Citation Nr: 18159441 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-04 294 DATE: December 20, 2018 ORDER An initial 50 percent disability rating for migraine headaches since September 18, 2015, is granted. FINDING OF FACT Since September 18, 2015, the Veteran’s headache disorder caused severe prostrating and prolonged migraine headaches, which occurred weekly and lasted up to three to five days each; caused symptoms of throbbing pain, dizziness, nausea, sensitivity to light, sensitivity to noise, fatigue, vomiting, numbness and tingling in the face, and eye pain; required treatment with several prescription medications and injections; and caused her to miss nearly one day of work per month, to use all of her sick leave for migraine symptoms and treatment, and forced her to take leave without pay when she required treatment for other health conditions. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent, since September 18, 2015, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Air Force from December 1994 to April 2004. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Entitlement to an Initial Compensable Disability Rating Since September 18, 2015, for Migraine Headaches Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Migraine headaches are rated according to diagnostic code 8100. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over last several months. A noncompensable rating is warranted for migraines with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where, as here, the issue involves the assignment of an initial rating for a disability following the award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). A July 2011 private treatment record indicates that the Veteran had tried multiple prescription medications to treat migraine headaches with no symptom relief. In a September 2015 statement, the Veteran’s spouse reported that the Veteran had migraines with throbbing pain that worsened in light and noise, nausea, vomiting, and dizziness. He stated that the Veteran had migraine headaches two to three times per month and sometimes had to miss work. The Veteran was taking prescription medication for her symptoms. A September 2015 private treatment record indicates that the Veteran had a migraine headache with pain in her face, numbness on the left side of her face, light sensitivity, and eye pain. In November 2015, the Veteran was afforded a VA examination. She reported that she had headaches approximately 2 times per month and that they lasted approximately 3 to 4 days each. She had symptoms of nausea and sensitivity to light. She took prescription medication for her migraines but reported that it had minimal effect on her symptoms. The examiner indicated that the Veteran’s headaches caused pulsating or throbbing pain, pain on both sides of the head, nausea, and sensitivity to light. The typical head pain lasted more than two days and was located on both sides of the head. The examiner indicated that the Veteran did not have characteristic prostrating attacks of migraine headache pain. A January 2016 private treatment record indicates that the Veteran had had a migraine headache for one week, with sharp pain and moderate tingling on the left side of her face. Another January 2016 private treatment record reflects that the Veteran had approximately one migraine headache per week, each lasting up to three to five days. The Veteran was given injections of a steroid and a pain reliever. In a January 2016 statement, the Veteran and her primary care provider reported that the Veteran had severe prostrating and prolonged migraine attacks with symptoms of throbbing pain, nausea, vomiting, dizziness, and sensitivity to light and noise. She reported that her migraines occurred two to three times per month and lasted from a few hours up to several days. She reported sometimes missing work due to her headaches. She reported taking multiple over-the-counter and prescription medications, as well as receiving injections, to attempt to control her symptoms. Leave statements submitted by the Veteran indicate that she took nearly nine days of sick leave due to her migraine headaches from April 2015 through January 2016. In her February 2016 notice of disagreement (NOD), the Veteran reported that she had two to three prostrating migraine headaches every month. She indicated that she had returned to the workforce in March 2015 but had to miss nearly nine days of work due to the headaches, which she contended caused severe economic inadaptability. Leave statements indicate that the Veteran took nearly seven days of sick leave from March to December 2016. On her January 2017 VA Form 9, the Veteran reported that she took daily prescription medication for migraine prevention, another medication two to three times per week for severe prostrating migraines, and received nerve block injections. She reported having to take so much sick leave from work due to her migraines that she had none to use for other health conditions. When she had to have her gallbladder removed in May 2016, she reported having to take leave without pay as she did not have sick leave to use. Since September 18, 2015, the Veteran’s disorder caused severe prostrating and prolonged migraine headaches that occurred weekly and lasted up to three to five days each; caused symptoms of throbbing pain, dizziness, nausea, sensitivity to light, sensitivity to noise, fatigue, vomiting, numbness and tingling in the face, and eye pain; required treatment with several prescription medications and injections; and caused her to miss nearly one day of work per month, to use all of her sick leave for migraine symptoms and treatment, and forced her to take leave without pay when she required treatment for other health conditions. Given these facts, the Board finds that the Veteran’s symptoms most closely approximate a 50 percent rating for the entire initial rating period on appeal. 38 C.F.R. § 4.7. The Veteran’s symptoms occurred frequently, were completely prostrating, lasted for prolonged periods of time, and the frequency with which she took leave from work could be capable of producing severe economic inadaptability. Therefore, a 50 percent rating is warranted. See Pierce v. Principi, 18 Vet. App. 440 (2004). This is the highest schedular rating available for this disorder. Extraschedular Referral Consideration The Board has also considered whether an extraschedular rating is warranted for the disability rating on appeal. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). However, the Board gives no deference to the Director’s adjudication and the Board is permitted to exercise jurisdiction over the question of entitlement to an extraschedular rating whether or not the Director of the Compensation and Pension Service finds an extraschedular rating warranted. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board); Cf. Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of C&P is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). With respect to the first prong of Thun, as to the service connected migraine headaches, the Board finds that the symptomatology and impairment caused by the migraine headaches is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. Diagnostic Code 8100 provides specific ratings based on the frequency and duration of prostrating attacks, and economic inadaptability due to headaches and related attacks. In this case, the Veteran’s headache disorder has manifested as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. All relevant reported headache/migraine symptoms, such as sensitivity to light and sound, nausea, vomiting, and dizziness, are included in the consideration as to whether the migraines are prostrating and/or cause economic inadaptability. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above. In the absence of exceptional factors associated with the headaches/migraines, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).   Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is potentially an element of all rating issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence reflects that the Veteran is currently employed. Further, while the Veteran has alleged severe economic inadaptability due to the service connected headaches, the Veteran has not advanced being unable to obtain or maintain substantially gainful employment. As such, the issue of entitlement to a TDIU has not been raised in the instant matter. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel