Citation Nr: 20042469 Decision Date: 06/23/20 Archive Date: 06/24/20 DOCKET NO. 15-18 611A DATE: June 23, 2020 ORDER Entitlement to an initial disability rating in excess of 30 percent for migraine headaches is denied. FINDING OF FACT The Veteran has not been shown to have migraine headaches characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Marine Corp from March 1966 to September 1968, with service in Vietnam. The Veteran is in receipt of the Purple Heart Medal and Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in July 2018 for further adjudication. In addition to the current issues, in July 2018, the Board remanded the issues of service connection for vertigo and entitlement to a total disability rating based on individual unemployability (TDIU). During the pendency of the appeal, in an April 2020 rating decision, the RO granted service connection for Meniere’s syndrome with vertigo and TDIU, effective November 2, 2010. Because the Veteran was granted service connection for this disability, as well as a TDIU for the entire period on appeal, and he has not disagreed with the effective date or disability rating, the issues of service connection for vertigo and TDIU are no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by his senses, and the Board finds him credible as his statements are detailed and consistent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Entitlement to an initial disability rating of 50 percent, but no higher, for headaches. The Veteran was originally granted a noncompensable disability rating for his service-connected headaches in an October 2012 rating decision. During the pendency of the appeal, in May 2015, the RO increased the disability rating to 30 percent effective November 02, 2010. The Veteran’s 30 percent disability rating has remained in effect until the present time. The 30 percent rating was assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 30 percent disability rating is warranted for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. VA regulations do not define “prostrating,” nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson v. West, 12 Vet. App. 119 (1999). By way of reference, the Board notes that according to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “prostration” is defined as “complete physical or mental exhaustion.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which “prostration” is defined as “extreme exhaustion or powerlessness.” VA regulations also do not define “economic inadaptability.” However, the Court has noted that nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In a September 2011 VA physical examination, the Veteran reported frontal, daily, dull, and pressure pain with occasional nausea and vomiting, and photophobia. The Veteran was first afforded a VA examination to evaluate the severity of his headaches in March 2015. The examiner noted a diagnosis of migraines and the Veteran reported that he experienced migraine and tension headaches since he was wounded in battle in Vietnam. He reported his migraine headaches occurred two to four times per month, lasting four to five hours at a time, and that his tension headaches occurred daily lasting most of the day. He also indicated that when his headaches occurred, he needed to rest in a dark room until his symptoms subsided. He reported the use of medications for this condition. The examiner noted that the Veteran experienced prostrating attacks once a month that were productive of severe economic inadaptability. The examiner also noted that his headaches impacted his ability to work given the need to rest in dark rooms whenever he experienced periods of debilitating headaches but that his migraine headaches were the same in frequency and intensity as before. The examiner concluded that the headaches, while frequently symptomatic, were clinically stable and not appreciably worse at that time. Social Security Administration (SSA) records in September 2017 indicate that the Veteran was awarded disability benefits as a result of his status post cervical fusions in 1995 and 2003 with sequelae including refractory radiating neck, back, and right knee pains and worsening chronic headaches since 2003. A vocational counselor found that the demands of the Veteran’s past relevant work, to include semi-skilled work as a salesperson and carpenter, exceeded his residual functional capacity due to his disabilities since September 18, 2009. VA medical records show that the Veteran received treatments for his headache condition since May 2009 with consistent reports of chronic headaches, at times debilitating and worsening in frequency, requiring him to sit on the bed or in dark rooms for some time before getting up. Private treatment records from September 2009 to September 2010 reflect consistent complaints of daily sharp, dull, painful headaches with burning sensations requiring the regular use of prescribed pain medications. The Veteran most recently underwent a VA examination in September 2019. The examination reflected a diagnosis of migraine variants and headaches. The Veteran reported that he experienced constant daily headaches that are not disabling, with pain in the frontal area above his eyes, and migraine disabling headaches occurring twice a month, lasting four to twenty-four hours at a time. He also reported taking over the counter Tylenol to help with pain. The examiner noted evidence of prostrating and prolonged attacks of migraines that occurred once a month but were not productive of severe economic inadaptability. The examiner noted no functional impact on his ability to work. In considering the evidence of record, the Board concludes that the Veteran is not entitled to an increased rating for his migraine headaches. The medical evidence of record does not show the Veteran to have migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Although the March 2015 VA examiner indicated the Veteran had prostrating and prolonged attacks of migraine pain productive of severe economic adaptability, the examiner also noted the frequency of the Veteran’s headaches were once a month and were stable and not appreciably worse at the time. The September 2019 examiner also indicated the frequency of his headaches were once a month but not productive of severe economic inadaptability. Moreover, the September 2019 examiner noted no functional impact on the ability to work. The March 2015 and September 2019 VA examination reports consistently reflected headaches that did not result in frequent completely prostrating and prolonged attacks of migraine headache pain. Although the Veteran reported that his migraine headaches lasted anywhere between four to twenty-four hours, twice a month, he also indicated that his constant daily headaches were not disabling. As such, the Veteran has not been shown to have met the criteria for a higher initial rating. Therefore, the Board finds that the preponderance of the evidence is against the claim for a higher initial rating for migraine headaches. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.