Citation Nr: 18141377 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-19 109A DATE: October 10, 2018 ISSUE Entitlement to a compensable rating prior to February 3, 2016, and in excess of 30 percent from February 3, 2016, forward, for service-connected migraines. ORDER For the period prior to January 1, 2016, entitlement to a compensable rating for service-connected migraines is denied. For the period from January 1, 2016, forward, entitlement to an increased rating of 50 percent, but no higher, for service-connected migraines is granted. FINDINGS OF FACT 1. For the period prior to January 1, 2016, the Veteran’s migraines are not shown to be productive of characteristic prostrating attacks averaging one episode in 2 months over the last several months. 2. For the period from January 1, 2016, forward, the Veteran’s service-connected migraines have resulted in characteristic prostrating attacks that occur very frequently and are productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. For the period prior to January 1, 2016, the criteria for a compensable evaluation for migraines have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 42, 4.3, 4.7, 4.10, 4.21, 4.124a Diagnostic Code 8100 (2018). 2. For the period from January 1, 2016, forward, the criteria for an increased disability rating of 50 percent, but no higher, for migraines have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2010 to October 2013. This case comes before the Board of Veterans’ Appeals (the Board) from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including total disability rating based on individual unemployability (TDIU). See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Id. at 453-54. In this case, there is no evidence of record that the Veteran was unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. Instead, the Veteran’s statements consistently reference her current employment. Therefore, the issue of entitlement to TDIU has not been raised by the record. The Board notes that in May 2016, the Veteran filed a Notice of Disagreement (NOD) in response to a May 2016 rating decision, which continued the 30 percent disability rating for the period from February 3, 2016, forward. In the May 2016 NOD the Veteran requested an earlier effective date of the 30 percent rating from the date of her initial claim in 2013. The Veteran is currently service-connected for migraines from October 2013, with a noncompensable rating for the period prior to February 3, 2016. Given the Veteran’s NOD, the Board construes the Veteran’s claim as a claim for an increased rating for the entire period on appeal, as opposed to a claim for an earlier effective date for the grant of service connection. The Board notes that additional medical evidence has been associated with the Veteran’s electronic claims record following the issuance of the last Statement of the Case (SOC) in October 2016. However, such evidence has been considered by the Board, and relates to the period following January 1, 2016. As will be discussed further below, the Board is herein granting an increased disability rating of 50 percent for the period following January 1, 2016, which is the maximum disability rating available under the pertinent diagnostic code. Given that the Board is granting the maximum available rating, the Board does not find that an additional remand for consideration of such medical evidence is necessary. The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. at 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which evaluation to apply to the Veteran’s disability, 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 (2018). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). DC 8100 provides ratings for migraine headaches. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensable (0 percent disability rating). Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, DC 8100 (2018). A 50 percent rating is the maximum rating provided under DC 8100. 38 C.F.R. § 4.124a. Governing case law and regulations have not defined “prostrating.” For reference, the Board notes that “prostration” is defined as “extreme exhaustion or powerlessness.” See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d. ed. 2012). Also, the Board notes that “migraine” is commonly associated with irritability, nausea, vomiting, constipation or diarrhea, and often with photophobia. Also, attacks are preceded by constriction of the cranial arteries, often with resultant prodromal sensory (especially ocular) symptoms. Id. at 1166. The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that “although interest may affect the credibility of testimony, it does not affect competency to testify”). A. Period Prior to January 1, 2016 In this case, the Veteran was afforded a VA examination of her headaches in November 2015. The examiner noted a diagnosis of migraines in 2011. The Veteran reported headaches about 5 to 6 times a week, and reported that she manages her headaches with various medications and IV injections. The Veteran further reported that her headache condition impacts her ability to work because it causes her to miss 2 to 4 weeks of work per year. The examination report indicates symptoms that include pulsating or throbbing head pain, pain on both sides of the head, pain worsening with physical activity, nausea, vomiting, and sensitivity to light. The Veteran reported that the duration of her typical head pain was 1-2 days, with the head pain on both sides of her head. However, the VA examiner noted that the Veteran does not have characteristic prostrating attacks of migraine headache pain. Moreover, the VA examiner reported that the Veteran does not have very frequent prostrating and prolonged attacks of migraine headache pain, that the Veteran does not have prostrating attacks of non-migraine headache pain, and that the Veteran does not have very frequent prostrating and prolonged attacks of non-migraine headache pain. Diagnostic testing of the Veteran’s head, through CT scan and MRI, were found to be normal. December 2015 VA treatment records indicate headaches 3-4 times a week, but noted no persistent symptoms. The Veteran has submitted leave statements from her employer for pay periods in December 2014, October 2015, and November 2015, all of which indicate annual leave and sick leave balances above 0 hours at the end of the pay periods. Given the evidence of record, the Board finds that the Veteran’s migraine more nearly approximates a non-compensable rating. Although the Veteran reports several headaches per week, with 2-4 weeks of work missed due to headaches, the VA examiner found that the Veteran did not experience migraine headaches with characteristic prostrating attacks. Although the Board finds the Veteran to be credible with regard to her description of her symptoms, the evidence of record does not indicate that the Veteran experiences migraines with prostrating attacks. The VA examiner noted the Veteran’s assertions and reported her symptoms, duration of pain, and occupational impact, but found that the Veteran’s migraine headaches were not productive of prostrating attacks. Therefore, given the evidence of record, the Board finds that the criteria for a compensable rating under DC 8100 have not been met for the period prior to January 1, 2016, and that the claim must be denied. B. Period from January 1, 2016, Forward The Veteran was afforded a VA examination of her migraines in February 2016. The Veteran reported experiencing about 8 to 13 headaches a month, with the headaches measuring from mild to severe. Symptoms were reported to include nausea, vomiting, throbbing, pulsating pain, sensitivity to light, and changes in vision. The Veteran reported continued use of medications. The Veteran reported that her typical head pain lasts 1 to 2 days. The VA examiner found that the Veteran experiences characteristic prostrating attacks of migraine/ non-migraine headache pain, with the frequency, on average, of prostrating attacks over the last several months being once every month. However, the VA examiner found that the Veteran does not have very prostrating and prolonged attacks of migraines/ non-migraine pain productive of severe economic inadaptability. Yet, the Veteran reported that her headache condition does impact her ability to work, noting that it has caused her to miss time off from work and that her house was going into foreclosure. The Board has considered the VA examination of record. However, the Board has also considered additional logs submitted by the Veteran. Following the February 2016 VA examination, the Veteran submitted monthly headache diaries for the months of January, February, and March of 2016. The Veteran reported 10 headaches in January 2016, 4 of which were noted to be severe and requiring bedrest and lasting 13-24 hours. The Veteran reported 9 headaches during February 2016, 3 of which were noted to be severe and requiring bedrest and lasting 13-24 hours. Last, the Veteran reported 11 headaches in March 2016, 3 of which were noted to be severe and requiring bedrest and lasting 13-24 hours. Given the lay and medical evidence of record, the Board finds that the Veteran’s migraine more nearly approximates an increased rating of 50 percent for the period from January 1, 2016, forward. The Board finds the Veteran to be credible with regard to her reported symptomatology, to include the severity, frequency, and duration of her migraines, as evidenced in her personal monthly headache diary logs. While the Board considers the February 2016 VA examination, which reported headaches with characteristic prostrating attacks once a month over the last several months, the Veteran’s personal monthly diary logs were not considered by the February 2016 VA examiner. Therefore, the Board has considered the additional evidence submitted by the Veteran, and affords such significant probative value. As discussed above, the Veteran’s personal logs indicate prostrating attacks lasting 13-24 hours, of severe intensity requiring bed rest, occurring several times per month. Given the frequency of the prostrating attacks, and considering the Veteran’s report of significant financial hardships as a result of her headaches, the Board finds that the Veteran’s migraines for the period from January 1, 2016, forward more nearly approximate a 50 percent disability rating under DC 8100. 38 C.F.R. § 4.124a, DC 8100 (2018). The Board notes that the maximum evaluation under DC 8100 is 50 percent, which is granted for the period from January 1, 2016, forward. The Board has considered the applicability of other diagnostic codes and finds that no other codes are applicable in this claim. Therefore, an increased rating of 50 percent, but no higher, for headaches is granted for the period from January 1, 2016, forward. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs