Citation Nr: 20043434 Decision Date: 06/26/20 Archive Date: 06/26/20 DOCKET NO. 14-36 142 DATE: June 26, 2020 ORDER Entitlement to a 50 percent rating is granted for the entire appeal period; this appeal stems from a claim filed in June 2015. FINDING OF FACT Throughout the appeal period, the service-connected migraine headaches have been productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent rating for the service-connected migraines have been met throughout the appeal period. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal for increased compensation for the service-connected migraine headaches stems from a claim filed in June 2015. Therefore, the claim in appellate status has been re-characterized from the issue characterized in the prior Board remand. The Board did not make a formal finding of the appellate period in the prior Board decision; this re-characterization corrects the issue in appellate status. As the prior remand was for an updated examination only, the Board does not find that the prior characterization created any due process concerns. In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. In July 2018, the Board remanded the appeal to obtain a VA examination that determines the current severity of the Veteran’s migraines and for readjudication. Consequently, an April 2019 rating decision evaluated the Veteran’s migraine headaches as 50 percent disabling from January 18, 2019. This is the highest schedular rating and an extraschedular rating is not raised by the record. The Board’s July 2018 decision dismissed the issue of total disability based on individual unemployability (TDIU) based on the Veteran’s request. This issue is not re-raised by the record as part and parcel of the increased rating claim before the Board. The record continues to reflect that the Veteran is employed. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38U.S.C.§1155; 38C.F.R.§4.1. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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.   Entitlement to a rating in excess of 30 percent for migraine headaches prior to January 18, 2019. The Veteran contends that her migraine headache symptoms were worse than disclosed to examiners and that they have also become more severe. As briefly discussed above, the highest schedular rating had been granted as of January 2019 based on the examinations provided subsequent to the Board’s July 2018 remand. These examinations were provided in January and August 2019. Considering the evidence as a whole, to include the prior examination in July 2015 and March 2017, the Board finds that the disability has more nearly approximated the criteria for a 50 percent rating throughout the appeal period, stemming from the claim filed in June 2015. The Veteran’s tension headaches are presently rated under Diagnostic Code 8100. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, a noncompensable evaluation is assigned unless there are characteristic prostrating attacks averaging one in two months over the last several months, in which case a 10 percent rating is warranted. Migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months are rated as 30 percent disabling. Migraine headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation, which is also the maximum evaluation available under this Diagnostic Code. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Neither the regulations nor the U. S. Court of Appeal for Veterans Claims (Court) has defined “prostrating.” Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100, verbatim, but does not specifically address the matter of what is a prostrating attack). “Prostration” has been defined as “complete physical or mental exhaustion.” Merriam-Webster’s New Collegiate Dictionary 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1534 (32nd ed. 2012). According to Stedman’s Medical Dictionary, 27th Edition (2000), p. 1461, “prostration” is defined as “a marked loss of strength, as in exhaustion.” See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013) (the Board adopts the Court’s definition as its own). Additionally, the phrase “productive of severe economic adaptability” has not been clearly defined by regulations or by case law. The Court 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, headaches 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 TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the headaches must be, at minimum, capable of producing “severe” economic inadaptability. Considering the testimony and the information contained in the examinations provided throughout the appeal period, the Board finds that the service-connected migraine headaches have been productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for the entire appeal period. This is a grant of the benefits sought under the facts of this case. The AOJ will effectuate the grant stemming from this June 2015 claim for increase. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Wilson, 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.