Citation Nr: 20005703 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 16-62 126 DATE: January 23, 2020 ORDER A compensable rating for headaches prior to September 19, 2019, and 30 percent thereafter is denied. FINDINGS OF FACT 1. Prior to September 19, 2019, the preponderance of the evidence is against finding that the Veteran’s headaches were manifested by prostrating attacks. 2. From September 19, 2019, the preponderance of evidence is against finding that the Veteran’s headaches were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. CONCLUSIONS OF LAW 1. Prior to September 19, 2019, the criteria for a compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100. 2. From September 19, 2019, the criteria for a rating in excess of 30 percent for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2006 to May 2012. In December 2018, the Board remanded this claim for further development. The matter now returns to the Board for appellate consideration. The Veteran seeks a higher rating for his service-connected headaches. Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, 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. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s headaches have been rated as noncompensable prior to September 19, 2019, and 30 percent disabling thereafter under Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable rating is warranted for headaches with less frequent attacks. A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The phrase “characteristic prostrating attacks,” as used under this Diagnostic Code, means migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245, 246 (2018). In other words, the term “prostrating” takes on its plain meaning of “lacking in vitality or will: powerless to rise: laid low.” Prior to September 19, 2019, the Board finds that the Veteran’s service-connected headaches were not manifested by prostrating attacks. In October 2012 and February 2017, the Veteran was afforded VA examinations. The examiners found that the Veteran’s headache symptomology did not amount to prostrating attacks. Both examiners noted headache pain less than one day and headaches were absent for non-headache symptoms (e.g., vomiting, sensitivity to light, sensitivity to sound, change in vision, and so on). The October 2012 examiner further found no occupational impact due to headaches, while the February 2017 examiner recorded the Veteran’s statement that when he gets a headache at work he needs to stop working about one minute until it subsides. These medical opinions were based on an in-person interview and consideration of the Veteran’s self-reported functional impairment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Reonal v. Brown, 5 Vet. App. 458 (1993). Review of VA treatment records from this time period are in consensus with these examination findings that the Veteran’s headaches were not productive of prostrating attacks. In June 2013, the Veteran reported migraine headaches as short, sharp pain with random frequency. In September 2013, the Veteran reported headache pain as “sharp stabbing pain-that lasts for seconds,” and that he was not on any medications for these headaches. The clinician’s assessment was that migraine headaches were tolerable off medication. In October 2014, the Veteran reported migraine headaches as intermittently occurring and he was still not taking any medications for headaches. In October 2015, the Veteran reported migraine headaches randomly occurring and he was still not taking any medications for headaches. In October 2016, the Veteran reported “noticing more” and “short lived” migraine headaches, and the clinician’s recommendation was to take ibuprofen. In October 2017, the Veteran reported migraine headaches without aura that were “sporadic-short lived,” and the clinician continue to report that the Veteran managed headaches without medication. Finally, in October 2018, the Veteran continued to report migraine headaches without aura that were occurring a “few times a month.” The evidence weighs against a finding that the headaches were manifested by prostrating attacks at any period during this period of time. Notably, VA treatment notes are absent for any indication of prostrating attacks from headaches or notations that headaches were productive of severe economic inadaptability. The Board, in analyzing the credibility and probative value of the evidence, gives more weight to the Veteran’s statements to treating providers regarding the symptomology of his headaches over the lay statements by the Veteran and his wife contained in the record. See Kahana v. Shinseki, 24 Vet. App. 428, 433-34 (2011); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Lay statements to treating providers are highly probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Namely, contrary to the Veteran’s assertion in his December 2016 substantive appeal that he has experienced characteristic prostrating attacks occurring on average once a month over the last several months and that they have been documented since 2012, the Board finds the Veteran’s headaches during this time period were manifested by sporadic and short-lived episodes. There is no indication based on the Veteran’s own reports to his treating provider that he had headaches with characteristics of prostrating attacks during this period. Similarly, the Veteran’s treating provider never rendered an assessment that the Veteran’s headaches for such a severity that they had characteristics of prostrating attacks. The evidence of record also weighs against a finding that the headaches were productive of severe economic inadaptability as there is no indication from the Veteran’s statements to treating providers that his head aches were interfering with employment. Neither the Veteran nor his representative have cited competent evidence in support that his headaches manifested with prostrating attacks or resulted in severe economic inadaptability. Ultimately, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s disability picture for headaches more nearly approximates the criteria for a compensable rating. To the extent that the Veteran argues his symptomatology is more severe than that shown at the VA examinations, his statements must be weighed against the other evidence of record, and the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions. The Veteran’s statements made to treating providers during this time do not convey that he was experiencing headache pain of a severity, frequency, and duration to result in prostrating attacks. The Board finds that his statements to his treating provider are consistent with the assessment of VA examiners from this time. Based on the foregoing, the Board finds that prior to September 19, 2019, the evidence of record weighs against a finding that the Veteran’s headaches resulted in prostrating attacks. The examiners had specifically considered the Veteran’s lay contentions regarding headache symptoms, yet did not find them to amount to prostrating attacks. This is supported by contemporaneous VA treatment records that regularly show that the Veteran did not report prostrating attacks or that his headaches had an impact on his ability to work. It is paramount that for a compensable rating to be warranted that there be, at a minimum, prostrating headaches once every two months. See Johnson v. Wilkie, supra (finding Diagnostic Code 8100 contains successive rating criteria). Consequently, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating prior to September 19, 2019. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. From September 19, 2019, the Board finds that the Veteran’s service-connected headaches were not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In September 2019, the Veteran was afforded a VA examination. The examiner found prostrating attacks occurring more frequently than once per month, but they were not very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner further provided that the Veteran’s headaches impacted his ability to work because they hindered weekly productivity and that during prostrating headaches the Veteran had to lie down in a dark and quiet room until the symptoms subsided. An October 2019 VA treatment note reported that the Veteran’s migraine headaches were without aura and stable (as to the same frequency), however, the Veteran reported that his headaches were more frequent since he separated from the military. Here, while the preponderance of the evidence shows that the Veteran had prostrating attacks occurring more than once a month, they were not to the level of severity contemplated by the 50 percent rating criteria. The September 2019 VA examination and October 2019 VA treatment note are silent as to headaches that were very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Based on review of the record, the Board finds that the preponderance of the evidence does not indicate that a rating in excess of 30 percent is warranted at any time from September 19, 2019 forward. The criteria for a 50 percent rating requires a showing of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The provisions of Diagnostic Code 8100 are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (holding that the use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision had to be met). Accordingly, all the conditions listed in Diagnostic Code 8100 must be met to warrant a 50 percent rating. In addition, there is no indication from the record that the Veteran that due to headaches he had severe encomic inadaptability. While the September 2019 VA examiner reported a hindering of work productivity during a headache episode and required rest in a dark and quiet room, the record is not suggestive that such occupational impairment caused severe economic inadaptability. Accordingly, the Board finds that these prostrating attacks were not productive of severe economic inadaptability. The Board is mindful that “economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to a total disability evaluation based on individual unemployability. Pierce v. Principi, 18 Vet. App. 440, 446 (2004). The Board notes, however, that the headaches must be, at minimum, capable of producing “severe” economic inadaptability. Again, the Board has considered the lay statements in the record, but does not find that they constitute evidence of any type of economic inadaptability. Similarly, there is no competent medical evidence indicating that the Veteran’s headaches alone were capable of producing severe economic inadaptability. While the Veteran had occupational limitations during headaches, there was no evidence that he missed work or had impaired occupational functioning due to headaches with such frequency that the impairment from headaches alone caused, or was capable of causing, severe economic inadaptability. As the evidence has not shown that his headaches impacted his ability to work to a degree that they are “producing severe” economic inadaptability, the Board finds that the weight of the evidence precludes the assignment of a maximum 50 percent rating. Consequently, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent from September 19, 2019. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board AD 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.