Citation Nr: 18156621 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-57 396 DATE: December 11, 2018 ORDER Entitlement to a disability rating of 50 percent disabling for service-connected headaches is granted effective April 14, 2014, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Throughout the period on appeal, the Veteran’s headaches more closely approximated manifesting with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent rating for service-connected headaches have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1993 to September 1998 in the United States Marine Corps. Entitlement to a disability rating of 50 percent for service-connected headaches is granted effective April 14, 2014. The Veteran’s service-connected headaches have been rated as 10 percent disabling for the period prior to December 11, 2015 and 50 percent thereafter under DC 8100. As 50 percent represents the maximum disability rating for headaches under DC 8100 the Board’s analysis will focus on the period on appeal prior to December 11, 2015. The Veteran filed a claim for an increased rating for his service-connected headaches on April 14, 2014 and over the course of the appeal the agency of original jurisdiction (AOJ) increased the rating to 50 percent, effective December 11, 2015 the date of a VA examination. See October 2016 rating decision. Under 38 C.F.R. § 4.124a, DC 8100, headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant the assignment of a 30 percent evaluation. A maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks that produce severe economic inadaptability. The rating criteria do not define “prostrating,” nor has the United States Court of Appeals for Veterans Claims (CAVC). Cf. Fenderson v. West, 12 Vet. App. 119 (1999). The phrase “productive of economic inadaptability” has the meaning of either “producing” or “capable of producing” economic inadaptability. Pierce v. Principi, 18 Vet. App. 440 (2004). The criteria for a 50 percent evaluation do not require the Veteran to be incapable of any substantially gainful employment; rather, “[e]vidence of work impairment includes, but is not necessarily limited to, the use of sick leave or unpaid absence.” Pierce, 18 Vet. App. at 446. The Board finds that the evidence of record indicates that the effects of the Veteran’s service-connected headaches have more closely approximated the criteria for a 50 percent rating since his claim for an increased rating filed April 14, 2014. VA treatment records from April 2014 to August 2014 include multiple treatments for headaches, to include CT scans and VA neurology consultations. The frequency of the Veteran’s headaches ranged from two to four per month with a duration of three to seven hours each. The Veteran underwent a VA examination for headaches in September 2014. The Veteran’s headache pain symptoms included constant head pain, pulsating/throbbing head pain, pain localized to one side of the head, and worsening pain with activity. Associated non-pain symptoms included nausea, vomiting, light/sound sensitivity, vision changes, and sensory changes. The duration of a typical headache was less than a day and localized on the left side of the Veteran’s head. The examiner stated that the Veteran did not have any prostrating headache attacks. The functional impact attributable to the headaches was described as causing him to be let go from his job in March 2013 due to missing work twice a week because of his headaches. In his notice of disagreement, the Veteran stated that his total monthly headache count was closer to seven to nine per month and reiterated that his headache related absences were the “determining” factor in losing his job. The Veteran underwent a VA examination for headaches in December 2015. The Veteran’s symptoms were identical to those documented in the September 2014 VA examination. The main difference appears to be the addition of the right side of the head as a location at which the Veteran experiences headache pain symptoms as well as the examiner’s indication that the Veteran experiences prostrating headache attacks once a month that are productive of severe economic inadaptability. This VA examination serves as the basis for the AOJ’s increase of the Veteran’s service-connected headaches to the maximum 50 percent disability rating. The Board, however, finds that the Veteran’s competent reporting of his symptomatology has been consistent throughout the period on appeal and is further supported by the medical evidence of record. Therefore, the Board further finds the Veteran’s reports to be credible. Furthermore, the Board notes that two VA examiners reached conflicting opinions as to whether the Veteran experiences prostrating headaches, despite receiving essentially the same statements from the Veteran. The Board finds that this evidence is therefore in equipoise and must be resolved in the Veteran’s favor. Finally, the Board finds probative the fact that the functional impact of the headaches noted on the Veteran’s September 2014 VA examination was the loss of his long-standing job due to absence. This is clear evidence that the Veteran’s headaches produced economic inadaptability indicative of prostrating headache attacks at the time of the September 2014 VA examination. Therefore, affording the Veteran the benefit of the doubt, the Board finds that he is entitled to a 50 percent disability rating for his service-connected headaches effective April 14, 2014, the date of his increased rating claim. A 50 percent rating represents the maximum rating under DC 8100. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod