Citation Nr: 18145025 Decision Date: 10/29/18 Archive Date: 10/25/18 DOCKET NO. 16-36 108 DATE: October 29, 2018 ORDER Entitlement to a rating higher than 50 percent for service-connected migraine disability is denied. FINDING OF FACT The Veteran is already in receipt of the maximum schedular rating available for a migraine disability and his migraine symptoms are adequately addressed by the applicable diagnostic code. CONCLUSION OF LAW The criteria for a rating higher than 50 percent for service connected migraine disability have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Marine Corps from November 1968 to September 1970. The Veteran’s claim of entitlement to a total disability rating due to unemployability (TDIU) was granted in the October 2016 rating decision, effective January 8, 2013, and therefore, is not on appeal. Entitlement to a rating higher than 50 percent for service connected migraine disability Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In its evaluation, the Board considers all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. 38 U.S.C. § 5107(a). The Veteran’s migraine headaches have been rated as 50 percent disabling under Diagnostic Code 8100. Under Diagnostic Code 8100, which pertains to migraine headaches, a maximum 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, Diagnostic Code 8100. The Veteran was afforded a VA examination in August 2014 and reported suffering from chronic intractable migraine headaches and had been treated at various medical centers. He experienced daily headaches in the right, frontal region, with sharp and throbbing pain. He also reported nausea, vomiting, dizziness, and light intolerance; he did not experience visual auras. He had prostrating attacks of headache pain once every month. At the July 2015 VA examination, the Veteran reported daily headaches and prostrating migraine pain once per month. Treatment included Excedrin, lyrica, prednisone, and oxycodone for pain control. He reported pulsating or throbbing pain, on both sides of his head that worsens with physical activity. Non-headache symptoms associated with his headaches are nausea, vomiting, sensitivity to light, sensitivity to sound, irritation during the episode, and changes in vision. He reported characteristic prostrating attacks of migraine headaches pain that occur once per month. VA treatment records are consistent with the findings of the VA examination reports. In July 2014, a private physician reviewed his medical history showing headaches beginning during service and consistent treatment at both VA and private facilities. The physician indicated that the Veteran sought treatment from his medical office in approximately 2011 once his migraine headache pain returned after a several years hiatus. He experienced nausea, dizziness, severe pain, tearing, runny nose, memory problems, change in mood, irritability, and difficulty retrieving words. He also reported that without medication, his migraine pain ranged from 8 to 10, on a 10-point scale. The physician opined that the Veteran was unable to secure consistent work due to his migraine headaches and other associated symptoms. A request for employment information was completed by the Veteran’s last employer in July 2015; the statement indicated that he was terminated based on negative performance and last worked in July 2011. Another request was returned by a previous employer in April 2015, which indicated the Veteran last worked in December 2010 and quit for other employment. In this case, a rating higher than 50 percent for migraine headaches is not available under the rating schedule. The Board finds that a higher rating is not warranted under any other rating criteria, as the Veteran’s symptoms, mainly frequent prostrating headaches with light sensitivity and visual changes, have been accounted for by the criteria listed in Diagnostic Code 8100. Accordingly, an increased or separate rating for migraine headaches is not warranted. Additionally, extra-schedular consideration is not warranted, for the reasons stated below. The Board has also considered the Veteran’s lay statements that his disabilities are worse than currently evaluated. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology for his migraines. The Board has also considered whether an extraschedular rating is warranted under 38 C.F.R. § 3.321. The Veteran’s skin condition, obsessive-compulsive disorder, and migraines are manifested by symptoms contemplated by the rating schedule. The effects of the Veteran’s disabilities have been fully considered and are contemplated in the rating schedule. The rating criteria contemplates the Veteran’s reports of frequent migraines, as well as his psychiatric symptoms of insomnia, anxiety, disturbances of motivation and mood, and obsessional rituals which interfere with routine. Moreover, the Director, Compensation Service found in the June 2016 Administrative Decision that entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) was not warranted, as the assigned 50 percent rating included consideration of economic interference. The most probative evidence of record—namely, the VA examination reports and the June 2016 Director’s opinion—shows no symptoms that were not able to be addressed with the applicable diagnostic codes. An extraschedular rating for migraines is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel