Citation Nr: 20022487 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 18-44 174 DATE: April 1, 2020 ORDER Entitlement to an initial compensable rating for exertion headaches is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s exertion headaches have manifested as no worse than painful headaches occurring 2 to 3 times per week without characteristic prostrating attacks. CONCLUSION OF LAW The criteria are not met for an initial compensable rating for exertion headaches. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1985 to December 1989, from December 1998 to February 1999, and from May 1999 to June 2014. This appeal is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As concerning another claim, the Board sees the Veteran was awarded service connection for hypoesthesia of his right knee in a February 2019 rating decision. If he is not content with the initial rating and effective date assigned for this now service-connected disability, he must separately appeal these “downstream” issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). So, as it stands, the only claim needing to be addressed in this decision is the rating for his exertion headaches. Entitlement to an initial compensable rating for exertion headaches The Veteran contends that he is entitled to compensable rating for his exertion headaches because they occur frequently. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life – including employment. 38 C.F.R. § 4.10. However, not every disability is specifically listed in the Rating Schedule; in such cases, VA may evaluate an unlisted condition under a DC for a "closely related disease or injury" with "closely analogous" functional impairment, anatomic localization, and symptoms. 38 C.F.R. § 4.20; see also Hudgens v. Gibson, 26 Vet. App. 558, 563 (2014); Lendenmann v. Principi, 3 Vet. App. 345, 351 (1992); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Realizing this, the Veteran's exertion headaches have been rated by analogy as migraine headaches under DC 8100. When evaluating the severity of a disability, it is essential that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under DC 8100, headaches are awarded a 0 percent (noncompensable) rating for less frequent prostrating attacks, a 10 percent rating for characteristic prostrating attacks averaging one in two months over the last several months, a 30 percent rating for characteristic prostrating attacks occurring on an average of once a month over the last several months, and a 50 percent rating if very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100.   The Rating Schedule does not define "prostrating." However, "prostration" has been defined as "complete physical or mental exhaustion." Merriam-Webster's New Collegiate Dictionary 999 (11th ed. 2007). "Prostration" also has been defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). According to Stedman's Medical Dictionary, 27th Edition (2000), p.1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." See, e.g., Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013). Additionally, the terms "productive of severe economic adaptability" have not been clearly defined by regulations or by case law. The U. S. Court of Appeals for Veteran’s Claims (Court/CAVC) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id., at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability (TDIU). Id., at 446; see also 38 C.F.R. § 4.16. It is nonetheless additionally worth noting, however, that the migraines must be, at a minimum, capable of producing "severe" economic inadaptability. Furthermore, because the ameliorative effects of medication do not appear to be contemplated by the rating criteria under DC 8100, they should not be considered. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Finally, pursuant to the Court's holding in Johnson v. Wilkie, 30 Vet. App. 245 (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. Johnson held that 38 C.F.R. §§ 4.7 and 4.21 do not apply in evaluating a Veteran's disability due to his service-connected headaches. The Johnson Court adopted the Webster's dictionary definitions of the terms characteristic ("a trait, quality, or property or a group of them distinguishing an individual, group, or type") and prostrating ("lacking in vitality or will: powerless to rise: laid low") as those terms are used in DC 8100. Id., at 252. The Johnson Court then found: Because DC 8100 specifically governs migraine headaches, the phrase "characteristic prostrating attacks" plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. The distinction between the 10% and 30% disability levels is the frequency of the headaches. A 10% disability rating is warranted when the prostrating headaches occur once every 2 months and 30% is warranted when the prostrating headaches occur once a month. Therefore, under DC 8100, headaches that are more frequent are associated with the higher rating. Id., at 252-53. In determining whether a 30 percent or 50 percent rating for service-connected headaches is more appropriate under DC 8100, the Court noted: The salient feature of the 50% rating is that the headache attacks must be "completely prostrating." In other words, the headaches must render the Veteran entirely powerless. The 50% rating level also includes additional distinct criteria that are not found elsewhere in the DC. To satisfy the 50% rating criteria, the headache attacks must occur "very" frequently. Though the 10% and 30% ratings specify the number of headaches that must occur within a specific period, the 50% rating does not provide this level of detail. Yet, the phrase "very frequent" connotes a frequency greater than once a month, which is enumerated in the 30% rating level, and once every 2 months, which is enumerated for the 10%. Additionally, because the 50% rating requires "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability," the use of the conjunctive "and" makes clear that the headaches must be long