Citation Nr: 20042589 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 17-50 255 DATE: June 24, 2020 ORDER Entitlement to a 50 percent disability rating for migraine headaches is granted. FINDING OF FACT During the appeal period, the Veteran’s migraine headaches manifested with very frequent completely prostrating and prolonged attacks that were productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to a 50 percent disability rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124(a), Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1991 to April 2001. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated February 2017, issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its decision, the RO continued the evaluation of migraine headaches, which was rated as 30 percent disabling. The Veteran timely appealed. In November 2018, the Board denied the appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2020, in a Memorandum Decision the Court set aside and remanded the Board’s November 2018 decision because it took into consideration the fact that the Veteran takes medication to relieve her migraine headaches symptoms, and it did not adequately explain why the fact that the Veteran used up all her leave due to her migraine headaches was not equivalent to severe economic inadaptability. Increased Rating A disability rating is determined by applying VA’s Schedule for Rating Disabilities (Rating Schedule), 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. If there is a question as to which evaluation to apply to the Veteran’s disability, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Entitlement to an increased evaluation in excess of 30 percent disabling for migraine headaches The Veteran’s migraine headaches are currently rated under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, as 30 percent disabling. She contends that throughout the entire appeal period her disability has been more severe than the currently assigned rating and that she is entitled to a higher rating of 50 percent. The Board agrees that a higher rating is warranted. “DC 8100’s rating criteria are successive.” Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). Diagnostic Code 8100 provides a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum schedular rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In this case, the evidence shows that due to very frequent completely prostrating and prolonged attacks the Veteran has “exhausted all of her leave and is currently being put in for FMLA [unpaid leave].” See Form 9 dated January 2019. The Board finds that the probative evidence of record demonstrates the Veteran has experienced very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability due to her migraine headaches as articulated by the 50 percent disability rating for migraine headaches. This is the maximum rating that can be assigned under DC 8100. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bristor 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.