Citation Nr: 18143788 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-24 027 DATE: October 22, 2018 ORDER Entitlement to a rating of 50 percent, but no higher, for migraine headaches is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s headaches were manifested by very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating of 50 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 September 2001 to April 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision. 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 entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision pertaining to the scar disability is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A September 2013 private medical record showed the Veteran presented for treatment of her headaches. She indicated that her work shift had changed and that she had begun experiencing severe migraines 3-4 times per week which interfered with her ability to perform her job and function. In November 2013, a private medical record showed the Veteran to have presented with a migraine headache for the prior 3-4 days. She had photosensitivity. A January 2014 private medical record indicated the Veteran was doing well on her adjusted medication dosage. She reported that she was pregnant and had to taper off her prescribed medications. In April 2014, a private medical record showed the Veteran to be experiencing headaches 6 days a week. She reported she missed 3 days of work in the past 2 weeks. She reported profound light and sound sensitivity in addition to her severe pain. An April 2014 private medical record showed the Veteran to have presented for a migraine headache which had persisted for the prior 4 days and was at 8 out of 10. She denied blurred vision, nausea, or weakness, but reported she was very photosensitive. In August 2014, the Veteran submitted a statement in support of claim which indicated that she had been experiencing headaches more and more frequently. She reported that she was on daily preventable medication and abortive medications for the breakthrough migraines. The Veteran reported that with her medication, she was experiencing 1-3 migraine days per week and that she quit her job due to missing so much work due to migraines. She stated that her severe migraines prevented her from tolerating light and sound. When her medication and isolation precautions did not work, she reported that she went to a medical facility. In September 2014, a private medical record showed the Veteran to have restarted her medication after the birth of her child. Immediately after delivery she experienced severe migraines. In January 2015, a VA examination regarding the Veteran’s migraines indicated that she reported she worked until 2014, when she was forced to retire due to migraines. She was on daily medication for her migraines. She experienced headache pain as pulsating or throbbing pain which was localized to the side of her head and which worsened with physical activity. Her non-headache symptoms were reported as being sensitivity to light and sound, changes in vision, sensory changes, and neurological symptoms such as weakness and speech difficulties. The duration of her headache pian was 1-2 days and presented on the right side of her head. She was found to have characteristic prostrating attacks of migraine pain on average once a month. She was not found to have very prostrating and prolonged attacks of migraine/non-migraine pain which was productive of severe economic inadaptability. The Veteran’s headaches were noted to impact her ability to work and the examiner noted her to have migraine headaches with aura and that she had to stop working due to her headaches, which were difficult to control despite trying numerous medications. In May 2015, the Veteran submitted a Notice of Disagreement (NOD), which indicated that her headaches occurred at least once a week, usually twice a week, for the past several years. She reported that she had to quit her job due to the migraines and that as a stay-at-home mother to small children, taking narcotic medication while home alone with her children was not a viable treatment option. She stated that her migraines had taken over her life. Submitted with her NOD were her monthly migraine diaries, which reported that the Veteran had been experiencing headaches numerous times per month from September 2014 through her submission in May 2015, with multiple reports of headaches at 7 or 8 out of 10. In July 2015, the Veteran submitted a statement in support of claim which reported that her migraines were frequent, at least 1-3 per week, and broke-through her prescribed medication. In February 2016, a VA medical center (VAMC) record showed the Veteran to have presented for a migraine which has lasted for the past 2 weeks. She reported intermittent vertigo, nausea, and photophobia. In April 2016, a VA examination addendum indicated that the Veteran’s migraine disorder caused significant impact on her employability through absenteeism during headaches which prostrate her for 1-2 days monthly when not taking her prescribed medications. The examiner noted that the Veteran seemed to have good control of her headaches when able to take her prescribed medication. In May 2016, the Veteran submitted an Appeal to Board of Veterans’ Appeals, Form 9, which indicated that she got migraines usually twice a week. She stated her migraines were frequent and severe. She stated that her migraines were the reason she did not leave the house, as bright lights and loud sounds triggers a migraine. She stated she left her job due to missed work because of migraines. She stated that her average migraine lasted for 1-2 days and that she got 1-2 migraines per week. She stated that for her severe migraines, which last 4-5 days she reported to an emergency room. In June 2016, a VA examination found the Veteran to have migraines which required her to take medication daily. She reported headache pain which was localized to one side of her head and also pain which was stabbing pain. She reported sensitivity to light and indicated that her typical head pain lasted less than 1 day and was on the right side of her head. She was found to have characteristic prostrating attacks of migraine pain and they were noted to be less frequent attacks. The examiner stated that from the Veteran’s records her attacks occurred about once a year with none recorded in 2015. The Veteran’s migraines are currently assigned a 30 percent rating 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. Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board fins that the evidence of record supports a finding that the Veteran’s headaches were very frequent with completely prostrating and prolonged attacks which were productive of severe economic inadaptability throughout the period on appeal. In this regard, the severity and frequency of the Veteran’s headaches is well documented by her statements of record and the private medical records from her treating medical providers. Medical records from September 2013, November 2013, April 2014, May 2015, and February 2016 all document the Veteran experiencing severe headaches lasting for more than one day. The Veteran’s headache diary submitted in May 2015 also indicated that she experienced several severe headaches multiple times per month, despite being on prescribed medication. Additionally, the Veteran’s medical records confirm that she had to miss work on multiple occasions due to her migraine headache pain. Her symptomology, including photo and sound sensitivity and her need to take narcotic medication to combat a breakthrough headache clearly demonstrate headaches which were productive of severe economic inadaptability. The Board notes that the Veteran’s statements regarding her headache pain are consistent throughout her appeal and are also similarly documented in her private medical records. The Board notes that the January 2015 VA examination found the Veteran experienced headache pain as pulsating or throbbing pain which was localized to the side of her head and which worsened with physical activity. Her non-headache symptoms were reported as being sensitivity to light and sound, changes in vision, sensory changes, and neurological symptoms such as weakness and speech difficulties. Though the examiner indicated that the Veteran’s headaches were not productive of severe economic inadaptability, the examiner also specifically stated that the Veteran’s headaches impacted her ability to work and were difficult to control despite trying numerous medications. The February 2016 VAMC record also showed that the Veteran’s headaches were capable of breakthrough of her medication and the April 2016 addendum also found that without her medication, the Veteran’s headaches were productive of economic inadaptability. The Board acknowledges that the June 2016 VA examination did not find that the Veteran’s headaches met the frequency or severity necessary for a rating in excess of 30 percent for her headaches. However, the totality of the medical evidence persuasively suggest that the Veteran’s service-connected migraine headaches result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability (i.e., a 50 percent rating under DC 8100). 38 C.F.R. § 4.124a, DC 8100. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 50 percent rating for migraine headaches have been met. Further, the Board finds the Veteran’s statements credible and probative and notes that other than the Veteran’s VA examination (which the Veteran has continually stated misrepresented her reported headache frequency) there is no other objective evidence which contradicts the Veteran’s statements about the frequency and severity of her headaches. Indeed, the Veteran’s private treatment records support her statements about the severity of her headaches and the impact those headaches had upon her employment. In sum, the Board finds that 50 percent rating for migraine headaches is warranted throughout the period on appeal. This rating represents the maximum schedular rating for migraine headaches. The Board has considered whether a rating in excess of 50 percent is available to the Veteran, but does not find that any other diagnostic criteria match the Veteran’s headache disability. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel