Citation Nr: 20011258 Decision Date: 02/11/20 Archive Date: 02/11/20 DOCKET NO. 17-40 887 DATE: February 11, 2020 ORDER A rating in excess of 30 percent for migraines, including migraine variants, is denied. FINDING OF FACT For the entire appeal period, the Veteran’s migraines, including migraine variants, are manifested by characteristic prostrating attacks that occur at a frequency equal to an average of at least one in two months, without more severe manifestations that more nearly approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for migraines, including migraine variants, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1982 to April l989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2016 by a Department of Veterans Affairs (VA) Regional Office. In March 2019, the Board remanded the case and it now returns for further appellate review. Entitlement to a rating in excess of 30 percent for migraines, including migraine variants. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board stems from the Veteran’s June 24, 2016, claim for an increased rating for migraines, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran’s service-connected migraines are rated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Such provides that migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated at 30 percent. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated at 50 percent. 38 C.F.R. § 4.124a. The rating criteria do not define “prostrating;” nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson, supra (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that, according to Webster’s New World Dictionary of American English, Third College Edition (1986), p.1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Also, the term “productive of severe economic adaptability” has not been clearly defined by regulations. The Court has, however, explained that “productive of” for purposes of Diagnostic Code 8100 can either mean producing, or capable of producing. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraine headaches need not actually produce severe economic inadaptability to warrant a 50 percent rating under Diagnostic Code 8100. Id. at 445-46. Similarly, “economic inadaptability” does not equate to unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; 38 C.F.R. § 4.16. The Board notes, however, that the migraine headaches must be, at a minimum, capable of producing severe economic inadaptability in order to meet the 50 percent criteria. Upon review, the Board finds a rating in excess of 30 percent is not warranted at any time during the pendency of the appeal. As noted above, the evidence must show very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability to warrant a 50 percent rating. Notably, the Veteran reported a constant headache, but only intermittent migraines, without vision changes, nausea, or vomiting, in February 2016. In March 2016, he had pain, light, and sound sensitivity with an aura and had experienced five severe episodes in the last three months. However, in July 2016, a VA examiner considered the Veteran’s reports of the nature, frequency, and severity of his headache symptomatology, but found that, although he had characteristic prostrating attacks of migraine/non-migraine headache pain, such occurred only once every month. In addition, the VA examiner specifically found the Veteran did not have very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner’s only comment regarding an impact on occupational functioning was that the Veteran had to lie down in a quiet, dark room when his headache was particularly severe. According to a private neurologist, the Veteran reported an improvement in his headaches in November 2016 and, although they had increased over the last few weeks in January 2017, such still responded to medication most of the time. In June 2017, he denied nausea and vomiting, but reported that he did need to lie down once a week due to his headaches. Although the Veteran reported chronic, daily headaches in October 2017, the treating VA physician noted that his true migraine frequency was only four times per month and described such as episodic. The Veteran’s daily headache involved mild, bifrontotemporal aching without photophobia or nausea. Further, even his severe headaches included little nausea and no vomiting. He also did not experience any hemiplegia, paresthesia, numbness, or tingling. Untreated, the Veteran’s headaches lasted 12 to 24 hours and required sleep. On examination in October 2019, the Veteran reported that he has a migraine every week or so and experienced a low grade headache on a regular basis. Following consideration of his reports of the nature, frequency, and severity of his headache symptomatology, the VA examiner again found he had characteristic prostrating attacks of migraine/non-migraine headache pain that occurred only once every month. Further, it was determined that the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. In this regard, the VA examiner found that the Veteran’s headache condition did not have a severe economic impact as his headaches caused him to only miss work approximately once every two weeks. The Board has considered the Veteran’s statements that he cannot work when he experiences a migraine. In support, he submitted two weekly time reports. The first, dated in January 2016, shows the Veteran worked 597.5 regular hours and 22.5 hours of overtime. A second report dated in May 2016 indicates he had worked 973 hours of regular time and 74 hours of overtime. In an attached written note, the Veteran reported that he had worked 1,570.5 hours in 2016 out of a usual 2,080, which contemplates working forty hours a week for 52 weeks, to include all holidays and vacations. However, the Board notes this documentation does not provide any information as to why he missed those hours of work. Additionally, the Veteran’s ability to work overtime does not support a finding of severe economic inadaptability. Consequently, the Board finds more probative the VA examiners’ assessments as to whether the Veteran’s migraine symptomatology more nearly approximate very frequent completely prostrating and prolonged attacks that produced severe economic inadaptability. In conclusion, after reviewing the totality of the evidence, and with consideration of the Veteran’s subjective reports of migraine headache symptoms, the Board finds the evidence does not demonstrate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during the pendency of the appeal. Consequently, a rating in excess of 30 percent for his migraines is not warranted. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected migraines; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (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). In reaching the foregoing determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for his service-connected migraines, such is inapplicable and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.