Citation Nr: 18159538 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-10 947 DATE: December 20, 2018 ORDER Entitlement to an increased initial rating, currently rated as noncompensable, for migraine headaches is denied. FINDING OF FACT The Veteran's service connected migraine headaches were manifested by less frequent attacks lasting for a period of hours which did not interfere with daily living or produce economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2016); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2015 to April 2016. This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Increased Ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating 1. Entitlement to an initial compensable rating for migraine headaches The Veteran's headache disorder is evaluated pursuant to Diagnostic Code (DC) 8100, which provides as follows: A 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating for characteristic prostrating attacks occurring on an average once a month over the last several months; a 10 percent rating for characteristic prostrating attacks averaging one in 2 months over the last several months; and a noncompensable rating with less frequent attacks. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define “prostrating;” nor has the Court of Appeals for Veterans Claims (Court). Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “prostration” is defined as “complete physical or mental exhaustion.” 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.” As to the term “productive of economic inadaptability,” such term could have either the meaning of “producing” or “capable of producing” economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Words such as "very frequently" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. In a February 2016 treatment note, the Veteran complained of headaches five times per week. During her March 2016 separation examination, there was no indication of the existence of headaches. No clinical findings were noted. An August 2016 VA examination report reflects the Veteran's complaints of headaches in service beginning in February 2016. The examiner noted that Veteran admits to currently experiencing headaches 5 days a week. States she has a pulsating pain to the crown of her head that is severe for around 3 minutes, which she has to stop doing whatever she is doing at the time. Veteran advises the light on her phone, if someone awakens her from her sleep, moving too fast, or driving fast on the road and looking at the white lines bring her headaches on. The headaches were described as pulsating or throbbing with pain localized on the crown of the head lasting less than one day in duration. Non-headache symptoms associated with the Veteran's disability were nausea, sensitivity to light and sound. The examiner noted the Veteran did not have characteristic prostrating attacks. In her October 2016 Notice of Disagreement, the Veteran reported headaches occurring 4 times a week affecting her activities of daily living. Specifically, the Veteran stated that her headaches “began to become more frequent in May 2016. [She has] them 4 times a week and [is] still currently being treated for them.” She also stated her “headaches/migraines does affect [her] daily living.” In a June 2018 treatment note, the Veteran reported that her headaches improved since moving to Augusta, Georgia. In an August 2018 treatment note, the Veteran reported “consistent headaches since leaving the army that cause her to not want to do anything.” The Board notes that headaches and headache symptoms are the types of symptoms that are readily amenable to lay observation as they are subjective to the claimant; thus, the Veteran is competent to report her symptoms and their frequency. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's testimony detailed her headache frequency, her headache severity, and the length of her headache attacks. Nothing in the record directly contradicts her statements, and her statements are generally consistent with the medical evidence of record. The Board finds the Veteran's statements, as well as the other lay statements provided, are credible and probative. The Board finds the opinion of the August 2016 VA examiner highly credible, probative, and persuasive because the opinion is based on the Veteran's pertinent medical history as well as the results of a physical examination, and gives a thorough, well-explained rationale for all opinions. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The August 2016 VA examiner found that the Veteran experienced headaches with less frequency, and the evidence, including statements of the Veteran, does not indicate that she suffered from prostrating attacks that lasted at least one day in duration at a frequency of at least four times a month which were severe enough to cause non-headache symptoms associated with her headaches. The Board has also considered whether an increased disability rating was warranted at any point during the appeal period. The evidence does not show that the headache disability manifested characteristic prostrating attacks averaging one in two months over the last several months, characteristic prostrating attacks averaging once per month over the last several months, or very frequent prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. The August 2016 VA examination record shows the Veteran did not suffer from prostrating or prolonged headache attacks, and the examiner did not find that her headaches produced a negative economic impact on the Veteran. As such, the evidence does not reflect that that the Veteran is entitled to a compensable disability rating for headaches during the period on appeal. In sum, the Board finds that an initial compensable rating for the Veteran's service connected headache disability is not warranted. The Board concludes that the preponderance of the evidence is against the assignment of a compensable rating. Neither the lay nor the medical evidence more nearly reflect characteristic prostrating attacks occurring on an average once a month over the last several months; characteristic prostrating attacks averaging one in 2 months over the last several months; or very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8100. Finally, the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). As such, no further action as to this matter is required. T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael J. O'Connor