Citation Nr: 18149737 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 17-50 255 DATE: November 14, 2018 ORDER An evaluation higher than 30 percent for service-connected migraine headaches is denied. FINDING OF FACT The Veteran’s migraine headaches are not productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an evaluation higher than 30 percent for service-connected migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1991 to April 2001. . Increased Rating for Migraine Headaches Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) The Veteran was granted service connection for her migraine headaches in a May 2014 rating decision. At that time, the RO assigned an initial 30 percent rating, effective February 12, 2013, the date her claim for service connection was received. The Veteran did not appeal this initial rating. In March 2016, the Veteran filed a claim for an increased rating for her migraine headaches, and the RO, by way of a June 2016 rating decision, continued the 30 percent rating. Again, the Veteran did not appeal this rating. Rather, she filed a new claim for an increased rating for migraine headaches in October 2016. The RO, by way of a January 2017 rating decision, again declined to increase the Veteran’s rating for migraine headaches, and continued the 30 percent evaluation. The Veteran asserts that she is entitled to a rating in excess of 30 percent, specifically, a rating of 50 percent, for her migraine headaches. The Veteran’s service-connected migraine headaches are evaluated under Diagnostic Code (DC) 8100. Under this Code, a 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating,” nor has the United States Court of Appeals for Veterans Claims (Court). By way of reference, the Board notes that, according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” The term “productive of severe economic adaptability” has not been clearly defined by regulations or case law. The Court has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Migraines need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. “Economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; 38 C.F.R. § 4.16. At a minimum, however, migraines must be capable of producing “severe” economic inadaptability. On VA examination in May 2016, the Veteran reported taking daily medication, additional medication as needed, and receiving Botox injections (most recently in March 2016) to manage her headaches. She reported that, before receiving Botox injections, she was having migraines three to four times a week and missing days of work due to migraines. Some of her migraines would last 30 days at that time. She stated she still suffered from migraines, but now only two times a week, lasting half a day to an entire day. Her migraines were aggravated by noise and light and were relieved by her relocating to a quiet dark place and taking medication. The examiner noted that the Veteran experienced non-headache symptoms associated with her headaches, including nausea, vomiting, sensitivity to light and sound, changes in vision, and stiffness in her neck. She also noted that the typical duration of the Veteran’s headaches was from less than one day to between one and two days, and that the headaches were usually on one side of the Veteran’s head at a time. The May 2016 VA examiner concluded that the Veteran suffered characteristic prostrating attacks of headache pain, occurring an average of once a month over the prior several months. However, the examiner found that the Veteran did not have very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. The Veteran’s headaches were noted to impact her ability to work, as she would be unable to work, participate in instrumental activities of daily living, or participate in family or social interactions. On VA examination in December 2016, the Veteran reported she had suffered a headache for two weeks in August 2016, which led to her medications being changed to include injections as needed for sudden onset or severe headaches. Her daily preventative medication had also been changed, as it had been causing memory problems. She stated that her new daily preventative medication did not impair her memory as severely as the prior medication had. She reported having two to three migraines per week and stated they would last from a few hours to a full day. The Veteran told the examiner she had missed work approximately three times per month that year, as she had to lie down and rest during migraine episodes. The injections caused her to feel drowsy and tired, and she felt that the preventative medication was causing her to have trouble recalling words. She wanted to return to school, but was concerned that her memory issues would hamper her academic success. The VA examiner noted that the Veteran experienced non-headache symptoms associated with her headaches, including nausea, vomiting, and sensitivity to light and sound. She also noted that the typical duration of the headaches was less than one day, and that the headaches would start on one side of the Veteran’s head and spread to the other if they persisted long enough. The December 2016 VA examiner concluded that the Veteran suffered characteristic prostrating attacks of headache pain, occurring an average of once a month over the prior several months. However, the examiner found that the Veteran did not have very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. The examiner further stated that the Veteran’s headache condition did not impact her ability to work. The Veteran added a written explanation in her April 2017 notice of disagreement, wherein she wrote that her migraine headaches warranted a 50 percent disability rating due to her receiving injections to treat the headaches. The Veteran also submitted a written statement with her formal appeal to the Board in September 2017. In this statement, she wrote that her headaches met the criteria for a 50 percent evaluation because she would end up bedridden from her migraines, have to receive shots in her head, and miss so much work that she used all of her leave because of her migraine headaches. She stated that her headaches were onset by noise and lights and would occur two to three times a week, thereby producing and causing severe economic inadaptability. In December 2017, the Veteran submitted a witness statement written by her co-worker, J.W., who was a clinical pharmacist. J.W. wrote that the Veteran had multiple migraines during the work week, up to two to three times per week. She noted that the Veteran would sit in her office with the lights lowered when she was experiencing a migraine. J.W. stated that she had even been trained on how to give medication injections to the Veteran in case she suffered a migraine at work. Further, J.W. noted that there were times when the Veteran had to call out sick because of migraines and that she was concerned about the Veteran’s medical care and safety. VA treatments records spanning the appeal period show that the Veteran was treated regularly for management of her migraine headaches. These records do not contain any evidence that her migraine symptoms were more severe than was reported at the VA examinations. The record also shows that the Veteran was employed as a nurse throughout the appeal period. The Veteran has not asserted that her employment was actually threatened by adaptations she underwent regarding her ability to work due to migraines, including lowering the lights while working in her office and using her allotted leave days each month to miss work due to her migraine headaches. Here, the Board finds that the weight of the evidence does not show that the level of the Veteran’s headache symptoms has been so severe as to produce severe economic inadaptability. Regardless of how frequent and prostrating one’s migraine headaches may be, without being productive of severe economic inadaptability, they do not warrant a 50 percent rating under Diagnostic Code 8100. While the Veteran definitely has been shown to suffer from recurring migraine headaches, she has submitted evidence that she has been able to adapt her ability to work and, thus, remain economically stable despite her migraine headaches by lowering the lights in her office and taking medication as needed to relieve the symptoms, and even use her allotted leave to miss up to multiple days per month of work when the migraines were particularly severe. However, she has not indicated the condition affected her employability to such a level that it (her headaches) produced severe economic inadaptability. Nonetheless, the condition does affect her employment to some degree, as she indicated that she had used all of her leave due to taking time off for migraine episodes, but some level of economic impairment is already contemplated by the 30 percent evaluation she is currently assigned. Moreover, on both VA examinations during the appeal period, the VA examiners concluded that the Veteran did not have very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. In light of the above, the criteria for a 50 percent evaluation for the Veteran’s service-connected migraine headaches have not been shown. Thus, an evaluation higher than 30 percent is not warranted. The Board acknowledges that the Veteran is competent to report symptoms of her headaches, but not to identify a specific level of disability. The medical findings in this case, as well as the facts surrounding her employment and economic adaptability, directly address the criteria under which this disability is evaluated, and this evidence is accorded greater weight than her subjective complaints of being entitled to an increased evaluation. Without symptoms productive of severe economic inadaptability, a rating greater than 30 percent is not warranted. Accordingly, the Board concludes that the Veteran’s headaches have been not more than 30 percent disabling throughout the entire period on appeal, and staged ratings are not appropriate. See Hart, supra. Finally, the Veteran has not raised the matter of an extraschedular rating. Indeed, the evidence presented in this appeal does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017). As such, no further action as to this matter is required. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel