Citation Nr: 18149426 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-41 183 DATE: November 9, 2018 ORDER Entitlement to an initial rating of 50 percent for migraines is granted, subject to the regulations governing the payment of monetary awards. FINDING OF FACT The evidence is approximately evenly balanced as to whether the symptoms of the Veteran’s migraines cause very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for the maximum schedular rating of an initial 50 percent for migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.124, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2003 to July 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for migraines (then characterized as chronic headaches of unknown etiology) and assigned a noncompensable rating, effective April 24, 2015, the date of the Veteran’s claim for service connection. The Veteran timely disagreed with the initial rating assigned. In May 2018, the RO increased the assigned rating for migraine to 30 percent, also effective April 21, 2015. The Veteran has not expressed satisfaction with the increased disability rating; this issue thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). Higher Initial Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating higher than 30 percent for migraines. The Veteran’s migraine headaches are currently rated 30 percent disabling under DC 8100. 38 C.F.R. §§ 4.27, 4.124a, DC 8100. Under DC 8100, migraines are rated as follows: a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months; a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months; and a 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define “prostrating.” Dorland’s Illustrated Medical Dictionary defines “prostration” as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). VA’s Adjudication Procedures Manual (M21-1) defines prostrating under DC 8100 as “causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities.” See M21-1, pt. III, Subpt. iv, Ch. 4, Sec. G(7)(b). The Adjudication Manual is not binding on the Board, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), but provides useful guidance in defining this term. In September 2015, the Veteran was afforded a VA examination. He reported that he has headaches every 10 days and that they last from 3 to 8 hours. He states that he has non-headache symptoms associated with headaches such sensitivity to light and sounds, and sensory changes. The examiner found that the Veteran’s headaches were not characteristic of prostrating attacks of migraines or non-migraine headache pain. The examiner opined that the Veteran’s headaches impact his ability to work. The examiner explained that the Veteran’s headache symptoms affect the ability to focus and concentrate on work tasks. In the Veteran’s October 2015 notice of disagreement (NOD), the Veteran described his headaches as “unbearable.” He explained that his headaches are “completely prostrating” and they occur 2 to 3 times per month. He indicated that when his headaches occur, he is useless and they cause him to lie in a dark room for relief. In December 2015, the Veteran was afforded a VA examination. He reported that he has prostrating attacks of headaches that occur once every two months. He stated that he missed work a few times due to his service-connected headaches. He indicated that he has non-headache symptoms associated with headaches such sensitivity to light and sounds, and sensory changes. The examiner found that Veteran has characteristic prostrating attacks of migraines; however, the examiner also found that the Veteran’s headaches were not characteristic prostrating attacks of migraines. The examiner concluded that the Veteran’s headaches do not impact his ability to work. In November 2015 and July 2016 private treatment records, the Veteran private treating physician noted that the Veteran has “frequent” headaches that last 2 to 4 hours and that he lies in a dark room to relieve his symptoms. The private physician indicated that the Veteran has been working as a firefighter for two years and has a second job as a driver. In the Veteran’s August 2016 substantive appeal (VA Form 9), he reported that he has headaches 3 to 4 times per month. He described his headaches are prostrating and constant and it is impossible for him to work during his headaches. In a June 2017 VA treatment record, the treatment provider noted that the Veteran has headaches that occur 3 to 4 times per week and that they are deliberating. In August 2017, the Veteran was afforded a VA examination. He reported that he has headaches occurring every other day that last for 2 to 3 hours and that he recently sought treatment from a neurologist regarding his headaches. He indicated that during headaches, if he is home, he will go into his room and turn off lights for relief. He stated that when he has headaches during work hours, he tries to “suck it up and hide.” The examiner found that the Veteran’s headaches are not characteristic of prostrating attacks of migraines. The examiner concluded that the Veteran’s headaches do not impact his ability to work. For the following reasons, entitlement to an initial rating of 50 percent for migraines is warranted. The Veteran’s migraines have been frequent, completely prostrating with prolonged attacks and productive of severe economic inadaptability. For instance, the Veteran has consistently described his migraines as prostrating and “unbearable.” He has indicated that he has had migraines as frequent as every other day that last four hours. His private treatment provider has also indicated that the Veteran has very frequent headaches. In addition, the Veteran indicated that when his headaches occur, he is useless and they cause him to lie in a dark room for relief. This testimony appears to the Board to indicate completely prostrating attacks. Furthermore, the Veteran has indicated that it is impossible for him to work during his headaches and that he has missed worked due to his headaches. In September 2015, the examiner opined that the Veteran’s headaches impact his ability to work. The examiner explained that the Veteran’s headache symptoms affect the ability to focus and concentrate on work tasks. The Veteran’s statements regarding her frequency and severity of her migraine headaches are credible and probative as they are consistent with the medical evidence of record. Thus, the above evidence supports that the Veteran experiences very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. Although the term “severe economic inadaptability” is not defined in the regulation, the nature and frequency of the headaches described by the Veteran, the August 2016 examiner, and the treatment providers would meet this definition. Pierce v. Principi, 18 Vet. App. 440, 445 (2004) (acknowledged VA’s concession that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability). To this extent, an examiner’s characterization of which criteria are most nearly approximated are not binding on the Board. The determination as to the degree of disability is ultimately and adjudicatory rather than a medical question. 38 C.F.R. § 3.100(a) (2017) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present”). The evidence is thus at least evenly balanced as to whether the Veteran’s migraines meet each of the criteria for a 50 percent rating under DC 8100. See Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims Lexis 1253 (Sept. 19, 2018) (the criteria of DC 8100 are successive). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to the maximum schedular initial 50 percent rating for the Veteran’s migraine headaches under DC 8100 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. (Continued on the next page)   The Board has considered the Veteran’s initial rating claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). There is no indication that the broad criteria of DC 8100 do not contemplate the symptoms of the Veteran’s headaches, see Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), and no indication that the Veteran is unable to secure of follow substantially gainful employment such that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is raised. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). See also Pierce, 18 Vet. App. at 446 (“nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating” because “[i]f ‘economic inadaptability’ were read to import unemployability,” a claimant who “met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability rather than just a 50% rating”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel