Citation NR: 9632087 Decision Date: 11/13/96 Archive Date: 11/22/96 DOCKET NO. 94-14 227 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for migraine headaches, currently evaluated as 30 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Settanni, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to June 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 1990 decision of the VA RO in Roanoke, Virginia, which granted an increased evaluation to 10 percent for his service-connected migraine headaches. The VA RO in Washington, D.C., in a February 1994 decision, granted an increased evaluation to 30 percent for his service-connected migraine headaches. The veteran continues to appeal for a higher rating. The veteran testified at a hearing before a member of the Board in Washington, D.C. in October 1996. During the hearing, the veteran raised the issues of service connection for paralysis of the left side of the face, service connection for muscle wasting of the right leg due to Agent Orange exposure, and an earlier effective date for a compensable rating for his service-connected migraine headaches (an issue which he also addressed in his substantive appeal). In the February 1994 decision of the VA RO, it was determined that the veteran had not submitted new and material evidence to reopen a previously denied claim for service connection for left facial nerve paralysis, and the RO also denied service connection for tibial neuropathy secondary to an appendectomy. The veteran did not submit a timely notice of disagreement with the February 1994 decision as to the facial paralysis and tibial neuropathy issues. His hearing testimony may be an application to reopen claims for service connection for these conditions. In addition, the RO has not addressed the claim for an earlier effective date for a compensable rating for the service-connected migraine headaches, and the RO has not addressed the claim for service connection for right leg muscle wasting due to Agent Orange exposure. Since these matters have not been developed for appellate consideration and are not properly before the Board at this time, they are referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected migraine headaches are more disabling than currently evaluated. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for a rating in excess of 30 percent for service-connected migraine headaches. FINDING OF FACT The veteran’s service-connected migraine headaches are manifested by no more than occasional prostrating attacks; the attacks are responsive to medication and are not productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1995); 38 C.F.R. §§ 4.124a, Code 8100 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty from July 1968 to June 1980. The service medical records show that the veteran was treated for tension and migraine headaches on many occasions during service. Post-service medical records indicate that he underwent a VA examination in October 1980. The diagnoses included migraines. The RO granted service connection for migraines in November 1980 and assigned a noncompensable evaluation. The veteran was seen on several occasions in a VA outpatient neurology clinic from March 1986 to July 1990 for migraine headaches. When seen in 1990, he reported headaches occurred approximately two or three times a month. It was noted that he was responding to medication. In a September 1990 decision, the RO increased the rating for migraine headaches to 10 percent. The veteran underwent a VA neurological examination in May 1993. He reported a history of long-standing migraine headaches in the center of his head. He indicated that he previously had headaches on a daily basis, but with medication, the headaches now occurred only three times a month. The diagnoses included migraine headaches currently under treatment. The veteran was reexamined in June 1993. He reported he was employed and indicated no recent time lost from work. He reported a history of migraine headaches since service and noted that they were on the right side of his head. Originally, he said, the headaches were associated with nausea and scintillation, but recently he was not experiencing these symptoms. The veteran stated the headaches lasted several hours and occurred up to five times a month, but with some reduction when he took prescribed medication on a preventative basis five mornings per week. The veteran indicated that he stopped work when a headache occurred and closed his eyes. He said the headaches lasted one to two hours, but less when he took the prescribed medication. The diagnoses included migraines. In a February 1994 decision, the RO increased the rating for migraine headaches to 30 percent. During an October 1996 hearing held before a member of the Board in Washington, D.C., the veteran testified that at times his headaches were incapacitating and accompanied by such symptoms as nausea and loss of vision. He stated his headaches occurred three to five times a month and he indicated that at times he lay down when they occurred. The veteran indicated he took prescribed medication. He said the headaches sometimes occurred when he was at work and lasted about one hour. The veteran further testified that he was currently unemployed, but had just left a job as an assistant manager at Taco Bell and would be starting a new job in the restaurant industry within a few days. II. Analysis The veteran’s increased rating claim is well grounded, meaning not inherently implausible. 38 U.S.C.A. § 5107(a). The relevant evidence has been developed, and there is no further VA duty to assist him with his claim. Id. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Migraine with characteristic prostrating attacks occurring on an average once a month over the last several months warrants a 30 percent evaluation. Migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent evaluation. 38 C.F.R. § 4.124a, Code 8100. At the 1993 VA examinations, the veteran reported he had migraine headaches approximately three to five times a month. He said the attacks could last for several hours but were less frequent and lasted for shorter periods of time with use of medication. The history provided by the veteran at the examinations, while indicating recurring headaches, does not suggest completely prostrating migraine attacks. In fact, the veteran reported he was employed, with no recent time lost from work. At his 1996 Board hearing, the veteran testified that at times he had to lie down due to migraine symptoms, although medication helped his condition. He said he was currently unemployed, but was recently working and was about to start a new job. The evidentiary record does not substantiate that the veteran’s headaches are reflective of migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, the criteria for the next higher evaluation of 50 percent under Code 8100. Further, the veteran is not alleging that his headaches have been productive of severe economic inadaptability. The veteran has been gainfully employed and intends to continue to work. The evidence as a whole shows that truly prostrating attacks of migraine are only occasional, and the condition more nearly approximates the criteria for a 30 percent than a 50 percent rating. Thus, the current 30 percent rating should be assigned. 38 C.F.R. § 4.7. As the preponderance of the evidence is against the veteran’s increased rating claim, the benefit of doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER An increased rating for migraine headaches is denied. L. W. TOBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -