Citation Nr: 1802456 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-18 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an evaluation in excess of 30 percent for migraine headaches prior to August 13, 2016 and a 50 percent evaluation from that date. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from January 1982 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in Reno, Nevada. The Veteran was scheduled for a videoconference hearing in June 2012. She failed to appear for that hearing with no reason provided. The matter will therefore proceed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704 (d) (2017). In December 2015, the Board remanded the claim for further development. FINDING OF FACT Throughout the appeal period from June 13, 2008, the Veteran's service-connected headache disability has been manifested by headaches that occur more frequently than once per month, and are accompanied by symptoms of pain, vomiting, prostrating attacks, sensitivity to light and sound, decreased concentration, changes in vision and senses, and increased absenteeism/job termination, more nearly approximating a disability tantamount to very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW For the appeal period from June 13, 2008, the criteria for a 50 percent rating, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107 (West 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 FINDING AND CONCLUSION 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); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 frequent 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. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). On review of the record, VA treatment records document ongoing treatment for the Veteran's migraine headaches. In a February 2009 treatment record, the provider described the Veteran's headaches as "severe." She treated her headaches with Maxalt, which she reported as being very helpful. She was also prescribed Zomig. The Veteran was afforded a VA examination in March 2009, in which the examiner indicated that the Veteran experienced prostrating attacks associated with migraines approximately 2 to 3 times per month, lasting for several hours. The Veteran reported that during her headaches, she vomits, has to turn out the lights and puts ice around her head. She described her headaches as progressively worse. She took Maxalt-MLT 10 mg and has been prescribed Zomig 5 mg, but had not started this medication yet. Her response to treatment was good. Although she was employed on a part-time basis as an executive assistant for the past one to two years and missed less than a week of work in the past 12 month period due to her migraine headaches, the examiner reported that there were significant effects on the Veteran's usual occupation due to increased absenteeism, decreased concentration, and pain. The migraine headaches prevented her from doing chores, shopping, exercising, traveling, and participating in sports and recreation. VA treatment records beginning in July 2009, reflect that the Veteran was prescribed Zolmitriptan 5 mg to treat her headaches. In an unrelated VA examination for mental disorders in June 2013, the Veteran reported that she had been missing time from work due to her migraine headaches. Crucially, as noted in the Board's December 2015 remand, the March 2009 VA examiner referenced above did not provide specific findings as to whether the Veteran's migraines were "very frequent," "completely prostrating," or "productive of severe economic inadaptability," noting only that migraines had significant effects on her ability to work by contributing to increased absenteeism, concentration, and pain. The Board pointed out that in her June 2011 Substantive Appeal, the Veteran asserted that these results from her prior examination did not adequately capture the severity of her headaches, and requested another VA examination. As a result, the Board remanded the claim in December 2015 to obtain another VA examination to assess the severity of the Veteran's migraine disability. The Veteran was afforded another VA headaches disability benefits questionnaire (DBQ) examination in August 2016. During her examination, she reported significant worsening of her headaches since her prescription was changed despite her doctor's specific observation that Maxalt provided the most effective relief for her in the past. Her headaches were manifest by symptoms of headache pain, pulsating or throbbing head pain, pain on both sides of the head, pain worsening with physical activity, nausea, vomiting, sensitivity to light and sound, changes in vision, as well as sensory changes. Her typical head pain lasted more than two days and on both sides of her head. The examiner found that the Veteran experienced characteristic prostrating attacks of migraines, once every month productive of severe economic inadaptability. Regarding functional impact, the examiner reported that the Veteran's headache condition impacted her ability to work in that her migraine headaches and associated complications severely affected her ability to concentrate at any given task. The examiner further remarked that the Veteran had been let go from her job due to migraines/time taken off/performance affected by headaches and took more time off due to her migraine headaches on her new job than she had acquired for sick days. Based on the findings of the August 2016 VA examiner, the RO increased the Veteran's disability rating from 30 to 50 percent as of the date of the examination. The Board finds that in this case, throughout the appeal period, the lay and clinical evidence demonstrates that the Veteran's migraine headache disability manifested in symptoms of such severity that more closely approximate the level of impairment contemplated by a 50 percent rating under Diagnostic Code 8100, rather than a 30 percent rating. The Board initially notes that neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined "prostrating." However, "prostration" is defined as "extreme exhaustion or powerlessness," Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007), or as "physically or emotionally exhausted," Webster II New College Dictionary 889 (3rd ed. 2001). The Veteran has consistently asserted that she experiences frequent prostrating headaches that severely impact her ability to function at work, and her headache disability has been described as "severe" since 2009. See the above-referenced February 2009 VA treatment report. While the March 2009 VA examiner did not specifically make findings as to whether the Veteran's migraines were "very frequent," "completely prostrating," or "productive of severe economic inadaptability," the examiner did report at the time that the Veteran experienced prostrating attacks associated with her migraines approximately 2 to 3 times per month that lasted several hours. The Veteran reported that during this time, she would vomit, and have to turn out the lights and put ice on her head. The examiner also found that there were significant effects on her occupation due to increased absenteeism, decreased concentration and pain. Regarding her usual daily activities, she was prevented from doing chores, shopping, exercising, traveling, and engaging in sports, and recreation due to her migraine headaches. The Board notes that these complaints and findings are similar to symptoms reported by the Veteran throughout her appeal period, including in her VA treatment records, as well as at subsequent VA examinations in June 2013 and August 2016 (ordered by the Board to address the lack of specificity in the March 2009 examination), which continued to show that the Veteran missed time from work and was also terminated from a prior job due to symptoms associated with her migraine headaches, including pain, decreased concentration, vomiting, and photosensitivity. At her new job, she has had to take time off over and above her acquired sick days. As noted above, the August 2016 VA examiner observed characteristic prostrating attacks of migraines, once every month productive of severe economic inadaptability, along with complaints of pain, vomiting, sensitivity to light and sound, changes in vision and senses. The RO specifically granted an increased rating to 50 percent based on these findings, noting the presence of "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." See the RO's September 2016 rating decision. The Board notes that although the Veteran was noted to experience prostrating headaches only once per month at the August 2016 VA examination, such prostrating headaches were identified as lasting for prolonged periods of time for "more than two days," and prior assessments and lay assertions from the Veteran note more frequent prostrating headaches of less duration. See, e.g., the March 2009 VA examiner's report. The Board recognizes the Veteran's competent lay statements describing her symptoms and their effects on her daily life and occupation and finds them credible. 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). Although the Veteran indicated earlier in the appeal period that she responded well to Maxalt and that her headaches worsened when she changed prescriptions, the Court has held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As Diagnostic Code 8100 does not contemplate the effects of medication in alleviating the frequency of the Veteran's headaches, the Board is precluded from considering the relief afforded by the Veteran's medication in evaluating the severity of the disability. Id. In light of (1) the VA treatment record dated in February 2009 describing the Veteran's headaches as "severe"; (2) the Veteran's consistent, competent and credible complaints of frequent ongoing headaches with vomiting, photophobia, decreased concentration, pain, and increased absenteeism; (3) the March 2009 VA examiner's report associating the symptoms above with prostrating attacks with migraines approximately 2 to 3 times a month, lasting for several hours, with significant effects on the Veteran's usual occupation; (4) the June 2013 VA examination report documenting increased absenteeism due to the headaches; and (5) the August 2016 VA examiner's findings of characteristic prostrating attacks of migraines, once every month lasting for several days, that are productive of severe economic inadaptability, along with complaints of pain, vomiting, sensitivity to light and sound, changes in vision and senses, the Board concludes that the Veteran's migraine disability symptoms manifest in impairment that most closely approximates the severity contemplated by the criteria for the assignment of a 50 percent rating throughout the appeal period from June 13, 2008. Thus, resolving any remaining reasonable doubt in the Veteran's favor as to the severity of her service-connected migraines, the Board concludes that the criteria for a 50 percent evaluation are met. Under Diagnostic Code 8100, 50 percent is the highest available rating assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. In light of the above, as the highest rating has been awarded, the Board concludes that the Veteran is not entitled to a higher schedular rating for her service-connected migraines. A 50 percent rating is the maximum schedular rating for migraine headaches under Diagnostic Code 8100. There are no other diagnostic codes that are applicable. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Because the Veteran is at the maximum schedular rating for headaches (50 percent), there is no legal basis upon which to award a higher schedular rating. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board also finds that all the symptomatology and impairment caused by the migraine disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required under 38 C.F.R. § 3.321(b). The schedular rating criteria at Diagnostic Code 8100 specifically provide for disability ratings based on the average impairment of earning capacity resulting from migraines involving prostrating attacks. The rating criteria specifically rate on the frequency and severity of the migraines, including whether the migraines are prostrating, and includes consideration of economic inadaptability. In this case, considering the lay and medical evidence, the migraines have been manifested by frequent characteristic prostrating attacks that are productive of severe economic inadaptability for the entire period of review. These symptoms and degree of occupational impairment are part of the schedular rating criteria. Thus, in this case, comparing the Veteran's disability level and symptomatology of the migraines to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is adequate. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed Cir. 2009). Although the Veteran's headaches manifest in severe economic inadaptability warranting the maximum 50 percent rating, the August 2016 VA examination report demonstrates that the Veteran has found a new job and is currently working. As such, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A disability rating of 50 percent, but no higher, for migraine headaches for the appeal period from June 13, 2008 is granted. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs