Citation Nr: 18111237 Decision Date: 06/15/18 Archive Date: 06/14/18 DOCKET NO. 15-14 487 DATE: June 15, 2018 ORDER Entitlement to an initial 50 percent disability rating (from October 6, 2014) for migraine headaches is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran’s favor, throughout the appeal period (from October 6, 2014) the Veteran experienced very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. CONCLUSION OF LAW From October 6, 2014, the criteria for a 50 percent disability rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2008 to October 2014. The Board acknowledges that the Veteran submitted a RAMP (Rapid Appeals Modernization Program) opt-in election form in April 2018, but this appeal had already been activated at the Board and is therefore no longer eligible for the RAMP program. Background and Legal Criteria The Veteran separated from active service on October 5, 2014. A January 2015 rating decision granted entitlement to service connection for migraine headaches and assigned a noncompensable (0 percent) disability rating, effective October 6, 2014 (the day following the Veteran’s separation from active service). The Veteran’s migraine headaches have been rated under Diagnostic Code 8100 (Migraine). Under Diagnostic Code 8100, a noncompensable disability rating is warranted for “[w]ith less frequent attacks.” A 10 percent disability rating is warranted for “[w]ith characteristic prostrating attacks averaging one in 2 months over last several months.” A 30 percent disability rating is warranted for “[w]ith characteristic prostrating attacks occurring on an average once a month over last several months.” A 50 percent disability rating, the highest schedular rating available, is warranted for “[w]ith very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” The rating criteria do not define “prostrating.” Prostration is defined by a medical dictionary as “extreme exhaustion or powerlessness.” See Dorland’s Illustrated Medical Dictionary, 1531 (32nd ed. 2012). 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.” See Pierce v. Principi, 18 Vet. App. 440 (2004). Thus, headaches need not actually “produce” severe economic inadaptability to warrant a 50 percent disability rating. Further, the Court in Pierce found that “severe economic inadaptability” does not mean unemployability. The Court in Pierce also stated that: the Board failed to address specifically the application of and interplay between the following regulatory provisions: 38 C.F.R. § 4.3 (2002) (reasonable doubt resolved in favor of claimant), § 4.7 (higher possible evaluation applies “if disability picture more nearly approximates the criteria for that rating[;] otherwise, the lower rating will be assigned”), and 38 C.F.R. § 4.21 (2002) (all the elements specified in a disability grade need not necessarily be found although “coordination of rating with impairment of function will, however, be expected in all instances”). Failure to “acknowledge and consider” these potentially relevant regulations was error. Evidence The relevant evidence of record included various medical and lay evidence. The Veteran was afforded a VA examination in December 2014 and a Headaches Disability Benefits Questionnaire (DBQ) was completed. It was noted that that the Veteran “now has about three [headaches] per month.” It was also stated that they “are right, supraorbital, pounding, with vomiting and light/noise s[ensitivity]. No aura” and “[i]f he takes his Maxalt in time (less than 2 h[ou]rs) it will abort the headache, otherwise they last 4-6 hours, during which time he is unable to work.” Symptoms were noted of headache pain; pulsating or throbbing head pain; pain localized to one side of the head; and pain worsens with physical activity. It was noted that the Veteran experienced non-headache symptoms of nausea, vomiting, sensitivity to light and sensitivity to sound. The duration of typical head pain was noted as less than one day. It was noted that the Veteran does not have characteristic prostrating attacks of migraine/non-migraine headache pain. No explanation was provided for this finding. It was noted that the Veteran’s headache condition did not impact his ability to work, without explanation provided. A statement from private Dr. D.G. dated in January 2015 referenced that the Veteran “self documents migraines [greater than] 3 [times] a month, affecting normal activity [and] function” and “[c]urrent [treatment with] Maxalt…sometimes effective.” The Veteran stated in a February 2015 statement (with his notice of disagreement (NOD)) that “I currently suffer from three to five completely prostrating and prolonged attacks every month. The symptoms of these attacks can last for multiple days and render me unable to work during a migraine” and “[t]he severity, high frequency, and possible economic impairment warrants a 50% disability rating.” Of record is an April 2015 Headaches DBQ completed by private Dr. D.A. The DBQ referenced a headache “frequency of 3 times per month” and that the duration of such “could be 18 hours.” Symptoms were noted of headache pain; pulsating or throbbing head pain; and pain localized to one side of the head (noted as the right). It was noted that the Veteran experienced non-headache symptoms of nausea, vomiting, sensitivity to light and sensitivity to sound. The duration of typical head pain was noted as less than one day (with a notation of 18 hours). It was noted that the Veteran had characteristic prostrating attacks of migraine headache pain more frequently than once per month and that he had very frequent prostrating and prolonged attacks of migraine headache pain. It was noted that the Veteran’s headache condition impacted his ability to work and it was stated that “during unable to work, dark room requirements, aborts headache” and “next day post headache, fatigue, difficult to concentrate.” In an April 2015 statement, the Veteran referenced that the April 2015 Headaches DBQ completed by Dr. D.A. “accurately reflects the severity of my chronic migraine condition” and that the December 2014 VA Headaches DBQ recorded “numerous inaccuracies regarding the severity and duration of my migraine condition.” He stated that the December 2014 DBQ “should not be factored into any future VA decision regarding my chronic migraines.” He outlined why a 50 percent disability rating was warranted. In this regard, he referenced various evidence and stated that “I am afflicted with 3 or more migraines a month.” He stated that “I suffer from very frequent prostrating and prolong[ed] attacks of migraine pain. These severe attacks include throbbing pain, nausea, vomiting, photophobia and sensitivity to sound” and that “[m]y migraines are completely prostrating and force me to lie down in a dark room. The symptoms of completely prostrating migraine combined with the prostrating post migraine symptoms can last multiple days.” Regarding economic inadaptability, the Veteran stated that “I am unable to work during a migraine directly causing severe economic inadaptability. Post migraine symptoms include fatigue and difficulty concentrating. These post migraine symptoms occur the day following a migraine and exacerbate economic inadaptability.” The Veteran referenced an included form from the California Employee Development Department that documented him being unable to work for three days during a two-week period. The Veteran stated that “[b]eing unable to work for multiple days a week has been financially devastating and will continue to be so as long as my chronic migraine condition persists.” A VA opinion was requested in May 2015 to address the conflicting medical evidence of the December 2014 VA DBQ finding of no characteristic prostrating attacks of migraines and the April 2015 private DBQ finding of such attacks. The provided opinion stated that “it is less likely as not that the claimed prost[r]ating condition occurred during the Veteran’s headache condition.” The rationale stated that “[t]here is NO statements from any physician (provider) that the Veteran was treated and instructed to refrain from work/duty” and that “[t]he VA criteria for prost[r]ating condition is that a physician (provider) documents evaluation [and] treatment with recommendation to refrain from work/duty for a defined period of time.” In a statement dated in May 2015, Dr. D.A. stated that the Veteran “suffers from Classic Migraines” and provided a description of the Veteran’s headache symptoms that was consistent with his April 2015 DBQ. He stated that the Veteran’s “headaches are completely prostrating with an average duration of 18 hours, but as long as 24 hours. He has an average of 3 to 4 headaches per month” and that “[t]ypically, [the Veteran] has to go to a dark room for 15 hours to try to get rid of this headache. He is unable to work, unable to drive, even read, or use a computer while in the throes of these migraines.” It was further stated that “[a]fter the migraine is finally resolved, it will often take an additional 24 hours before [he] can work. This is because he will have difficulty with continued severe fatigue and difficulty with concentration. So, there is more lost time from work and daily living.” The Veteran submitted a June 2015 statement in which he again advocated for a 50 percent disability rating. He stated that the May 2015 supplemental statement of the case (SSOC) “mistakenly asserted that a physician never treated me for migraines with the instruction to refrain from work.” He stated that “I have been instructed to refrain from work for the duration of a migraine” and referenced the April 2015 DBQ completed by Dr. D.A. and the same provider’s May 2015 statement. Of record is a March 2017 private medical record from Dr. S.R., referenced by the Veteran in an April 2017 statement as a “neurology specialist.” Information similar to that previously discussed was provided to describe the Veteran’s migraines, to include that they occurred “3 times a month. They last about 1 day or less…The pain is mostly on the right side. There is light and sound sensitivity. There is nausea.” It was noted that Maxalt “works better but VA not currently paying.” An assessment was noted of “[i]ntractable migraine with aura with status migrainosus.” It was noted that the headaches “seem to have been aborted by Maxalt but unfortunately [VA] does not offer these anymore. He is currently trying Imitrex however this causes him to have severe side effects including fatigue and inability to complete his daily tasks.” Other medications to be tried were referenced. It was noted that the Veteran “has extreme nausea with his migraines and sometimes he cannot keep any medications down.” The Veteran submitted an April 2017 statement where he again advocated for a 50 percent disability rating. The Veteran presented similar information regarding his migraines to that previously discussed, with reference to medical evidence from Dr. S.R. and Dr. D.A. This included that “[t]he frequency of my migraines is three or more a month.” He explained why he felt his migraines were completely prostrating, with reference to Dr. S.A.’s March 2017 diagnosis and stated that “[a]n intractable migraine is defined as difficult to treat and fails to respond to standard and/or aggressive treatments” and that “[s]tatus migrainosus is defined as a severe type of migraine with pain and nausea that are often so intense that hospitalization may be necessary.” He stated that “[t]his severity is corroborated by the emergency room discharge instructions documenting a migraine w[h]ere I felt it necessary to go to the emergency room.” Of record is a July 2015 form documenting such emergency room treatment. The Veteran referenced that during migraines he has “extreme nausea, vomiting, fatigue, inability to complete daily tasks, and sensitivity to light” and that “[d]uring a migraine episode, I am often vomiting so frequently I am unable to keep any medications down…To abate these migraines bedrest is often required.” With respect to the migraines being prolonged, the Veteran referenced that they “typically last for 18-24 hours but can persist beyond one day. In addition to the migraine itself the post migraine includes fatigue and difficulty concentrating that can last an additional 24 hours. My current medications may exacerbate this fatigue and difficulty concentrating.” An August 2017 private medical record from Dr. S.R. referenced the Veteran as reporting “that he had 5 migraines in a month lasting 24 hours.” It was noted that he “[u]sually gets 3 migraines a month.” Three medications (sumatriptan, Zomig, Maxalt) were listed under a heading of “failed.” Noted again was intractable migraine with aura with status migrainosus. Also noted was that the Veteran “[c]ontinues to have severe migraines 3 times a month on average. Zofran not controlling vomiting. We will increase Zofran dosing and try Amerge as abortive.” The Veteran also submitted two detailed statements in April 2018. He cited and discussed the VA Adjudication Procedures Manual (M21-1) portion related to Diagnostic Code 8100. See M21-1, Part III, Subpart iv, Chapter 4, Section N.7. The Board notes that it is not bound by the M21-1. See 38 U.S.C. §7104(c); 38 C.F.R. § 19.5. In the first statement, the Veteran discussed the definition of prostration cited in the M21-1 and also quoted other Board decisions for the definition of prostration used, to include the Dorland’s definition cited above. As noted, the rating criteria do not define “prostrating.” The Board will use and apply the standard Dorland’s medical dictionary definition in this case cited above (“extreme exhaustion or powerlessness”). In the second statement, the Veteran quoted a portion of the M21-1 discussing the ability of lay evidence in combination with medical evidence to establish the presence of prostrating headaches. He then stated that “I have submitted multiple statements and documents attesting to the completely prostrating nature of my migraine headaches.” He stated that: The following statements summarize this prostrating nature. While suffering from a migraine I am completely powerless. I am forced to lie in a dark quiet room for the duration of the attack and experience severe throbbing right sided head pain, extreme nausea, vomiting, photophobia, and sensitivity to sound and smell. During a migraine I am unable to read, use a computer, or drive. Even having a TV on in the same room is unbearable due to the light and sound. The Veteran also submitted migraine headache trackers, which documented the frequency and severity of his migraine headaches in a given month. Trackers were submitted for November 2014 to January 2015 (submitted in February 2015); November 2015 to January 2016 (submitted in March 2016); and February 2018 (submitted in April 2018). The trackers included detailed information as to the dates, duration and symptoms the Veteran experienced. These trackers, essentially, indicated headaches of similar frequency and severity as reported by the Veteran elsewhere and in medical evidence he submitted. Analysis Upon review of the evidence of record, and resolving reasonable doubt in the Veteran’s favor, the evidence indicated that throughout the appeal period (from October 6, 2014) the Veteran experienced very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. As such, he met the criteria for a 50 percent disability rating under Diagnostic Code 8100. Addressing the rating criteria in turn, while “very frequent” is not defined, the next lower disability rating of 30 percent references “attacks occurring on an average once a month over last several months.” This suggest that under the 50 percent disability criteria, “very frequent” requires, at a minimum, attacks occurring more than once a month. Overall, the evidence of record generally referenced the Veteran as having headaches more than once a month and frequently referenced three per month, with some references to more than three. The Board finds that this disability picture is “very frequent” within the meaning of Diagnostic Code 8100. As to “completely prostrating and prolonged,” the Board finds that the evidence of record presented a disability picture of the Veteran’s headaches that was completely prostrating and prolonged, when considering the Dorland’s dictionary definition of prostration of “extreme exhaustion or powerlessness.” The Board acknowledges that the December 2014 VA DBQ noted that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain, but no explanation was offered for this conclusion. The DBQ otherwise referenced similar symptoms described elsewhere, to include throbbing head pain, nausea, vomiting, sensitivity to light and sound and noted that the Veteran was unable to work during headaches that lasted 4-6 hours. The Board affords the DBQ’s description of the Veteran’s headaches as non-prostrating limited probative value. The Board also acknowledges the May 2015 VA opinion that stated that “it is less likely as not that the claimed prost[r]ating condition occurred during the Veteran’s headache condition.” The provided rationale referenced a definition of prostration that is not contained in Diagnostic Code 8100 and differs from the Dorland’s medical dictionary definition being applied by the Board. Accordingly, the Board affords low probative weight to the May 2015 VA opinion. On the other hand, the Board affords greater probative value to the Veteran’s lay statements describing his disability picture and the private medical evidence that he submitted that was generally consistent with his lay descriptions. For example, as noted, private Dr. D.A. identified the Veteran as having very frequent prostrating and prolonged attacks of migraine headache pain on an April 2015 DBQ and in a May 2015 statement he stated that Veteran’s “headaches are completely prostrating with an average duration of 18 hours, but as long as 24 hours.” The Veteran’s various lay statements and headache trackers, discussed above, described a disability picture of completely prostrating and prolonged headaches. In addition, the Veteran submitted private medical evidence that was consistent with his lay statements at to experiencing completely prostrating and prolonged headache attacks. As to whether the Veteran’s very frequent and completely prostrating attacks were “productive of severe economic inadaptability,” the Board finds that they were. Evidence variously referenced the Veteran as being unable to work during headache attacks, to include the December 2014 VA DBQ, a February 2015 Veteran statement, the April 2015 private DBQ, the April 2015 Veteran statement, the May 2015 statement from Dr. D.A. and the June 2015 Veteran statement. The Veteran’s headache tracker for the period from November 2014 to January 2015 also noted being unable to work during specific migraines. In addition, evidence referenced the Veteran as being impacted following the cessation of his migraines for potentially days due to symptoms of fatigue and difficulty concentrating. This was referenced in the April 2015 private DBQ, the April 2015 Veteran statement, the May 2015 statement from Dr. D.A., the April 2017 Veteran statement and the various headache trackers that identified specific days where lingering effects were felt. Neither the Veteran nor his private care providers noted the nature of his work, whether his employer, if any, provided accommodations, or to what extent the days of inability to work affected his economic status. On one occasion, a report showed that he missed three days in a two-week period, but generally the attacks occurred three to four times per month. There is no evidence that he was terminated or was beginning considered for termination because of the missed work days. Nevertheless, the frequency (approximately three times a month) and severity of the Veteran’s headache attacks, combined with the additional lingering effects felt following cessation of a migraine, could result in multiple days of being unable to work in a given month and multiple days of suffering from lingering effects in a given month (which presumably would result in decreased work efficiency and/or additional missed time). The Board finds that this disability picture represents attacks that are “productive of severe economic inadaptability.” As noted in Pierce¸ that such attacks are “capable of producing” severe economic inadaptability is sufficient under Diagnostic Code 8100. Based on the evidence and analysis outlined above, the Board finds that, resolving any reasonable doubt in the Veteran’s favor, throughout the appeal period (from October 6, 2014) the Veteran experienced very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. As such, the Board concludes that from October 6, 2014, the criteria for a 50 percent disability rating for migraine headaches have been met and the Veteran’s claim is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8100. The Board notes that this is a grant of the highest possible schedular rating (50 percent) under the appropriate Diagnostic Code for migraines (8100) and that such is being granted throughout the appeal period (to October 6, 2014, the day following the Veteran’s separation from active service). The Veteran did not raise any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). As outlined, the Veteran has consistently advocated for a 50 percent disability rating, to include in his April 2015 NOD (VA Form 21-0958), on which he specifically listed an “[e]valuation [s]ought” of 50 percent. As such, the Board’s decision represents a complete grant of the benefits sought on appeal. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel