Citation Nr: 18160233 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 11-09 425 DATE: December 26, 2018 ORDER Subject to the law and regulations governing payment of monetary benefits, a 50 percent rating for migraine headaches is granted. Subject to the law and regulations governing payment of monetary benefits, from February 19, 2016, a 30 percent rating for cervical strain is granted. FINDINGS OF FACT 1. The Veteran’s migraines are characterized by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 2. From February 19, 2016, the Veteran’s cervical strain has been productive of additional limitation during flare-ups that more nearly approximates limitation of forward flexion of the cervical spine to 15 degrees or less, without unfavorable ankylosis. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating for migraines have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). 2. From February 19, 2016, the criteria entitlement to a 30 percent rating for cervical strain have been met. 38 U.S.C. §§ 1155; 5107(b) (2012); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5237-5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from January 1999 to June 1999 and from July 2000 to June 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction is currently with the RO in St. Louis, Missouri. In June 2017, the Board denied a rating in excess of 30 percent for migraine headaches and a rating in excess of 10 percent for service-connected cervical strain from October 23, 2008, to February 18, 2016, and in excess of 30 percent thereafter. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) which, in May 2018, on the basis of a Joint Motion for Partial Remand (Joint Motion), vacated and remanded the Board’s June 2017 decision to the extent that it denied a rating in excess of 30 percent for migraine headaches and a rating in excess of 20 percent from February 19, 2016, for cervical strain. 1. Subject to the law and regulations governing payment of monetary benefits, 50 percent rating for migraine headaches is granted. The Veteran’s migraine headaches are rated under Diagnostic Code 8100, which provides that a 50 percent rating is appropriate with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is appropriate with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent rating is appropriate with characteristic prostrating attacks average one in two months over the last several months. A 0 percent rating is appropriate with less frequent attacks. 38 C.F.R. § 4.124a. In Pierce v. Principi, the Court noted that the four factors to be considered for a 50 percent rating under Diagnostic Code 8100 are “very frequent,” “completely prostrating,” “prolonged attacks,” and “productive of economic inadaptability”. See 18 Vet. App. 440, 445 (2004. The phrase “productive of severe economic inadaptability” is construed as either “producing” or “capable of producing” economic inadaptability. See Pierce, 18 Vet. App. at 444-45. “Prostration” has been defined as “complete physical or mental exhaustion.” MERRIAM-WEBSTER’S NEW COLLEGIATE DICTIONARY at 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY at 1523 (30th ed. 2003). In statements to VA, the Veteran has reported migraines twice daily, lasting one to two hours, during which time she feels nauseous, is unable to eat, and is unable to perform her usual activities. See, e.g., Claim (October 2008). The Veteran’s statements to VA treatment providers are largely consistent with her statements made to VA in support of her claim for increase. While VA treatment providers noted that the Veteran’s migraines are well-controlled with medicine, the Board cannot consider the ameliorative effects of medication as the applicable diagnostic code does not explicitly contemplate those effects. See 38 C.F.R. § 4.124a, Diagnostic Code 8100; Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). The Veteran’s statements to non-VA treatment providers also include mention of daily migraines. See, e.g., Occupational Health, Fort Benning, Georgia (December 22, 2008); Obstetrics record (January 25, 2011). The Board ascribes heightened credibility to the Veteran’s account of the duration and severity of her migraines as they are consistent with those made to healthcare providers for the purpose of treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The December 2010 VA examiner noted that less than half of the Veteran’s attacks are prostrating. After resolving any doubt in the Veteran’s favor, the Board finds that the lay and medical evidence of record shows that Veteran’s daily headaches as so severe as to result in very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability, particularly as VA cannot consider the ameliorative effects of her medication. Thus, a 50 percent rating for migraine headaches is warranted. 2. Subject to the law and regulations governing payment of monetary benefits, from February 19, 2016, a 30 percent rating for cervical strain is granted. The Veteran’s cervical strain is rated under Diagnostic Codes 5245-5237, which provides that a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Initially, the evidence shows that the Veteran does not contend and medical records does not suggest that her entire spine or cervical spine are fixed in flexion or extension, to include during flare-ups. Indeed, the most recent February 2016 VA examination report shows that the Veteran achieved forward flexion to 30 degrees and extension to 20 degrees. Accordingly, 100 and 40 percent ratings, which require unfavorable flexion of the cervical spine are not warranted. From February 19, 2016, the Board finds that the Veteran’s cervical strain warrants a 30 percent rating. In this regard, while the February 2016 VA examination report shows that cervical flexion was limited to 30 degrees, which does not warrant a 30 percent rating, the examination was not conducted during a flare-up. Critically, and the Veteran reported that flare-ups cause difficulty with strenuous activities or prolonged/repetitive activities. She further explained that such flares “will last a couple of hours as long as she has her pain medication,” and that “during these flares she is unable to drive (cannot look over her shoulder[,] etc.).” The examiner noted that the Veteran was “[u]nable to lift, carry, push, pull[,] or drag more that about 10 pounds at a time, [and was] unable to do any overhead activities. Nevertheless, the examiner declined to offer an opinion on loss of range of motion based on these lay assertions of functional loss during flares “because there is no conceptual or empirical basis for making such a determination without directly observing function under these circumstances.” The Board finds that while the explanation for why the examiner was unable to render an opinion is inadequate, remand for further medical development is not needed as the evidence sufficiently shows that the additional limitation during flare-ups more nearly approximates limitation of forward flexion of the cervical spine to 15 degrees or less, thereby satisfying the criteria for a 30 percent rating. As noted above, the next higher rating, a 40 percent, is not warranted as the evidence shows that the Veteran does not experience unfavorable ankylosis of the cervical spine. In that regard, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnson v. Brown, 9 Vet. App. 7, 11 (1996). In sum, after resolving any doubt in the Veteran’s favor, the Board finds that February 19, 2016, a 30 percent rating for cervical strain is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel