Citation Nr: 20021378 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-31 530 DATE: March 25, 2020 ORDER 1. An initial compensable rating for migraine headaches prior to May 21, 2012 is denied. 2. An initial maximum 50 percent rating for migraine headaches from May 21, 2012 forward is granted. 3. Service connection for bilateral plantar fascitis is denied. FINDINGS OF FACT 1. Prior to May 21, 2012, the Veteran had less frequent attacks of migraine headaches. 2. Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s migraine headaches from May 21, 2012 forward approximate the impairment of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran does not have bilateral plantar fascitis. CONCLUSIONS OF LAW 1. Prior to May 21, 2012, the criteria for an initial compensable rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100. 2. From May 21, 2012, forward, the criteria for a maximum schedular disability rating of 50 percent for migraine headaches have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.124a, 4.126, 4.130 Diagnostic Codes 8100. 3. The criteria for establishing entitlement to service connection for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1988 to January 2016. These matters come before the Board of Veterans’ Appeals (Board) from the May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for migraine headaches, assigning a zero percent (non-compensable) rating, effective February 1, 2016, day following separation from active service. The May 2016 rating decision further denied service connection for bilateral plantar fascitis. 1. An initial compensable rating for migraine headaches prior to May 21, 2012 is denied. In this case, the RO rated the Veteran’s migraine headaches as zero percent (non-compensable) disabling. The Veteran contends that his migraines are more severe than currently rated. He maintains that his migraine disability warrants at least a rating of 30 percent. (See VA Notice of Disagreement in October 2016). Where a veteran is seeking a higher initial rating for a service-connected disability, the history of that disability from the date of service connection will be evaluated. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings, or separate ratings based on evidence showing that a veteran’s disability was different at distinct times, will always be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA assigns a percentage rating for a disability by comparing a veteran’s disability against criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1. The Schedule is based on the average reduction in earning capacity in civilian occupations resulting from diseases and injuries associated with service in the armed forces. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA’s determination about which rating to assign is also informed by a broad interpretation of the law consistent with the facts of each case and, if there is a reasonable doubt as to the degree of a veteran’s disability, then the doubt will be resolved in the Veteran’s favor. See id. § 4.3. After VA assigns a rating, that rating may require re-evaluation in the future in keeping with changes to the Veteran’s condition, the law, and medical knowledge. See id. § 4.1. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C. A. § 5107; 38 C.F.R. § 3.102. Migraine headaches are rated under Diagnostic Code 8100. 38 C.F.R. § 4.124a. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as non-compensable. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 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 Diagnostic Code 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 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. In this regard, 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. Pursuant to the recent Court decision in Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims LEXIS 1253 (Vet. App. Sep. 19, 2018), when determining the proper rating for a veteran’s service-connected headache disability, the evidence must show that all the criteria listed for that particular rating are met as well as all the requirements of the lower ratings. The elements for a 50 percent rating are frequency, severity, duration, and economic inadaptability. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence is against a compensable rating prior to May 21, 2012. Initially, the Board notes that the Veteran is competent to provide testimony regarding the headache symptoms and functional impairments he experiences, and the Board finds his testimony credible. See Layno v. Brown, 6 Vet. App. 465 (1994). An October 2008 Service Treatment Record (STR) notes the Veteran’s complaint of disabling migraine headaches, with accompanying nausea and vomiting, which occur once every quarter (3 months). Later in October 2010, STRs list the Veteran’s medical history, which included a note concerning severe migraine headaches with nausea and vomiting approximately 4 times a year. The Veteran was noted to take over-the-counter medication for treatment when he feels a migraine coming on. The Board finds that prior to May 21, 2012, an initial compensable rating is not warranted under Diagnostic Code 8100. The evidence outlined above shows that during this time period the Veteran had experienced less frequent headaches. 2. An initial maximum 50 percent rating for migraine headaches from May 21, 2012 forward is granted. In May 2012, the Veteran sought medical attention for difficulty articulating polly-syllable words, often in context of lecturing. A history of protracted migraines occurring once a week was noted. A July 2012 STR notes a history of migraine headaches occurring once per week. In November 2012, the Veteran was noted to have chronic migraine headaches, and was referred to a headache class to help manage symptoms. The Veteran provided a headache history and profile during a headache education seminar presented by Walter Reed National Military Medical Center. The Veteran reported migraine headaches which last up to 24 hours about 2-3 times a week. Symptoms associated with the migraine were noted as nausea, vomiting, light sensitivity, pale face, difficulty concentrating, irritability, and dizziness. He reported his headaches were getting worse, as oppose to better or fluctuating, and stated his headaches interfere or prevent normal activities, including work. The accompanying headache impact test (HIT-6) noted severe headaches “sometimes.” When asked how often headaches limit usual daily activities including household work, work, school or social activities, the Veteran selected, “very often.” When asked how often the Veteran has felt too tired to do work or daily activities due to his headaches within the past 4 weeks, he circled “sometimes.” The Veteran further selected “sometimes” when asked how often within the past 4 weeks his headaches limit his ability to concentrate on daily activities. The Veteran’s total score was 65 which, according to the HIT-6 test, means headaches are having a very severe impact on the Veteran’s life, which may be causing disabling pain and other symptoms more severe than those of other headache sufferers. A May 2015 service examination notes the Veteran’s report of experiencing migraine headaches 3 times a week to 3 times a month. The Veteran was afforded a VA examination in March 2016. The Veteran reported his headaches getting worse over time, and having severe right-side headaches once per week, each lasting for one day. The examiner found the Veteran has characteristic prostrating attacks of migraine with less frequent attacks. Symptoms associated with the Veteran’s migraine headaches include nausea, vomiting, sensitivity to light and sound, with a duration of less than 1 day and 1-2 days on the right side of head. A functional impact was noted with an example of the Veteran having to leave work early every few months. In response to the March 2016 VA examination, the Veteran submitted a statement disagreeing with the examination findings in August 2017. He reported experiencing more frequent and disabling migraines around 2012, with a usual frequency of 2-3 times per month, but sometimes 2-3 times in a week. Accompanying symptoms were reported to be nausea and vomiting. He further reported the migraines being disabling and usually lasting 24 hours, with some residuals lasting another 12-24 hours. He described his inability to concentrate during the episodes, and a need to lie down and sleep. He mentioned starting a headache log to track dates, severity, risk factors, and treatment out of frustration. From March 26, 2017 to July 15, 2017 (about 4 months), he reports experiencing 45 days with migraine headaches. Of those 45 episodes, 14 required prescribed migraine medication, and another 11 required over-the counter medication. Resolving reasonable doubt in the Veteran’s favor, the Veteran has very frequent, prostrating and prolonged attacks productive of severe economic inadaptability. A rating of 50 percent for migraine headaches is warranted. The 50 percent rating is the maximum rating assignable for migraine headaches. Lastly, the Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected migraine (TDIU) was reasonably raised by the record in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran reported being retired. See August 2017 Statement pg. 1. He further reported experiencing debilitating migraines usually 2-3 times a month, and sometimes 2-3 times in a week. See August 2017 Correspondence. He maintains that the combination of unilateral headache, eye pain, nausea and vomiting make it impossible to work when the migraines occur. The Veteran further reported typically handling his migraines with over-the-counter Ibuprofen, but requiring prescribed migraine medication at least once a month – sometimes 3-5 times in a month. See October 2016 Migraine Headache Summary. On the HIT-6 questionnaire, the Veteran reported his headaches very often limit his ability to do usual activities including work, and sometimes limit his ability to concentrate on daily activities. The March 2016 VA examination notes a functional impact and noted the Veteran had to leave work early once every few months. The Board finds neither the Veteran nor the evidence suggests unemployability due to the service-connected migraines; however, there is evidence of severe economic inadaptability due to the Veteran losing many potential days of work a year due to his very frequent prostrating and prolonged migraines. Rice, 22 Vet. App. 447. However, this severe economic inadaptability is contemplated under the assigned 50 percent rating. Accordingly, the Board concludes that a claim for a TDIU has not been raised by the record. 3. Service connection for bilateral plantar fascitis Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran contends that he has plantar fasciitis as a result of his service, and is required to wear orthotics due to cramping in his feet. The March 2016 VA examination did not show a current diagnosis of plantar fascitis. Upon examination, there was no report of pain of the foot, flare-ups that impact the function of the foot, and functional loss or functional impairment. Further, pes planus, and extreme tenderness of plantar surfaces were not found. The examiner concluded that the Veteran’s plantar fascitis has resolved. Because there is no current diagnosis of plantar fascitis, service connection on a direct basis is denied. As noted above, service connection may only be granted for a current disability. The Veteran’s service treatment records (STRs) reveal a history of bilateral plantar fascitis, but no current diagnosis of the claimed disorder. The Board has considered the Veteran’s lay statements that his condition was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to proffer a diagnosis or provide an opinion as to the etiology of his current disorder. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal, and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the March 2016 examination report than to the Veteran’s statements. As such, the medical records are more probative than the Veteran’s lay assertions of a connection with service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable, and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.Russell 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.