Citation Nr: 20005332 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-13 513 DATE: January 23, 2020 ORDER The claim for an initial 30 percent rating, but not higher, for posttraumatic headaches is granted. FINDING OF FACT The Veteran’s posttraumatic headaches most nearly approximate characteristic prostrating attacks occurring on an average once a month over the last several months without very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial rating of 30 percent, but not higher, for headaches are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1998 to August 2001; from May 2005 to September 2005; and from June 2006 to September 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from May 2016 and September 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an initial compensable rating for posttraumatic headaches. Service connection for posttraumatic headaches was granted in a May 2016 rating decision. An initial noncompensable (0 percent) evaluation was assigned effective August 17, 2015. One month later, the Veteran filed a claim for an increased rating and the initial noncompensable for headaches was continued in a September 2016 rating decision. The Veteran filed a notice of disagreement in November 2016, within a year from the original May 2016 rating decision and September 2016 rating decision. The Veteran contends that a higher rating is warranted throughout the initial claims period as he experiences daily headaches that limit his activities. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s headaches are rated under Diagnostic Code 8100 pertaining to migraine headaches. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensably disabling. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on average once a month over the last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a. After review of the evidence, the Board finds that the Veteran’s headaches most nearly approximate the criteria associated with an initial 30 percent evaluation throughout the appeal period. The competent evidence establishes that the Veteran experiences headaches that vary somewhat from the migraines detailed in Diagnostic Code 8100. The Veteran has consistently reported (both in statements to VA and to his treating physicians) that he experiences attacks of headache pain two to three times a day several times a week. These headaches, while frequent in number, do not have a long duration and last for approximately 15 to 30 minutes. During a headache, the Veteran must cease his activities and wait for the pain to subside. In contrast, the migraines described in Diagnostic Code 8100 occur less frequently, but manifest “characteristic prostrating attacks.” The term “prostrating” is not defined in VA regulation, nor has the Court of Appeals for Veterans Claims (Court) defined it. Cf. Fenderson, 12 Vet. App. 119 (quoting Diagnostic Code 8100 verbatim, but not specifically addressing the matter of what is a prostrating attack). In reference materials, “prostration” is defined as “extreme exhaustion or powerlessness.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012). VA’s Adjudication Procedures Manual (M21-1) defines prostrating under Diagnostic Code 8100 as “causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities.” See M21-1, pt. III, Subpt. iv, Ch. 4, Sec. G(7)(b). In other words, the migraines contemplated by Diagnostic Code 8100 result in incapacitation causing a substantial inability to perform everyday activities. VA examiners in October 2015 and July 2018 specifically found that the Veteran did not experience characteristic prostrating attacks associated with his reported headaches. An August 2016 VA examiner, while noting that the Veteran did not manifest characteristic prostrating attacks of migraine pain, did identify attacks of non-migraine headache pain. The Veteran’s treating providers at the VA Medical Center (VAMC) have also diagnosed migraines occurring several times a day, but lasting for approximately 15 to 30 minutes. The lay and medical evidence therefore shows that the Veteran’s headaches occur frequently, but are of shorter duration and severity than those detailed in Diagnostic Code 8100. The Board therefore finds that they most nearly approximate a 30 percent rating for characteristic prostrating attacks occurring on average once a month over the last several months. A maximum 50 percent rating is not warranted for the Veteran’s headaches as they do not most nearly approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Although the Veteran experiences headaches two to three times a day several times a week, these headaches are clearly not completely prostrating or prolonged. The Veteran reported during the August 2016 VA examination and to his VA psychiatrist in April 2019 that when he experiences headaches, he ceases activities (“pull over while driving”) and waits for the headache to subside for 15 to 30 minutes. He then resumes his regular activities. The Veteran does not contend that his headaches cause him to miss work on a consistent basis, require him to lie down until the headache passes, render him unable to leave the house, interfere with his activities of daily living, or last longer than 30 minutes at a time. The Board therefore finds that the Veteran’s headaches do not most nearly approximate “very frequent completely prostrating and prolonged attacks” as his symptoms are not of a similar severity, frequency, and duration as those contemplated by an increased 50 percent rating under Diagnostic Code 8100. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The service-connected headaches also do not result in severe economic inadaptability. VA regulations do not define “economic inadaptability.” However, the Court has noted that nothing in Diagnostic Code 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 October 2015, August 2016, and July 2018 VA examiners all found that the Veteran’s service-connected headaches did not impact his ability to work. The Veteran has worked throughout the claims period as a police officer and in marketing for an insurance company; the period of unemployability he experienced in 2018 was related to symptoms associated with his service-connected PTSD. The Veteran does not contend that his service-connected headaches have impacted his ability to work and there is no lay or medical evidence of severe economic inadaptability due to the headache disability. In any event, Diagnostic Code 8100 is conjunctive, meaning that establishing entitlement to a maximum 50 percent disability rating requires evidence that a claimant’s migraine attacks are (1) very frequent, (2) completely prostrating and prolonged, and (3) “productive of severe economic inadaptability.” Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). If one of these elements is missing, a claimant is not entitled to a 50 percent disability rating. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). Thus, even if the Board determined that the Veteran’s headaches were productive of severe economic inadaptability or very frequent, the criteria for a maximum schedular rating under Diagnostic Code 8100 are still not met as the Veteran does not experience headaches that are also completely prostrating and prolonged. Accordingly, the Board finds that the Veteran’s headaches do not most nearly approximate the criteria for a maximum 50 percent rating under Diagnostic Code 8100 at any time during the appeal period. The Board has considered whether there is any other schedular basis for granting a higher rating other than that assigned above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for an initial rating in excess of 30 percent. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Riley, 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.