Citation Nr: 20004433 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 19-09 908 DATE: January 21, 2020 ORDER Entitlement to an initial disability rating of 30 percent, but no higher, prior to February 21, 2019 for tension headaches (claimed as migraine headaches) is granted. FINDING OF FACT Prior to February 21, 2019, the Veteran’s headaches were manifest by characteristic prostrating attacks occurring on average once a month; however, even with consideration of the ameliorating effects of medication, they did not result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of 30 percent, but no higher, for migraine headaches prior to February 21, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.124(a), Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1993 to March 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a December 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for headaches. In a March 2019 decision, the RO granted an increased disability rating of 30 percent for headaches affective February 21, 2019. In an April 2019 substantive appeal, the Veteran stated he was only seeking an evaluation of 30 percent back to the date of service connection. Increased Rating The Veteran seeks an increased initial evaluation for his service-connected migraine headaches, for which is currently rated as a noncompensable disability rating under 38 C.F.R. § 4.87, Diagnostic Code (DC) 8100 from Jun 22, 2016 to February 20, 2019. Under DC 8100, a noncompensable rating is warranted for less frequent migraine attacks. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. Finally, a maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124(a), DC 8100. The rating criteria do not define “prostrating,” nor has the United States Court of Appeals for Veterans Claims (Court). See Fenderson v. West, 12 Vet. App. 119 (1999), in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack. However, “prostration” can be defined as “extreme exhaustion or powerlessness.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012). VA regulations also do not define “economic inadaptability.” The Court has noted, however, that nothing in DC 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Veteran was afforded a VA examination in November 2016. At that time, the Veteran reported his headaches were a constant and sometimes throbbing pain that would last for days. He reported sensitivity to light but denied nausea or vomiting. He indicated he used over-the-counter Tylenol or Ibuprofen for the headaches which occurred one to two times per month. He stated he had not missed work due to the pain. The examiner noted that the Veteran had headache pain as well as non-headache symptoms which lasted one to two days. The examiner also noted that the Veteran did not have prostrating attacks of migraine/non-migraine pain and that his headaches did not impact his ability to work. In an August 2016 VA progress note, the Veteran reported frequent headaches daily, usually moderate. The VA treatment records otherwise fail to describe the severity and/or frequency of the Veteran’s headache pain. Based on the evidence of record, for the period prior to February 21, 2019, the Board finds that the Veteran’s headaches do warrant an initial rating of 30 percent. Consideration must be given to Jones v. Shinseki, 26 Vet. App. 56 (2012). In Jones, the Court held that, in assigning a disability rating, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. Id. at 63. The Court stated that “the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Id.; see also Otero–Castro v. Principi, 16 Vet. App. 375, 382 (2002) (holding that, if the regulatory rating criteria are met, the Board cannot deny a rating based on outside factors). Although the Board has considered the medical evidence of record, it is clear that the ameliorating effects were taken into account during the VA examination. In addition, the Board has considered the Veteran’s subjective reports. Accordingly, an initial rating of 30 percent is warranted. However, the Board finds that the Veteran’s headaches do not warrant rating in excess of 30 percent. The symptoms he experiences do not more nearly approximate those described under the criteria for a 50 percent rating. Namely, while the evidence shows that the Veteran has frequent headaches, the evidence does not show that the frequent headaches are frequently completely prostrating and prolonged attacks productive of severe economic inadaptability. The evidence reviewed above commensurate with a 30 percent, and no higher, disability rating. As the evidence does not show very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, a disability rating in excess of 30 percent is not warranted. The medical treatment records, to include the report of the November 2016 VA examination, do not support that the Veteran, even when considering the effect of medication, suffers from consistently completely prostrating and prolonged attacks. The Board additionally recognizes that the Veteran has not claimed that he has suffered from frequently completely prostrating and prolonged attacks productive of severe economic inadaptability. As such, an initial rating higher than 30 percent is not warranted. In reaching this decision, the Board has applied the doctrine of reasonable doubt. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SPENCER L. LAYTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri 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.