Citation Nr: 1808826 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-01 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for migraine headaches prior to April 28, 2017. 2. Entitlement to an evaluation in excess of 30 percent for migraine headaches from April 28, 2017 forward. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Kardian, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 2005 to November 2006, with service in Southwest Asia. In addition, the Veteran had service in the Army Reserves. This matter is before the Board of Veteran's Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes the RO denied service connection for post traumatic stress disorder (PTSD) in January 2012 and the Veteran submitted a timely notice of disagreement. However, during the course of the appeal the RO granted service connection for PTSD in a July 2017 rating decision; therefore, this issue is no longer on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in December 2017. A transcript of the hearing is associated with the claims files. The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The issue of an increased rating for service connected PTSD has been raised by the record in the Veteran's December 2017 testimony, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. Prior to April 28, 2017, the Veteran's migraine headaches most closely approximated prostrating attacks occurring on average once or twice a month over the last several months; and were not characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. From April 28, 2017 forward, the Veteran's migraine headaches were manifested by prostrating attacks occurring on average once or twice a month over the last several months; and are not characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Prior to April 28, 2017, the Veteran's migraine headaches were 30 percent disabling. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a Diagnostic Code 8100 (2017). 2. During the entire period on appeal, the criteria for an evaluation in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Board notes that neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Schedular Rating 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings, and has been considered herein, as to the Veteran's migraine headaches. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating 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; however, 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). III. Increased Rating The Veteran contends she is entitled to an increased rating for her service-connected migraine headaches. The Veteran's migraine headaches were rated at 10 percent prior to April 28, 2017 under 38 C.F.R. § 4.124a, Diagnostic Code 8100. From April 28, 2017 forward, the Veteran's migraine headaches have been rated at 30 percent under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Herein, the Veteran has been granted a 30 percent rating prior to April 28, 2017 for her migraine headaches. As such the Board will address the entire period on appeal applying all pertinent diagnostic codes Prior to April 28, 2017, the Veteran's migraine headaches were rated at 10 percent under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Herein, the Board finds a 30 percent rating for the Veteran's migraine headaches is warranted prior to April 28, 2017. As granted herein, prior to April 28, 2017, the Veteran's migraine headaches have been assigned a 30 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100. As such the Board will address whether a rating in excess of 30 percent is warranted during the entire period on appeal. Under Diagnostic Code 8100, a 10 percent evaluation is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability evaluation is assigned where there are characteristic prostrating attacks occurring on average once a month over the last several months. For a higher, 50 percent disability evaluation to be warranted, there must be migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board notes that the Rating Schedule does not define "prostrating." "Prostration" has been defined as "complete physical or mental exhaustion." Merriam-Webster's New Collegiate Dictionary 999 (11th ed. 2007). "Prostration" has also been defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1534 (32nd ed. 2012). According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013) (the Board adopts the Court's definition as its own). Additionally, the phrase "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the headaches must be, at minimum, capable of producing "severe" economic inadaptability. Based on the evidence of record, the Board finds that the evidence is against finding that an increased rating in excess of 30 percent for the Veteran's migraine headaches is warranted during this appeal. At different times during the appeal the Veteran has stated her migraine headaches are manifested by pain, nausea and needing to lay down, with headaches occurring between one to times a month, and at times several times a month. The Veteran testified that when she was working she missed 5 to 6 days within several months due to migraines. The Board notes the Veteran's contentions regarding her ongoing symptoms and at times increased severity of her headaches during the appeal. The Veteran is competent to testify to such lay observable symptomatology, and these statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of her migraine headaches during the appeal. However, the Board places somewhat less weight on the reports of frequency and severity and the resultant impairment of economic activity as they have varied during the period of the appeal. The RO received the Veteran's claim for an increased rating in September 2010. In an examination by a private physician in January 2010, the physician noted the Veteran's report of headaches twice per week lasting 2-3 days. Imaging studies and electrodiagnostic tests were normal. There was some photophobia and occasional vertigo and vision blurring but no nausea. Medication provided partial relief. In SSA physical and mental capacity evaluations in February 2010, a physician noted that the Veteran was able to care for children, perform shopping and housework, drive an automobile, work part time, and attend college classes. The Veteran was afforded a VA examination in December 2011. The examiner noted the Veteran reported experiencing headaches every day, above her left eye and on the left side of the face, which start mild and get more moderate. See December 2011 VA examination. The Veteran reported two severe headaches per month lasting between two hours and three days with sensitivity to light and sound. The Veteran reported two headaches per month prostrating. The examiner noted sensitivity to light and sound, with duration of headaches lasting at times more than two days on the left side of the head. The examiner noted the Veteran does not have very frequent prostrating and prolonged attacks of migraine headache pain. The examiner further noted that the Veteran previously most recently worked in a warehouse and missed many days from work, in part because of her headaches, and was not able to retain employment. Next, the Veteran was afforded a VA examination in April 2017. The examiner noted that the Veteran has reported a worsening of her migraines, and reported pain, light flashing, nausea, vomiting and ringing in her ears. See April 2017 VA examination. The Veteran reported constant head pain, which worsens with physical activity. Symptoms experienced include nausea, vomiting, sensitivity to light and sound, and changes in vision. Typically head pain lasts for more than two days, on the left side of the head. The Veteran reported experiencing prostrating attacks once every month, and does not experience very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The examiner noted that the Veteran's migraine headaches impact her ability to work, and the Veteran is not currently working. However when she was working, the Veteran would experience nausea and vomiting, sensitivity to light, noise and dizziness as a result of her headaches and often had to miss work. The examiner further noted that bright lights and loud sounds provoke migraines causing pain, nausea and vomiting and occupations with bright lights and noise should be avoided. The Veteran's prior places of employment were often in warehouses or retail stores with bright lights and loud noises. There is no evidence that the VA examiners were not competent or credible, and as the examination reports were based on accurate facts and objective examinations of the Veteran, these are entitled to significant probative weight in determining the severity of the Veteran's headaches during the appeal. Nieves-Rodriguez, 22 Vet. App. 295. VA, private and Social Security Administration (SSA) records have been associated with the claims file. In January 2010 the Veteran reported severe migraines, with decreased vision, and increased headaches due to recently running out of medication. See January 28, 2010 VA treatment record. In September 2010 the Veteran reported she had difficulty maintaining employment in part due to her migraine headaches. See September 23, 2010 VA treatment records. December 2010 treatment records note the Veteran's migraine headaches were being managed fairly well with Tylenol. See December 6, 2010 VA treatment records. In June 2012 the Veteran reported ongoing headaches, in the front of her head. See June 13, 2012 VA treatment record. In January 2013 the Veteran reported having severe migraine headaches. See January 23, 2013 VA treatment record. February 2015 treatment records note migraine headaches for the past two weeks on and off with nausea, light headedness, dizziness, and nausea. See February 3, 2015 VA treatment record. In July 2013, an SSA adjudicator found the Veteran to be disabled because of a mood disorder and arthropathies, but not headaches, with the last day of work in May 2012. During the December 2017 Board hearing, the Veteran testified that in 2007 she experienced headaches with nausea five or six times per month lasting 3 days each that required taking off work and lying in a dark room. She testified that the headache episodes were incapacitating and that medication had no effect. She reported being fired from one job and unable to sustain employment at several other jobs because of the headaches. She did not address the nature, frequency and severity of the headaches since 2009. Based on the lay and medical evidence of record, the Board finds that the Veteran's migraine headaches do not more nearly approximate the level of severity contemplated by an increased 50 percent rating, as at no point during the period on appeal has the evidence shown a 50 percent rating is warranted. The Board notes the Veteran's contentions regarding her migraine headaches and ongoing pain, nausea and needing to lay down, with headaches occurring between one to times a month, and at times several times a month. The Veteran reported that at times when she was working she missed 5 to 6 days within several months due to migraines. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. The VA examinations in December 2011 and April 2017 noted the Veteran experienced one to two prostrating headaches per month and these headaches were not very frequent prostrating and prolonged attacks of migraine headache pain. Additionally, the Board notes the Veteran's contentions that when she was employed her migraine headaches resulted in her missing days of work, and often being unable to continue in various part-time and temporary positions. However, the Veteran has also reported that she was unable to continue employment in various positions due to her ongoing PTSD, which resulted in periods of depression and missing work due to lack of energy. So while the Board notes that the Veteran's headaches have at times impacted her prior employment, the evidence of record does not support a finding that the Veteran's headaches were productive of severe economic inadaptability. SSA examinations noted that the Veteran was able to care for children, manage daily activities outside the home, and work part time while taking college classes. Based on the evidence of record a 30 percent rating is warranted during this period. In considering, which disability evaluation shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Based on the evidence of record a 30 percent rating is warranted. An increased 50 percent rating is not warranted. In order to warrant a higher 50 percent rating, there must be very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. There has been no indication at any point during the appeal that the Veteran's headaches were very frequent completely prostrating and prolonged attacks. At various times the Veteran has reported and VA treatment records and examinations note she experienced one to two characteristic prostrating attacks per month, and at times there are fluctuations in these symptoms with headaches occurring more frequently. As noted above, the Rating Schedule does not define "prostrating." According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, adopting the Court's definition as its own "prostration" is defined as "a marked loss of strength, as in exhaustion." See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013). Thus to warrant an increased 50 percent rating the Veteran's headaches must be characterized as very frequent completely prostrating and prolonged attacks. However, prostrating attacks occurring several times a month would not be characterized by very frequent and completely prolonged attacks. Thus while at times the Veteran's headaches have been characterized by prostrating attacks these were not very frequent completely prostrating and prolonged attacks. Next, there has been no indication at any point during the appeal that the Veteran's headaches alone have been productive of severe economic inadaptability or capable of producing severe economic inadaptability. The VA examiner in December 2011 noted that the Veteran did miss days from previous employment working in a warehouse, in part due to her headaches. Additionally, the VA examiner in April 2017 noted that the Veteran should avoid employment with bright lights and loud sounds as these can provoke migraines. So while the Veteran typically experiences one to two prostrating attacks a month, which may require her to miss work, the Board finds such is not capable pf producing severe economic inadaptability. The Board notes that the Veteran's headaches have at times impacted her prior employment; however, the evidence of record does not support a finding that the Veteran's headaches were productive of severe economic inadaptability. As such the Board finds an increased 50 percent rating is not warranted. Additionally, the Board notes that the Veteran has not raised any other issues, nor have any other issues been raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017)(confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of records). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 30 percent for the Veteran's service-connected migraine headaches during this appeal. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, a staged rating of 30 percent for the period prior to April 28, 2017 is granted but the claim for a rating in excess of 30 percent is denied. ORDER Entitlement to a 30 percent rating for migraine headaches prior to April 28, 2017, is granted. Entitlement to a rating in excess of 30 percent for migraine headaches is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs