Citation Nr: 18150727 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-43 282 DATE: November 16, 2018 ORDER Entitlement to an initial 50 percent evaluation for service-connected cluster headaches is granted. FINDING OF FACT The Veteran has prostrating and prolonged attacks of headache symptoms productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial 50 percent evaluation for service-connected cluster headaches are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §4.124a, Diagnostic Code 8100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Navy from July 1986 until January 1996. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Entitlement to an initial compensable evaluation for service-connected cluster headaches Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). 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 for that rating. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). Where an appeal is based on an initial rating for a disability, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran’s headaches are rated under Diagnostic Code 8100. A noncompensable evaluation is warranted for migraine headaches with less frequent attacks. A 10 percent evaluation is assigned for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating.” Prostration is defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary at 1531 (32nd ed. 2012). “Productive of” can either have the meaning of producing or capable of producing. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually produce severe economic inadaptability to warrant the 50 percent evaluation. Pierce, 18 Vet. App. at 445-46. Economic inadaptability does not mean unemployability, as such would undermine the purpose of regulations pertaining to total disability ratings due to unemployability as a result of service-connected disability (TDIU). Pierce, 18 Vet. App. at 446; 38 C.F.R. § 4.16. A claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Although the Veteran has reported he is unable to work full-time since August 2013 due to frequent headache pain, this is not tantamount to an inferred claim of entitlement to a TDIU because he has not asserted he is unable to work due to his headache condition, only that he is limited to working part time, which he has not alleged is not substantially gainful employment. See August 2016 substantive appeal; see June 2017 appellant’s brief. A July 2016 VA treatment note reports the Veteran had started a new job. The rating criteria for headaches contemplates severe economic inadaptability, which encompasses the Veteran’s reported degree of occupational impairment. Here, the evidence shows that a maximum 50 percent rating is warranted throughout the appeal period as the Veteran has prostrating and prolonged attacks of headache symptoms productive of severe economic inadaptability.   Review of the VA treatment records shows that at best, the Veteran’s headache frequency was at least once a week during the appeal period, with symptoms lasting up to a day. See December 2014 VA treatment note. The Veteran has reported that during attacks of headache pain, he has to lie in a dark, quiet room and severely restrict his activities. See March 2016 notice of disagreement; August 2016 substantive appeal. The Veteran’s testimony is consistent with the medical definition of prostrating. He has consistently reported the same symptoms to both his VA treatment providers and adjudicators, and his consistency lends credibility to his statements. Further, the Veteran last worked full-time in August 2013, when he lost his job due to taking off too much time from work due to headaches. See January 2015 VA examination report. The Veteran has testified that he is unable to work more than part time due to his headaches. See August 2016 substantive appeal; see June 2017 appellant’s brief. In sum, the lay and medical evidence of record shows frequent (weekly or more) characteristic prostrating and prolonged attacks of headache pain that have produced severe economic inadaptability. A VA examiner who examined the Veteran in January 2015 reported that the Veteran did not have characteristic prostrating attacks of headache pain. The examination report notes that prior to being on medication, the Veteran was isolating himself in a dark room due to pain that occurred twice per week. The examiner then reported that the medication helped the headaches become less frequent and less severe, but did not indicate the degree of improvement except to state that headaches now occurred at least once per week. The Veteran has asserted that the 2015 examination report did not accurately reflect the degree of incapacitation he experiences during an attack of headache pain. On this point, reasonable doubt must be resolved in the Veteran’s favor, and the Board finds that the 2015 examination report failed to adequately report the Veteran’s symptoms.   Overall, the 2015 examination report is afforded less weight than the VA treatment records and lay testimony. In sum, the preponderance of the evidence demonstrates that the Veteran’s cluster headaches warranted a 50 percent initial evaluation. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Smith, Associate Counsel