in duration. Finally, the 50% rating criteria requires the headaches to produce or be capable of producing "severe economic inadaptability." Id., at 253 (citations omitted). Turning now to the relevant evidence, in March 2015 the Veteran was afforded a VA examination for his exertion headaches. At this examination, he reported that he has headaches with pulsating or throbbing pain on the right side of his head that onset when his heart rate rises (i.e., on exertion). He also reported that he was taking medication for his headaches and that they typically last 15 minutes. The examiner, however, found that the Veteran’s exertion headaches were not prostrating and did not have a functional impact on his ability to work. The Veteran was again scheduled for a VA headache examination in June 2018, however, his contact information was incorrect and, thus, he was not properly informed of the examination. Because of this, the examination was rescheduled and occurred in October 2018. Meanwhile, in his August 2018 Substantive Appeal to the Board, on VA Form 9, the Veteran reiterated that his exertion headaches onset when his heart rate rises and that the headaches happen two to three times per month. He stated that it is hard for him to do anything that causes his heart rate to rise, including “sex, exercise, yard work, etc” because when he feels a headache coming he stops what he is doing in an effort to prevent the onset. He further stated that the headache pain “hurts so bad sometime [sic] I want to crawl into a ball.” At the October 2018 VA examination, the Veteran again reported pulsating or throbbing headaches in his right occipital lobe that migrate to the right frontal aspect of his head. He reported that they subside within 10 minutes, typically, but later during this same examination stated instead they subside in about 30 minutes. While he reported that he felt the headaches were “more often now”, the examiner still found that they were not prostrating and did not impact the Veteran’s ability to work. On his November 2018 VA Form 9 the Veteran stated that he felt the October 2018 VA examiner only recorded “half” of what he told the examiner, and that the examiner did not consider the severity of his headaches. The Veteran further maintained that his headaches start whenever he does anything that causes his heart rate to rise, including “anything outside, at work, sex, etc.” and that the pain is intense and feels like he is being hit in the head with a hammer. He added that, although the pulsating and throbbing pain subsides within 30 minutes, he still has a headache for hours afterward. He also noted that “this does affect me at work, I have gone home many times from work because the headache are to [sic] much.” He explained that he continues to take ibuprofen to manage his headaches. Finally, he reported that his exertion headaches have impacted his sexual relationship with his wife because the pain causes him to avoid any triggers, including sex, and that he has had to take sick leave from work due to his headaches. The Veteran is competent to report his symptoms, however, his reported symptoms do not appear to rise to the level of prostrating as interpreted for VA disability benefits purposes. Namely, he has not stated, and the medical evidence of record does not support, that he has headache attacks causing severe or complete mental or physical exhaustion. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's lay statements alleging his headaches are prostrating. He is competent to report the severity of his headaches; however, neither the March 2015 nor the October 2018 VA examiner found the Veteran’s headaches are prostrating. The Board affords more probative weight to the opinions of the VA examiners, as the determination of whether a headache is prolonged and prostrating is a medical determination concerning which the Veteran is not competent to render. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Additionally, the Board is mindful of the Veteran’s insistence that his headaches occur more frequently than indicated in the reports of his VA examinations, but the number of headache attacks he experiences is a separate question from whether they are prostrating on the occasions he does. No VA examiner has found that the Veteran’s headaches are prostrating, regardless of how often he reports experiencing them and irrespective of what precipitates them. The Veteran insisted on his November 2018 VA Form 9 that his exertion headaches have severely impacted his sexual relationship with his wife, indeed, to the point that it is causing erectile dysfunction (ED). VA interpreted this contention as an “Intent to File” a claim for this additional impairment and, consequently, sent him a letter on November 21, 2018 affirming this. As of the writing of this decision, however, he has not in response submitted a claim of entitlement to service connection for ED – including as secondary to his exertion headaches. See 38 C.F.R. § 3.310. Should he decide to file such a claim in the future, VA will take appropriate steps to fully develop and fairly adjudicate it. In the meantime, the Veteran has not shown the required frequency of prostration owing to his exertion headaches to establish entitlement to a compensable rating for this service-connected disability (either at the higher 10, 30 or 50 percent level) or the severe economic impact mandated by the 50 percent rating, especially. He reports having to take excessive time off from work because of the severity of his headaches, but there is not confirmation of this in the evidence of record – such as in the way of explanatory leave statements, etc. Accordingly, the preponderance of the probative evidence is against this claim of entitlement to an initial compensable rating for the exertion headaches. In reaching this conclusion, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, this doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.