percent is warranted effective March 30, 2013 for migraine headaches. See 38 C.F.R. § 4.124(a), Diagnostic Code 8100. The Board observes that a schedular rating in excess of 50 percent is not available for headaches under these rating criteria.
2. A TDIU from March 30, 2013
TDIU may be 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a).
“Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). 
Marginal employment is deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. 
TDIU is already in effect for the time period prior to March 30, 2013.  Since March 30, 2013, service connection during the appeal period is in effect for posttraumatic stress disorder, chronic daily headaches, muscle tension type, tinnitus, and compressive sensory neuropathy, left ulnar, and he continues to meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a).
In a March 2016 Affidavit, the Veteran described his work history since service, and the deleterious effect of this headaches on his employment. He indicated that he finished college in December 2012.  He also indicated that he got a job in March 2013 at a watch company, and worked full-time as a polisher but left in April 2014, as it was too physically demanding on his (nonservice-connected) back and elbows.  He reported that in April 2014, he began working full-time at a different watch company, and indicated his hours at that job were limited by his headaches. The Veteran opined that he was unable to function at least one day a week, due to his headaches. His boss allowed him to leave work due to his headaches on a weekly basis. He further described how his headaches made his employment difficult because significant concentration was required, and his headaches were a distraction.
In February 2018, a letter from the Veteran’s employer noted the Veteran received accommodations such as extended lunch breaks when needed due to his headaches. The employer also noted that while the Veteran’s overall performance met expectations, he had issues meeting the minimum production and quality standards and due to those weaknesses he was moved to another position once it became available.
In this case, the Veteran has conceded his earned annual income exceeded the poverty threshold since March 30, 2013. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income...”.
However, work in a “protected environment” will also be considered marginal and is not determined on the basis of salary. Cantrell v. Shulkin, 28 Vet. App. 382 (2017) (interpreting the provisions of 38 C.F.R. § 4.16(a)). In Cantrell the Court held that the term “protected environment” was ambiguous and noted that VA had declined to define the term. The Court went on to say that it could not uphold the Board’s reasons and bases for saying full time employment as a park ranger was not sheltered employment absent a definition of that term adopted by VA. In that case, there were reports that accommodations had been made in the Veteran’s employment to account for his disabilities.
There is no indication that the Veteran was employed in a family-run business, sheltered workshop, or other protected environment suggestive of marginal employment during his full-time employment from March 30, 2013 to April 2014. While the Board acknowledges that the Veteran’s headache disability has been productive of severe economic inadaptability since March 30, 2013, the Veteran has not asserted that the accommodations he has been afforded at his current job were in fact similarly afforded at his prior employment during that time period.  Rather, the Veteran simply indicated in his March 2016 affidavit that during that time period, he worked full-time polishing watches, and had to stop due to nonservice-connected physical disabilities.  
While there is no evidence of employer accommodations made during his employment from March 30, 2013 to April 2014, his employment since April 2014 has included accommodations for his headaches including allowing the Veteran to take extended lunch breaks, leave work, and make up lost time due to his headaches. He was also moved to another position once it became available in order to accommodate his deficits.
The situation in Cantrell is similar to that in this case. The Veterans in both cases had full time employment above the poverty threshold that was not in a workshop or family business; but where accommodations were being made for their disabilities. 
The Veteran has met the schedular criteria for TDIU during the entire period in which the appeal has been pending. Since April 1, 2014, the record indicates that his service connected disabilities precluded employment outside of a “protected environment.” Accordingly, TDIU is warranted, effective from the Veteran’s first date of employment in a protected environment, April 1, 2014.
 
V. Chiappetta
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Kelly A. Gastoukian, Associate Counsel 

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