Citation Nr: 20030166 Decision Date: 04/29/20 Archive Date: 04/29/20 DOCKET NO. 17-22 195 DATE: April 29, 2020 ORDER Prior to October 15, 2013, an initial rating of 50 percent for the Veteran’s migraine headaches is granted. Entitlement to a rating higher than 50 percent for migraine headaches is denied. The claim for entitlement to total disability for individual unemployability due to service-connected disabilities (TDIU) has been withdrawn. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, for the entire period on appeal the disability picture most closely approximates migraine headaches manifested by very frequent prostrating attacks productive of severe economic inadaptability. 2. Prior to the promulgation of a final decision by the Board, the Veteran withdrew his appeal for entitlement to a TDIU. CONCLUSIONS OF LAW 1. Prior to October 15, 2013, the criteria for a 50 percent rating, and no higher, for the Veteran’s migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. The criteria for an increased rating higher than the maximum schedular rating of 50 percent for migraine headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124, Diagnostic Code 8100. 3. The criteria for withdrawal of TDIU by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1982 to May 1986. In February 2020, the Veteran testified during a travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. A November 2013 rating decision increased the Veteran’s disability rating for migraine headaches to 50 percent, effective October 15, 2013. Regardless of the RO’s actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an initial rating higher than 10 percent for migraine headaches prior to October 15, 2013, and a rating higher than 50 percent thereafter Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. The Veteran contends that his headache disorder is more disabling than the currently assigned ratings reflect. The Veteran has repeatedly asserted that throughout the appeal, he suffered from migraine headaches that were productive of prostrating attacks, requiring bedrest, more than once a month, productive of severe economic inadaptability. On VA examination in July 2013, the Veteran reported that in May 1983, he was injured when a dog he was training bit his jaw and knocked him over hitting his head against the cement. He lost consciousness and was hospitalized overnight. The Veteran reported headaches ever since that time. He was under treatment with oxycodone QID. The Veteran described headaches that started in his neck and went over his head and into both arms. He had numbness in both arms that caused him to drops things, and difficulty using small tools. The pain was continuous on both sides of his head and worsened with physical activity. Occasionally, he would have to seek treatment at the emergency room with injections. Because the Veteran denied aura or visual disturbances suggestive of migraines, the examiner noted characteristic prostrating attacks of nonmigraine headache once every two months. The examiner found that the headaches were productive of occupational impairment because he was heavily sedated with narcotics impairing his ability to function. Additionally, the pain with numbness and tingling in both upper extremities also interfered with his ability to work. In October 2013, the Veteran underwent a VA examination to evaluate his headache disorder. At that time, the examiner determined that the Veteran suffered from migraines, including migraine variants. The Veteran described pain coming up over the back of neck over the back of the head to top head and spreading to the temples. His migraines were bad enough that he had been unable to work since 2010. He experienced three to four migraines a month. These episodes lasted two to three days at time. He endorsed sensitivity to noise and light. He was treated with oxycodone QID for his headaches. The examiner found that the Veteran suffered from migraine headaches with characteristic prostrating attacks occurring more frequently than once per month. In February 2017, the Veteran underwent a VA examination. The Veteran reported onset of headaches once a month after the in-service injury. The service treatment records showed that he was evaluated by the Neurology Clinic in 1986 and diagnosed with migraine headaches. The Veteran reported that his migraines had progressed, and he was experiencing headaches up to two times a week. The episodes were characterized by a flash of light and a thump on right side of his head followed by a pounding headache on right side. He treated the pain with oxycodone. The Veteran endorsed pulsating or throbbing head pain, pain localized to one side of the head, nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision (such as scotoma, flashes of light, tunnel vision). The headaches lasted one to two days. The examiner noted prostrating attacks once a month that were productive of severe economic inadaptability. These migraine attacks rendered the Veteran unable to drive to work or perform his job due to debilitating symptoms. The Board finds that the Veteran is competent to report whether he needs to lie down in a dark, quiet room due to his migraines, as well as whether he experiences nausea, visions disturbances or light sensitivity. He is also competent to report on the frequency of these episodes on their effect on his ability to function. This type of symptomatology is largely subjective. In light of all of the evidence of record, the Board finds that the evidence is in relative equipoise as to whether throughout the period on appeal, the Veteran’s service-connected migraine headaches manifested with very frequent prostrating attacks productive of severe economic inadaptability. Although the July 2013 VA examiner diagnosed tension headaches with prostrating attacks of nonmigraine headache once every two months, the remainder of the evidence of record, including a VA examination conducted a few months later in October 2013, supports a finding of migraine headaches with prostrating attacks occurring more than once a month, productive of severe economic inadaptability. Therefore, the Veteran’s disability more closely approximated the 50 percent disability criteria prior to October 15, 2013. Therefore, affording the Veteran the benefit of the doubt, prior to October 15, 2013, a rating of 50 percent is warranted for the Veteran’s migraine headaches. In this case, a rating higher than 50 percent for migraine headaches is not available under the rating schedule. The Board finds that a higher rating is not warranted under any other rating criteria, as the Veteran’s symptoms, mainly frequent prostrating headaches with light sensitivity and visual changes, have been accounted for by the criteria listed in Diagnostic Code 8100. Accordingly, an increased or separate rating for migraine headaches is not warranted. 38 U.S.C. § 5107(b); Gilbert, supra. 2. Entitlement to a TDIU The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative, and except where withdrawn on record at a hearing, must be in writing. 38 C.F.R. § 20.204. With regard to the appeal of entitlement to a TDIU, the issue was withdrawn on record by the Veteran at his Board hearing in February 2020. The Veteran’s oral statement during his hearing, memorialized in writing in the transcript, satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). There remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, as to the claim for entitlement to a TDIU, the Board does not have jurisdiction to review the appeal and it is dismissed. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.