Citation Nr: 20042080 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 15-09 928 DATE: June 22, 2020 ORDER Entitlement to an evaluation in excess of 30 percent prior to December 12, 2011 for service-connected migraine headaches is denied. Entitlement to an evaluation of 50 percent, but no higher, from December 12, 2011 for service-connected migraine headaches is granted. FINDINGS OF FACT 1. Prior to December 12, 2011, evidence showed that the Veteran’s migraine headaches manifested with symptoms of chronic daily headaches with sensitivity to light that required him to lay down, and he took daily medication. 2. Since December 12, 2011, the Veteran’s migraine headaches manifest with symptoms that more nearly approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability as he continued to have chronic daily headaches, and he has required continuous Botulinum toxin A (Xeomin) injections every 2-3 months with only 50-75 percent effectiveness. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 30 percent for migraine headaches prior to December 2011 were not met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for entitlement to an evaluation of 50 percent for migraine headaches were met as of December 12, 2011. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1980 to March 1982. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is of record. Thereafter, in January 2019, the Board, in part, remanded service connection for erectile dysfunction (ED) and a higher evaluation for migraine headaches. In a September 2019 rating decision, the Veteran was granted service connection for ED and special monthly compensation; as such, that claim is no longer on appeal. The remaining claim of a higher evaluation for headaches has been returned for further appellate consideration. The 2019 remand directives instructed the RO to schedule the Veteran for a VA examination to assess the current severity of his headaches disability and to update his VA medical treatment records. The Veteran had a VA examination in April 2019, which is of record and appears adequate. As such, VA has substantially complied with the 2019 remand directives. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that in an October 2019 statement, the Veteran’s representative stated the Veteran should also have an earlier effective date for his migraine headaches. However, that claim was expressly dismissed in the January 2019 Board decision. Specifically, the Board decision quotes: “during the October 2017 Board hearing, the Veteran, with his attorney, withdrew his appeal for earlier effective dates for the service connection grants for his…migraine headaches. The Board thus finds that there remains no allegation of errors of fact or law for appellate consideration with respect to those claims. Accordingly, the Board does not have jurisdiction to review the appealed issues and they are dismissed.” Therefore, the Board will not be discussing an earlier effective date claim as to the Veteran’s migraine headaches. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, the Board finds that assignment of staged ratings is warranted for the Veteran’s migraine headache disability, and are assigned appropriately. Here, by way of history, in a December 2008 rating decision, the RO denied service connection for migraine headaches; but in the February 2015 rating decision, granted service connection with an evaluation for 30 percent under Diagnostic Code (DC) 8100, effective July 15, 2008 (the date of his initial claim). The Veteran timely appealed that decision for a higher evaluation for the entire period on appeal. Under DC 8100, a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.71a, DC 8100. The rating criteria do not define “prostrating,” nor has the Court. Fenderson v. West, 12 Vet. App. 119, 127 (1999) (quoting DC 8100 verbatim and holding evidence established headaches were “prostrating”, but not specifically addressing what constitutes a prostrating attack). A prominent medical dictionary defines “prostration” as “extreme exhaustion or powerlessness.” See Dorland’s Illustrated Medical Dictionary, 1554 (31st Edition 2007). Similarly, the regulations provide no clarification as to the meaning of the phrase “productive of severe economic inadaptability.” The Court, however, has issued a precedent decision which focuses on the meaning of this phrase. In Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004), the Court interpreted the phrase as follows: “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating” because “[i]f ‘economic inadaptability’ were read to import unemployability, “a claimant who “met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [ (TDIU) ].... rather than just a 50% rating.” Id. at 446. The Court therefore rejected the notion that “severe economic inadaptability” was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16 (a). In addition, the Court in Pierce acknowledged the Secretary’s concession that the phrase “productive of severe economic inadaptability” in Diagnostic Code 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Id. at 445. Prior to December 12, 2011 The Board has reviewed all relevant medical records and the Veteran’s statements, which document complaints of headaches, and the evidence shows the Veteran is entitled to an evaluation of 30 percent, but no higher, prior to December 12, 2011. Specifically, the Veteran’s migraine headaches more closely approximate an evaluation of 30 percent disabling based on his symptoms of headaches with characteristic prostrating attacks occurring on average once a month over several months. For example, • in August 2008, he reported having headaches when he established care at the VAMC. • In February 2009, he reported that his headaches are causing difficulties and that he has had these headaches for years, and they are constant, all the time. He described them as his head hurts in the bilateral fronto-parietal region, and behind the eyes. • In March 2009, he complained of severe headaches, and stated that he wakes up every day with headaches and that they last all day long, but he does not have nausea or vision changes. He stated he took Tylenol for them. • In April 2009, he reported the headaches are all over his head, the front, the back, the sides and his eyes; he also stated that he had "electrical wires" that danced around his vision all the time and associated with fluctuating vision (though later medical records discussed that it was not clear/not likely this was related to his headaches). • In January 2010, he was prescribed Naproxen for both his back and headache pains. • In March 2010 he reported constant headaches from the time he wakes up in the morning with electrical like jolts of pain in his head. • In April 2010, he reported his headaches were incapacitating (but did not describe how they were incapacitating or for how long). • In June 2010, he was prescribed Nortriptyline after complaining of headaches being rated a 6/10 when he went to the emergency department for headaches. It was noted he had visual scotomata (though it was not clear if this was a symptom of or was caused by his headaches). • In August 2010, he was assessed for headaches and prescribed Vicodin after he reported he had bad headaches all of the time and sees electrical light moving around; that light bothers him, he needs to take medication to help him sleep; he has been unable to find a prescription to help the headaches; and he cannot see with both eyes because if he uses both together he gets a headache. As such, the evidence during the period in question contains no specific indication that the Veteran’s migraine headaches caused completely prostrating and prolonged attacks productive of severe economic inadaptability. For instance, there was no medical evidence describing the migraines as prostrating or debilitating; in fact, all subsequent VA examination reports revealed the Veteran did not have headaches that were characteristic of prostrating migraines. Further, the Veteran did not provide specifics of how his migraine headaches alone affected his working capabilities or how they were prostrating other than needing to lay down. Any assertions of such are outweighed by the contemporaneous evidence of record, which simply does not show completely prostrating and prolonged attacks productive of severe economic inadaptability. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Given the above, the Board finds the criteria for a rating in excess of 30 percent prior to December 2011 for headaches were not met. In order for a higher 50 percent disability rating to be warranted, the evidence would need to show headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § § 4.124a, DC 8100. In making this finding, the Board is cognizant of Pierce and subsequent instructions and signals from the Court regarding the evidence necessary to find such headaches are not capable of producing severe economic inadaptability. In addition, the Board is bound by statute and regulation to give the Veteran the benefit of the doubt in resolving such issues. See 38 C.F.R. § §§ 4.3 and 4.7. However, while the Veteran is competent to report the frequency and severity of his headaches, as well as reporting whether he had to miss work due to them, upon review of the file, the Board does not see evidence suggesting either. Rather, the Veteran was granted a TDIU effective July 2008 due to the combined effect of all of his service-connected disabilities but did not specifically state how his headaches prior to December 2011 caused him to be functionally impacted other than needing to lay down. Further, the only reports of frequency revealed he had daily headaches; but as noted above, the VA doctors opined he did not have characteristic prostrating attacks of migraine or non-migraine headache pain, nor were they productive of severe economic inadaptability. Based on the evidence discussed above, the Board finds the criteria for a rating in excess of 30 percent for migraine headaches were not met during the relevant rating period prior to December 2011. In order for a higher 50 percent disability rating to be warranted, the evidence would need to show migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, DC 8100. Accordingly, the Board finds the preponderance of the evidence above depicts an evaluation more closely approximating the 30 percent criteria for migraine headaches for the period prior to December 12, 2011, and a higher evaluation of 50 percent prior to December 2011 is denied. Since December 12, 2011 Beginning in December 2011, the Board finds the relevant evidence depicts a disability picture more closely approximating the 50 percent criteria for headaches. For example, on December 12, 2011, the Veteran was referred to neurologist Dr. D. Cole for his migraine headaches which he described as chronic and daily. It was noted that he was taking Gabapentin without adequate benefit; tried Divalproex which helped with his mood disorder, but not with migraine prevention; and he tried Nortriptyline, Propranolol, and Topiramate which he reported not tolerating. The doctor requested he also consider use of abortive therapy (Sumatriptan) to help control the migraines that he experienced once a week, and, beginning December 12, 2011, Dr. D. Cole referred him for Botulinum toxin A (Botox) injections. Following this December 2011 evaluation with Dr. D. Cole, the Veteran began receiving Botox injections every two to three months with some positive results, though he continued to have worsening pain. For example, • In March 2013, he reported that the last injection didn’t work as well as he had more frequent and severe headaches so he would like to try to increase the dosage as his headaches are bad every day. • In October 2013, it was noted that Botox Xeomin still worked but he still had headaches and thinks that there was only a 50 percent improvement as he still has migraines with chronic daily headaches. • In August 2014, he reported his injections had completely worn off and that he has had a headache every day; but when Xeomin is effective, he gets a milder headache every other day. • In September 2014, he stated he took his “pain medication” as scheduled which helped headache “a little” and rated the pain before medication: 5/10 and after medication a 4/10. • In November 2014, the Veteran underwent a VA examination for his TBI, where he reported throbbing headaches all day every day, and also said that when he has a headache, he has dizziness and mood changes such as becoming angry as he is always in pain. He was noted as currently taking Gabapentin and Tramadol. • In January 2015, prior to his next round of Botox injections, he reported his “headaches are bad” (7/10) and the “white lights blind my eyes.” • In the March 2015 VA examination, reported daily headaches that feel like stabbing on the temples” that are continuous until he takes Gabapentin. He stated he sees moving white lights like fireworks and gets a sharp pain in his head when he hears loud noises and is more sensitive to light. He stated the white light blocks his vision for 15 to 20 minutes and this occurs every three days, and that he also has blackouts that last a couple of seconds. The examiner indicated he also had symptoms of sensitivity to light, changes in vision, and dizziness; that his typical head pain lasts less than a day; but that he did not have prostrating attacks of migraine headache pain. • In May 2015, he reported that when the Botox injections are working, he has headaches 5 out of 7 days, and the Botox decreases the intensity of the headaches. • In August 2015, he reported that he only had headaches 2 days a week while the Botox was working, but as it had worn off, he was having them every day. • In February 2016, it was noted that in the past few days, he had throbbing headaches that he rated as 7/10 pain (increased from baseline at 5/10). His last Xeomin injection for migraines was on 1/29/16 and it was expected to last 2.5 to 3 months. • In April 2016, his doctor noted that with the Botox injections, the Veteran’s headaches decreased from daily severe to a manageable level 3 times a week. • In August 2017, he reported that when the Botox wore off, his headache was bad and he saw white lights all the time. • At the October 2017 Board hearing, the Veteran provided sworn testimony that his headaches are rated 6-7/10 and they hurt all day every day. He stated he takes medication and receives Botox which takes away some of the pain. He also testified that when the migraine pain intensifies when the Botox wears off, he has to lay in his bed on one side and he is unable to get up. He states he does not have a doctor’s note for being incapacitated because he does not work (he is receiving TDIU). • In August 2018, the Veteran provided correspondence that his headaches are debilitating and he has thought of suicide due to the pain, as the pain can be so bad, he is unable to get up or do anything. • In April 2019, the Veteran attended another VA examination, where it was noted that he takes Gabapentin, and the examiner marked that the Veteran’s headache pain included pulsating or throbbing, with pain on both sides of the head; he also had sensitivity to light and had changes in vision. The headaches were marked as lasting less than a day. The examiner opined, however, that the Veteran did not have prostrating attacks of migraine headache pain. The Veteran’s more recent medical treatment records continued to show ongoing complaints of migraine headaches as well as continued Botox injections every two to three months for his migraines with chronic daily headaches, though the Botox only provides the Veteran about 50-75 percent improvement. Based on the foregoing evidence of record, and resolving all doubt in the Veteran’s favor, the Board finds that an evaluation of 50 percent is warranted. The Veteran has consistently reported headaches occurring daily, and many were reported as severe. The headaches are somewhat prolonged. He has consistently reported that they last all day unless he lays down. It is not clear whether he would miss any work, as he was granted a TDIU since July 2008 based on the combined effects of all of his service-connected disabilities; however, the 2015 and 2019 VA examiners both opined that his headaches impacted his functional ability as they would limit his concentration when he had one. Further, it was consistently noted that the Veteran takes his prescribed Gabapentin multiple times daily and receives Botox injections every two to three months to reduce the severity and duration of his headaches. However, even with the use of these medications, he reports that they are only 50 to 75 percent effective. In addition, the Board notes that the ameliorative effects of medication may not be considered where such effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Considering the frequency, severity and duration of the Veteran’s headaches without consideration of any ameliorative effects of his medications suggest to the Board that his headaches warrant a higher rating. The evidence suggests they would be much more frequent and severe in nature with more prostrating attacks. Although the VA examiners opined he did not have prostrating attacks of migraines, the Board notes that neither the 2015 examiner nor the 2019 examiner considered the ameliorative effects of medication and Botox and its effects on the Veteran’s frequency and severity of his migraines. In short, the Board finds that the Veteran’s characteristic migraine headaches more nearly approximate the impairment of very frequent and completely prostrating headaches, with severe economic inadaptability. Resolving reasonable doubt in the Veteran’s favor, an evaluation of 50 percent for the Veteran’s headaches is assigned effective December 12, 2011, the date it was factually ascertainable that an increase was warranted. This is the maximum rating allowed under the diagnostic code. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, Associate 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.