Citation Nr: 18151437 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-47 076 DATE: November 20, 2018 ORDER Entitlement to an initial rating of 50 percent for tension headaches, effective September 30, 2011, is granted. FINDING OF FACT From September 30, 2011, the Veteran’s tension headache symptoms most nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for a rating of 50, but no higher, for migraine headaches, have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 2007 to June 2008 and from December 2009 to September 2011. He is a recipient of the Purple Heart medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Legal Criteria Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Migraine headaches are evaluated under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a 50 percent rating is warranted with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. A 30 percent evaluation is warranted with characteristic prostrating attacks occurring on an average once a month, over the preceding several months. 38 C.F.R. § 4.124a. The Rating Schedule does not define “prostrating,” nor has the United States Court of Appeals for Veterans Claims (Court). See Fenderson v. West, 12 Vet. App. 119 (1999) (quoting Diagnostic Code 8100 verbatim, but not specifically addressing the matter of what is a prostrating attack). By way of reference, “prostration” is defined as “extreme exhaustion or powerlessness.” See Dorland’s Illustrated Medical Dictionary 1531 (32nd ed. 2012). Similarly, “prostrate” is defined as “physically or emotionally exhausted; incapacitated.” See Webster’s II New College Dictionary 889 (2001). Further, “severe economic inadaptability” is also not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the Court has held that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. In this regard, it was explained by the Court that if “economic inadaptability” were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating. Id., citing 38 C.F.R. § 4.16. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words “productive of” could be read to mean either “producing” or “capable of producing.” Id. at 446-447. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence is at least in relative equipoise as to whether the Veteran’s tension headache disability warrants a 50 percent disability rating for the entire initial rating period. See 38 C.F.R. § 4.124a, DC 8100. In this regard, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s tension headache disability is manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. Analysis The Veteran is currently rated noncompensable for tension headaches prior to January 8, 2015 and 30 percent from January 8, 2015 to the present. The Veteran’s service treatment records (STRs) indicate that the Veteran has experienced weekly headaches since returning to CONUS from Afghanistan after suffering injury from an IED. Additionally, the Veteran’s Medical Board findings note that he has experienced recurrent headaches, and that these headaches have occurred weekly since the Veteran returned to CONUS. In an August 2011 VA examination the VA examiner noted that the Veteran experienced tension headaches twice a week that lasted one to two hours. The headaches were accompanied by light intolerance and lightheadedness. The examiner noted that all of the Veterans symptoms, to include headaches, have the potential to interfere with his daily and occupational functioning. In a January 2015 DBQ a VA physician noted that the Veteran suffered from tension headaches about two times a week and that his headaches could impact his work efficiency. In a March 2015 statement the Veteran reported that since he was injured by an IED he has continually had headaches two to three times per week with nausea and sensitivity to light. The Veteran stated that he treated his headaches with over the counter medication but that when he is at work he must seek out quieter, darker places in order not to exacerbate his headaches. In a March 2016 statement from the Veteran he noted that he previously refused to take medication to treat his headache symptoms and he dealt with the pain. However, since this no longer worked for him he indicated the need to take leave from work in order to attend medical appointments to deal with the pain. Medical treatment records from the Red Sox Foundation also note that the Veteran reported ongoing headaches that are accompanied by seeing spots, light sensitivity, and exacerbation with loud noises. In an April 2016 statement the Veteran once again reported that since returning from Afghanistan he has experienced headaches two to three times a week that are accompanied by nausea and sensitivity to light and noise. The Veteran stated that when he was at work he shut off the lights and moved to a quieter area when he experienced a headache, otherwise the headaches became “unbearable.” During an August 2016 VA examination, the examiner filled out a headaches DBQ. In the DBQ the examiner noted that the Veteran reported his headaches had not gone away since he has returned from Afghanistan. The examiner also noted that the Veteran had characteristic prostrating attacks of migraines with a frequency of at least once every month. In consideration of all of the evidence of record, including the Veteran’s statements, VA treatment records, VA examination reports, and private treatment records, the Board finds that the Veteran experiences very frequent, completely prostrating, and prolonged attacks occurring at least once per week. The Veteran has consistently stated that his headaches are consistently accompanied by symptoms of nausea, sensitivity to light and sound, changes in vision, feelings of dizziness, require prolonged periods of rest and use of prescription medication. In addition, the Veteran has consistently described that symptoms associated with these prostrating migraine headaches usually occur daily. There is no indication in the record that the Veteran’s reports of symptoms associated with the headaches are not credible and the Board finds these statements probative in determining the severity of the Veteran’s migraine headache disability. Furthermore, the August 2016 VA examiner opined that the Veteran’s headaches impacted his ability to work due to difficulty with focus when experiencing a severe headache. The Board next finds that the weight of the evidence demonstrates that the Veteran’s headache disability manifests in symptomatology capable of producing severe economic inadaptability. In this regard, the Veteran has consistently indicated that his headaches negatively affect his ability to work. The Veteran has repeatedly noted that when his headaches affect him at work he has to rest, turn off the lights and go to a dark quiet room. Additionally, he noted having to take time off from work to attend medical appointments to help deal with the pain he experienced from the headaches. Regardless of whether the Veteran’s headache disability is actually productive of severe economic inadaptability, the Board must consider whether his headache disability is capable of producing severe economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). The evidence of record demonstrates that the Veteran experiences completely prostrating migraine headaches at least once per week. The Veteran has consistently stated that his headaches are accompanied by symptoms of nausea, sensitivity to light and sound, changes in vision, feelings of dizziness, and require prolonged periods of rest and use of prescription medication. In addition, the Veteran has consistently described that symptoms associated with these prostrating migraine headaches usually occur daily. Therefore, in consideration of the frequency, severity, and duration of the migraine headaches, the Board finds that the Veteran’s headache disability is manifested by symptomatology capable of producing severe financial inadaptability. For these reasons, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the weight of the competent lay and medical evidence demonstrates that the symptomatology associated with the Veteran’s headaches more nearly approximates the criteria required for a 50 percent disability rating. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Gresham