Citation Nr: 18155878 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 17-50 250 DATE: December 6, 2018 ORDER Entitlement to a compensable evaluation for migraines is denied. REMANDED Entitlement to an initial rating higher than 10 percent for a right hip condition is remanded. FINDING OF FACT The Veteran’s migraines have been manifested by attacks at a severity that is less prostrating. CONCLUSION OF LAW The criteria for a compensable evaluation for migraines have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2003 to December 2003 and from September 2004 to April 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran is seeking an increased evaluation for her service-connected migraines. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected migraines rated under DC 8100. Pursuant to DC 8100, a noncompensable evaluation is assigned for migraines with characterized prostrating attacks occurring on average less than once every 2 months over the previous several months. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over a period of several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over a period of several months. The maximum rating of 50 percent is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100 (2017). The rating criteria do not define “prostrating.” Nor is there a definition provided by the U.S. Court of Appeals for Veterans Claims. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes DC 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). According to DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007), “prostration” is defined as “extreme exhaustion or powerlessness.” The Board concludes a compensable evaluation is not warranted for the Veteran’s service-connected migraines at any point during this appeal. Compensable ratings for migraines are available based on the frequency of prostrating attacks. The Veteran’s migraines have been manifested by attacks at a severity that is less prostrating. The Veteran received an examination in March 2016. The Veteran’s symptoms included constant head pain and pain worsened by physical activity in addition to nausea, vomiting, sensitivity to light, and sensitivity to sound. The typical duration of head pain was found to be from one to two days. The examiner did not find prostrating attacks of migraine or non-migraine head pain or any prolonged attacks. According to her CAPRI records, in June 2017, it was noted the Veteran had migraines once a week, triggered by bright light. She reported her migraines being controlled by medication and her migraine device. In January 2017, it was documented the Veteran experienced less severe headaches; though, she still experienced at least one severe migraine each week. She reported migraines that were less frequent and less intense in September 2016, and it was noted she had one migraine a week that lasted a few hours with one that was characterized as debilitating with photophobia. A decrease in the frequency and intensity of migraines were reported in June 2016. While the Veteran is competent to report symptoms such as headache pain, she has not described migraines of sufficient severity and frequency to warrant an increased evaluation in this matter. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the VA treatment records and VA examination reports do not indicate or otherwise suggest that the Veteran’s migraines result in extreme exhaustion or powerlessness or otherwise more nearly approximate characteristic prostrating attacks, as required for a compensable rating under DC 8100. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 55-57. REASONS FOR REMAND Regarding the Veteran’s right hip condition, a new VA examination must be provided that complies with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Correia mandates that certain examinations include the testing described in 38 C.F.R. § 4.59 (2017), or an explanation as to why such testing is not warranted or not possible. Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. If an estimate cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. For example, the March 2016 right hip exam does not provide information on testing for pain on both active and passive motion or in weightbearing and nonweightbearing. Furthermore, flare-ups were noted, but there are no estimates for the additional loss of range of motion during a flare-up. While the examiner noted it was not possible to express in exact degrees of ROM loss without resorting to speculation, it is unclear why the additional ROM loss could not be estimated based on, for example, the Veteran’s own statements. The matter is REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of her service-connected right hip disability. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaire should be filled out. In the examination report, the examiner must include all the following: (a.) Active range of motion testing results. (b.) Passive range of motion testing results. (c.) Weightbearing range of motion testing results. (d.) Non-weightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. (Continued on the next page).   The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck