Citation Nr: 20021762 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 15-30 118 DATE: March 26, 2020 ORDER A compensable rating prior to October 24, 2016, for headaches is denied. A 30 percent rating, but no higher, for headaches from October 24, 2016, is granted. FINDINGS OF FACT 1. Prior to October 24, 2016, the Veteran’s service-connected headache disability was not more nearly manifested by characteristic prostrating attacks averaging one in two months over the last several months. 2. From October 24, 2016, the Veteran’s headaches have been manifested more nearly manifested by characteristic prostrating attacks occurring on an average once a month, but not very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a compensable for headaches rating prior to October 24, 2016, are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for a 30 percent rating, and no higher, for headaches from October 24, 2016, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from January 2008 to January 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an initial compensable rating for tension headaches. A September 2014 rating decision granted service connection for tension headaches, assigning a noncompensable rating from January 14, 2014 (date of claim). The Veteran disagreed with the initial disability rating for service-connected tension headaches. NOD (September 2014). He reported to VA in 2016 that he has headaches 4 or more times a week described as throbbing pain that lingers treated with Advil and Tylenol to decrease the pain; he reported that he often has to lie down due to his headaches that are debilitating 2-4 times a week and that it occasionally affect his vision. See VA 21-4138 Statement In Support of Claim (September 2016). He reported to VA in October 2018 that he has “prostrating headaches once every week.” See VA 21-526EZ, Fully Developed Claim (Compensation) (October 2018). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Diagnostic Code 8100 provides that migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as non-compensable; characteristic prostrating attacks averaging one in two months over the last several months are rated at 10 percent; characteristic prostrating attacks occurring on an average once a month over last several months are rated at 30 percent; and very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated at 50 percent. A higher rating may not be denied 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). 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” does not require unemployability, but rather that the symptoms are “capable of producing” or “producing” severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 445-446 (2004). The Board concludes that the preponderance of the evidence of record is against a compensable rating for the Veteran’s service-connected tension headaches prior to October 24, 2016; whereas, from October 24, 2016, the criteria for a 30 percent rating, but no higher, for headaches are more nearly approximated. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.21, 4.124a, DC 8100. It is noted that separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Prior to October 24, 2016, the more persuasive evidence of record reflects that, while the Veteran has episodes of headache, he did not experience “characteristic prostrating attacks” averaging one in two months over the last several months. A November 2014 VA treatment note reflects that the Veteran called about having “serious headaches” and indicating a desire to set up an appointment with a primary care provider (PCP). A December 2014 VA treatment note reflect that the reported headaches occurring 1-2 times a week, described as throbbing, which Tylenol helped. A February 2015 VA treatment note reflects that, in a call to Veteran, he states headaches occurred every 3-4 days. He noted that he was in school and working, but headaches made it more difficult to retain information due to the increased stress and responsibilities. The Veteran’s VA PCP tried to reach the Veteran by phone call several times in February 2015, unsuccessfully, to inquire about headache symptoms, triggers, and possibly treatment, leaving messages. A July 2015 VA treatment note reflects that the Veteran started a new job and school, and that his headaches were becoming “more difficult to deal with since changes in life and would like to see PCP to see what could be done to alleviate them.” Again, the VA medical center made several calls to the Veteran to attempt to schedule an appointment that were unsuccessful. The evidence, although addressing the frequency of headaches, does not reflect “characteristic prostrating attacks.” 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). The Veteran’s statements cannot be said to reasonable reflect headaches productive of extreme exhaustion or powerlessness. Therefore, the criteria for a compensable rating are not more nearly shown. From October 24, 2016, the evidence of record more nearly reflects that the Veteran’s headaches are manifested by characteristic prostrating attacks occurring on an average once a month over last several months, which corresponds with a 30 percent rating. However, the preponderance of the evidence is against a higher rating as completely prostrating and prolonged attacks productive of severe economic inadaptability are not more nearly shown. In support of the 30 percent rating, the Board notes that an October 24, 2016 VA examination reflects 2-3 headaches every week each lasting 2-3 hours with photophobia and phonophobia, nausea and vomiting. His pain was described as pulsating or throbbing, on both sides of the head. The severity of his headaches was described as “prostrating attacks” based on history of time lost from school and work, including some difficulty with continuity in the workplace. The frequency of his headaches was described as occurring “once every month.” This meets the criteria for a 30 percent rating from this date. It is not factually ascertainable that the criteria were met prior to the date of this examination. A rating higher than 30 percent is not warranted from October 24, 2016. Neither the lay nor the medical evidence more nearly reflect completely prostrating and prolonged attacks productive of severe economic inadaptability. A November 2016 VA treatment note reflects that the Veteran presented for severe headaches occurring several times a week for hours or minutes at a time, and that were sometimes associated with visual changes and were not controlled by over-the-counter medications. The physician prescribed Tramadol and noted that the Veteran may need an MRI and Neuro referral to “further assess his headaches as they are somewhat atypical (migraine like perhaps).” A December 2016 VA treatment note shows that the Veteran’s dosage of Tramadol was increased because the initial dosage was not effective. A November 2017 VA treatment note reflects that a trial of Sumatriptan was given for headaches given that they had migraine- like features. A November 2017 VA treatment note reflects that the Veteran was attending business school. An October 2018 VA examination reflects headache pain with symptoms of light and sound sensitivity as well as nausea, treated with Tylenol and Advil. The frequency was reported as once a week or once every two weeks. The duration was reported as 2 hours. Although the Veteran stated that it required him to take time off to rest, as to severity, the examiner indicated that headaches were not productive of prostrating attacks of headache pain based on consideration of the Veteran’s complaints and review of the relevant medical records. The examiner noted that headaches were not debilitating in nature. Notably, an October 2018 VA psychiatric examination report reflects that the Veteran reported headaches, but also reported that: …he exercises five times each week (he runs, lifts weights, and swims) and he likes to read (he estimated that he reads between 15 minutes and 2 to 3 hours each day). He stated that he does not spend much time watching television or playing videogames. He completes necessary daily chores. On this exam, the Veteran reported that he worked as a project manager for a construction company since February 2018 and that his duties included job site assessments, scheduling installation crews and material deliveries, along with managing time, scope of projects, and budgets. He indicated that he thought he would be terminated due to his PTSD symptoms involving concentration and focus. Neither the lay nor the medical evidence reflects that the Veteran has very frequent prostrating headache attacks impacting his work or that headaches’ severity, frequency, and/or duration are productive of severe economic inadaptability. Lost time from work due to headaches simply is not the equivalent of severe economic inadaptability—that is, lost time from work is not shown to be as a consequence of symptoms “capable of producing” or “producing” severe economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 445-446 (2004). Therefore, the criteria for a rating higher than 30 percent are not more nearly approximated and a 50 percent rating is not warranted from October 24, 2016. No other diagnostic code is applicable, and the Board cannot identify a Diagnostic Code which would afford a rating higher than 30 percent disabling for the Veteran’s migraines. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board accepts that the Veteran is competent to report on his observable symptomatology. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for a higher disability rating than assigned, his complaints along with the medical findings do not comport with the assignment of a higher evaluation, as explained and discussed above. Accordingly, a 30 percent initial rating from October 24, 2016 is granted; whereas, a rating in excess of 0 percent prior to October 24, 2016 is denied and a rating in excess of 30 percent from October 24, 2016 is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C. A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.