Citation Nr: 18153226 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 10-37 526 DATE: November 27, 2018 ORDER Entitlement to an initial compensable disability rating for headaches prior to September 15, 2011 is denied. Entitlement to a 30 percent rating for headaches, from September 15, 2011 until January 28, 2013, is granted, subject to the laws and regulations governing monetary benefits. Entitlement to a rating in excess of 30 percent for headaches, from January 28, 2013 until October 8, 2014, is denied. Entitlement to a 50 percent rating for headaches, beginning October 8, 2014 is granted, subject to the laws and regulations governing monetary benefits. FINDINGS OF FACT 1. The probative evidence of record does not show the Veteran’s headaches manifested in characteristic prostrating attacks prior to September 15, 2011. 2. The probative evidence of record shows the Veteran’s headaches manifested in characteristic prostrating attacks at least once a month, beginning September 15, 2011. 3. The probative evidence of record shows the Veteran’s headaches manifested in frequent completely prostrating and prolonged attacks productive of severe economic inadaptability beginning October 8, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable disability rating for headaches prior to September 15, 2011 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a 30 percent rating for headaches beginning September 15, 2011 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8100. 3. The criteria for entitlement to a rating in excess of 30 percent, from January 28, 2013 until October 8, 2014, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8100. 4. The criteria for entitlement to a 50 percent rating for headaches beginning October 8, 2014 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2003 to March 2009. The Veteran testified before the Board of Veterans’ Appeals (Board) in October 2014. The Board previously adjudicated the matter in a May 2015 decision. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In May 2016, the Court issued a Joint Motion for Vacatur and Remand, vacating and remanding the matter back to the Board. The Board readjudicated the matter in a February 2017 decision. The Veteran appealed the Board’s decision to the Court. In June 2018, the Court issued a Memorandum Decision, vacating and remanding the matter back to the Board. The Veterans Law Judge that conducted a prior hearing is no longer employed by the Board. The law requires the Veterans Law Judge who conducts a hearing to participate in any decision made on the appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The Veteran was notified that the Veterans Law Judge that conducted his hearing is no longer employed by the Board by way of an August 2018 letter. She was offered the opportunity to have a new hearing, and the Veteran declined the opportunity for an additional hearing in September 2018, electing to have her case considered bass on the evidence of record. Thus, the Board will proceed to consider the Veteran’s claim without additional hearing testimony. The Board notes additional issues were recently remanded in a February 2018 Board action, and the agency of original jurisdiction is completing development consistent with the remand directives. These matters are accordingly not before the Board on appeal presently. In making this determination, the Board notes that the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Specifically, the Veteran has not asserted, nor does the evidence suggest, that the service-connected disorders addressed in this decision render her unemployable. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). Entitlement to an initial compensable disability rating for headaches prior to January 28, 2013; and a rating in excess of 30 percent beginning January 28, 2013 Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). When the appeal is from the initial rating assigned with an award of service connection, the severity of the disability at issue from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned, based on facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). 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. See 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, migraine with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensable. Migraine with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. The term “prostrating attack” is not defined in regulation or case law, but can be defined as extreme exhaustion or powerlessness. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack); DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012). 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 total disability rating 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. In August 2008 service treatment records, the Veteran sought treatment for headaches that occurred three to four times per month and would last for one to three days. The headaches were not excruciating and did not cause sensitivity to light, nausea, or vomiting. The Veteran was afforded a VA examination in July 2009. She reported having occasional headaches that would last for a few hours and were relieved by Tylenol. She experienced non-prostrating attaches two or three times per month. August 2009 VA treatment records showed complaints of headaches lasting three to four days, but the headaches did no interfere with activities of daily living. In a September 15, 2011 statement, the Veteran provided lay evidence of her headaches occurring one to three times per week where she was basically incapacitated for the entire day, and sometimes the headaches would last for two days at a time. The Veteran was afforded another VA examination in September 2014. The Veteran reported her headaches had increased in intensity and frequency. The Veteran’s headaches were described as throbbing and associated with photophobia, phonophobia, and nausea. The examiner found the Veteran had characteristic prostrating attacks monthly, but the Veteran’s attacks were not productive of severe economic inadaptability. The Veteran testified before the Board on October 8, 2014. She reported having to leave work due to her headaches two to three times per month. Her husband explained that her headaches would leave her bedridden, and they would need to hire landscapers and handymen to do chores they would normally do themselves. She reported that her employer was very accommodating to her headache symptoms, allowing her to occasionally adjust the lighting and leave work. March 2018 VA treatment records show the Veteran reported headaches three times per week, and she would leave work early every week due to her headaches. The Board has reviewed all the evidence of record and finds the Veteran’s headaches warrant a 30 percent rating beginning September 15, 2011; and her headaches warrant a 50 percent rating (the maximum available under the applicable schedular criteria) beginning October 8, 2014. Prior to September 15, 2011, the record is negative for evidence of characteristic prostrating attacks. In August 2008, the Veteran denied excruciating headaches. The Veteran specifically denied prostrating attacks during her July 2009 VA examination. In August 2009 the Veteran’s headaches did not interfere with activities of daily living. The first evidence of prostrating attacks is found in the Veteran’s September 2011 lay statement describing incapacitation due to her headache symptoms. Although not documented in the Veteran’s medical records, the Veteran is competent to describe the manifestation of her headache symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Viewing the evidence in a light most favorable to the Veteran, the Board finds that the Veteran’s headaches manifested in characteristic prostrating attacks on at least once per month beginning September 15, 2011, though not earlier. Therefore, beginning September 15, 2011, the Veteran’s headaches warrant a 30 percent rating. The Board has also considered whether the Veteran’s symptoms warrant an evaluation in excess of 30 percent at any point during the period on appeal. The Board notes that in order for the Veteran’s symptoms to approximate the maximum allowable schedular rating of 50 percent for headaches under Diagnostic Code 8100, the evidence must support finding the Veteran’s symptoms manifest in frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran’s treatment records provide evidence of frequent prostrating attacks prior to October 8, 2014; however, the evidence does not support finding the severe economic inadaptability prior to October 8, 2014. Specifically of note, the September 2014 VA examiner provided negative findings for severe economic inadaptability. The first evidence to support economic inadaptability was provided by the Veteran during the October 2014 Board hearing. The Veteran reported having to leave work early two to three times per month, and she reported that her employer would adjust the lighting due to her photophobia. The Board finds the Veteran’s headaches manifested in severe economic inadaptability beginning October 8, 2014 because the Veteran’s headaches symptoms are capable of producing severe economic inadaptability. The Veteran’s employer, as reported by the Veteran has allowed the Veteran to leave work early and adjust the lighting to accommodate the Veteran’s symptoms. The Veteran’s symptoms are therefore capable of severe of producing severe economic inadaptability if not for the employer’s willingness to work with the Veteran. Based on the totality of the Veteran’s medical and lay evidence, the Board finds the Veteran’s disability picture most closely approximates a 30 percent rating beginning September 15, 2011, and most closely approximates a 50 percent rating beginning October 8, 2014; and to this extent the appeal is granted. This represents a partial grant and a partial denial of the benefits sought on appeal. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel