Citation Nr: 20006422 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 16-53 608 DATE: January 27, 2020 ORDER Entitlement to an increased rating of 50 percent, but no higher, for migraines (service-connected as tension headaches) is granted. FINDING OF FACT For the period on appeal, the Veteran’s migraines have manifested as frequent, completely prostrating and prolonged attacks productive of severe economic adaptability. CONCLUSION OF LAW For the period on appeal, the criteria for a 50 percent, but no higher, disability rating for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 2003 to April 2004. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an increased rating for migraines (service-connected as tension headaches) is granted. In November 2011, the Veteran was granted service connection for tension headaches and granted a noncompensable rating effective May 17, 2010. In December 2014, the Veteran filed a claim of entitlement to a compensable rating for service-connected tension headaches. His claim was denied in a June 2015 rating decision. In November 2015, he submitted a private disability benefits questionnaire (DBQ), which documented the severity of his current headache symptoms. This new evidence was material to the claim and was received within one year of the June 2015 rating decision; as such, the June 2015 rating decision was not final and the December 2014 claim remained pending. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In a May 2016 rating decision, the RO again denied an increased rating for tension headaches. A statement of the case (SOC) was issued in October 2016 and the Veteran subsequently perfected a timely appeal. The Veteran has asserted that his tension headaches have worsened and progressed into symptoms of migraine headaches for which he is also diagnosed, thus entitling him to a 30 or 50 percent rating. See October 2016 VA Form 9. For the reasons set forth below, the Board finds that a rating of 50 percent is warranted for the service-connected headache disability throughout the appeal period. The first question the Board will address is whether the Veteran’s service-connected tension headaches manifest symptoms separate and distinct from his non-service-connected migraine headache diagnosis. Both the Veteran and his wife have submitted lay statements describing the Veteran’s symptoms using the diagnoses of tension headaches and migraines interchangeably. See VA Form 9 and Buddy/Lay Statement. The Veteran and his wife are competent to report the occurrence of lay-observable events such as symptoms or certain readily-observable disabilities. 38 U.S.C. § 1153(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran and his wife are not competent to attribute symptoms to certain diagnoses. Thus, the Board affords these lay statements minimal probative value as to whether the tension headaches symptoms are separate and distinct from the migraine symptoms. A June 2015 VA examiner, November 2015 Disability Benefits Questionnaire (DBQ) examiner, October 2016 VA examiner, and a January 2018 VA examiner have opined the Veteran’s tension headaches manifest symptoms that are separate and distinct from his migraine headaches. In contrast, both the Veteran’s treating physician, Dr. H.J., and Dr. S.H. have opined that the Veteran’s symptoms overlap and are so intertwined that the difference between the tension headaches and the migraine headaches cannot be differentiated. See the July 2017 private treatment records from Dr. H.J., a May 2018 DBQ from Dr. H.J., and an August 2018 DBQ from Dr. S.H. The Board thus finds the evidence is in equipoise as to whether the Veteran’s service-connected tension headaches manifest symptoms separate and distinct from his non-service-connected migraine headaches. The Board notes that when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102. Thus, affording the Veteran the benefit of the doubt, the Board will include both tension and migraine headache symptoms in evaluating the increased rating claim. 38 U.S.C. § 5107. Next, the Board will consider whether the Veteran’s tension and migraine headache symptoms entitle him to a compensable rating. Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 ratings schedule. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pursuant to Diagnostic Code (DC) 8100, migraines with characteristic prostrating attacks averaging one in two months over the last several months shall be evaluated as 10 percent disabling. Migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months shall be evaluated as 30 percent disabling, and very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability shall be evaluated as 50 percent disabling. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define “prostrating,” nor is there a definition provided by the U.S. Court of Appeals for Veterans Claims (Court). Cf. 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.). According to Dorland’s Illustrated Medical Dictionary 1554 (33rd ed. 2019), “prostration” is defined as “extreme exhaustion or powerlessness.” Similarly, the term “productive of severe economic inadaptability” is not defined by VA regulations. However, the Court has stated that this term is not synonymous with being completely unable to work, and that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). October 2014 Private treatment records indicate the Veteran suffers from bad headaches once a week, with a few minor headaches also occurring. In February 2015, a medical professional filled out a migraine and headache Disability Benefits Questionnaire (DBQ) to determine the severity of the Veteran’s symptoms. The examiner indicated the Veteran has a history of migraines occurring 3 to 4 times a month. See February 2015 DBQ. The migraines last less than a day once the Veteran takes medication for the migraines. The Veteran has very frequent prostrating attacks more than once a month. Id. The Veteran underwent a VA Examination in June 2015 to determine the severity and frequency of his symptoms. The VA examiner performed an in-person examination and reviewed the Veteran’s claims file. He indicated a diagnosis of both migraines and tension headaches and that the Veteran reported a history of migraine headaches occurring 3 to 4 times a month. See June 2015 VA Examination. The examiner further indicated the Veteran takes medication for his migraines and does not have prostrating attacks. However, the examiner did state the Veteran’s headache condition impacts his ability to work because he must call out or come in late. In addition, he had to take partial sick leave 5 of the last 30 days. Id. In a November 2015 DBQ, the Veteran indicated that he began to have headaches in 2003 while serving in Iraq. In 2007, the Veteran noticed a change in his headaches; they began to last for more hours and required him to lay down to relieve the pain. See November 2015 DBQ. The headaches previously occurred once a month and have increased to 3 to 4 times a month. The examiner noted the Veteran takes medicine for these headaches and experiences prostrating attacks of migraine pain more frequently than once per month. Id. In addition, the Veteran’s headache condition impacts his ability to work because he must take extended breaks from work until the migraines resolve. In a January 2018 DBQ, the examiner indicated the Veteran experiences both headache and non-headache pain that lasts 1 to 2 days. He further indicated the Veteran does not have prostrating attacks of migraines or non-migraines that result in severe economic inadaptability. See January 2018 DBQ. The Veteran’s migraines and headaches do not impact his ability to work. In private treatment records dated July 2017, the Veteran’s treating physician, Dr. H.J., noted that the Veteran experiences headaches approximately 3 times a month lasting anywhere from 1 day to a day and a half. While experiencing those headaches, the Veteran is completely incapacitated and unable to work or do anything. See July 2017 Private Treatment Records. Dr. H.J. also completed a DBQ for the Veteran in May 2018. He indicated the Veteran experiences both headaches and migraines and takes medication for these conditions. He indicated that the Veteran’s headache condition impacts his ability to work because, when he suffers from these headaches, he must take time off work, and even if the Veteran were to remain at work, he must take extended or prolonged breaks for the symptoms to subside. These migraine headaches typically last between 1 to 2 days, with frequent prostrating or prolonged attacks. See May 2018 DBQ. In August 2018, Dr. S.B. completed a migraine headaches DBQ for the Veteran. She indicated the Veteran suffers from chronic headaches and migraines and currently takes medication to treat these diagnoses. The head pain lasts from less than a day to 1 to 2 days. The Veteran experiences very frequent prostrating attacks more frequently than once per month. The Veteran’s headache condition impacts his ability to work because when he has a headache, he must take extended leave from work. He may return to work when his headache resolves. These headaches will continue to require treatment as they do hinder some of the Veteran’s life and work activity. An August 2018 Lay/Buddy Statement by the Veteran’s wife indicates she has witnessed the Veteran suffer from tension/migraine headaches since returning from active service. The Veteran’s headaches have worsened in the past few years. She has witnessed her husband become debilitated due to his headaches 2 or 3 times a month. The headaches cause her husband to lay in a dark and quiet space for several hours to a day. She reported that the Veteran is unable to work on many occasions due to his tension/migraine headaches. With regards to the impact the migraine headaches have on the Veteran’s job, he indicated that sometimes he must take breaks in order to take his medication and wait for his headache to feel better. He also must take time off from work. See October 2016 VA Form 9. Based on the evidence of record, the Board finds that the Veteran is entitled to a 50 percent rating for his migraine headache disability for the entire pendency of the appeal period. See 38 C.F.R. § 4.124(a), DC 8100. The Board finds that the Veteran’s reports to the VA examiners and to VA more generally of migraine headache episodes that occur 3 to 4 times per month, which can last from 1 to 2 days, and more nearly approximate very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. Moreover, throughout the pendency of the appeal, the record has demonstrated that the severity of the Veteran’s migraine headache disability has been productive of severe economic inadaptability. As discussed above, the Court has found that the 50 rating criteria requires the headaches to produce or be capable of producing ‘severe economic inadaptability.’ See Pierce, 18 Vet. App. at 445. VA regulations do not require that the Veteran precluded from working due to his migraine headaches disability to support the criteria for a 50 percent rating. Here, the Veteran has consistently reported that his migraine headache disability has significantly impacted his ability to work as his migraine headaches progressively worsened in severity and frequency. He has credibly reported that he has missed work or left work early when he experienced migraine headache pain. The record contains both medical and lay evidence that support the Veteran’s reports regarding the frequency and severity of his migraine headaches impacted his ability to work. Consequently, under all the facts and circumstances of this case, the Board finds that a 50 percent disability rating is warranted throughout the entirety of the appeal period for the Veteran’s migraines (service-connected as tension headaches). See 38 C.F.R. § 4.124(a), DC 8100. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.