Citation Nr: 20006084 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 19-06 263 DATE: January 24, 2020 ORDER Entitlement to an initial 50 percent disability rating for service-connected migraines is granted. FINDING OF FACT While the Veteran’s migraines are essentially controlled with Tylenol, resolving reasonable doubt in the Veteran’s favor, without medication the Veteran’s migraines would result in frequent prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial rating of 50 percent for service-connected migraines have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1964 to September 1968, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously remanded by the Board in April 2019 and has since been returned for further adjudication. The Veteran has also appealed his entitlement to a total disability rating based on individual unemployability. This issue was remanded by the Board in February 2018 and is still being developed. See VA Supplemental Statement of the Case Notification Letter dated November 18, 2019. As such, it will not be discussed here. The Veteran contends that he suffers from severe, prostrating attacks from his service-connected migraines. The Veteran’s headaches are rated as 0 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100. A noncompensable disability rating is warranted for migraine headaches with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging 1 in 2 months over the previous several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the previous several months. A maximum 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The phrase “characteristic prostrating attacks” means migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). Treatment records from January 2008 state that the Veteran has suffered from migraine syndrome for the past 30 years. It manifests with a visual disturbance of a blind spot, for which the Veteran must intervene with Tylenol or ibuprofen, or he gets nausea and severe head pain. In March 2012, the Veteran complained about frequent migraines but stated that he takes Tylenol when he feels the migraine coming on and is able to stop its progression. In September 2013, the Veteran reported migraines almost every day. In February 2015, the Veteran underwent a VA examination. The Veteran reported seeing blind spots, numbness of his lips and fingers, nausea, and headaches felt mostly on the temporal areas bilaterally. The examiner noted headache pain, pulsating or throbbing head pain, pain on both sides of the head, nausea, vomiting, sensitivity to light and sound, changes in vision, and that the headaches last one to two days. The examiner stated that the Veteran does not have characteristic prostrating attacks. The examiner stated that this does not impact his ability to work. In an October 2017 statement, the Veteran reported that even when he takes Tylenol, he is completely incapacitated for 30 minutes until the symptoms go away and that there was a time when he was experiencing these four to five times a day. Now he is able to recognize the symptoms, so he is able to take Tylenol in a timely manner. In November 2017, the Veteran submitted an employability evaluation from a certified rehabilitation counselor. Based on the Veteran’s testimony, this counselor stated that when experiencing a spell, he must cease all activity and wait for dissipation during which time he is completely incapacitated. The Veteran relayed that although it is rare for a headache to get out of control, he must retreat to a dark room and cease all activity often for the remainder of the day. The counselor concluded that it is therefore this consultant’s opinion that prostrating incapacitating migraine headaches occur on average three times a week lasting at least 30 minutes with the potential to escalate into a full-blown headache. In November 2019, the Veteran underwent a second VA examination. The Veteran reported that he has an aura of a blind spot which is followed by nausea, vomiting, and a headache unless he takes Tylenol. If he takes Tylenol, then his symptoms do not progress to a headache and he reported that he has not suffered from any “full blown” headaches since he started taking Tylenol. The examiner noted pulsating or throbbing head pain, nausea, vomiting, sensitivity to light, duration of less than one day, occurs on both sides of the head, and that the Veteran does not have characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner concluded that the level of severity is unchanged from the last examination. The examiner stated that this does not impact his ability to work. The Veteran essentially does not have “full blown” headaches if he takes Tylenol. See November 2019 VA examination report. However, as Diagnostic Code 8100 does not specifically contemplate the ameliorative effects of medication, such effects cannot be considered when rating under that diagnostic code. Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012). As discussed above, as early as 2008 it was noted that if the Veteran does not take Tylenol, his headaches are quite severe. Examples of impairment without medication include nausea, vomiting, severe head pain, sensitivity to light and sound, and changes in vision. These headaches are also frequent. For example, in 2012 the migraines were reportedly frequent, in 2013 they were reported as almost every day, and in 2017 the Veteran reported his headaches occurred as often as four to five times a day. The headaches can also reportedly last as long as a day or two. While the Veteran’s headaches are functionally controlled and examiners have indicated there is no impact on the Veteran’s ability to work, the Board is precluded from looking at the Veteran’s actual functioning as such is in part due to his use of medication. The evidence suggests that if the Veteran were not taking Tylenol he would have very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As such, and resolving reasonable doubt in the Veteran’s favor, the Board finds that a 50 percent initial disability rating is warranted for the Veteran’s migraines. (Continued on the next page.) A 50 percent rating is the highest available under Diagnostic Code 8100 and the Board finds no other appropriate diagnostic code under which a higher rating could be assigned. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Shuster, Attorney Advisor 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.