Citation Nr: 1757513 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-27 160 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to a compensable disability rating for tension headaches with nausea and dizziness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and the Veteran's mother ATTORNEY FOR THE BOARD E. Morgan, Associate Counsel INTRODUCTION The Veteran had active duty service from February 1988 to July 1988 and from February 1989 to October 2008. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision from the RO in Montgomery, Alabama. The Veteran had a videoconference hearing before the undersigned Veterans Law Judge and a transcript of the hearing is attached to this claim's file. FINDING OF FACT Tension headaches with nausea and dizziness are not shown to be productive of characteristic prostrating attacks averaging at least one in two months over several months. CONCLUSION OF LAW The criteria for a compensable disability rating for tension headaches with nausea and dizziness have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Tension Headaches In April 2007, the RO granted the Veteran's claim for service connection for tension headaches with nausea and dizziness with an effective date of November 1, 2008. In October 2010, the Veteran filed for an increase in the disability rating for her service-connected tension headaches with nausea and dizziness. The current appeal arises from the March 2011 rating decision that continued the noncompensable rating for the tension headaches. The Veteran submitted a statement in support of her claim in October 2011 asserting that the frequency and severity of her headaches had worsened. In her October 2011 statement she also asserted that at least once a month her headaches are so severe that she cannot do anything but lie in bed. Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. This claim is based upon the rule in Francisco. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's tension headaches are rated by analogy to migraine headaches under Diagnostic Code 8100. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). A noncompensable disability rating is warranted for migraines with less frequent attacks. A 10 percent disability rating is warranted for migraines resulting in characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for migraines resulting in characteristic prostrating attacks occurring on an average once a month over the last several months. The maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. In a March 2011 VA examination for neurological disorders, the VA examiner wrote that the Veteran reported having migraines once a week and that they lasted 15 to 30 minutes. Additionally, the VA examiner, while noting the description of the Veteran's headaches, checked that the Veteran did not have prostrating attacks. The examiner diagnosed headaches and wrote there was no functional limitation. In a March 2014 VA examination for headaches, the examiner reported that the Veteran experienced non-headache symptoms associated with headaches, such as nausea and sensitivity to light. The examiner reported that the Veteran had nausea and dizziness once every two weeks and that those symptoms lasted for two days. The VA examiner reported that the Veteran did not have prostrating attacks of headache pain. The examiner checked the boxes that would indicate the Veteran did not have migraine or non-migraine headaches that were characteristic of prostrating attacks. The examiner noted that the Veteran's headaches did not impact her functional ability to work. The examiner noted that the Veteran's headaches are characterized as tension headaches. The VA examiner remarked that the Veteran would leave work early one or two times a month due to chronic pain syndrome. On a May 2014 VA Disability Benefits Questionnaire (DBQ) form, the Veteran's private examiner responded affirmatively that the Veteran has characteristic prostrating attacks of migraine headache pain more than once per month. The private examiner also reported that the Veteran has very frequent prostrating and prolonged attacks of non-migraine headache pain. She diagnosed the Veteran with migraine headaches. In April 2017, the Veteran testified before the undersigned Veterans Law Judge that on a typical day she has a migraine headache that she described as consisting of sharp and throbbing pains that would last for an hour or two and once or twice a month she has to leave work because of her headaches. She stated that if she did not take medication, she would have throbbing pain every day. The Veteran expressed belief that her headaches are indicative of prostrating attacks. After a careful review of the evidence of record, the Board finds the preponderance of the evidence is against a compensable rating for tension headaches, as the evidence does not support that the Veteran has headaches manifested by characteristic prostrating attacks occurring on an average of one in two months over several months. The reasons follow. Initially, the Board notes that the Veteran is not service connected for migraine headaches, but tension headaches. The Veterans Benefits Administration (VBA) Manual M21-1 provides guidance regarding how the word "prostrating" is interpreted as it applies to Diagnostic Code 8100. Prostrating means "causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities." M21-1, III.iv.4.G.7.b. Completely prostrating means extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. Id. Severe economic inadaptability denotes substantial work impairment, but it does not denote an inability to work. M21-1, III.iv.4.G.7.e.; Pierce v. Principi, 18 Vet. App. 440 (2004). Here, the preponderance of the evidence is against a finding that the Veteran has prostrating attacks with her tension headaches. For example, the March 2011 and March 2014 VA examiners both found that the Veteran does not experience prostrating attacks associated with her service-connected disability. Both examiners also found that the Veteran's headaches do not functionally impair the Veteran in relation to work. The Board is aware of the May 2014 private examiner's responses to the DBQ, which indicated that the Veteran has prostrating attacks more frequently than once a month. However, the Board finds that the 2011 and 2014 VA examination reports are more probative as to the severity of the Veteran's service-connected disability. For example, in the May 2014 VA examination report, the private examiner did not address how the Veteran's condition impacts her ability to work as requested on the DBQ form. Specifically, the DBQ asks the medical professional that if the professional checked "yes" to a finding of "Does the veteran's headache condition impact his or her ability work?," that the examiner should "describe the impact of the veteran's headache condition, providing one or more examples." The private examiner checked "yes" to a finding that the Veteran's headaches impacted her work, but then did not provide a description of how the Veteran's headaches impacted her ability to work, which lessens the probative value of the opinion. The Board finds that the March 2014 VA examination report, in particular, was more thorough and based on a review of the evidence of record. The March 2014 VA examiner reviewed the Veteran's history and considered the Veteran's statements regarding how her headaches impacted her work. The March 2014 VA examiner noted that the Veteran's headaches were not descriptive of prostrating attacks. As stated above, the March 2014 VA examiner remarked that the Veteran would leave work early one or two times a month due to chronic pain syndrome (versus because of headaches). Additionally, the March 2014 VA examiner's report that the Veteran leaves work due to her chronic pain syndrome is supported by the neurologists records submitted by the Veteran referring to her chronic cervical spine pain. For the above reasons, the Board finds that the preponderance of the evidence is against a compensable disability rating for tension headaches with nausea and dizziness. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a compensable disability rating for tension headaches with nausea and dizziness is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs