Citation Nr: 1802863	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  13-15 137	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to a compensable initial evaluation for migraine and vascular headaches.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty from December 1980 to September 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.

In March 2016 and in June 2017, the Board remanded this matter for additional evidentiary development.  


FINDING OF FACT

Since the initial grant of service connection, the Veteran's migraine and vascular headaches have been manifested by symptoms occurring less often on average than once every two months over the last several months, and at a severity that is less than prostrating.


CONCLUSION OF LAW

The criteria for an initial compensable evaluation for migraine and vascular headaches have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran has raised no 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).  The Board also finds there has been substantial compliance with its March 2016 and June 2017 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) 

The Veteran is seeking an increased initial evaluation for his service-connected migraine and vascular headaches.

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent      the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the    effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.        See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

In a July 2010 rating decision, the RO granted service connection for migraine and vascular headaches at a noncompensable evaluation, effective February 28, 2008.  

The Veteran's service-connected migraine and vascular headaches are rated as migraines, which are the only type of headaches assigned a distinct rating code within the rating schedule.  38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017).  
Pursuant to Diagnostic Code 8100, a noncompensable evaluation is assigned for migraines with characterized prostrating attacks occurring on average less than once every 2 months over the previous several months.  A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over a period of several months.  A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over a period of several months.  The maximum rating of 50 percent is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Id.

The rating criteria do not define "prostrating."  Nor is there a definition provided       by the U.S. Court of Appeals for Veterans Claims.  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.).  According to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007), "prostration" is defined as "extreme exhaustion or powerlessness."  

Based upon a longitudinal review of the record, the Board concludes that a compensable initial evaluation is not warranted for the Veteran's service-connected migraine and vascular headaches at any point during this appeal.  Compensable ratings for migraines are available based on the frequency of prostrating attacks.  
The Veteran's migraine and vascular headaches have been manifested by attacks occurring less often on average than once every 2 months over the last several months, and at a severity of attacks that is less prostrating. 

The Veteran's migraine and vascular headaches have averaged less than once every two months since the initial grant of service connection.  The Veteran has not claimed migraine and vascular headaches occurring more frequently than once every two months, and evidence of such is not shown in his post service treatment records.  In addition, the January 2010 VA examination for neurological disorders noted that the Veteran had been migraine and cluster headache free for the past 4 years.  The VA examiner noted the Veteran's headaches were very infrequent and do not interfere with any of his current daily activities.  Finally, the June 2017 VA examination for headaches noted that the Veteran has headaches occurring once every few months.  Thus, the frequency of the Veteran's migraine and vascular headaches do not warrant a higher rating herein.

There is also no evidence of migraine or vascular headaches that are prostrating in terms of their severity.  At the time of his January 2010 VA neurological examination, the Veteran denied having had any migraine or cluster headache over the past four years.  The June 2017 VA examination for headaches noted that the Veteran's headaches usually last about an hour and are manifested by headache pain on both sides of the head and nausea.  The report further noted, however, that Veteran did not have characteristic prostrating attacks of migraine, and also noted that he had not lost any time from work due to this condition, and that this condition did not impact his ability to work.

While the Veteran is competent to report symptoms such as headache pain, he has not described migraines or vascular headaches of sufficient severity and frequency to warrant an increased evaluation in this matter.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).   Moreover, the VA treatment records and VA examination reports do not indicate or otherwise suggest that the Veteran's migraine and vascular headaches result in extreme exhaustion or powerlessness, or otherwise more nearly approximate characteristic prostrating attacks, as required for a compensable rating under Diagnostic Code 8100.  

While the Veteran has been prescribed medications for his headaches, the ameliorative effects of those medications were not considered in the Board's finding that the Veteran's headaches were not manifested by characteristic prostrating attacks occurring less often than one in two months over the last several months.  See Jones v. Shinseki, 26 Vet. App. 56 (2012).  Additionally, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case.  See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 55-57.



ORDER

A compensable initial evaluation for migraine and vascular headaches is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs