Citation Nr: 18159800 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-06 313 DATE: December 20, 2018 ORDER Entitlement to a 30 percent, but not higher, rating for headache syndrome is granted, subject to the law and regulations governing payment of monetary benefits. FINDING OF FACT The Veteran’s headaches are productive of disability analogous to characteristic prostrating attacks occurring on an average of once a month over the last several months; severe economic inadaptability has not been shown. CONCLUSION OF LAW The criteria for a 30 percent, but not higher, rating for headache syndrome have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 2000 to September 2015. These matters come before the Board of Veteran’s Appeals (Board) on appeal of a February 2016 rating decision of the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2016, the Veteran filed a timely notice of disagreement for the noncompensable evaluation of his left groin/scrotal pain status post cord block and the noncompensable evaluation of his scrotum scar. Following the issuance of a Statement of the Case in December 2016, the Veteran filed a timely Substantive Appeal, VA Form 9, and indicated that he did not wish to appeal these issues. As such, they are no longer subjects for current appellate review. In February 2017, the Veteran submitted correspondence and indicated that he wished to withdraw his appeal for his headache syndrome and asked for reconsideration of the February 2016 rating decision for the disability. The RO readjudicated the claim, and issued a Supplemental Statement of the Case in January 2018. The United States Court of Appeals for Veterans Claims (Court) has held that the filing of a substantive appeal is not a jurisdictional requirement, that the filing of a timely substantive appeal may be waived, and that where the RO takes actions to indicate that such filing has been waived (for instance by certifying the appeal), the Board has jurisdiction to decide the appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). In this case, there is no evidence that the RO closed the appeal, and the RO certified the appeal to the Board. Therefore, the Board finds that the requirement of filing a new NOD and Form 9 is waived, and that it continues to have jurisdiction of the claim. Increased Ratings Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155 (2012). The disability must be viewed in relation to its history. 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). In general, when 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). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Headache Syndrome Under Diagnostic Code 8100, a 50 percent rating is appropriate with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 30 percent rating is appropriate with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 10 percent rating is appropriate with characteristic prostrating attacks average one in two months over the last several months. Id. A 0 percent rating is appropriate with less frequent attacks. Id. The Veteran received a VA examination in January 2016 and stated that he had daily headaches that were uncomfortable, light sensitivity, emesis, and nausea. The headaches lasted all day and he “feels suffocated” when they occur. The examiner indicated that the Veteran had characteristic prostrating attacks, but that they occurred less frequently. On the March 2016 notice of disagreement, the Veteran indicated that he had migraines twice a week. April 2016 VA consultation revealed daily headaches and migraines twice weekly. The Veteran reported that when he had the migraine type headaches, he was forced to lie down. The Veteran received a VA examination in March 2017 and indicated that he had constant headache pain. He described it as feeling like he had “a finger down my nasal cavities down the throat.” The examiner found that there were no characteristic prostrating attacks. The Veteran did not take medication, reporting that his treatment consisted of “just taking it easy.” During a July 2018 informal conference, the Veteran’s representative disputed the March 2017 VA examination, indicating that it was not consistent with VA medical center notes. Those notes showed that the Veteran had frequent headaches for which he was taking a lot of medication. His condition had worsened, and the representative requested another examination. Pursuant to the July 2018 informal conference, the Veteran received another VA examination in July 2018 and reported that his headaches were being treated with medication but that he stopped taking them. He said his headaches never went away. Sometimes they were tension headaches, and sometimes they were migraines. He was very light sensitive, his headaches were all over the head, and he could feel sharp edges on his skull. The examiner indicated that there were no characteristic prostrating attacks. The Board finds that the Veteran is entitled to a 30 percent, but not higher, disability rating for his headache syndrome due to characteristic prostrating attacks occurring on an average of once a month over the last several months. The Veteran’s reports are both competent and credible, as he indicated that he has constant headaches that vary in severity and that the twice weekly migraine type require that the Veteran lie down for relief. While the examiner indicated that his prostrating attacks were less frequent or nonexistent, the Veteran is competent to report on the severity of his symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has also consistently reported symptoms of “feeling suffocated” and severe pain, with such symptoms fluctuating daily. Accordingly, resolving the benefit of the doubt in the Veteran’s favor, the Board finds that the criteria for a 30 percent, but not higher, rating for migraines are met. The Board finds that the preponderance of the evidence is against the highest rating of 50 percent for this disability because there is no evidence of severe economic inadaptability. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel