Citation Nr: 18109212 Decision Date: 06/07/18 Archive Date: 06/07/18 DOCKET NO. 13-28 980A DATE: June 7, 2018 ORDER 1. Entitlement to a rating in excess of 30 percent for service-connected migraines is denied prior to February 7, 2014. 2. Entitlement to a rating in excess of 50 percent for service-connected migraines is denied from February 7, 2014. FINDINGS OF FACT 1. Prior to February 7, 2014, the Veteran’s migraine headaches disability has been productive of chronic headaches with light and sound sensitivity; but not of very frequent completely prostrating and prolonged headaches productive of severe economic inadaptability. 2. After February 7, 2014, the Veteran’s migraine headaches disability has been productive of very frequent completely prostrating and prolonged headaches productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 30 percent for migraine headaches are not met at any time prior to February 7, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for a disability rating higher than 50 percent for migraine headaches are not met at any time from February 7, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from September 1987 through June 2009. The Veteran originally requested a hearing on his claim for an increased rating on November 2013. Through a rating decision dated June 2016, the Veteran was granted a total disability rating based upon unemployability (TDIU) and special monthly compensation, effective May 21, 2013. Further, through a rating decision dated February 2018, the rating for the Veteran’s service connected migraine disorder was increased to 50 percent effective February 7, 2014. Per a report of contact dated April 17, 2018, the Veteran called to cancel his hearing. Further, he stated that “he is satisfied with the decision provided [in February 2018] and is requesting to have his appeal finalized.” While this statement is sufficient to cancel the Veteran’s hearing, it is insufficient to withdraw his appeal. Therefore, the Board will proceed with the adjudication of his claim. Entitlement to a rating in excess of 30 percent for service-connected migraines prior to February 7, 2014 Disability evaluations are determined by the application of the 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 military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any increased rating claim, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran’s service-connected headaches disability has been rated under DC 8100 at all times during the appeal period. Under DC 8100, a 30 percent rating for migraine headaches is warranted where there are characteristic prostrating attacks occurring on an average once a month over last several months. Id. The maximum rating of 50 percent is warranted for headaches with very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability. Id. The phrase “productive of economic inadaptability” does not require that a veteran be completely unable to work to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Veteran applied for an increase in his migraine disability in September 2011. At around the same time, the Veteran had reported an increase in his migraines, so he was started on the prescription Topamax for psychiatric purposes. The Veteran reported that he had headaches once a week and that the Topamax was helping with the severity, but not the frequency of the headaches (because his migraines were, in part, caused by posttraumatic stress disorder (PTSD) symptoms). The Veteran was afforded a VA examination in December 2011, several months after his application. The Veteran stated that given his current prescription regimen, he had headaches about once a week with light and noise sensitivity. Further, when he felt a migraine coming on, it normally resolved within 45 minutes after going to a dark room. Given the Veteran’s description, the VA examiner noted that the Veteran did not have “very frequent prostrating and prolonged attacks” of migraine headache pain. The Veteran did report to the emergency room once in May 2012, for headache pain; however, all records from between September 2011 to January 2014 note a large benefit because of the Topamax, specifically that it had “substantially improved the headache frequency and duration.” Starting February 7, 2014, the effectiveness of Topamax was noted as being reduced and his headaches, which had been occurring once a week but resolved quickly, now lasted up to three days. The Veteran also expressed interest in alternative treatments, such as Botox injection therapy. Given the record, the Board finds that the preponderance of the evidence is against a finding of very frequent completely prostrating and prolonged headaches productive of severe economic inadaptability prior to February 7, 2014 because the evidence does not show that the migraines were “prostrating and prolonged,” even if they may be considered “very frequent.” The Board notes that 38 C.F.R. § 4.124a does not provide a specific definition for “very frequent,” but the VBA Manual M21-1 provides guidance regarding frequency of migraines as it applies to DC 8100. Specifically, the VBA Manual M21-1 states that the overall rating criteria structure in 38 C.F.R. § 4.124a, DC 8100, indicates that “very frequent” characteristic prostrating migraine attacks occur, on average, less than one month apart over several months. See VBA Manual M21-1, III.iv.4.N.7.f. Further, prostrating means “causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities.” See VBA Manual M21-1, III.iv.4.N.7.b. There is no guidance for the term prolonged in the VBA Manual M21-1. Here, the December 2011 VA examiner noted that the Veteran had migraines once a once a week, but did not find them to be “very frequent prostrating and prolonged attacks.” While the examiner did not explain the reasoning behind this assessment, the Board notes that the Veteran reported his headaches resolved 45 minutes after abortive treatment. The Board finds the examiner’s opinion to be credible and affords it probative weight, because it is based on sufficient facts and data applied to reliable principles and methods. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds that the Veteran does not experience migraines with “prostrating and prolonged attacks” as defined in VBA Manual M21-1. Instead, the evidence in this case shows that while, on average, the Veteran’s migraine attacks occurred at most once a week until February 2014, his migraines resolved quickly and did not rise to the severity required by the criteria for a 50 percent rating in DC 8100. Furthermore, the evidence does not confirm the attacks were “productive of severe economic inadaptability.” See VBA Manual M21-1, III.iv.4.N.7.e. Here, the December 2011 VA examiner found that the Veteran’s migraines did not impact his ability to work. In making such a determination, the Board has carefully considered the Veteran’s contentions with respect to the nature of his service-connected migraines and notes that he is competent to describe certain symptoms associated with such disability. The Veteran’s history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability rating for which the Veteran has been found to be entitled to by the Board. Moreover, the competent medical evidence is the most probative evidence for evaluating the pertinent symptoms of the Veteran’s migraines. As such, while the Board accepts the Veteran’s statements as to the matters he is competent to address, the Board relies upon the competent medical evidence as to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected disability at issue. Accordingly, the criteria for the highest rating of 50 percent under Diagnostic Code 8100 are not met prior to February 7, 2014. A staged rating is not warranted because his symptomology remained consistent throughout this period. Hart, 21 Vet. App. 505. No other diagnostic code is applicable. Entitlement to a rating greater than 50 percent for service-connected migraines after February 7, 2014 As explained above, through a rating decision dated February 2018, the rating for the Veteran’s service connected migraine disorder was increased to 50 percent effective February 7, 2014. Further, the Veteran’s service-connected headaches disability has been rated under DC 8100 at all times during the appeal period. Under DC 8100, the maximum rating of 50 percent is warranted for headaches with very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability. The Board notes that the Veteran has not asserted that his migraine headache disability should be entitled to an extraschedular analysis or be rated under any other diagnostic code other than 50 percent. A rating under any other diagnostic criteria is not appropriate or warranted here because all of the evidence during this time period reveals symptomatology that is contemplated by DC 8100. Further, the Veteran was granted a TDIU, effective May 21, 2013, prior to the 50 percent rating. Accordingly, the criteria for the highest rating of 50 percent under Diagnostic Code 8100 are met February 7, 2014, but no higher rating is warranted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock