Citation Nr: 1754895 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-30 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a rating in excess of 30 percent for migraine headaches with transient visual disturbance (headaches). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois which granted service connection for migraine headaches with an evaluation of 30 percent. In July 2010 the Veteran filed a notice of disagreement, was issued a statement of the case and perfected his appeal to the Board in October 2012. In March 2015, the Board remanded the Veteran's claim for a new VA examination to determine the current severity of the Veteran's headaches. Finding substantial compliance with the remand directives, the appeal is now properly before the Board. See Stegall v.West, 11 Vet. App. 268, 271 (1998). A September 2015 rating decision granted the Veteran a total disability rating due to unemployability (TDIU). FINDING OF FACT The Veteran's service-connected migraine headaches have resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, and no higher, for migraine headaches have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is service connected for migraine headaches secondary to his service connected disability of posttraumatic stress disorder (PTSD). In a July 2010 statement, the Veteran stated that he believed his condition warranted a higher rating. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected migraine headaches have been evaluated under Diagnostic Code 8100, which provides that a 50 percent rating is warranted for headaches with very frequently completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A ten percent rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable rating is warranted for headaches with less frequent attacks. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). The rating criteria do not define "prostrating", nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.) By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." Further, "severe economic inadaptability" is also not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the Court has held that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. In this regard, it was explained by the Court that if "economic inadaptability" were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating. Id., citing 38 C.F.R. § 4.16. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words "productive of" could be read to mean either "producing" or "capable of producing." Id. at 446-447. During his July 2008 VA examination, the Veteran stated that he has been having headaches for about a year to a year and a half. He contended that his headaches are sharp, present stabbing pain in both temples that lasts for 15 to 20 minutes, and occur on a daily basis. The Veteran stated that his headaches are especially bad if he is not sleeping because of nightmares, and described occasional vison changes that the examiner believed sounded like visual scotomas. The Veteran complained of occasional nausea with his headaches, suffered from photophobia, but not phonophobia. Upon examination, the examiner found that the Veteran's cranial nerves were normal, strength, coordination and sensation were normal, and the funduscopic examination was normal. The Veteran stated that he has not missed work due to headaches as he is unemployed, but also stated that his inability to work is related to his PTSD. A January 2010 neurology note showed that the Veteran complained of headaches with bilateral temporal stabbing like sensations which worsened with stress and increasing PTSD. The pain was sharp and lasted only a few seconds. His head CT scan and MRI were normal with the exception of small vessel ischemic changes which the July 2008 VA examiner stated were not likely the cause of the headaches. The Veteran stated he was having symptoms of "waterfall" in vision, and a sharp associated pain, associated with photophobia. The Veteran contended that while he does not wake up with headaches, he develops them over the course of the morning and they can last up to an entire day. He also stated that at times his vision is "off" with abnormal depth perception and sensitivity to light. The Veteran was afforded another VA examination in May 2010. The Veteran stated that he has had headaches for at least the last five to six years which had increased in intensity and frequency, and occur four to five days out of the week, usually starting late in the morning, but can be intermittent. The Veteran described his pain as bitemporal and sharp, like a knife stabbing into his head. He also stated that the pain was throbbing and rated it as an eight out of ten at its worst. The Veteran mentioned that he typically gets blurry vision, describing it as a waterfall in his vision, has sensitivity to light and sound, and occasional nausea. He stated the headaches last for a few hours, that he lies down to treat them, and by the evening they are better. In June 2015, the Veteran was afforded yet another VA examination. The Veteran asserted that his headaches had worsened in duration as they used to come and go, but now they occur daily, either immediately upon awakening or soon thereafter, and last all day. He also stated that light hurt his eyes. The examiner opined that concerning employment, the Veteran would be limited to tasks that do not involve bending over, as doing so exacerbates his headaches. The examiner also noted that a physical occupation would also worsen his headaches, but a sedentary job in a quiet environment, with tasks that would not require much contact with other people would be feasible. The Veteran is competent to describe his headache symptoms and their effects on his daily life and functional ability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board also finds that in this case, the clinical evidence for the period on appeal more closely approximates the level of impairment contemplated by a 50 percent rating. This is so because throughout the pendency of the appeal, the evidence demonstrates that the Veteran's headache disability has been tantamount to migraines with characteristic prostrating attacks occurring several days a week over last several years, and not an average of once a month as contemplated by the 30 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran has consistently stated that his headaches occur several days a week, cause blurred vision, create sensitivity to light, and cause sharp, throbbing, "knife like" pain. The Veteran has also stated that the pain lasts for several hours, and requires that he lay down to treat it. The Board finds the Veteran's headaches to be "prostrating" as they require that he lay down to relieve his symptoms and reduce the Veteran essentially to powerlessness, as he is unable to function through them. Additionally, the Board finds the opinion of the June 2015 VA examiner compelling in regards to the Veteran's migraine headaches impact on his ability to work. While the Veteran has himself stated that his PTSD led to his unemployability, the Board finds the examiner's conclusion that a physical occupation would worsen his headaches probative evidence of severe economic inadaptability which would warrant a rating of 50 percent under DC 8100. As previously discussed, "severe economic inadaptability" does not require that the Veteran be completely unable to work to qualify for a 50 percent rating under DC 8100, but rather that consideration be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. The Board finds the VA examiner's conclusion regarding the Veteran's headaches' impact on his ability to work probative evidence that his headaches are capable of producing severe economic inadaptability, and warrant a 50 percent disability rating under DC 8100. The evidence of record demonstrates a disability picture characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Resolving reasonable doubt in the Veteran's favor as to the severity of his service-connected migraines, the Board concludes that the criteria for a 50 percent evaluation are met for the entire period on appeal. The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of throbbing pain, sensitivity to light, and blurry vision are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). ORDER Entitlement to an initial rating of 50 percent for service connected migraine headaches is granted for the entire period on appeal, subject to the laws and regulations governing the disbursement of monetary benefits. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs