Citation Nr: 18143455 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 14-37 182 DATE: October 19, 2018 ORDER Entitlement to an initial 30 percent rating, but no higher, for migraine headaches is granted. FINDING OF FACT Since the March 25, 2012 effective date of the grant of service connection, the Veteran’s migraine headaches were manifested by characteristics of prostrating attacks averaging one a month over the last several months; very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability were not shown. CONCLUSION OF LAW The criteria for an initial rating of 30 percent, but no higher, for migraine headaches has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2002 to March 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision that granted service connection and assigned an initial 10 percent rating for migraine headaches, effective March 25, 2012. During the pendency of the appeal, in a May 2015 rating decision, the RO granted a higher 30 percent rating, effective October 2, 2014. Increased Ratings Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In January 2013, a VA examination diagnosed the Veteran with migraine headaches since 2007. The Veteran reported that his condition began in 2005 and that his current symptoms were headaches which start behind his eyes and result in light sensitivity. He stated his headaches can last minutes or days and are usually a throbbing and sharp pain. He denied nausea, vomiting, or phonophobia. He reported that he took medication for his migraines and that when he has a migraine he had difficulty with all activities until it resolved. Upon examination, the Veteran’s migraine pain symptoms were found to be constant head pain, pulsating or throbbing head pain, pain on both sides of his head, and pain which worsened with physical activity. His non-headaches symptoms were found to be sensitivity to light and changes in vision. His duration of headache pain was 1-2 days. He did have prostrating attacks of headache pain which was found to be once every 2 months in frequency. He did not have very frequent prostrating and prolonged attacks of migraine headache pain. He did not have prostrating attacks of non-migraine headache pain. In December 2013, the Veteran submitted a Notice of Disagreement (NOD). He stated that in regard to his headaches, he was not asked about his average number of headaches over several months. He stated that taking an entire year and averaging his headaches, he would easily average about 2 migraine headaches a month. He stated that he could go 2 months without a headache, but then get 4 headaches over 2 weeks. He reported that in the year prior he had to miss work twice due to major migraines. In his October 2014 Appeal to the Board of Veterans’ Appeals, Form 9, the Veteran stated that he has migraine headaches with prostrating attacks occurring on an average of once a month over the prior several months. He stated that he got at least an average of one prostrating attack a month. In March 2015, a VA examination found the Veteran had migraine headaches which required medication for treatment. He stated that when he has a headache, he needed to rest and stay in a dark room. His headache pain was reported ast pulsating or throbbing head pain and his non-headache pain was nausea, sensitivity to light and sound, and changes in vision. His headache pain duration was less than one day and on the left side of his head. He was found to have characteristic prostrating attacks of migraine headache pain once every month. He did not have very frequent prostrating and prolonged attacks of migraine pain and did not have prostrating attacks of non-migraine headache pain. In March 2015, a private medical reported that the Veteran had persistent migraines which sometimes lasted 4 days. He stated that his prescription caused him to be unable to work. The Veteran’s migraines are currently assigned a 10 percent rating for the period prior to October 2, 2014, and a 30 percent rating thereafter, pursuant to 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record supports a finding that since the March 25, 2012 effective date of the grant of service connection, the Veteran’s migraine headaches were manifested by characteristic prostrating attacks occurring on average once a month throughout the period on appeal. The Veteran consistently stated that his headaches averaged at least once a month. Though the January 2013 VA examination found the Veteran’s headaches to be less than once a month, the Veteran indicated in his December 2013 NOD that he misunderstood the examiner’s question and provided statements about the frequency and occurrence of his headaches. The Board finds this statement credible and probative and notes that other than the Veteran’s January 2013 VA examination (which consisted of his own misunderstood statement) there is no other objective evidence which contradicts the Veteran’s statements about the frequency of his headaches. Additionally, the March 2015 VA examination also found that the Veteran’s headaches with prostrating attacks occurred on average at least once a month. The Veteran has also stated, in both his NOD and his Form 9, that his headaches did not average to more than two headaches per month. However, the Board does not find that the evidence of record supports finding that the Veteran’s migraine headaches were manifested by very frequent prostrating and prolonged attacks capable of severe economic inadaptability at any time throughout the period on appeal. The Veteran’s own submitted statements indicated that his migraines averaged two a month. Though the Veteran did indicate that he missed work when having such migraines, there is no indication that the migraines, even by the Veteran’s own statements, would be characterized as very frequent or resulted in severe economic inadaptability. The Board finds the January 2013 and March 2015 VA examiners’ medical opinions adequate and probative both as to the Veteran’s subjective reports and the resulting objective findings. Specifically, the examiners interviewed the Veteran, reviewed his claims file, and conducted a physical examination. Moreover, the examiners had the requisite medical expertise and had sufficient facts and data on which to base their conclusions. As stated above, the Board considered the statements submitted by the Veteran in support of the claim. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain. Layno v. Brown, 6 Vet. App. 465 (1994). Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran’s migraines has been provided by the medical personnel who have examined him during the current appeal and who have made pertinent clinical findings in conjunction with the examinations. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is rated. In sum, the Board finds that an initial 30 percent rating, but no higher, for migraine headaches is warranted as of the March 25, 2012, grant of service connection. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel