Citation Nr: 1647961	
Decision Date: 12/23/16    Archive Date: 01/06/17

DOCKET NO.  07-15 108	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for migraine headaches prior to November 15, 2016 and in excess of 30 percent thereafter.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel

INTRODUCTION

The Veteran had active military service from August 2003 to June 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The Veteran had initially filed a claim of service connection for migraine headaches in April 2004, prior to separation from military service.  In a July 2004 rating decision, the Chicago, Illinois RO granted service connection for migraine headaches and assigned a noncompensable rating, effective June 25, 2004, the day after the Veteran's separation from service.  On December 28, 2004, the RO received a claim for an increased rating for migraine headaches.  The Veteran described an increased frequency of her headaches and her associated symptoms.  Contemporaneous medical evidence was received and reflected treatment for migraine headaches of reportedly increased frequency.  

The RO construed the Veteran's December 2004 correspondence as a claim for an increased rating for migraine headaches.  In a June 2005 rating decision, the St. Louis, Missouri RO, in pertinent part, increased the assigned rating for migraine headaches to 10 percent, effective December 28, 2004.

Inasmuch as additional medical records pertinent to the severity of the migraine headache disability were received within one year of the July 2004 rating decision, that rating decision did not become final.  38 C.F.R. § 3.156(b).  Accordingly, the issue before the Board is the initial rating for the Veteran's migraine headache disability for the period beginning June 25, 2004, which is the day after her separation from military service.

In September 2008, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

In December 2009, the Board remanded the Veteran's claim for an increased rating for migraine headaches to the RO for further evidentiary development.

In a January 2012 rating decision, the RO assigned an earlier effective date of June 25, 2004 for the 10 percent rating for the Veteran's migraine headache disability.

In a May 2012 decision, the Board denied the claim for a rating in excess of 10 percent for a migraine headache disability.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In a June 2013 Order, the Court vacated the portion of the May 2012 Board decision that denied the claim for a higher rating for migraine headaches and remanded the case to the Board for further proceedings consistent with a May 2013 Joint Motion for Partial Remand (Joint Remand).

Pursuant to a settlement agreement in the case of National Org. of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 725 F. 3d 1312 (Fed. Cir. 2013), the Board's May 2012 decision regarding the issue of an increased rating for migraine headaches was identified as having been potentially affected by an invalidated rule relating to the duties of the Veterans Law Judge who conducted the September 2008 hearing.  In order to remedy any such potential error, the Board sent the Veteran a letter in May 2014 notifying her of an opportunity to receive a new hearing and submit additional evidence.  The Veteran did not respond to the letter.  

In October 2014, the Board again remanded the increased rating claim for additional development.


FINDINGS OF FACT

1.  Since service connection was established effective June 25, 2004, the Veteran's migraine headache disability was manifested by characteristic prostrating attacks occurring on an average of once a month over the last several months and periods of very frequent, completely prostrating and prolonged attacks that have not been productive of severe economic inadaptability.

2.  The schedular rating criteria reasonably describe the disability level and symptomatology of the Veteran's migraine headache disability and referral for extraschedular consideration is not warranted.


CONCLUSIONS OF LAW

1.  With resolution of all reasonable doubt in the Veteran's favor, the criteria for an initial rating of 30 percent for migraine headaches have been met since June 25, 2004.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2015).

2.  The criteria for an initial rating in excess of 30 percent for migraine headaches have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

In this case, because the issue of entitlement to initial increased ratings for the migraine headache disability is a downstream issue from that of service connection (for which a VCAA letter was issued in April 2004), another VCAA notice is not required.  VAOPGCPREC 8-2003 (Dec. 22, 2003).  The Court has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006).

The Board also finds that VA has complied with all assistance provisions of the VCAA, to include substantial compliance with the prior remand.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The evidence of record contains the Veteran's service treatment and personnel records, post-service VA outpatient treatment records, lay statements, and hearing testimony.  There is no indication of relevant, outstanding records that have not already been requested that would support the Veteran's claim.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran was afforded numerous VA examinations, the reports of which document her migraine history and symptomatology, and contain sufficient evidence by which to evaluate her migraine headache disability in the context of the rating criteria.  As such, the Board finds the VA examinations of record are adequate for adjudication purposes.  

Also, during the September 2008 hearing, the undersigned identified the increased rating issue on appeal; elicited testimony with respect to the frequency, duration, and severity of the Veteran's symptoms and her treatment history; and undertook further development of the claim after the hearing.  The RO readjudicated the claim in January 2012 and December 2015.  There is no allegation of any error or omission in the assistance provided.

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the migraine headache issue in appellate status.

II. Criteria & Analysis

The Veteran contends that her migraine headaches are more severely disabling than as reflected by the 10 and 30 percent ratings currently assigned.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition.  Id. at 594.  Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, 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).  The Board notes that this issue involves the Veteran's dissatisfaction with the initial rating for her migraine headache disability assigned following the grant of service connection, and staged ratings are to be considered in addition to those already established.

The Veteran's migraine headaches have been rated under Diagnostic Code 8100.  Under Diagnostic Code 8100, a noncompensable rating is assigned with less frequent attacks.  A 10 percent rating is assigned with characteristic prostrating attacks averaging one in two months over the last several months.  A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average of once a month over the last several months.  A 50 percent rating is assigned for very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, Diagnostic Code 8100.

The rating criteria do not define "prostrating," nor has the Court of Appeals for Veterans Claims (Court).  Cf. Fenderson v. West, 12 Vet. App. 119, 126-27(1999), (quoting the Diagnostic Code 8100 verbatim but not specifically addressing the matter of what is a prostrating attack).  By way of reference, the Board notes that "prostration" is defined as "extreme exhaustion or powerlessness."  Dorland's Illustrated Medical Dictionary 1531 (32nd Ed. 2012).

Before turning to the evidence, the Board notes that according to the parties to the Joint Motion, the May 2012 Board decision included deficiencies in addressing the evidence of record.  The parties highlighted the May 2005 VA examination report, the June 30, 2005 VA neurology consultation report, and numerous VA treatment records, suggesting that they may support a disability rating higher than 10 percent and may support a staged rating.  In particular, the Board is directed to analyze 

why [the Veteran's] May 3, 2005 [VA examination], in which the examiner noted that [the Veteran] had to lie down for 8 hours due to headaches, that the headaches caused nausea and vomiting, that the headaches were ten out of ten on a pain scale, and that she missed multiple days of work a month due to her headaches, [] or her June 30, 2005, neurology consult, which contained [the Veteran's] statement to an the [sic] examiner that she went to the emergency room ten times in the past year for her migraine headaches [], did not establish that [the Veteran] is entitled to a require a [sic] higher disability evaluation.

The Board is also directed to "consider the following non-exhaustive list of evidence, as it pertains" to the Veteran's appropriate disability rating for her migraine headache disability:

1) September 7, 2005, nursing note, in which [the Veteran] stated that her migraines would not go away; 
2) September 14, 2005, telephone triage record, which recorded that [the Veteran] was unable to function because of migraines; 
3) August 23, 2006, primary care note, which recorded that [the Veteran] had to go home because she was under stress and could not tolerate loud noise or light; 
4) February 5, 2007, record psych [sic] progress note, recording that [the Veteran] missed seventy-five percent of classes due to migraines; 
5) February 21, 2007, emergency room record, recording that [the Veteran] had a headache with score of ten out of ten;
6) September 16, 2008, primary care note documenting that [the Veteran's] migraines affected her ability to function; and
7) October 28, 2008, primary care note recording that [the Veteran's] back, legs, and migraines keep her from activities of daily living.

Finally, the parties believed that in determining the probative weight of the April 2011 VA examination, the Board's May 2012 decision failed to address an apparent internal inconsistency in the examination report.  Specifically, the parties observed that while documenting the Veteran's report of being unable to tolerate "noise or bright lights" and that she experiences "approximately one [migraine] a month which requires that she lie[] down in a dark room," the examiner also concluded that "ordinary activity is possible" during the headaches and that they were "not prostrating."  The decision herein includes a discussion of the particular evidence the parties cited (in addition to other pertinent evidence of record) and addresses the propriety of a higher initial rating, including at any particular stage(s).

During an April 2004 VA general medical examination conducted prior to separation from service, the Veteran described a two-month history of migraine headaches.  She reported having daily headaches with nausea preceded by noise-sensitivity, photophobia, and pain inside her ears.  She believed her headaches were stress-induced.  During a VA neurological examination the next day, she reported having headaches two to three times per week up to daily.  She indicated her headaches were associated with sound and light sensitivity, nausea, and pain in her ears.  She reported that during the headaches, she was able to continue with her activities, but moved more slowly to avoid increasing the pain.  Treatment for her headaches and related symptoms included Amitriptyline (Elavil), Imitrex (Sumatriptan), and Phenergan (Promethazine); she had also had intramuscular Toradol and intravenous fluid treatments.

In July 2004, the Veteran presented to the Kansas City VAMC emergency room, stating that she just got out of the military and needed her medications refilled.  She had no immediate medical concerns.  She received Zomig (Zolmitriptan) and Phenergan.  During a VA primary care visit in August 2004, the Veteran endorsed nausea and vomiting, photophobia, and phonophobia with her migraines.  She indicated she controls her migraines with Phenergan and rest and was now on Zomig as needed with some relief.  A November 2004 primary care note reflects the Veteran's report that she had been "off work this week" due to an extremely heavy and painful period.  In December 2004, the Veteran presented to the emergency room for finger pain.

A subsequent December 2004 VA emergency room note reflects that the Veteran presented requesting a test of her potassium level.  She also stated that her migraines had become more frequent since previous visits.  She explained she had had migraines as often as four times per week.  Then, the frequency dropped to once per week, but currently she had migraines every three to four days.  The assessment was "migraine headache - increasing frequency not that impressive, but her prior non-control warrants trial of prophylactic prescription."  The physician indicated the Veteran would try propranolol (Inderal) and also be given a home cocktail of Benadryl, Zomig, Promethazine, and Ibuprofen.

In December 2004 correspondence approximately one week later in support of her claim, the Veteran stated she gets "migraines about once a week" and is affected by "light and noise sensitivity and vomiting."  She reported using Promethazine, Zomig, Ibuprofen, and Benadryl.  

In January 2005, the Veteran presented to the VA emergency room with complaints of bilateral ear pain for the past two weeks.  She did not mention any migraine headaches.  One week later, she presented to the emergency room again with a complaint of migraine headache "that began about ten minutes after arriving in SDC."  She reported a recent increase in migraine frequency accompanied by phonophobia, photophobia, and nausea, and requested a refill of Zomig.  She returned to the emergency room the next day, stating she became "too nauseated with lights and noise" the previous day and went home.  She indicated her migraine medication had expired and requested a new prescription.  She denied currently having a migraine headache.

During a primary care visit approximately one week later in February 2005, the Veteran complained of having a headache for the past three weeks and stated that the frequency of headaches had increased since she started working.  She indicated she was not sure whether the headaches were related to stress or anxiety, but stated they were not associated with her menstrual cycle.  Then, she presented to the emergency room the next day complaining of a migraine headache for the past three weeks that was never relieved totally with medications and indicating that she left the clinic the previous day before being evaluated.  She added that the headaches were increasing in frequency and severity.  She received intramuscular Toradol and Phenergan injections.  During another emergency room visit three days later, she complained of a frontal headache with vomiting, worse with light and sound.  She received additional injections.

During a March 2005 VA primary care visit, the Veteran reported having "one constant headache" that never goes away completely.  She admitted still smoking heavily and reported she had a new job.  The plan included a trial of Fentanyl patch.  On the same day, the Veteran sought emergency VA treatment for a pounding, racing heart while having a cigarette.  She did not mention migraine headaches.

An April 2005 VA psychiatry note reflects the Veteran's report of starting a new job at Target three weeks earlier and having had a migraine headache for the past three days, but working anyway with her medication.  Two emergency room treatment records from the same month pertained to a urinary tract infection.  During an April 2005 primary care visit, the Veteran reported having increased activity with her new job.  The plan included continuing her migraine medications because her migraines were under control.

During a May 2005 VA neurological examination approximately one week later, the Veteran reported having about three severe headaches per month triggered by fluorescent lights and loud noises and accompanied by nausea and vomiting, but also having constant pressure in her head that is less severe than the migraines.  She indicated that the severe headaches last at least eight hours and if she is not in class when she has a headache, she will lie down.  She stated she was now taking Wellbutrin for prevention of headaches, but experiences sedating side effects.  She reported missing work six to seven days per month due to migraines.

During a VA joints examination on the same day, the Veteran reported working 8 to 12-hour days at Target stocking shelves.

A June 2005 VA psychiatry note documents the Veteran's report that bupropion (Wellbutrin) had helped decrease her headaches, and she had only two in the past four months.  She also stated that she was attending college full-time during the summer and working part-time.  

During a June 2005 VA neurological consultation, the Veteran described having headaches associated with photophobia, phonophobia, and nausea and vomiting.  She denied other associated symptoms.  She stated that since starting propanolol, her headaches had improved and occurred twice per month.  The neurologist observed, however, that the computer showed the Veteran last filled her propanolol in February 2005 for 30 days.  The Veteran also stated that she was a nursing student, was not currently working, and had been to the emergency room over ten times in the past year for headache relief.  The plan included increasing propranolol.  

August 2005 treatment records reflected several reports of current headaches, and during a call to VA near the end of the month, the Veteran stated she had taken all her medications and was noted to be tearful.

In September 2005, she complained that her Zomig was not helping; however, she disclosed to her VA neurologist that she "waits until the headache is VERY severe before she takes the zolmitriptan."  (Emphasis in original).  She was instructed to take her medication at the beginning of her headaches.  A September 5, 2005 nurse triage note reflects that the Veteran called to notify her provider that her headache of five days just went away.  A September 7, 2005 nursing note reflects that the Veteran was crying, stating that her migraine would not go away.  She was seen by a primary care provider the same day, stating that since September 1, 2005, she had had daily pressure from her head, photophobia, and phonophobia that aggravate her headaches.  She also reported that despite early use of Zomig as advised, she had had about 12 headaches.  She indicated she was not working, but was a full-time student.  A September 14, 2005 telephone triage note documents that the Veteran called for the fifth time reporting the same symptoms as she had in previous days.  She stated that home remedies and Zoltriptamine did not provide relief and "this was causing a very large problem" because "I'm a full time student."  She reported she was "not functional because of the migraines," explaining that she tries to keep sedated and sleep as much as possible because it hurts to be awake.

During a September 2005 psychiatry visit, the Veteran reported experiencing a migraine headache continuously for the past three weeks and being unable to attend her college classes as a result.  A September 2005 neurology note reflects the Veteran's report of increasing headache frequency from two to three per month to two per three per week in the last several months.  She admitted she had been delaying her medications until her headaches are very severe.  The neurologist reminded her to take Zomig at the first sign of pressure.

During a December 2005 neurology consultation, the Veteran reported that since her migraines started, they gradually occurred twice a month, then once a week, and "sometimes she will have an almost daily headache for a month or two."  She stated she prefers to lie down in a quiet, dark room when she experiences migraines and associated symptoms and usually cannot sleep until the pain goes away.  The neurologist noted the Veteran was being tried on a trial on acupuncture with partial help and suggested a trial of Topamax for prophylaxis.  The Veteran also reported she was starting business school the next week.

In April 2006, the Veteran told her primary care provider during a routine visit that her "migraines [were] much better after acupuncture therapy but [she] still has to be careful to avoid triggering situations."  During a primary care visit two weeks later in April 2006, she reported that she did very well since her last acupuncture treatment in January and had only two episodes of headaches, which were mild, and no headache at present.  A May 2006 primary care note reflects that the Veteran's last headache occurred two weeks earlier.

During a May 2006 VA joints examination, the Veteran explained that she had quit her job at Target because she was on her feet for long periods of time, and presently she was a full-time student.

The Veteran was also afforded a VA neurological examination in May 2006.  She reported having approximately three severe headaches per month, but also having constant pressure in her head that is less severe than the headaches.  She indicated the severe headaches last at least eight hours and she lies down when she has a headache if she is not in class.  She added that she was a full-time student in accounting and was not able to miss class, so when she has a headache, she wears ear plugs to decrease the noise, wears a hat, and continues to attend class.  She stated that the headaches make it difficult to perform her daily activities at times and can make it difficult for her to function.  She reported that the acupuncture treatment she was receiving helps somewhat with her migraines.

