Citation Nr: 18154297 Decision Date: 11/30/18 Archive Date: 11/29/18 DOCKET NO. 16-44 227 DATE: November 30, 2018 ORDER 1. Entitlement to a rating in excess of 30 percent for headaches prior to October 16, 2014 is denied. 2. Entitlement to a 50 percent rating for headaches is granted from October 16, 2014. FINDINGS OF FACT 1. Prior to October 16, 2014, the Veteran suffered from headaches that were manifested by an overall disability picture that more nearly approximated that of characteristic prostrating attacks occurring on an average once a month over the previous several months. 2. Since October 16, 2014, the Veteran has suffered from headaches that have been manifested by an overall disability picture that more nearly approximates that of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Prior to October 16, 2014, the criteria for a rating in excess of 30 percent were not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.124(a). 2. Since October 16, 2014, the criteria for the assignment of a 50 percent rating for headaches have been more nearly approximated. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.124(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from April 1992 to March 2000. The matter comes before the Board on appeal from a June 2014 rating decision which granted the Veteran service connection for headaches at a noncompensable rating with an effective date of July 10, 2013. The Veteran filed a notice of disagreement in June 2014. The agency of original jurisdiction (AOJ) issued a decision increasing the Veteran’s rating for headaches to 30 percent with an effective date of July 10, 2013, and also issued a statement of the case, in August 2016. The Veteran filed an appeal to the Board in August 2016. Entitlement to an initial disability rating in excess of 30 percent for the service-connected headaches. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Headaches are rated pursuant to 38 C.F.R. § 4.124(a), Diagnostic Code 8100. A 30 percent disability rating contemplates migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A maximum 50 percent schedular disability rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Court of Appeals for Veterans Claims has held that the rating criteria for migraines is successive. Johnson v. Wilkie, 2018 US. App. Vet. Claims LEXIS 1253, 16 (2018). Notably, the regulation does not specifically define a “prostrating attack;” however, “prostration” is defined as extreme exhaustion or powerlessness. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012). The Court held that the phrase “characteristic prostrating attacks” means migraine attacks that “typically produce powerlessness or a lack of vitality.” Johnson at 17. Because the 30 percent criteria contemplate prostrating migraine attacks that occur once a month, the 50 percent criteria necessarily requires prostrating attacks that are more frequent than that. Id at 17. Furthermore, whereas the 30 percent criteria require only “characteristic” prostrating attacks, the 50 percent criteria requires “completely” prostrating attacks of a “prolonged” variety; these modifiers make clear that the severity of prostration required for a 50 percent rating is greater than that required for a 30 percent rating, and that the prostrating attacks must last for a longer duration than would be required for a 30 percent rating. Id at 18. Severe economic inadaptability does not mean a claimant is completely unable to work, and VA has conceded that the phrase “productive of severe economic inadaptability” in Diagnostic Code 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 440 (2004). This does not require the Veteran to be totally unemployable. Id. at 446. In January 2013, the Veteran sought medical treatment at the Long Beach VA Medical Center (VAMC). The Veteran reported severe headaches that were accompanied by blurred vision, severe light sensitivity, and very severe sensitivity to noise. The headaches were bitemporal, and the Veteran reported that the pain was a 9/10. The Veteran reported that his headaches would usually start around 8am and would last for 60 to 90 minutes. In February 2013, the Veteran sought medical treatment at the Long Beach VAMC. He reported that he got occasional headaches, and that his migraine problem was returning. The Veteran reported that his headaches could be minimized if he rubbed his temples. In May 2014, the Veteran underwent a VA examination for headaches. The Veteran poor sleep and long hours caused headaches. The Veteran reported pain on both sides of his head that was pulsating/throbbing. The Veteran reported that his headaches were accompanied by a sensitivity to light and sound. The typical duration of his headaches was less than one day. The examiner noted that the prostrating attacks were of the non-migraine headache variety. The frequency was noted to be less than once every two months. However, the examiner did note that when the Veteran’s headaches get severe he needs to take time off work. In October 2014, the Veteran had a VA examination for traumatic brain injury. The Veteran reported that at that time he was struggling with migraines a few times a month, and that his migraines were mostly triggered by stress. In September 2015, the Veteran saw his private doctor M.S. and reported that his migraines had been getting worse since around January of that year. The Veteran reported that he was waking up with bitemporal headaches and that his headaches were aggravated by stress. The Veteran reported that he had been having migraines approximately three to four times per week, but that in the recent past he had been experiencing them every day. The Veteran related that his migraines featured heightened sensitivity to light, and that wearing sunglasses would help, as would lying down in a dark space without noise. In February 2016, the Veteran had a VA examination for headaches. The Veteran reported at that time that he was having daily migraines that were usually accompanied by nausea and vomiting. The disability benefits questionnaire indicated that the typical duration of the headaches was more than two days. The Veteran reported that his headaches were aggravated by bright lights and any noise. In addition to the nausea and vomiting, the Veteran reported sensitivity to sound and light, changes in vision, and unspecified sensory changes. The Veteran’s headaches were both prostrating and prolonged. The Veteran reported that when his migraine headaches were present he had a difficult time working, or was unable to do so entirely. December 2017 VA outpatient treatment records reflect that the Veteran had a stressful situation in November of that year, which triggered his migraines. February 2018 VA outpatient treatment records show that the Veteran reported that his migraines were stable but not improved. The Veteran reported that his migraines sometimes caused him to awaken during the night. In March 2018, the Veteran complained of experiencing migraines daily. In March 2018, the Veteran had a VA examination for headaches. The disability benefits questionnaire indicated that the Veteran’s migraines had gotten so bad that the vein on the side of his head was popping out. The Veteran reported constant head pain that was pulsating or throbbing and was bitemporal. The Veteran reported experiencing nausea, vomiting, sensitivity to light and sound, and changes in vision. The Veteran reported that his pain worsened with physical activity. The Veteran reported that the typical duration of his migraines was more than two days, and that he had prostrating headache attacks daily to weekly. The examiner opined that the Veteran’s migraines were productive of severe economic inadaptability. The examiner supported this conclusion by noting that the Veteran has missed work numerous times, suffers from memory loss, and feels fatigued, depressed, and anxious as a result of his migraines. In September 2018, the Veteran had a VA examination for mental disorders. The Veteran reported headaches that featured debilitating pain that often caused him to miss work. In October 2018, the Veteran saw a private medical provider (A.S.), who filled out a disability benefits questionnaire. The Veteran reported constant head pain that pulsated/throbbed, nausea, and sensitivity to light and sound that had a typical duration of less than a day. The Veteran reported that the frequency of the prostrating attacks was more than once per month and that these prostrating attacks were productive of economic inadaptability. A.S. specifically noted that the Veteran should avoid working at unprotected heights or working around and operating hazardous moving machinery. The Veteran is competent to describe the frequency, severity, and duration of his headaches, and there is no reason to doubt his credibility in this regard. The Veteran clearly and accurately reported his symptoms at appropriate times from the basis of personal experience and knowledge. A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has credibly reported that he has severe headaches at least several times per month that are accompanied by nausea, blurred vision, light sensitivity and sound sensitivity. The Veteran has credibly reported that these headaches can last for a day at a time, or in some cases longer. The Veteran has credibly reported that when he experiences these symptoms it is hard or impossible for him to work, and that as a result of his headaches he has missed work. He has reported these facts to medical professionals who found no reason to doubt his accounts, thus suggesting that his reported symptoms are medically consistent with his diagnosis of migraines. After a review of the record, the Board finds that a staged rating is warranted. Prior to October 16, 2014 the evidence showed that the Veteran suffered from an overall disability picture that more nearly approximated headaches that featured characteristic prostrating attacks occurring on an average once a month over the previous several months. Since October 16, 2014 the evidence has shown that that the Veteran’s overall disability picture has more nearly approximated that of headaches that feature very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. On October 16, 2014 the Veteran underwent a VA examination where he credibly reported that he had been experiencing headaches multiple times per month. Notably, this is the first evidence suggesting that a higher, 50 percent rating would be warranted. Prior to that date, the assignment of a rating in excess of 30 percent is not warranted. Every relevant medical record from after this October 16, 2014 date, but not before, reflects that the Veteran was experiencing headache attacks with an average frequency greater than once per month. Further, there are several instances after this point where the Veteran reported missing work due to headaches, which is evidence that supports that his headaches are “productive of severe economic inadaptability.” As such, granting the Veteran the benefit of any reasonable doubt, the criteria for the assignment of a 50 percent rating are more nearly approximated as of October 16, 2014, but not earlier. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Macchiaroli, Attorney Advisor