Citation Nr: 20006477 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 19-20 982 DATE: January 28, 2020 ORDER An effective date prior to January 31, 2018, for the grant of entitlement to a 50 percent rating for a migraine headaches disability is denied. For the entire rating period on appeal, an increased rating higher than 50 percent for a migraine headaches disability is denied. FINDINGS OF FACT 1. The Veteran’s claim for increase for migraine headaches was received on January 31, 2018; it is not factually ascertainable that an increase in the Veteran’s migraine headaches disability occurred within the one-year period preceding his January 31, 2018. 2. For the entire rating period on appeal, the Veteran’s service-connected migraine headaches are assigned a 50 percent disability rating, which is the maximum schedular rating authorized for migraine headaches under Diagnostic Code 8100, and referral for extraschedular consideration is not warranted. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 31, 2018 for the assignment of the 50 percent rating for the migraine headaches disability are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 2. For the entire period on appeal, the criteria for a rating higher than 50 percent for the migraine headaches disability are not met. 38 C.F.R. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.21, 4.124a, Diagnostic Code 8100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2006 to June 2010. This appeal stems from a March 2018 rating decision, which increased the rating for migraine headaches from zero to 50 percent disabling, effective January 31, 2018, the date of claim for increase. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Earlier Effective Date - Migraines 50 Percent Rating VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). There are three possible dates for an increased rating that may be assigned depending on the facts of the case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-8 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The effective dates for “staged ratings” are established using the principle set forth at 38 C.F.R. § 3.400(o)(2), that is, the earliest date that it is factually ascertainable that the criteria for each disability rating were met. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining when an increase is “factually ascertainable,” VA will look to all of the evidence including testimonial evidence and expert medical opinions as to when the increase took place. VAOPGCPREC 12-98. Here, VA received the Veteran’s application for an increased rating for his migraine headaches disability on January 31, 2018. As such, January 31, 2018 is the date of the Veteran’s claim. In a March 2018 rating decision, the RO increased the rating for the Veteran’s migraine headaches disability to 50 percent based on a February 2018 VA migraines examination findings, and assigned January 31, 2018, the date of the claim, as the effective date for the increase. It is not factually ascertainable in the one year prior to the January 31, 2018 claim that the severity of the Veteran’s migraine headaches disability met or approximated a 50 percent rating. Neither the treatment records nor the VA examinations dated within one year prior to the assigned effective date reflect treatment for migraines. Indeed, the criteria for the Veteran’s 50 percent rating under Diagnostic Code (DC) 8100 is not satisfied until the February 15, 2018 VA examination. Therefore, February 15, 2018 is the date entitlement arose. See 38 C.F.R. § 3.400(o)(1). Because the increase in disability occurred after the claim was filed, the date of the increase in disability (or date entitlement arose) controls. Nonetheless, the Board will not disturb the currently assigned effective date of January 31, 2018. There is no legal basis for an earlier effective date. Accordingly, the claim is denied. Increased Rating - Migraines Pertinent Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Generally, when a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is expected that coordination of rating with impairment of function. See 38 C.F.R. § 4.21. Here, however, 38 C.F.R. §§ 4.7 and 4.21 inapplicable as the rating criteria under DC 8100 for migraines are successive. Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Migraines Rating Criteria and Analysis The Veteran’s migraine headache disability is rated pursuant to DC 8100. Under such code, migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling, the maximum rating. 38 C.F.R. § 4.124a, DC 8100. The term “prostrating attack” is not defined in regulation or case law but can be defined as extreme exhaustion or powerlessness. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (quoting DC 8100 verbatim but not specifically addressing the definition of a prostrating attack); DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012). Further, “severe economic inadaptability” is also not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the United States Court of Appeals for Veterans Claims (Court) has held that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. It was explained by the Court that if “economic inadaptability” were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating. Id. citing 38 C.F.R. § 4.16. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words “productive of” could be read to mean either “producing” or “capable of producing.” Id. at 446-447. The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In the present case, the Veteran’s service-connected migraine headaches are rated as 50 percent disabling for the entire rating period on appeal, effective January 31, 2018, based on very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See Rating Decision dated March 12, 2018. Nevertheless, The Veteran seeks a higher rating. See Notice of Disagreement received August 21, 2018. As noted above, a maximum schedular rating of 50 percent is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The Veteran is currently in receipt of the maximum schedular rating for migraine headaches under DC 8100 and a higher rating is not possible under this DC. The Board has considered whether there is any other schedular basis for granting a higher rating but has found none. As the maximum schedular rating for migraine headaches under DC 8100 has already been assigned, a higher schedular rating is not available, and the Veteran’s claim for a disability rating higher than 50 percent for migraine headaches must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Nonetheless, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board may not assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also See Yancy v. McDonald, 27 Vet. App. 484 (2016) (the Board is not obligated to analyze whether extraschedular referral is warranted in all cases, but only if the issue is argued or raised by the record). In this case, the Board finds that the evidence in support of the claim does not reasonably raise the issue of an extraschedular rating. In February 2018, the Veteran underwent a VA examination for migraines to determine the severity of his disability. The Veteran reported that his headaches had been worsening with time, describing migraines that occurred five times per month, resulting in an inability to do anything, and less severe headaches twice per month during which he was still able to function. He said he had to sit in the dark and take Ibuprofen or Hydrocodone or lay down at least three to five times per month due to severe, throbbing migraine pain on one side of his head, or at times bilaterally, with what he considered “bad” headaches lasting 10 hours, and others lasting as long but less severe, and some headaches lasting from three hours to two days. The Veteran noted that his headache pain was worsened with physical activity, and that he also experienced nausea, vomiting, and sensitivity to light and sound. Notably, the Veteran endorsed prostrating attacks of headache pain more frequently than once per month, and the VA examiner concluded that these prostrating and prolonged attacks resulted in severe economic inadaptability. Specifically, the examiner concluded that the Veteran’s migraines, which were triggered by work and other strenuous activity, as well as by PTSD symptoms, rendered the Veteran too sick to work. In October 2019, the Veteran submitted a letter from private physician M.B., M.D., which reflects in pertinent part, that the Veteran described having migraine headaches two to three times per week lasting one to two days, with pain rated 5 to 10 on a scale of 10, with relief obtained by lying down in a dark, quiet room. M.B. did not indicate whether the Veteran’s headaches were prostrating in nature. No other lay or medical evidence of record reflects symptoms or treatment of the Veteran’s migraines during the period on appeal. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that renders the available schedular evaluations for the service-connected headaches inadequate. A comparison between the symptomatology of the Veteran’s migraine headaches and the rating criteria reasonably describe his disability level and symptomatology. The medical and lay evidence before the Board, including the February 2018 VA examination report, VA treatment records, and the Veteran’s lay assertions throughout the pendency of the appeal, establish that he experienced light and sound sensitivity, nausea, and vomiting during headaches that required him to sit or lie down in a dark quiet room, and rendered him unable to work, resulting in severe economic inadaptability. These manifestations, including “severe economic inadaptability” are specifically contemplated in the schedular criteria pertaining to migraine headaches. Thus, the Veteran’s reports of severe impairment to occupational functioning are contemplated by the schedular criteria under DC 8100. The Board has determined that referral is not warranted as the first element of the Thun analysis is not satisfied, and it therefore need not address the second and third elements. See Doucette v. Shulkin, 28 Vet. App. 366 (2017); see also Yancy at 494 (“Although the first and second Thun elements are interrelated, they ‘involve separate and distinct analysis,’ and ‘[i]f either element is not met, then referral for extraschedular consideration is not appropriate.’”). (Continued on the next page)   Finally, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brad Farrell, Associate Attorney 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.