August 2006 treatment records reflect that the Veteran requested acupuncture before her upcoming final exams because it was the best relief for her migraine headaches.  She reported having headaches off and on during the past two months.  During primary care treatment five days later on August 23, 2006, she was crying, stating she could not stay for treatment; she just wanted press tab needles and "to go home."  She reported having a headache off and on for the past two months and being under a lot of stress.  She received acupuncture treatment with press tab auricular needles given.

During a February 5, 2007 psychiatric visit, the Veteran reported she was getting Bs and Cs in her school work, but admitted she missed 75 percent of her classes due to frequent migraines.  During February 21, 2007 emergency room visit, she received a Toradol injection after describing a migraine headache since the day before with a 10/10 pain level, photophobia, and phonophobia.  In August 2007, the Veteran told her psychiatrist that the dropped out of classes due to the lights causing migraine headaches and because she was failing her classes.  She reported starting a job in a grocery store bakery where she "wears hats" to deal with the lighting.  Primary care treatment records dated in August and September 2007 note the Veteran's report of having increased frequency of headaches again and requesting acupuncture.  During the latter visit, she reported her headache was improving.

In September 2008, the Veteran testified that she had constant, daily pressure in her head and that bright lights and loud noise caused her to have headaches.  She reported dropping out of school due to bright lights causing headaches.  When asked about medications taken for migraine headaches, the Veteran stated she was taking Morphine "for the overall pain of all of my injuries, being my back" and "Gabapentin, the nerve relaxers to stop the shooting or the stabbing pain."  She stated that no medication regimen had helped with her headaches.  She testified that she had worked at a bakery until she "couldn't walk anymore" due to back pain.

A September 2008 telephone care note reflects the Veteran's report that morphine prescribed for musculoskeletal pain caused headaches and nausea, although she denied any current headache or nausea.  On September 16, 2008, the Veteran received a primary care appointment to discuss her pain management plan.  She described a history of worsening lower leg and back pain even though she had lost weight and followed instructions.  She stated she was still smoking and otherwise "doing okay," and was "unable to function in many ways due to the pain and also frequent migraine headaches."  During October 28, 2008 primary care, the Veteran related that between her legs, back, and migraines, she can barely function in her daily activities, reporting that bright lights flare her migraines and that she has chronic pain even on medications.  On examination, she appeared in no acute distress, but on close look was sitting very stiffly in the chair.

In November 2008, the Veteran presented to the emergency room for blood in her urine.  She denied headaches, nausea, or vomiting.  During a December 2008 psychiatry visit, the Veteran indicated she started using marijuana to relieve migraines; the psychiatrist cautioned the Veteran on its effects on focus and concentration and advised her to stop.

A September 2009 VA emergency room note reflects the Veteran complained of migraine headache with nausea and vomiting since the day before after a bone scan with IV contrast, but indicated her headache was improving.  The assessment was nausea.

An April 2010 VA pharmacy note reflects that the Veteran breached her pain contract because she tested positive for cannabinoids in February 2010.  She told her psychiatrist the same month that marijuana helped her migraines and bupropion made them worse.  During a June 2010 pain consultation for management of her low back and bilateral lower extremity pain, she reported she last worked two and a half years ago and could not work due to pain.  She admitted smoking "pot regularly" and that it helps with her low back pain and headaches.    

In August 2010, the Veteran told her primary care provider her "migraines are consistently bad now" and she no longer smoked marijuana.  In September 2010, she told her psychiatrist she was working at a bakery and had applied for jewelry design school.  In October 2010, she resumed acupuncture treatments.  Following a January 2011 acupuncture treatment, she stated she always feels better after the acupuncture.

After calling to request a renewed prescription for Tramadol, which was prescribed for back pain according to prior treatment records, a March 2011 addendum note reflects the Veteran was advised to use Tramadol only as needed because it can cause rebound headaches, to take 800mg of Ibuprofen at the onset of a headache or back pain, and was again advised to give up marijuana smoking because it can cause blood vessels in her head to constrict and cause headaches and circulation problems.

The Veteran was afforded another VA neurological C&P examination in April 2011.  She stated she had one headache per month in the past 12 months and described the severity of attacks as not prostrating with ordinary activity possible.  She denied currently taking medications for her headaches.  Instead, she reported avoiding bright lights to prevent headaches, but still getting approximately one per month, which "requires that she lie[] down in a dark room with loud noises."  She explained she had tried several medications, but acupuncture was the only treatment that had been effective "without knocking her out."  Regarding any neurologic-related hospitalization, she reported having a laminectomy in 2008.  She indicated she worked part-time in a bakery, was not exposed to fluorescent lights in that environment, and had not lost any time from work due to her headaches.  However, she related that her primary care provider told her she "could not work at all ('unless it was answering the phone in a dark room')" and told her "she can't stand, push, pull, carry or lift and that she can't be around noise or bright lights."  The Veteran also reported she tried going to school, but the fluorescent lighting triggered her headaches.  Finally, she stated she could do all of her daily activities if she was not having a headache.

Subsequent treatment records from the Kansas City VAMC document the Veteran's complaints to primary care, urgent care, and emergency providers of shoulder pain, bilateral wrist and left thumb pain, and sinus problems and their effects on her job working in a bakery.  During June 2012 emergency treatment for wrist pain, the Veteran denied any headache.  A primary care note from later that month indicates that the Veteran had not sought care as often as in the past for her headaches because nothing helped.  She stated that the fluorescent lighting at the VAMC was a trigger, so she often left with a headache.  The assessment included continued migraines, frequency unchanged.

During June 2013 VA primary care, the Veteran stated that she was frustrated by her pain levels, she had no job and was going to be homeless, but generally felt well.  She denied nausea and vomiting.  The assessment included migraines, which continue to be problematic.  The following month, the Veteran called from Ohio, stating she had been staying in a home with an "infestation" and was getting welts all over her body and a headache.  She was advised to go to the nearest VA hospital.  She presented to the urgent care clinic at the Columbus VAMC the next day with complaints of flea bites.  She denied any headache.  In August 2013, she presented to urgent care again requesting a medication refill.  Again, she denied any headache.  Urgent care notes dated in November and December 2013 also reflect that the Veteran denied any headaches.  Treatment records from the Chillicothe VAMC dated in 2013 note that the Veteran was service-connected for migraine headaches, but were silent for complaints or treatment for headaches or associated symptoms.

During a February 2014 primary care visit at the Kansas City VAMC, the Veteran declared that she decided she was unable to work and it was damaging her health to continue trying.  She reported worsening/continuous migraines, back, and leg pain.  The assessment included migraines, no change.  An April 2014 VA occupational therapy note reflects the Veteran report that she injured her finger two weeks earlier and was working as a baker.  A GPD admission note several days later noted the Veteran was homeless due to an argument with her roommate and she would enter a transitional housing program.  She acknowledged using marijuana consistently for about nine years.  The social worker noted the Veteran "said she has chronic pain in her legs and back.  She also suffers from migraine headaches."

February and April 2015 VA telephone notes reflect the Veteran called regarding problems with her sinuses.  Among "minor symptoms" reported, she endorsed having headaches "on and off" and having a headache that was "not too bad."

The Veteran was afforded a final VA examination to evaluate her migraine headache disability in November 2015.  She reported having a migraine headache with a pain level of 11/10 and accompanied by nausea and vomiting and sensitivity to light and sound once per month.  She stated that when she gets these headaches, she lies down and sleeps for six to ten hours and that these headaches last less than one day.  She reported stopping all her headache medications because she did not believe the treatment had worked.  She also described having a daily baseline headache when she wakes up with a 3/10 pain intensity.  She stated these headaches were "annoying," but she was able to function slowly with them.  Finally, she reported working on and off since separation from service, including working for almost three years at a bakery, but quitting that job two years ago, stating she was not supposed to do the job.  

After reviewing the claims file and obtaining a history from the Veteran, the examiner concluded that the Veteran had characteristic prostrating migraine attacks once every month, but they were not very prostrating and prolonged attacks productive of severe economic inadaptability.  The examiner also remarked that the Veteran's headache disability did not impact her ability to work.

The Board has reviewed and considered the evidence of record in its entirety, including the specific records cited by the parties to the Joint Motion.  Resolving all reasonable doubt in the Veteran's favor, the Board finds that an initial 30 percent rating is warranted for the Veteran's migraine headache disability since service connection was established effective June 25, 2004.  The medical and lay evidence reflects that the Veteran's migraine headache disability has been manifested by characteristic prostrating attacks, which require her to lie down in a dark room or sleep and which are generally accompanied by nausea and vomiting, photophobia, and phonophobia.  In addition, while there have been periods in which the Veteran did not experience migraine headaches, on average her migraine headaches have occurred once a month over the last several months since service connection was established effective June 25, 2004, through the most recent VA examination in November 2015.  These findings warrant a 30 percent rating.

However, the Board finds that a higher, 50 percent rating is not warranted at any time since service connection for migraine headaches was established because while the Veteran's headaches at times have been very frequent, completely prostrating, and prolonged, the headaches have not been productive of severe economic inadaptability.  

In considering whether a higher, 50 percent rating is warranted for migraine headaches, the Board must consider the competence and credibility of the evidence.  The Board acknowledges that the Veteran is competent to provide lay evidence of reporting symptoms associated with her migraine headaches such as nausea and vomiting, photophobia, and phonophobia.  She is also competent to report the frequency, duration, and severity of her headaches.  See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  Further, a claimant is generally competent to introduce lay testimony of observable symptoms of disability and continuity of such symptoms.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

In addition to considering competence, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U. S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In fact, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  In weighing the credibility of lay assertions, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).

While the Board finds that the evidence of record adequately supports a 30 percent rating based on characteristic prostrating migraine attacks occurring on an average of once a month over the last several months, including on the basis of the Veteran's lay statements to treatment providers, for the reasons discussed below, the Board finds some of the Veteran's statements relating to the severity of her disability and the effect of her headaches on her economic adaptability to be not credible.

For example, while the Veteran reported on VA examination in May 2005 that she had about three headaches per month that last up to eight hours and that she had missed six to seven days per month at her job at Target due to headaches, during a primary care visit one week earlier in April 2005, her migraine headaches were characterized as "under control."  Similarly in June 2005, she told her VA psychiatrist that Bupropion had helped decrease the frequency of her migraines and she only had two migraine headaches in the past four months.  Because the Veteran's statements on VA examination regarding the frequency and severity of her migraine headaches are inconsistent with contemporaneous statements made to treatment providers shortly before and after that examination, the Board finds those statements made during the May 2005 VA examination not credible.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care).  

Moreover, while the Veteran reported during a June 30, 2005 neurology consultation that she had been to the emergency room ten times in the past year for her migraine headaches, in fact, at least half of those visits were for other purposes.  The medical evidence of record reflects that emergency treatment for headaches during the year prior to June 2005 was limited to the following:  In December 2004, she presented to the emergency room requesting a potassium check and during that visit mentioned more frequent headaches.  In January 2005 she sought emergency treatment for headaches, left before being evaluated, but returned the next day without a headache to refill medications.  Finally, she sought emergency treatment twice in a three-day period in February 2005.  In summary, the Veteran's June 2005 account of going to the emergency room ten times in the past year for migraine headaches is unsupported by the record.  

Moreover, although the evidence of record documents fluctuations in the frequency, severity, and duration of the Veteran's migraine headaches, including in the specific records cited by the parties to the Joint Motion, the evidence of record does not support the conclusion that her migraine headaches have been productive of severe economic inadaptability.  For example, her report during the May 2005 VA examination of missing six to seven days per month at her job at Target due to headaches is inconsistent with her report during the same examination of experiencing about three headaches per month that last up to eight hours.  Also, she attributed quitting that job due to being on her feet for long periods of time. 

Furthermore, the evidence of record, in fact, demonstrates that despite the Veteran's prostrating migraine headaches occurring once a month on average and sometimes occurring very frequently for a prolonged period and being completely prostrating, she has successfully adapted economically by working in a setting that did not use fluorescent lighting and where she was able to wear a hat.  Notably, she maintained her employment at a bakery for nearly three years and appears to have obtained employment again as a baker in early 2014 upon her return to Missouri from Ohio.  See Apr. 4, 2014 VA Occupational Therapy note.

Regarding the Veteran's February 5, 2007 report to her psychiatrist that she had missed 75 percent of her classes due to migraines, the Board also finds this record insufficient to support a higher, 50 percent disability rating.  First, although she dropped out of school due to the lights causing migraine headaches, she accepted a job at a bakery around the same time and appears to have maintained that employment for nearly three years.  In addition, in April 2014, the Veteran admitted smoking marijuana consistently for nine years, or since 2005.  Based on the documented recommendations by the Veteran's psychiatrist to stop using marijuana because of its effects on focus and concentration (and because it can cause headaches), the Board cannot exclude the role that her marijuana use may have played in her excessive school absences.    

Considering the apparent internal inconsistency in the April 2011 VA examination report regarding whether "ordinary activity is possible" and the headaches were "not prostrating," or whether the Veteran's monthly migraines were prostrating, "requiring her to "lie[] down in a dark room," the Board has found based on the totality of the evidence that her migraine headaches have been characteristically prostrating or completely prostrating.  Accordingly, among the two inconsistent statements in the examination report, the Board finds the report that the Veteran needs to lie down in a dark room during migraine headaches more consistent with the evidence of record.  In any event, the Veteran reported that she had not lost time from work at her bakery job.  Thus, the April 2011 VA examination report is also insufficient to establish that her migraine headaches were productive of severe economic inadaptability.

The Board has considered staged ratings under Fenderson v. West, 12 Vet. App. 119 (1999), but concludes they are not warranted for the migraine headache disability because the evidence of record does not support a higher rating at any time during the appeal period than the 30 percent rating granted herein effective June 25, 2004 and in effect since November 16, 2015.  Therefore, the assigned 30 percent rating is proper throughout the appeal period and an initial higher rating for migraine headaches is denied.

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom; Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular criteria are found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted.

The Board reiterates that the schedular criteria for evaluating migraine headaches are based on the frequency, duration, and severity of migraine attacks.  The Board also finds that the phrase "characteristic prostrating attacks" includes such symptoms of migraine headaches as sensitivity to light or sound or nausea and vomiting, which are all symptoms the Veteran reports experiencing.  Therefore, the Board finds that her migraine headache disability is reasonably contemplated by the applicable rating criteria.  Therefore, the Board finds that the applicable rating criteria adequately contemplate the manifestations of the Veteran's migraine headache disability and referral for consideration of an extraschedular rating is not warranted.  38 C.F.R. § 3.321(b)(1).  

In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities."  Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record.  The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities").  The Board will therefore not address the issue further.

In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  In April 2006, VA received a claim from the Veteran for TDIU benefits.  The St. Louis RO denied the claim and notified the Veteran of the decision in August 2006, and she did not express disagreement with that decision.  In addition, the Board does not find that her service-connected headaches result in severe economic inadaptability.  On the contrary, the Veteran has economically adapted to her disability by working at a bakery that did not have fluorescent lighting and which required her to wear a hat.  Moreover, while the Veteran reported during the April 2011 VA examination that her primary care provider told her she could not work at all "unless it was answering the phone in a dark room," and while she told her primary care provider in February 2014 that she decided she could not work and it was damaging to her health to continue trying, neither the VA examination reports nor the Veteran's outpatient VA treatment records document any assessment or recommendation that the Veteran is precluded the Veteran from work due to her migraine headaches.  Therefore, a preponderance of the evidence is against a finding that service-connected headaches warranted a TDIU at any time during the appeal period.

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim for an initial rating higher than the 30 percent rating granted herein for migraine headaches from June 25, 2004, or in effect since November 16, 2015, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.


ORDER

Entitlement to an initial rating of 30 percent for migraine headaches is allowed effective June 25, 2004, subject to the regulations governing the award of monetary benefits.

Entitlement to an initial rating in excess of 30 percent for migraine headaches is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs