Citation Nr: 18160950 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-58 491 DATE: December 28, 2018 ORDER 1. An initial 10 percent rating for service-connected migraine headaches, for the period from February 3, 2012 to May 30, 2014, is granted. 2. An initial 50 percent rating for service-connected migraine headaches, for the period from May 31, 2014 to March 19, 2017, is granted. 3. An initial evaluation in excess of 50 percent rating for service-connected migraine headaches, after March 20, 2017, is denied. FINDING OF FACT 1. For the period from February 3, 2012 to May 30, 2014, the Veteran’s migraine headaches have been manifested with characteristic prostrating attacks averaging one in 2 months over several months. 2. For the period from May 31, 2014 forward, the Veteran’s migraine headaches have been manifested by frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for service-connected migraine headaches, for the period from February 3, 2012 to May 30, 2014, are met. 38 U.S.C. 1155, 5107(b) (2012); 38 C.F.R. 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100 (2017). 2. The criteria for an initial 50 percent rating for service-connected migraine headaches, for the period from May 31, 2014 to March 19, 2017, are met. 38 U.S.C. 1155, 5107(b) (2012); 38 C.F.R. 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100 (2017). 3. The criteria for an initial rating greater than 50 percent for service-connected migraine headaches, after March 20, 2017, are not met. 38 U.S.C. 1155, 5107(b) (2012); 38 C.F.R. 3.102, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1989 to September 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. After the August 2013 rating decision, VA was in receipt of new and material evidence within one year of the rating decision addressing the claimed condition and the claim was reconsidered. The August 2013 rating action did not become final and remains pending. See Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009) 38 C.F.R. § 3.156(b) (2017); see also Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010). The Veteran timely appealed the October 2014 rating decision. The August 2013 rating decision granted a noncompensable rating for the Veteran’s service-connected migraine disability, effective February 3, 2012. In an October 2014 rating decision, the RO granted a 30 percent compensable rate for chronic headaches, effective May 2014. Finally, in June 2017, the Veteran was granted a 50 percent rating for chronic headaches, effective March 2017. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Initially, the Board finds that the evidence shows distinct time periods (“stages”) where the service-connected migraines exhibited symptoms or findings to warrant different ratings. As such, the Board finds that the Veteran is entitled to a 10 percent rating for the rating period from February 03, 2012 to May 31, 2014; 50 percent rating from May 31, 2014 forward. For the entire rating period on appeal, the headache disability has been rated by analogy under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 0 percent rating is assigned for migraine headaches with less frequent attacks. A 10 percent rating is assigned for migraine headaches when there are characteristic prostrating attacks averaging one in 2 months over several months. A 30 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks occurring on an average once a month over several months. Finally, a 50 percent rating is assigned for migraine headaches when a veteran has frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating,” nor has the Court. Fenderson v. West, 12 Vet. App 119, 126-127 (1999) (quoting DC 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), “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). Increased Initial Rating for Chronic Headache for the Period of February 3, 2012, to May 31, 2014 Throughout the foregoing period, the Veteran has contended that his service-connected headaches have been manifested by more severe symptoms than that contemplated by the 0 percent disability rating assigned. The Veteran reported experiencing a headache almost daily, varying in severity. VA treatment records throughout this specified period show complaints of and treatment for frequent headaches. In June 2010, during a medical check-up, the Veteran complained of frequent headaches. See June 2010 VA treatment record. A 2012 calendar reflects self-reports of headaches approximately once a day, with varying degrees of severity. Specifically, on two calendar days the symptoms were noted to have manifested in such a way that the Veteran felt like he “was dying.” See February and May 2012 Headache Calendar. In March 2012, the Veteran noted having a “big” headache, and in June 2012, the Veteran again noted experiencing a big headache and calling out sick as a result. In support of his contentions, the Veteran’s wife reports that he experiences headaches almost every day, and while most times he can work through them, often they are very, very painful, and during these times she chooses not to deal with him. She went on to state that the treatment drugs fail to control the headaches. See Buddy/Lay Statement May 2012. After a review of the evidence, both lay and medical, and after resolving reasonable doubt in favor of the Veteran, the Board finds that, for the period of February 3, 2012 to May 31, 2014, the Veteran’s headache disability manifested at a 10 percent rating with prostrating attacks averaging one in 2 months over several months. The Veteran, and his wife, credibly report frequent, severe headaches. Moreover, greatly probative self-reports, taken by the Veteran, on his 2012 calendar, reflect four prostrating attacks between February 2012 and July 2012. Two left the Veteran in such pain that he felt he was dying, another was so bad he described it as “big”, and another caused him to take a sick day from work. Also, VA treatment records. During this time, show credible complaints of daily headaches and an explanation that taking naps helps with the symptoms. The Veteran’s symptoms, during the specified period, do not meet the 30 percent rating because the evidence of record fails to show prostrating attacks on an average of once a month over several months. Specifically, the Veteran’s wife maintains he has frequent headaches, but states he is often able to work through them. This statement proves that many of the Veteran’s headaches do not rise to the severity level of prostrating and, as such, a 30 percent evaluation is denied. See Johnson v. Wilkie, 16-3808 (2018). Increased Rating for Chronic Headaches for the Period of May 31, 2014 to March 20, 2017 In May 2014 the Veteran requested a compensable rating for his service-connected headaches. As mentioned, the AOJ assigned an evaluation of 30 percent, effective May 31, 2014. The Veteran was afforded a VA examination in September 2014 for headaches. It was concluded that the Veteran had prostrating attacks once every month, over the last several months. The examiner indicated that the Veteran does not have very frequent completely prostrating and prolonged attacks of migraine productive of severe economic inadaptability. Moreover, it was noted that the Veteran’s headache disability caused him to miss 5 days of work in 2014, and makes concentrating at work difficult. During the examination, the Veteran maintained that when the headaches occur at work he must lie down in a dark examination room for 30-45 minutes, or until he feels relief. October 2014 medical records show the Veteran was receiving treatment in the form of abortive headache therapy to help with headaches, which at that time, occurred most days of the week for approximately 2 months. Further, a November 2014 medical notation maintained that the Veteran’s headaches cause impairment to his daily activities. In May 2015, the Veteran maintained that since May 2014 his headaches have become more frequent and severe. He argued the attacks are prostrating and frequent, and that he is mentally and physically affected three to four times a month. He further states that his ability to perform at work is affected because of the headaches. For example, he averaged one to two days of missed work, that year, because of the headaches, and was forced to take long breaks and seclude himself to a dark room until the symptoms subside. A June 2015 note from VA medical records report that the Veteran’s daily headaches are usually not severe enough to impede function, alternating with severe headaches about once a week. From September 2014 to February 2016, VA medical records show the Veteran’s headaches to fluctuate from daily to 3 times a week, and varying in severity. The February 2016 VA treatment records describe the Veteran’s headaches as severe a few times per week, with symptoms including nausea, photophobia, phonophobia, and inability to work due to having to lie down in a dark room until the symptoms subside. Further, in November 2014, medical records indicate that the Veteran’s headaches cause impairment to daily activities. After reviewing the extensive medical evidence of record, the Board finds the evidence is approximately evenly balanced as to whether the Veteran’s headaches more nearly approximate the criteria for a 50 percent rating under DC 8100. While the September 2014 VA examiner found the Veteran’s prostrating attacks to occur once every month, over the last several months, and the June 2015 VA treatment record notes that the Veteran’s daily headaches are usually not severe enough to impeded function, these two reports, though adequate and probative, fail to paint a complete picture of the Veteran’s symptoms over the whole period of May 31, 2014 to March 20, 2017. In addition to the evidence above, the Board also considers the Veteran’s competent, and greatly probative, May 2015 statement where he maintains his prostrating headaches have increased in severity and frequency, the November 2014 medical notation which reports his headaches cause impairment to the Veteran’s daily activity, and the February 2016 report which describes the Veteran’s headaches as severe, with symptoms including nausea, photophobia, and phonophobia. The Board finds, the evidence, when viewed in its entirety, shows the Veteran’s headaches had the necessary frequency and severity required under a 50 percent rating, at various times within the specified time period. In considering whether the Veteran’s headaches caused severe economic inadaptability, the Board turns again to the September 2014 examination. The examiner noted that the Veteran’s ability to work is impacted by his disability. More specifically, during the examination, the Veteran reported difficulty concentrating, and the fact that he must step away from his work duties to lie down in a dark room for extended periods, at the onset of a headache. The foregoing shows the difficulty the Veteran faces to fully perform his job duties, which in turn can produce economic inadaptability. Effectively, as the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to the maximum schedular 50 percent rating for the Veteran’s headaches under DC 8100 is warranted for the period from May 31, 2014 to March 20, 2017. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Veteran is receiving the maximum schedular rating under DC 8100 and therefore cannot receive a higher one. As the Veteran is receiving the maximum schedular rating, a schedular rating higher than 50 percent for his migraines in not warranted. Increased Rating for Chronic Headaches for Period after March 20, 2017 Since March 20, 2017, the Veteran is receiving the maximum schedular rating under DC 8100 and therefore cannot receive a higher one. As the Veteran is receiving the maximum schedular rating, a schedular rating higher than 50 percent for his migraines in not warranted. Extraschedular Analysis The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321 (b)(1) (related factors included “marked interference with employment” and “frequent periods of hospitalization”). When the Rating Schedule is inadequate to evaluate a claimant’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director of the Compensation Service for completion of the third step - a determination of whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran’s migraine headache disability is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for rating based on prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, 4.125a. In this regard, the Veteran’s migraine headaches disability is manifested by symptoms of very frequent prolonged and prostrating attacks productive of severe economic adaptability. Additionally, the Veteran has not asserted, and the evidence of record has not suggested that the headaches create such an exceptional circumstance to render the schedular rating criteria inadequate. As such, the Board finds that the Rating Schedule is adequate to evaluate the Veteran’s current disabilities and symptomatology. Therefore, in the absence of exceptional factors, 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. Thun, 22 Vet. App. at 115-16. Total Disability Rating Based on Individual Unemployability (TDIU) In reviewing the Veteran’s appeal for an increased rating, the Board has not overlooked the holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for unemployability when the appellant claims he is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because the Veteran has not claimed, nor does the evidence reflect, that his service-connected disability on appeal prevent him from obtaining and/or maintaining employment. There must be cogent evidence of unemployability in the record. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for entitlement to unemployability. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Russell, Associate Counsel