Citation Nr: 20004466 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 09-34 739 DATE: January 21, 2020 ORDER Entitlement to an initial compensable rating prior to August 21, 2019 and in excess of 30 percent therefrom for service-connected posttraumatic headaches is denied. FINDINGS OF FACT 1. Prior to August 21, 2019, the Veteran’s headaches were not manifested by characteristic prostrating attacks. 2. From August 21, 2019, the Veteran’s headaches have been manifested by characteristic prostrating attacks that occur more frequently than once a month, but not so frequently as to be productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. For the period prior to August 21, 2019, the criteria for an initial compensable rating for posttraumatic headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code (DC) 8100. 2. For the period from August 21, 2019, the criteria for an initial rating in excess of 30 percent for posttraumatic headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2004 to February 2008. In October 2013 and August 2017, the Board remanded the issues of entitlement to service connection for memory loss and entitlement to an initial compensable rating for posttraumatic headaches for additional development. In a September 2019 rating decision, the Regional Office (RO) granted service connection for memory loss and a higher initial 30 percent evaluation for posttraumatic headaches, effective August 21, 2019. As the grant of service connection for memory loss represents a full grant of the benefit sought, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). However, as the initial increased rating of 30 percent, effective from August 21, 2019, for posttraumatic headaches does not constitute a full grant of the benefit sought, that claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board also acknowledges that the Veteran has submitted a timely July 2018 notice of disagreement (NOD) to a June 2018 rating decision regarding service connection for a low back disorder and an increased rating for a left hip disorder. Although no statement of the case (SOC) has been provided, the Agency of Original Jurisdiction (AOJ) has acknowledged receipt of this NOD in the Veteran’s Appeals Control and Locator System (VACOLS). Therefore, this situation differs from the situation in Manlincon v. West, 12 Vet. App. 238 (1999), where VA had not acknowledged the NOD. Accordingly, a remand for the issuance of an SOC is not warranted at this time. Entitlement to an initial compensable rating prior to August 21, 2019 and in excess of 30 percent therefrom for service-connected posttraumatic headaches. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The Veteran’s headaches are currently evaluated under DC 8100, which pertains to migraines. The Board notes that although the Veteran’s posttraumatic headaches appear to be related to an in-service traumatic brain injury (TBI), such disability has a distinct diagnosis that is contemplated by DC 8100. Pursuant to 38 C.F.R. § 4.124a, DC 8045, any residual with a distinct diagnosis such as migraine headache is to be separately evaluated under another diagnostic code. Thus, it is appropriate to separately evaluate the Veteran’s posttraumatic headaches under DC 8100. Notably, the Board has considered the applicability of rating the Veteran’s posttraumatic headaches by analogy under other diagnostic codes, and no other diagnostic code is for application in this case. Under DC 8100, migraine headaches are rated as follows: a 0 percent rating is warranted for migraines with less frequent attacks; a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months; a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months; and a 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria do not define “prostrating.” Dorland’s Illustrated Medical Dictionary defines “prostration” as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). The Veteran’s service-connected posttraumatic headaches are currently rated as noncompensable prior to August 21, 2019 and at 30 percent thereafter. 38 C.F.R. § 4.124a, DC 8100. He contends that higher ratings are warranted for these periods. See December 2019 Appellate Brief. As discussed more fully below, the Board finds that higher ratings are not warranted for either period on appeal. In April 2008 and November 2011, the Veteran underwent VA examinations to assess his headaches. He reported having headache pain that occurred, at most, daily and lasted half a day. He also reported he was able to work during his headaches but would have to stop what he was doing and hold still for several minutes until the pain passed and then he could return to what he was doing. He was not taking medication for his headaches. The VA examiners diagnosed posttraumatic headaches. In October 2014, the Veteran underwent another VA examination to assess his headache disorder. He reported that his headaches occurred two times per week, lasting approximately an hour. He described them as throbbing pain followed by “whole head” diffuse pain that might be preceded by localize left occipital crushing bursts of pain. He was not currently treated with prescription medications by a physician, but he took over-the-counter ibuprofen for treatment. The examiner diagnosed tension headaches and indicated that the Veteran did not have prostrating attacks of migraine/non-migraine headache pain. In June 2019, the Veteran was provided a VA examination to evaluate the current severity of his headaches. During this evaluation, the examiner documented that the Veteran’s headaches occurred, at most, 3 times per week, about 3 times per day, lasting approximately one hour. It was also documented that the headaches were a 7 out of 10 in intensity, were sharp and pulsating, and often woke the Veteran. The Veteran reported that he sometimes to over-the-counter Tylenol for his headaches. The examiner diagnosed posttraumatic headaches and indicated that the Veteran did not have prostrating attacks of headache pain. Functionally speaking, the Veteran reported that when he had the most severe part of his headache, he had to stop working for 10 to 25 minutes until the headache got better. The remainder of the headache lasted about an hour. He also reported that his headaches affected his effectiveness and the continuity of his work. Contemporaneous VA treatment records document the Veteran headaches as an active problem. However, the VA treatment records do not show regular treatment for headache/migraine pain. On August 21, 2019, the Veteran was afforded another VA examination for his headaches (in conjunction with his then-pending claim for service connection for memory loss). During this evaluation, the examiner documented that the Veteran’s headaches occurred 3 times per week, a few times a day, lasting approximately 10 to 15 minutes during which time he was incapacitated. The Veteran was not receiving any treatment or medications. The examiner diagnosed posttraumatic headaches and found that the Veteran had prostrating attacks of head pain that occurred more frequently than once per month, without very prostrating/prolonged attacks productive of severe economic inadaptability. Functionally speaking, the Veteran reported that during the 10 to 15 minutes of his headache attacks, he had to cease all activity and could only resume full activity once the headache pain cleared. He also reported that he had called off work 5 days in the past 6 months due to headache pain. Given the foregoing evidence, the Board finds that, for the period prior to August 21, 2019, the Veteran did not meet the criteria for an initial compensable rating for posttraumatic headaches. In pertinent part, during this period, the evidence did not show the Veteran’s headaches resulted in characteristic prostrating attacks, i.e., caused extreme exhaustion or powerlessness. In fact, the Veteran reported that, when his headaches occurred during work, he could take a 10 to 25-minute break and then resume his work. Moreover, although his headaches appear to have affected his work, such headaches were not so severe that he sought regular treatment or was prescribed medication. As such, for the period prior to August 21, 2019, an initial compensable rating for posttraumatic headaches is not warranted. For the period from August 21, 2019, the Board finds that the criteria for an initial rating in excess of 30 percent are not met. Notably, the 30 percent rating assigned for this period is based on the Veteran’s increased symptoms of prostrating attacks of head pain during the August 2019 VA examination. However, the August 2019 VA examination did not show that the Veteran’s posttraumatic headaches caused very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. In fact, the Veteran reported he was able to cope with his headache symptoms, taking 10 to 15-minute breaks at work. Further, he reported that he missed 5 days of work in the last 6 months. Only missing less than 1 day of work a month does not equate to severe economic inadaptability. Accordingly, for the period from August 21, 2019, an initial rating in excess of 30 percent for posttraumatic headaches is not warranted. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, Associate Counsel 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.