Citation Nr: 18154281 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-48 100 DATE: November 29, 2018 ORDER Entitlement to a rating in excess of 10 percent prior to June 2, 2016 and in excess of 30 percent thereafter is granted. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected chronic headaches resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating of 50 percent for service-connected chronic headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.124a, Diagnostic Code (DC) 8100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1981 to August 2001. This appeal to the Board of Veterans’ Appeals (Board) is from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which increased the Veteran’s noncompensable rating to a 10 percent rating for chronic headaches effective November 21, 2012; date of claim. In July 2016, the RO increased the Veteran’s rating to 30 percent effective June 2, 2016; date of VA examination. The Veteran continues his appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a rating in excess of 10 percent prior to June 2, 2016, and in excess of 30 percent thereafter Under Diagnostic Code 8100, a maximum disability rating of 50 percent is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. A 30 percent disability rating is warranted when there is evidence of characteristic prostrating attacks occurring on average once a month over the last several months. A 10 percent disability rating is assigned when there is evidence of characteristic prostrating attacks averaging one in 2 months over the last several months. Finally, a noncompensable disability rating is assigned for less frequent attacks. 38 C.F.R. §4.124a, DC 8100. The rating criteria do not define “prostrating;” however, Dorland’s Illustrated Medical Dictionary defines “prostration” as “extreme exhaustion or powerlessness.” See Dorland’s Illustrated Medical Dictionary 1531 (32nd ed. 2012)). Turning to the evidence, private treatment records throughout the appeal reflect daily headaches fluctuating from 7 to 10 on a pain scale. See 2011-2014 Dr. E. E., D.O. Treatment Records. The severity of pain remained generally consistent despite the prescription of extensive medications, including Botox injections. To that end, severe headache symptomatology was noted to typically last for hours if not days. On June 2013 VA headache examination, an examiner indicated the Veteran suffered from migraine headache pain less than once every two months. The examiner also noted that the Veteran did not have very frequent prostrating and prolonged attacks of migraine pain. Nevertheless, the examiner specified that the Veteran suffered from very frequent and prolonged prostrating attacks of non-migraine headache pain more frequently than once a month. Importantly, the examiner found the total functional impact of the Veteran’s chronic headache condition was “2-3 day prostrating headaches where [the] veteran is bedbound and housebound.” In June 2014, a nurse practitioner, A. H., N.P. C., opined that the Veteran’s headaches were among the neurological conditions that rendered him incapable of working a normal schedule. Essentially, his neurological conditions could result in incapacity for up to 8 hours and missing work up two times a week. On June 2016 VA examination, the Veteran reported duration of headache pain was more than two days. Symptoms were noted as constant pain, pulsating or throbbing, worsened with physical activities, causing nausea, vomiting, changes in vision and sensation, and a feeling of a head that is drifting or swollen. The examiner noted that the Veteran suffered from only once-a-month prostrating migraine/non-migraine headaches. These headaches were not deemed very prostrating and prolonged such as to be productive of severe economic inadaptability. Functional impact of the headache disability was the Veteran “requir[ing] flexibility in days off as he will have a severe headache lasting 3 or 4 days occurring about monthly.” In September 2016, the Veteran reasserted suffering on-going headache symptomatology that created debilitating effects precluding him from working at least once a week. See VA Form 9. He also cited to a recent hospitalization for increased blood pressure due to his headaches and continued treatment by a physician. Based on the above, in affording the Veteran the benefit of the doubt, the Board finds that a rating of 50 percent is warranted for the Veteran’s service-connected chronic headaches for the entire period on appeal. Physicians and examiners throughout the appeal have recognized the severe and continually debilitating effects of the Veteran’s headache conditions. Of note, the 2013 examiner found the Veteran’s conditions left him bedridden for multiple periods a month. Acknowledgment is given to the 2016 examiner’s determination that his headache disabilities did not produce severe economic inadaptability. However, such a determination is illogical as the examiner also opined that the Veteran’s disability requires employment that allows for repeat unpredictable absences, at a minimum, of once a month lasting for up to four days. Importantly, this determination also goes against the remaining lay, clinical, and examination evidence of record which document a 50 percent rating is warranted. The Veteran’s statements in his VA Form 9 are suggestive that there are outstanding records not in evidence which also contradict the 2016 examiners findings regarding severity. Rather than remanding to obtain such evidence, the Board finds that the benefit of the doubt is warranted. The Veteran is competent to report on symptoms which are capable of lay observation including symptoms of severe, recurrent head pain. Layno v. Brown, 6 Vet. App. 465 (1994). His reports are also deemed credible and probative of his current level of severity. A 50 percent disability rating is warranted for the entire period on appeal. This is maximum schedular rating and the Board considers this a full grant of the claim sought on appeal. See June 2018 Appellant’s Brief; see generally, AB v. Brown, 6 Vet. App. 35, 39 (1993). Consideration has been given as to whether the issue of total disability individual unemployability was raised by record. Rice v. Shinseki, 22 Vet. App. 447 (2009). To that end, the Veteran has reported sustaining a decrease in salary due to changing employment to meet the needs of his disabilities. See VA Form 9. However, he has not asserted that his current employment is not substantially gainful such as to trigger analysis. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Furthermore, as stated, his current rating for migraines already incorporates some level of economic inadaptability. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel