Citation Nr: 1802401	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-10 882	)	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 30 percent for service-connected migraine headaches.


REPRESENTATION

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


ATTORNEY FOR THE BOARD

James R. Springer, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 2005 to February 2006, with additional periods of active duty for training and inactive duty for training.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

In a March 2014 rating decision, the agency of original jurisdiction (AOJ) increased the Veteran's initial disability rating for her migraine headaches to 10 percent.  In a March 2016, the AOJ increased her initial disability rating to 30 percent.   Where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the AOJ and Board are required to consider entitlement to all available ratings for that condition.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).  Thus, this issue remains on appeal.

In September 2015, the Board remanded the appeal.  The Board finds that the AOJ substantially complied with the September 2015 remand directives, and no further remand is necessary.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

The evidence is at least in equipoise as to whether the Veteran has experienced very frequent, completely prostrating migraine headaches productive of severe economic inadaptability.


CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for an initial 50 percent rating for service-connected migraine headaches are met.  38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a Diagnostic Code 8100 (2017).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

Neither the Veteran nor her 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 a duty to assist argument).

II.  Analysis

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt will be resolved in the claimant's favor.  38 C.F.R. § 4.3. 

The veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).
Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

Historically, service connection for migraine headaches was established in the June 2012 rating decision on appeal, at which time the AOJ assigned an initial noncompensable disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, effective January 11, 2012.  In a March 2014 rating decision, the AOJ increased her initial disability rating to 10 percent.  In a March 2016, the AOJ increased her initial disability rating to 30 percent.

A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; and a 50 percent evaluation is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100.  A 50 percent rating is the maximum rating available under Diagnostic Code 8100.

The Rating Schedule does not define "prostrating." "Prostration" has been defined as "complete physical or mental exhaustion." MERRIAM-WEBSTER'S NEW COLLEGIATE DICTIONARY 999 (11th ed. 2007).  "Prostration" has also been defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007).  According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013) (The Board adopts the Court's definition as its own.).
Additionally, the terms "productive of severe economic adaptability" have not been clearly defined by regulations or by case law.  The United States Court of Appeals for Veteran's Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004).  Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46.  Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability.  Id. at 446; see also 38 C.F.R. § 4.16.  The Board notes, however, that the migraines must be, at minimum capable of producing "severe" economic inadaptability.

Pertinent evidence includes May 2012 and January 2016 VA examination reports, and the Veteran's lay statements.

In May 2012, the Veteran underwent a VA examination in connection with her claim for service connection for headaches as well as a traumatic brain injury (TBI).  During her TBI examination, she reported daily headache pain and pressure that varied in duration.  The examiner noted that her headaches were not incapacitating and that she could drive and manage daily activities, including work.  However, the examiner also noted that, two to three times per month, she suffered from severe, intense head pain that caused sensitivity to sound and black spots in her vision.  Although she was prescribed medication, oftentimes it did not help.  She also reported occasional nausea if she was unable to rest, and that, many times, she would have to retreat to a dark, quiet area until her headache subsided.

The examiner noted that the Veteran's headache pain was constant, and that she experienced nausea, sensitivity to sound, and changes in vision.  The examiner determined that she experienced characteristically prostrating attacks of migraine headaches more than once a month, as well as prostrating attacks of non-migraine headaches more than once a month.  With regard to the functional effects on employment caused by her headaches, the examiner noted that she would occasionally have to close the curtains and sit in a quiet room until her head pain resolved.  Additionally, she would sometimes work through the "bad" headaches.
In her March 2014 substantive appeal, the Veteran stated that her headaches caused her to completely shut down until she could take her medication, and that her symptoms would persist for three to four days.

In January 2016, the Veteran underwent another VA examination.  She reported that headaches occurred three to four times a week, and that they were accompanied by eyelid droops, light and noise sensitivity, and nausea and vomiting.  Her headaches lasted thirty to forty minutes.  To treat her headaches, she would have to find a dark room, use an ice pack, drink caffeine, or take medication.  Her prostrating headaches occurred four to five times per month.  Normal headaches would sometimes progressively worsen, and sunlight and noise could cause headaches to become severe.  

The examiner noted that her symptoms included constant head pain, pulsating or throbbing head pain, pain localized to one side of the head, pain on both sides of the head, and worsening pain with activity.  Moreover, she experienced nausea, vomiting, sensitivity to light, and sensitivity to sound.  Although the examiner acknowledged characteristically prostrating attacks once a month, the examiner concluded that such did not result in economic inadaptability.  Nevertheless, concerning the functional impact caused by her migraine headaches, the examiner noted that the Veteran's severe migraines prevented her from doing things, and that she experienced severe migraines four to five times a month.  The examiner also concluded that her migraines would not prevent her from working, and that she could discuss preventative measures with her doctor.

Upon review of all the evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected migraine headache disability results in very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. The various symptoms such as nausea, vomiting, sensitivity to light, sensitivity to sound, visual changes, and the need to medicate and retreat to a quiet, dark room are representative of severe headaches that can reasonably be described as completely prostrating.

The Veteran has credibly stated that her prostrating and prolonged attacks occur four to five times a month, and cause her to completely shut down until she could take her medication, and that her symptoms for each headache would persist for three to four days.  Moreover, the Veteran indicates that she has migraines of lesser severity occurring several times a week.  The Board has no reason to question the credibility of the Veteran's report of the frequency and duration of her migraine symptoms.  Lay evidence is competent when provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  See 38 C.F.R. § 3.159(a)(2) (2017); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Moreover, her reports are supported by the VA examiners who noted severe migraines several times per month.

The Veteran's migraine headaches impact her ability to function at work to a degree that amounts to "severe economic inadaptability."  As discussed above, when the Veteran experiences a severe migraine, she needed to retreat to a dark, quiet area until her headache subsided.   Moreover, as noted above, the January 2016 VA examiner acknowledged that the Veteran's severe migraines prevented her from doing certain things, and that she experienced severe migraines four to five times a month, which equates to roughly once a week, and that these severe headaches last up to 3 to 4 days at a time.  

The Board notes that the Veteran was employed at the time she filed her claim until September 2014.  Although she was able to work at this time, the evidence of record suggests that her migraine headaches severe impacted her ability to work, including having to retreat to quiet, dark spaces until her migraine subsided.  Moreover, although there is no indication that the Veteran was unable to continue working due to her migraine headache, within the meaning of Diagnostic Code 8100, "productive of economic inadaptability" can be read as meaning either "producing" or "capable of producing."  While Diagnostic Code 8100 does not define "inadaptability," nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating.  See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

Resolving all doubt in the Veteran's favor, the Board therefore finds that the symptoms of the Veteran's headaches more nearly approximate the criteria for a 50 percent rating.  The Veteran's headaches are more frequent than the once-per-month envisioned by the 30 percent rating. The headaches are shown to be completely prostrating and prolonged, as well as productive of severe economic inadaptability. Thus, an initial rating of 50 percent is warranted for migraine headaches. See 38 C.F.R. § 4.124(a), Diagnostic Code 8100. The Board observes that a schedular rating in excess of 50 percent is not available for headaches under these rating criteria.

There is no evidence that supports a finding that the Veteran's migraine headaches disability was more or less severe during the appeal period, therefore a staged rating that reflects different symptoms shown in different time periods is not called for.  See Fenderson, supra.

Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

An initial 50 percent disability rating for service-connected migraine headaches is granted.



____________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs