Citation Nr: 18150740 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-47 661 DATE: November 15, 2018 ORDER A compensable evaluation for migraine headaches is denied. FINDING OF FACT For the entire period of appeal, the Veteran reported headaches without characteristic prostrating attacks CONCLUSION OF LAW The criteria for a compensable rating for headaches were not met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1989 to January 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue of service connection for service connection for traumatic brain injury was previously on appeal. In a June 2016 rating decision, service connection for the disability was granted by the RO. The issue, therefore, is fully resolved and is no longer on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran appealed the March 2012 and April 2012 rating decisions on the issue addressed in this decision, as well as the issues of: the evaluation of chronic focal sclerosing glomerulonephritis with hypertension; the evaluation of right knee patellofemoral pain syndrome; the evaluation of left knee patellofemoral pain syndrome; the evaluation of bilateral pes planus and degenerative osteoarthrosis of the first MTP joint; the evaluation of bilateral pinguecula; and the evaluation of erectile dysfunction. The RO issued Statements of the Case with respect to these issues. The Veteran submitted untimely substantive appeals for these issues. With respect to the evaluation for migraine headaches, VA implicitly waived the timeliness of the substantive appeal by certifying the case to the Board. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). VA did not waive the timeliness of the substantive appeal on the remaining issues, and the Board declines to do so. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, a TDIU was not raised by the record or asserted by the Veteran. Evidence shows the Veteran to be employed. See January 2016 VA treatment record. Accordingly, a TDIU claim is not before the Board as a component of his claim for an increased evaluation. Id. VA’s Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by a pre-discharge notice form acknowledged by the Veteran in April 2010. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The claim was last adjudicated in June 2016. Although a medical treatment record was received after the last VA adjudication, the record showed evidence that was already of record, namely that the Veteran takes medications for his headaches. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). The “duty to assist” contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In that regard, the Veteran’s service treatment records, VA treatment records, private treatment records, and lay statements have been associated with the record. In January 2011, VA afforded the Veteran an examination with respect to the severity of his migraine headache disability. The VA examiner reviewed the evidence of record, considered the Veteran’s history and statements, and described the disability in sufficient detail to allow for its evaluation. Therefore, the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 1. A compensable evaluation for migraine headaches. The Veteran seeks a compensable initial disability rating for his service connected migraine headaches. Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Migraine headaches are evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under this code, a noncompensable (zero percent) rating for migraine headaches is warranted with less frequent attacks (than for the higher evaluations). A 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. Migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months are rated as 30 percent disabling. Migraine headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation, which is also the maximum evaluation available under this Diagnostic Code. 38 C.F.R. § 4.124a, Diagnostic Code 8100. To warrant a 50 percent rating, the attacks must be both very frequent and prolonged. Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims LEXIS 1253. Neither the rating criteria nor the Court has defined the term “prostrating.” The term is therefore given its ordinary meaning. See Terry v. Principi, 340 F.3d 1378, (Fed. Cir. 2003). Dorland’s Illustrated Medical Dictionary defines “prostration” as “extreme exhaustion or powerlessness.” See Dorland’s Illustrated Medical Dictionary 1531 (32nd ed. 2012). On this record, in the January 2011 VA examination, headaches were described as migraines with stiffness in the neck. The Veteran reported that when headaches occur, he was able to go to work and that he required medication. The Veteran indicated that the level of severity for the headaches was a pain level of 8 on a scale from 1-10 with 10 being the highest level of pain. The Veteran reported a frequency of, on the average, 2 time(s) per day lasting for 30 minutes, approximately one hour total during each day. The Veteran also reported functional impairment as having to lay down for a couple of hours. His VA treatment records from January 2011 onward show that he continued to have headaches and that he was prescribed medication. In July 2011, he reported that his headaches occurred once a week and lasted approximately one hour. In October 2011, it was noted that he had headaches once or twice a week. A January 2016 VA treatment record noted the Veteran still having headaches and taking medication as needed. The VA treatment records do not show an increase in frequency of headaches or that he has prostrating attacks. Significantly, July 2011 and October 2011 VA treatment records show less frequent headaches than what was reported to the VA examiner. The VA treatment records do not show that he missed work due to headaches, nor has the Veteran submitted lay evidence addressing the impact of his headaches on his ability to work. Although the Veteran takes Zomig to control his headaches, relief by medication is not a criterion under Diagnostic Code 8100 and will therefore not be considered. Jones v. Shinseki, 26. Vet. App. 56 (2012). Instead, the claim is denied because the Veteran does not have characteristic prostrating attacks. When considering the definition of prostration, the Veteran’s statement that he can go to work, refutes a finding that the headaches caused extreme exhaustion and powerlessness, even if they rise to a level of 8 on the pain scale. As to the Veteran’s assertion that the functional impairment is that he must lay down for a couple of hours, the frequency of him doing this is not specified. This statement is incompatible with the statement that migraines occur two times per day and that he can go to work, because he would essentially be absent or lying down at work 2 to 4 hours per day on a frequent basis. As the Veteran has remained employed with no medical or lay evidence indicating use of sick leave or other showing of absenteeism at work, the Board concludes that the need to lay down occurs only on occasion. Additionally, although he reported to the examiner that he had two thirty-minute-long episodes of headache pain per day, he subsequently reported that they were less frequent, occurring once or twice a week for an hour at a time. The VA treatment records show that he has headaches, but does not show that he has characteristic prostrating attacks. The preponderance of the evidence is against a finding that characteristic prostrating attacks occur. Accordingly, the benefit of the doubt cannot be applied and the claim must be denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel