Citation Nr: 20002633 Decision Date: 01/13/20 Archive Date: 01/13/20 DOCKET NO. 18-25 000 DATE: January 13, 2020 ORDER Entitlement to an initial rating in excess of 30 percent for service-connected migraines is denied. FINDING OF FACT Throughout the period of appeal, the Veteran has experienced characteristic prostrating attacks occurring, on average, once a month over the last several months; very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability have not been shown. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 30 percent for service-connected migraines have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1-4.14, 4.121, 4.122, 4.124a, Diagnostic Codes 8045, 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on periods of active duty from January 2008 to January 2009, June 2010 to September 2010, February 2011 to January 2012, July 2014 to September 2014 and February 2016 to October 2016. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA). This case was previously remanded by the Board in June 2019 for an updated VA migraine examination. The examination was conducted in August 2019. 1. Entitlement to an initial rating in excess of 30 percent for service-connected migraines The Veteran contends that his service-connected migraines warrant a rating in excess of 30 percent. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 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 the 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 ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran would be entitled to a higher 50 percent rating (the maximum rating) if he had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined “prostrating.” However, “prostration” is defined as “extreme exhaustion or powerlessness,” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007), or as “physically or emotionally exhausted,” Webster II New College Dictionary 889 (3rd ed. 2001). Based on the evidence of record, the Board finds that the Veteran does not meet the requirements for a higher rating for this service-connected disability. In making this determination, the Board has considered the Veteran’s impairment level of his migraines without the ameliorative effect of medication because these effects cannot be considered by the Board unless specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). To the extent that the medication the Veteran takes for his migraines ameliorates his symptoms, and such effects are discernable, the Board will not consider these ameliorative effects in determining the appropriate rating. However, even assuming that the Veteran is not treated for his migraines, the evidence does not reflect that they are very frequent, completely prostrating, and involve prolonged attacks causing severe economic inadaptability. The Veteran underwent a VA Migraine examination in September 2019. The examination was conducted in-person and the Veteran’s entire c-file was reviewed. The examiner noted the Veteran’ history of migraine headaches, described the current medications that the Veteran’s takes as a part of his treatment plan, and noted the Veteran’s characteristics of prostrating migraines to occur approximately one per month. The examiner additionally noted the Veteran’s report of symptoms as constant pain, sensitivity to light and sound, nausea, changes in vision. The examiner indicated that the Veteran’s prostrating and prolonged attacks are not productive of severe economic inadaptability. See August 2019 VA examination. In a September 2019 Correspondence, the Veteran asserted that he did not feel his case had been properly evaluated because his lay contentions were not properly considered. The Board has not overlooked the Veteran’s lay statements with regard to the frequency, severity, and duration of his migraines. The Board does not dispute that the Veteran is competent to report headaches. However, the evidence as a whole is not indicative of severe economic inadaptability. The Veteran’s 30 percent rating, as with other compensable ratings, contemplates that his disability will have some effect on his employment. It bears emphasis that the schedular rating criteria are designed to take the impact of employment into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified in the rating schedule 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. In the Veteran’s situation, his disability has not been shown by competent and credible evidence (to include his own statements) to cause severe economic inadaptability. The Board finds the August 2019 examination to be the most probative evidence of record concerning the current severity, frequency, and duration of the Veteran’s migraines. The Veteran has not submitted any contradictory or additional medical evidence that demonstrates that his service-connected migraines produce severe economic inadaptability. (CONTINUED ON NEXT PAGE) As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board, R. Smith Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.