Citation Nr: 22000108 Decision Date: 01/03/22 Archive Date: 01/03/22 DOCKET NO. 18-50 371 DATE: January 3, 2022 ORDER Entitlement to service connection for migraine headaches (migraines) secondary to service-connected generalized anxiety disorder (GAD) is granted. Entitlement to an initial disability evaluation of 50 percent for migraines, effective November 18, 2009, is granted. Entitlement to an initial disability evaluation of 50 percent, but no higher, for GAD, from June 4, 2018, to February 11, 2021, is granted. Entitlement to an initial disability evaluation in excess of 50 percent for GAD, from February 12, 2021, is denied. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due solely to service-connected migraines, effective March 21, 2020, is granted. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1134, effective March 21, 2020, is granted. FINDINGS OF FACT 1. The Veteran's migraines are secondary to service-connected GAD. 2. From November 18, 2009, the Veteran's migraines resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. From June 4, 2018, the Veteran's GAD resulted in occupational and social impairment with reduced reliability and productivity. 4. From March 21, 2020, the Veteran was not able to secure or follow substantially gainful employment due solely to service-connected migraines. 5. From March 21, 2020, the Veteran had a TDIU based upon a single disability with additional service-connected disabilities independently rated at 60 percent or higher. CONCLUSIONS OF LAW 1. The criteria for service connection for migraines have been met. See 38 U.S.C. § 1131; 38 C.F.R. § 3.310. 2. From November 18, 2009, the criteria for an initial disability evaluation of 50 percent for migraines have been met. See 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. 3. From February 4, 2018, the criteria for an initial disability evaluation of 50 percent for GAD have been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9400. 4. From March 21, 2020, the criteria for a TDIU due solely to service-connected migraines have been met. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.341, 4.16. 5. From March 21, 2020, the criteria for SMC under 38 U.S.C. § 1134 have been met. See 38 U.S.C. §§ 1114(s), 1134; 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to July 1983. This case comes to the Board of Veterans' Appeals (Board) from a February 2016 rating decision that granted service connection for headaches and assigned an initial noncompensable evaluation, effective November 18, 2009, as well as a February 2019 rating decision that granted service connection for GAD (to include all mental health conditions) and assigned an initial 10 percent evaluation, effective June 5, 2018. A March 2020 rating decision granted a 30 percent evaluation for GAD, effective June 4, 2018. A June 2020 rating decision granted a 20 percent evaluation for headaches, effective May 19, 2020. An April 2021 rating decision granted a 50 percent evaluation for GAD, effective February 12, 2021; continued a 20 percent evaluation for migraine headaches; and granted a TDIU, effective February 12, 2021. A May 2021 rating decision found clear and unmistakable error in the April 2021 rating decision and granted a TDIU, effective April 1, 2020. In August 2021, the Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board has jurisdiction over the issue of service connection for migraines secondary to service-connected GAD. The United States Court of Appeals for Veterans Claims has stated that "VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021). During the adjudication of the disability evaluation for GAD, a March 2021 VA examiner opined that "stress does appear related as a migraine trigger brought on by GAD worry symptoms." This opinion reasonably raises that the Veteran's migraines are secondary to service-connected GAD. The Board also has jurisdiction over the issues of a TDIU and SMC. A claim of a TDIU is part and parcel of the disability evaluations for migraines and GAD adjudicated herein. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Because the Board finds that the evidence of record warrants a TDIU due solely to migraines, the Board must adjudicate whether the Veteran is entitled to SMC. The Veteran has several additional claims pending before the Board. These claims pertain to the disability evaluation for acne scars of the upper back; acne scars of the upper chest; acne scars of the face; and painful scars of the left inguinal area status post hernia repair and of the face. The Veteran presented testimony on these claims before the undersigned VLJ at the August 2021 hearing and before another VLJ at a June 2018 hearing. A letter will be sent to the Veteran explaining his options as to these claims, and the Board will adjudicate these claims after receiving the Veteran's response. Service connection for migraines secondary to service-connected GAD Service connection may be warranted on a secondary basis for a current disability that is proximately due to a service-connected disease or injury. See 38 C.F.R. § 3.310. The United States Court of Appeals for Veterans Claims has stated that "the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred." Frost v. Shulkin, 29 Vet. App. 131, 138 (2017). As a preliminary matter, the Board notes that treatment records show diagnoses for both chronic headaches and chronic migraines. The June 2020 VA examiner stated that the Veteran's headaches could be classified as migraine headaches. While treatment records may refer to headaches, the Board will instead use migraines for purposes of this decision. The Veteran has generally received treatment for migraines and depression from the VA Medical Center. Since December 2010, the Veteran has attended neurology consultations with Dr. E.C.D. On multiple occasions, Dr. D. has stated that the Veteran's migraines were related to an acquired psychiatric disability. For example, in March 2015, Dr. D. was suspicious of affective/financial driver for migraines and referred the Veteran to mental health for migraine management. In September 2015, Dr. D. noted the role of stress management in migraines and recommended mental health treatment. In July 2020, Dr. D. estimated a significant emotional component to migraines. A February 2019 rating decision granted service connection for GAD based on a January 2019 VA examiner's opinion that the Veteran's mental health symptoms began during service. At a March 2021 VA examination, Dr. J.F.Z. opined that "stress does appear related as a migraine trigger brought on by GAD worry symptoms." It is undisputed that the Veteran has a current disability of migraines and is service connected for GAD. Although the Veteran became service connected for GAD after he became service connected for migraines, this does not preclude a theory of secondary service connection because the Veteran's mental health symptoms began during service. See Frost, 29 Vet. App. at 138. Therefore, the relevant issue is whether this current disability of migraines is secondary to service-connected GAD. The Board finds that the Veteran's current disability of migraines is proximately due to service-connected GAD. The Board accords probative weight to Dr. Z.'s opinion because it was based on a thorough review of the Veteran's claims file. Moreover, Dr. Z.'s opinion is consistent with Dr. D.'s treatment records noting the relationship between migraines and mental health. The Board notes that there are no competing medical opinions. Accordingly, the Board finds that the probative evidence of record supports the Veteran's claim and finds that service connection is warranted for migraines secondary to service-connected GAD. Initial disability evaluation of migraines Prior to this decision, the Veteran was service connected for migraines that were permanently worsened due to service-connected tinnitus. Accordingly, the Veteran was entitled to a disability evaluation only for the portion of migraines that were aggravated by service-connected tinnitus. A February 2016 rating decision established a 30 percent baseline for migraines prior to aggravation by service-connected tinnitus. Without considering a baseline, the rating decision assigned a 30 percent evaluation, effective November 18, 2009, and a 50 percent evaluation, effective May 19, 2020. When considering the baseline to exclude the portion of migraines prior to aggravation by service-connected tinnitus, the rating decision assigned a noncompensable evaluation, effective November 18, 2009, and a 20 percent evaluation, effective May 19, 2020. The Board finds that a baseline is not warranted in this case. The baseline was premised on the January 2016 VA examiner's opinion that the Veteran experienced one migraine per week prior to the onset of tinnitus in November 2009. However, this opinion is factually incorrect because the Veteran reported tinnitus prior to that date. Therefore, this statement could not be used to support a baseline, and other evidence of record did not support a baseline, to include the December 2015 VA examiner's opinion that she was unable to determine a baseline. Furthermore, a baseline is no longer necessary because this decision granted service connection for migraines proximately due to service-connected GAD. The period on appeal in this case began on November 18, 2009, the date of the claim of service connection for migraines. Without a baseline, the Veteran has a 30 percent evaluation, effective November 18, 2009, and a 50 percent evaluation, effective May 19, 2020. The 50 percent evaluation is the maximum schedular evaluation. See 38 C.F.R. § 4.124a, DC 8100. The evidence of record supports this evaluation, and the Board will not disturb it. Therefore, the Board must determine whether the Veteran is entitled to a higher evaluation for migraines prior to May 19, 2020. The rating criteria to evaluate migraines can be found in the schedule for neurological conditions and convulsive disorders. See id. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. See id. A 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See id. The rating criteria do not define the term "productive of severe economic adaptability." However, this term does not require that migraines result in an inability to work. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). Instead, a maximum evaluation is warranted when migraines produce or are capable of producing severe economic inadaptability. See id., at 445. Proximate to November 2009, the Veteran's treatment for migraines has primarily been at the VA Medical Center, to include neurological consultations with Dr. E.C.D since December 2010. At these neurological consultations, the Veteran reported multiple "bad" migraines per week and multiple "milder" migraines. He reported that his migraines would last hours to days. While he denied missing work in July 2011, February 2012, and August 2014, he reported that his migraines interfered with daily activities and that he withdrew during a bad migraine. In May 2016, the Veteran reported that he missed several days of work per month. At a January 2010 VA examination, Dr. M.R.D. opined that the Veteran's impairment was moderate as his migraines prevented some daily activities. In a January 2016 VA addendum opinion, Nurse L.M.W. opined that the Veteran did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability, but might miss several days of work due to prostrating migraines and experience concentration difficulties during a migraine. In a March 2016 Notice of Disagreement, the Veteran stated that he missed one to two days of work per week due to migraines, and would miss more work if he did not force himself to go work. At a June 2020 VA examination, Dr. T.S. opined that the Veteran had very prostrating and prolonged migraines productive of significant economic adaptability. At a March 2021 VA examination, Dr. W.L.B. opined that the Veteran had very prostrating and prolonged migraines productive of significant economic adaptability. The Board finds that the evidence of record supports the maximum schedular evaluation of 50 percent. The medical and lay evidence shows that the Veteran had prostrating attacks of migraines. The probative medical and lay evidence also shows that these migraines were very frequent (multiple migraines per week), completely prostrating (requiring him to rest), and prolonged (last for hours to days). The Board accords little probative weight to Nurse W.'s internally inconsistent opinion because she acknowledged that the Veteran's migraines resulted in lost work and concentration difficulties during work. Similarly, while there was some evidence prior to 2016 that the Veteran's migraines did not result in lost work, the schedular criteria requires only migraines that are capable of producing severe economic inadaptability. Here, the probative medical and lay evidence shows that the Veteran's migraines either produced or were capable of producing severe economic inadaptability. In sum, the Board finds that a 50 percent evaluation is warranted for migraines, effective November 18, 2009. Initial disability evaluation of GAD The period on appeal in this case began on June 4, 2018, the date of the intent to file a claim of service connection. The Veteran currently has a 30 percent evaluation, effective, June 4, 2018, and a 50 percent evaluation, effective February 12, 2021. The rating criteria to evaluate GAD can be found in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9400. In considering this rating criteria, the Board must conduct a "holistic analysis" that assesses the severity, frequency, and duration of the signs and symptoms; quantifies the level of occupational and social impairment caused by these signs and symptoms; and assigns the evaluation that most nearly approximates the level of occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, DC 9400. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. See id. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the veteran's disability picture more nearly approximates the criteria for the higher evaluation. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Proximate to June 2018, the Veteran received treatment for an acquired psychiatric disability at the VA Medical Center. The Veteran's symptoms included situational depression, anxiety, sleep impairment, low energy and motivation, loss of pleasure in doing activities, memory impairment, and irritability. He reported that he had been married for 28 years and got along with his children and grandchildren. Mental status examinations showed that the Veteran had fair hygiene, normal thought processes and thought content, and fair insight and judgment. He had mood and affect abnormalities. At the initial session, he reported fleeting thoughts that it may be easier if he did not exist, but denied active suicidal thoughts, plans, and intent. At other sessions, the Veteran denied suicidal ideations. At a December 2018 VA examination, the Veteran's symptoms included anxiety, restlessness, irritability, anger, and sleep disturbance. He reported having a close support system in his family and friends. He denied suicidal ideations. He reported that he did not like to be around others due to his physical appearance. Dr. D.L. opined that the Veteran's GAD was not severe enough to either interfere with occupational and social functioning or to require continuous medication. In January 2019, VA examiner Dr. N.N. opined that the Veteran's mental health issues were related to service, to include facial scarring in basic training. In a January 2019 letter, the Veteran reported depression, anxiety, anger issues, low self-esteem, and social difficulties. In February 2021, the Veteran submitted several statements from family members stating that the Veteran's demeanor, self-esteem, and social interaction changed due to facial scarring. At a March 2021 VA examination, the Veteran's symptoms included a depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work relationships. The Veteran had adequate hygiene, a mildly anxious and depressed mood with congruent affect, and normal memory and cognition. He denied suicidal ideation. Dr. J.F.Z. opined that the Veteran's GAD resulted in occupational and social impairment with reduced reliability and productivity. At the August 2021 hearing, the Veteran reported that he missed work because the migraines fueled anxiety, and anxiety fueled migraines. He reported that he was irritable at work. He reported that he went to restaurants and school programs, but sat close to exits to minimize anxiety. He reported that he did not interact with anyone besides his family. After reviewing the evidence of record, the Board finds that the Veteran's GAD symptoms more nearly approximate the criteria for a 50 percent evaluation. The Board accords probative weight to Dr. Z.'s opinion of a 50 percent evaluation. The probative medical and lay evidence documented mood and affect abnormalities, anxiety, memory impairment, and social interaction difficulties. The Board accords little probative weight to Dr. L.'s opinion of a 10 percent evaluation. As noted in a prior section, the Veteran's neurologist recommended mental health treatment long before the Veteran sought such treatment in 2019. This indicates that the Veteran had greater symptomology than identified at the December 2018 VA examination. The Board finds that the Veteran's GAD symptoms did not more nearly approximate the level of occupational and social impairment contemplated by a 70 percent evaluation. While there was some evidence of social isolation from others, the Veteran had a good relationship with family members. While the Veteran reported irritability, there was no mention of periods of violence. Neither the medical or lay evidence suggested near-continuous panic or depression. The Veteran had adequate hygiene. While the Veteran reported fleeting thoughts that it may be easier if he did not exist at the initial mental health session, he denied active suicidal thoughts, plans, and intent at that session and denied suicidal ideations at other sessions. These fleeting thoughts at one session over the three-year period on appeal do not rise to the level considered by a 70 percent evaluation. The Board concludes that a holistic analysis of the medical and lay evidence does not warrant a 70 percent evaluation. In sum, the Board finds that a 50 percent evaluation is warranted for GAD, effective June 4, 2018. TDIU due solely to migraines In written pleadings, to include a September 2020 VA Form 21-8940, and at the administrative hearing, the Veteran asserts that a TDIU is warranted due solely to service-connected migraines. In the September 2020 VA Form 21-8940, the Veteran states that he last worked on March 20, 2020. At the hearing, the Veteran stated that he stopped working in March 2020 due to migraines. A TDIU is warranted if a veteran is unable to secure or follow substantially gainful employment as a result of a service-connected disability. See 38 C.F.R. § 4.16(a). Consideration may be given to the veteran's education, skills and training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16. Any reasonable doubt will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. From 2009 to 2013, the Veteran worked on the assembly line at a brick plant. The Veteran denied missing work at July 2011 and February 2012 VA neurology consultations. At a September 2013 VA neurology consultation, the Veteran reported that he lost this job due to syncope. At a December 2018 VA examination, he reported that he stopped working at the brick plant due to migraines and attending physician appointments. At a September 2019 VA psychiatric examination, the Veteran stated that he lost this job due to a safety violation, but he believed that it was due to his blood pressure medications that caused him to faint once at work. In the September 2020 VA Form 21-8940, the Veteran stated that he made more than $45,000 in 2012. From October 2013 to January 2019, the Veteran worked as an auto detailer at two car dealerships. The Veteran denied missing work at an August 2014 VA neurology consultation. At a January 2016 VA examination, Nurse L.M.W. opined that the Veteran might miss several days of work due to prostrating migraines and experience concentration difficulties during a migraine. In a March 2016 Notice of Disagreement, the Veteran stated that he missed one to two days of work per week due to migraines, and would miss more work if he did not force himself to go work. At a May 2016 neurology consultation, the Veteran reported that he missed several days of work per month. At a February 2019 VA session, the Veteran stated that he was hoping to seek employment once his left upper extremity was better. In the September 2020 VA Form 21-8940, the Veteran stated that his highest gross earnings per month was $2,200. In a December 2018 letter, the Veteran reported that his migraines affected his ability to work. He stated that the steam cleaner, air compressor, vacuum, and many other necessary tools triggered migraines. From July 2019 to March 20, 2020, the Veteran worked as an auto detailer at a car dealership. At an August 2019 neurology consultation, the Veteran reported that his migraines were worse since restarting work. At a September 2019 VA psychiatric examination, he reported that he had concentration difficulties due to migraines. At a December 2018 VA examination, the Veteran reported that migraines prevented him from carrying out daily tasks and activities on some days. He reported that he was unable to take off from work on days that he had migraines. A March 2020 VA treatment record indicated that the Veteran had frequent migraines and missed a lot of work. In the September 2020 VA Form 21-8940, the Veteran stated that his highest gross earnings per month was $2,200. In a November 2020 VA Form 21-4192, the Veteran's employer stated that the Veteran missed approximately five to seven days of work per month and earned $12,624 during the past 12 months. In a March 2021 VA Form 21-4192, the Veteran's employer stated that the Veteran last worked on March 31, 2020, and earned $4,600 from January 1, 2020, to March 31, 2020. At a June 2020 VA examination, Dr. T.S. opined that the Veteran could not concentrate on work due to migraines. In a November 2020 VA medical opinion, Dr. R.A.S. opined that the Veteran would likely be confined to bedrest during acute attacks of migraines and that any activity would likely worsen the symptoms. At a January 2021 VA examination, Nurse R.S. opined that the Veteran would be unable to focus or concentrate when a migraine occurred. In a January 2021 letter, Dr. E.C.D. stated that the frequency and severity of the Veteran's migraines had a profound impact on activities of daily living because withdrawal was mandatory for severe migraines. At a March 2021 VA examination, Dr. W.L.B. opined that the Veteran could perform sedentary work in a quiet environment. The Board finds that a TDIU due solely to service-connected migraines is warranted, effective March 21, 2020. While there is conflicting evidence on whether the Veteran worked the entire month of March, the Board resolves any reasonable doubt in the Veteran's favor and relies on the date identified in the September 2020 VA Form 21-8940. While Dr. B. opined that the Veteran could perform sedentary work in a quiet environment, the rest of the medical and lay evidence of record shows an inability to work due to migraines. The Board notes that a TDIU is not warranted prior to March 21, 2020. Substantially gainful employment for TDIU purposes is met where the annual earned income exceeds the poverty threshold for one person, regardless of the number of hours or days actually worked and without regard to any prior income history. See Faust v. West, 13 Vet. App. 342, 356 (2000). The poverty threshold for one person under 65 years was $13,300 for 2019 and $13,465 for 2020. While the total amount in the November 2020 VA Form 21-4192 is below these amounts, it is not clear if this was for the last 12 months with this employer (i.e., from August 2017 to October 2017 and July 2019 to March 2020), or just the last period of employment (i.e., July 2019 to March 2020). However, the monthly amount in the March 2021 VA Form 21-4192 exceeds the monthly amount for the poverty threshold in 2020. The Board further notes that the Veteran was capable of performing substantially gainful employment prior to March 21, 2020. In a December 2018 letter, the Veteran stated that auto detailing equipment triggered migraines. To the extent that it could be asserted that the Veteran did not perform substantially gainful employment prior to March 21, 2020, the Veteran's earnings were decreased because he worked in a job environment that triggered migraines. As such, the Veteran would have been able to perform substantially gainful employment that did not require use of equipment that triggered migraines. Accordingly, the Board finds that the Veteran is entitled to a TDIU due solely to service-connected migraines, effective March 21, 2020. SMC SMC benefits by reason of being housebound are payable if the Veteran has a single permanent disability rated 100 percent disabling and has additional service-connected disability or disabilities independently ratable at 60 percent or more. See 38 U.S.C. §§ 1114(s), 1134; 38 C.F.R. § 3.350(i). The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. See 38 C.F.R. § 3.350(i)(1). Effective March 21, 2020, including the disability evaluations adjudicated herein, the Veteran had a 50 percent evaluation for acne scars of the face; a 50 percent evaluation for GAD; a 30 percent evaluation for painful scars of the left inguinal area status post hernia repair and of the face; a 10 percent evaluation for tinnitus; a noncompensable evaluation for bilateral hearing loss; a noncompensable evaluation for acne scars of the upper back; and a noncompensable evaluation for acne scars of the upper chest. These additional disabilities combine to a disability evaluation of 80 percent. As of March 21, 2020, the Veteran had a TDIU due solely to service-connected migraines as granted herein and had additional service-connected disability or disabilities independently ratable at 60 percent or more. Accordingly, the Board finds that the Veteran is entitled to SMC under 38 U.S.C. § 1134, effective March 21, 2020. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.