Citation Nr: 18155658 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-47 934 DATE: December 4, 2018 ORDER A 50 percent rating for a migraine headache disability is granted. FINDING OF FACT Resolving any doubt in the Veteran's favor, for the entire period on appeal, he has had very frequent, completely prostrating, and prolonged migraine headache attacks productive of severe economic inadaptability. CONCLUSION OF LAW For the entire period on appeal, the criteria for a maximum 50 percent schedular disability rating, but not higher, for migraine headaches have been approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1991 through May 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision in July 2015 by the Department of Veterans Affairs (VA) St. Paul Pension Management Center in St. Paul, Minnesota. Entitlement to an increased rating for migraine headaches in excess of 50 percent is granted. Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7; see 38 C.F.R. § 4.21. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (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, 307 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Under the terms of Diagnostic Code (DC) 8100, a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation, the highest available under DC 8100, is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating" as used in DC 8100. According to Webster's New College Dictionary 909 (3d Ed. 2008), "prostrate" is defined as "physically or emotionally exhausted." The word "incapacitated" is listed as a synonym. A very similar definition is found in Dorland's Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." Similarly, the regulations provide no clarification as to the meaning of the phrase "productive of severe economic inadaptability." However, the Court of Appeals for Veterans Claims (Court) in Pierce v. Principi, 18 Vet. App. 440 (2004), noted that "nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating" because "[i]f 'economic inadaptability' were read to import unemployability," a claimant who "met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)] [...] rather than just a 50 percent rating." Id. The Court therefore rejected the notion that "severe economic inadaptability" was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16(a)). At a VA migraine headache examination dated September 2018, the examiner noted that the record shows that the Veteran has experienced severe tension and migraine headaches. Further, the examiner noted that the Veteran has required Imitrex medication as well as injections of Torodol and Vicodin to treat his tension and migraine headaches. According to September 2018 examination, the Veteran experiences the following symptoms: constant head pain, pulsating or throbbing head pain, pain localized to one side of the head and pain on both sides of the head, worsening pain with physical activity, nausea, vomiting, sensitivity to light and sound, changes in vision, sensory changes, and feelings of crushing pain to his head. The examiner noted that the duration of typical head pain is one to two days and occurs on both sides of his head. The examiner opined that the Veteran experiences very frequent prostrating attacks of migraine headache pain more frequently than four times a month, and that the migraine headaches cause financial inadaptability. Considering the foregoing, and resolving any doubt in favor of the Veteran, the Board finds that the competent lay and medical evidence warrant a 50 percent rating, but no higher, for the entire period on appeal. A 50 percent rating is the highest schedular rating under DC 8100 and a higher schedular rating is not available. No other diagnostic code is applicable and the Board cannot identify a diagnostic code which would afford a rating higher than 50 percent disabling for the migraine headaches. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. T. Emmart, Associate Counsel