Citation Nr: 18139937 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-18 156 DATE: October 1, 2018 ORDER Entitlement to an evaluation greater than 30% for service-connected migraine headaches, to 50%, is granted. Entitlement to an evaluation greater than 20 percent for service-connected status post urethral surgery is dismissed. Entitlement to an evaluation greater than 20 percent for service-connected lumbosacral strain is dismissed. Entitlement to a compensable evaluation for service-connected allergic rhinitis is dismissed. Entitlement to a compensable evaluation for service-connected sinusitis is dismissed. Entitlement to service connection for disability of right hip is dismissed. Entitlement to service connection for disability of the left hip is dismissed. . FINDINGS OF FACT 1. The Veteran’s migraine headaches are manifested by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 2. During her hearing, the Veteran withdrew her claims for an increased disability rating for service-connected status post urethral surgery, lumbosacral strain, allergic rhinitis and sinusitis. The Veteran also withdrew her claims for service connection for disability of the left and right hip. CONCLUSIONS OF LAW 1. The criteria for a 50 percent evaluation for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124, Diagnostic Code 8100. 2. The criteria for withdrawal of her claims for an increased disability rating for service-connected status post urethral surgery, lumbosacral strain, allergic rhinitis and sinusitis are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204 3. The criteria for withdrawal of her claims for service connection for traumatic brain injury are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to July 2003. In May 2018, the Veteran presented testimony at a video conference before the undersigned Veterans Law Judge. A transcript is associated with the record. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R §20.204. Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R §20.204. During her May 2018 Board hearing, the Veteran and her representative indicated that they wished to withdraw the Veteran’s claims for increased disability ratings for service-connected status post urethral surgery, lumbosacral strain, allergic rhinitis and sinusitis and her claims for service connection for disability of the left and right hip. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition. 38 U.S.C. 7105 (d). Accordingly, further action by the Board concerning these claims is unwarranted, and the appeal of this claim is dismissed. Id. Entitlement to an evaluation greater than 30% for service-connected migraine headaches Disability ratings 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 the 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 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 rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s service-connected migraine headaches disability is currently rated 30 percent disabling under 38 C.F.R. § 4.124a, DC 8100 (2017). Under that DC, a 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average once per month over the last several months. Important for this case, a maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a (2017). The Rating Schedule does not define prostrating, nor has the Court. Fenderson v. West, 12 Vet. App. 119 (1999). Severe economic inadaptability is also not defined in VA statutes or regulations. Pierce v. Principi, 18 Vet. App. 440 (2004). A January 2017 VA examination report indicates the Veteran reported that her migraine headaches occur between three and five time per week with each instance lasting from the onset of the migraine to the end of that respective day. The Veteran reported that she has to call off from work up to 15 times per month because of this condition. The examiner found that the Veteran has very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. At the May 2018 the Veteran testified to severe headaches as often as five times per week requiring her to lay down for extended periods. Additionally, the Veteran submitted a diary she personally kept documenting instances of migraine headaches that caused her to call in sick or leave early from her employment. Consequently, the Board finds that the Veteran’s service-connected migraine headaches are productive of very frequent prolonged migraines productive of severe economic inadaptability, as the evidence demonstrates that her migraines happen as often as five time per week, potentially lasting an entire day, and are often so severe that she must lie down in a dark room and is repeatedly required to miss work. Therefore, the Board finds that a higher 50 percent rating under Diagnostic Code 8100 is warranted. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that a higher 50 percent rating, but not higher, is warranted, and the claim must be granted. 38 C.F.R. § 4.124a (2017). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel