Citation Nr: 1805224 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 15-32 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 50 percent for migraine headaches on an extraschedular basis. REPRESENTATION Appellant represented by: George T. Sink, Attorney ATTORNEY FOR THE BOARD R. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1979 to June 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Board remanded this claim for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The evidence does not show that the Veteran's disability picture for migraine headaches is unusual or exceptional. CONCLUSION OF LAW An evaluation in excess of 50 percent for migraine headache disability on an extraschedular basis is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran nor his attorney 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. Merits of the Claim The Veteran seeks an increased disability rating for his service-connected migraine disability on an extraschedular basis. The migraine disability is currently receiving a maximum 50 percent rating under 38 C.F.R. § 4.124a, DC 8100. The Board's August 2017 decision denied entitlement to an increased schedular rating and remanded the case to have the Agency of Original Jurisdiction refer to the Director of Compensation Services the question of whether the Veteran was entitled to an extraschedular rating for the service-connected migraines. To the extent the referral for an extraschedular rating by the Board in its remand was an initial finding, a remand by the Board is a preliminary order and does not constitute a final decision of the Board. Therefore, the Board's findings in the August 2017 remand are not binding on the matter of entitlement to an extraschedular rating. 38 C.F.R. § 20.1100(b). Under 38 C.F.R. § 3.321(b)(1), ratings shall be based, as far as practicable, upon the average impairments of earning capacity. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegatee that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 82 Fed. Reg. 57,830 (Dec. 8, 2017) (revising 38 C.F.R. § 3.321(b)(1) to clarify that extraschedular evaluations are only warranted for a single service-connected disability, and not for the combined effect of two or more service-connected disabilities). In Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom., Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Court outlined the framework for determining entitlement to an extraschedular evaluation. First, the Board must determine whether the evidence "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Thun, 22 Vet. App. at 115. This obliges the Board to compare "the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. at 115. When this requirement is satisfied, the Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as "marked interference with employment" or "frequent periods of hospitalization." Id. at 116 (quoting 38 C.F.R. § 3.321(b)(1)). If both these inquiries are answered in the affirmative, the Board must refer the matter to the Compensation Service Director for the third inquiry - a determination of whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular evaluation. Id. at 116; see generally Todd v. McDonald, 27 Vet. App. 79, 89-90 (2014); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (outlining the "elements that must be established before an extraschedular rating can be awarded"). There is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director determines that an extraschedular rating is not warranted. Anderson, 22 Vet. App. at 427. Headaches are rated according to DC 8100. Under this code, a 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined "prostrating." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (quoting DC 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), "prostration" is defined as "extreme exhaustion or powerlessness." The Board will proceed to consider whether the Veteran is entitled to an extraschedular rating for his service-connected migraine headaches. The Veteran received VA treatment for migraine headaches in April 2012 and September 2012. In April, the Veteran described occasional migraine headaches that did not involve visual changes. In September, he complained of frequent migraine headaches which began after an injury during his basic training. The Veteran's headaches required both topiramate for prophylactic and sumatriptan for abortive treatment. In March 2013, the Veteran underwent a VA examination for headaches. The Veteran described having sensitivity to light and sound, and that certain smells made him nauseous. The Veteran also reported blurring vision during his headaches and said that his pain was normally on one side of the head but he would sometimes have another kind of pain on the back of the head and behind the eyes. The Veteran said that there was a constant pressure on his head, in addition to the headaches. The Veteran said that he had a headache or a migraine roughly half of each month. The examiner found that the Veteran's characteristic prostrating attacks of both migraine and non-migraine headache pain occurred more frequently than once per month. The examiner noted the Veteran did not have very frequent prostrating and prolonged attacks of migraine and non-migraine headache pain. The Veteran said that he worked in machinery and that the loud noise and bright lights made it difficult to work with a migraine. The Veteran said that his headaches caused him to miss work and made it difficult for him to keep moving in order to perform his job. He said that even non-migraine headaches had forced him to call in sick to work. He stated that he had been put on probation for calling in for headaches and was recently laid off. The Veteran reported that his migraines and the associated pain made him feel weak and tired and the activity level of his job increased his symptoms. The Veteran said that when suffering a migraine at home, he would turn off the lights, isolate himself, and apply ice. VA treatment records indicate that during treatment received from October 2015 through April 2016, the Veteran reported that he would wake up with migraines and needed to be in a quiet, dark room for relief of the headaches. In a January 2017 affidavit, the Veteran described how his headaches have affected his recent work history. From March 2012 to March 2013, the Veteran worked at a staffing company and was assigned to repaint machinery at a local machine shop. The Veteran said that he did not miss work at this job, but said that his good attendance was only because of financial desperation and the pain relief provided by his sumatriptan medication. From March 2013 to March 2014, the Veteran studied to become a medical assistant. The Veteran felt that he had developed a tolerance to his pain medication by March 2014, and his headaches became more severe. The Veteran also underwent a vocational assessment performed by Vocational Expert Services in April 2017. The report states that the amount of time that the Veteran would be absent due to headaches, and his level of pain when he had a headache, "impacts his concentration, pace and persistence and renders him unable to focus while at work." This led him to be "off-task at a level not within industrial standards." In a written brief filed in June 2017, the Veteran's attorney pointed out that the Veteran had constant head pain. The Veteran said that his headaches have led to blurring of his vision, lightheadedness, photophobia, phonophobia, and nausea that can result in vomiting. The Veteran said that he suffers constant pressure in his head and prostrating headaches more than once a month, leading to exhaustion and weakness and making it difficult to socialize. The Veteran said that he had been admitted for treatment at a hospital emergency room several times due to the severity of the headaches. In an October 2017 administrative review, the Director of Compensation Service reviewed the Veteran's file and noted that the evidence revealed no hospitalizations for migraines from 2012 to the present and that the Veteran took medications for migraines. She concluded that VA examinations did not show the migraine headaches would prevent employment. She indicated that the evidence did not demonstrate that symptomatology consistently associated with the migraines was not wholly contemplated by the criteria utilized to assign the 50 percent evaluation. The Director therefore concluded that the Veteran's disability picture was not exceptional or unusual. Based on the evidence, the Board finds that an extraschedular rating for the Veteran's migraine headaches is not warranted, as the Veteran's symptoms are contemplated by the schedular rating criteria. In his examinations and statements, the Veteran has described frequent migraine and non-migraine headaches, sensitivity to light and sound, nausea, blurring vision, constant pressure on his head, frequent prostrating attacks, interference with his performance at work, constant pain, lightheadedness, and treatment at a hospital emergency room. With regard to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. In this case, the Veteran has been assigned the 50 percent rating for his disability, which contemplates "migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." Altogether, the 50 percent rating adequately contemplates the severity and frequency of the Veteran's headaches and reasonably describes the Veteran's disability level and symptomatology. As such, it is not necessary to discuss whether he exhibited other related factors such as those provided by the regulation as 'governing norms' (including marked interference with employment and frequent periods of hospitalization). In light of the foregoing, the Board finds that the Veteran's service-connected migraine headaches are not manifested by an exceptional or unusual disability picture that renders impractical the application of the regular schedular standards. In sum, the Board concludes that the facts here do not suggest an exceptional or unusual disability picture. The preponderance of the evidence of record is against the Veteran's claim for a disability evaluation in excess of 50 percent for service-connected migraine headaches on an extraschedular basis. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to a disability evaluation in excess of 50 percent for service-connected migraine headaches, on an extraschedular basis, is denied. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs