Citation Nr: 18147573 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 17-49 584 DATE: November 6, 2018 ORDER A 50 percent evaluation, the maximum under the rating schedule, for migraine headaches is granted. FINDING OF FACT The Veteran’s migraine headaches have been more nearly manifested by very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent (maximum schedular) evaluation for migraine headaches are met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.159, Part 4, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty from August 1974 to July 1978 in the United States Navy. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an evaluation in excess of 30 percent for migraine headaches. The Veteran contends that his migraine headache disability is more severe than the 30 percent evaluation he is currently assigned. In his May 2017 Notice of Disagreement, he listed the frequency of his headaches, which numbered several per month. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran’s migraine headaches disability has been evaluated under 38 C.F.R. § 4.124a, DC 8100. He is currently assigned a 30 percent disability evaluation since May 3, 2012. The Veteran initially filed his claim service connection for migraine headaches in July 2010. He filed a claim for an increased evaluation, in excess of 30 percent, in September 2016. Under 38 C.F.R. §4.124 Diagnostic Code 8100, a 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. The maximum, 50 percent, rating is provided for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Significantly, the use of the conjunctive “and” in a statutory provision means that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). Here, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). The Board notes that § 4.7 is not applicable to DC’s that apply successive rating criteria, such as DC 8100. It is successive because the criteria of each lower disability rating is included in the higher disability rating. Neither the rating criteria nor the Court has defined “prostrating.” By way of reference, according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH 1080 (3rd Ed. (1986)), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. (2012)), in which “prostration” is defined as “extreme exhaustion or powerlessness.” In Pierce v. Principi, 18 Vet. App. 440, the United States Court of Appeals for Veterans Claims (Court) noted preliminarily that “[n]owhere in the DC is ‘inadaptability defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.].” Id. at 444-45. The Court observed, however, that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating.” Id. at 446. Indeed, the Court reasoned, if the claimant were unemployable, he would be eligible for a total disability evaluation based on individual unemployability rather than just a 50 percent rating. Id. Further in Pierce, the Secretary acknowledged that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” economic inadaptability. Id. Having carefully reviewed the evidence of record, the Board finds that the criteria for a 50 percent disability evaluation for migraine headaches are met based on VA examination, treatment records showing complaints consistent with the schedular criteria, the Veteran’s lay statements, and affording him the benefit of any doubt. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; and Gilbert, supra. Lay evidence is competent to describe the frequency, severity, and duration of migraine headaches, including whether they are severe enough to cause prostration. See Layno v. Brown, 6 Vet. App. 465 at 471; 38 C.F.R. § 3.159 (a)(2). The Veteran has reported symptoms of pain associated with his migraine headaches and discussed the duration and quality of his headaches. Therefore, the Board finds that the Veteran’s statements about his headache symptoms constitute competent evidence for rating purposes. The Veteran’s report of the quality and frequency of his migraine headaches is credible as it has remained consistent throughout the pendency of his appeal. In January 2016, the Veteran was afforded a VA examination. A diagnosis of migraine headaches was confirmed, with an onset of the disability in 2002. The Veteran’s headaches manifested with head pain, described as pulsating, localized to one side of the head, and worsened with physical activity. Associated symptoms included nausea, light sensitivity, sound sensitivity, vision changes, and sensory changes. The examiner endorsed that the headaches were very frequent prostrating (several per month) and prolonged (lasting 1 to 2 days in duration), which adversely affected the Veteran’s functional ability to concentrate or focus. The Board finds that a 50 percent disability evaluation is warranted in view of the medical and lay evidence, and affording the Veteran all benefit of any doubt. Reviewing the Veteran’s medical and occupational history, the Board notes that he last worked in October 2001 as a machine operator. Medical treatment records, including the VA examinations of record, indicate that the Veteran has suffered from frequent prostrating migraine headaches. Due to the nature of the Veteran’s headaches disability, the Veteran’s functional ability to work in an environment where his sensitivity to noise and lights would be triggered and where he would be required to maintain high levels of concentration would likely be severely compromised. The Board finds that the Veteran’s migraine headaches disability is productive if severe economic inadaptability. In sum, the medical evidence of record and the Veteran’s statements indicate that he experiences headaches that are very frequent, completely prostrating, and prolonged. Due to their nature, frequency, and severity, the Board finds that lay and medical evidence suggest that the attacks are productive of severe economic inadaptability. On balance, the evidence more nearly approximates the criteria for a 50 percent rating for migraine headaches. This is the maximum rating available under the VA rating schedule. (Continued on the next page)   Accordingly, the claim is granted. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel