Citation Nr: 20043792 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 19-46 891 DATE: June 29, 2020 ORDER An initial 50 percent rating, but no higher, for the service-connected migraine headaches is granted throughout the entirety of the appeal period. FINDING OF FACT Affording the Veteran the benefit of the doubt, throughout the entirety of the appeal period, his 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 an initial 50 percent rating, but no higher, for the service-connected migraine headaches have been met throughout the entirety of the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 2002 to July 2006. During the current appeal, and specifically in a February 2019 rating decision, the RO awarded an increased evaluation of 50 percent for the Veteran’s service-connected migraine headache disability. Thereafter, in the April 2019 formal appeal to the Board of Veterans’ Appeals (Board), the Veteran asserted that he believed that an effective date earlier than December 12, 2018, was warranted for the grant of a 50 percent rating for his migraine condition. Regardless of how he phrased his contentions at that time, the proper characterization of the issue on appeal remains entitlement to an increased (compensable) rating for the service-connected migraine headaches—for the entirety of the appeal period. Retaining the characterization of the issue on appeal as such encompasses the Veteran’s contention that the 50 percent evaluation for this disability is warranted prior to the currently assigned effective date of December 12, 2018. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 considers entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times in the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). A March 2017 rating decision granted service connection for the Veteran’s migraine headaches, effective December 10, 2016 (the date his claim for service connection was received) and assigned an initial noncompensable rating, effective that same date. The Veteran appealed the initial rating and, by a February 2019 rating decision, was awarded an increased rating of 50 percent, effective December 12, 2018, the date of the VA examination where VA determined a worsening of his migraine symptoms was shown. He asserts that he is entitled to a 50 percent rating for his headaches throughout the entirety of the appeal period (e.g., prior to December 12, 2018). The Veteran’s migraine headaches are currently rated under Diagnostic Code (DC) 8100, which provides ratings for migraine headaches. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated as 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a. The rating criteria do not define “prostrating”; nor has the Court. By way of reference, the Board notes that, according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Rather than applying a mechanical formula, VA must evaluate all evidence to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The Veteran sought VA medical treatment for his migraine headaches in January 2017. He reported having had migraines since his early 20s, which had occurred one or two times per year, but had become much more frequent since November 2016. He stated that he was having one nearly every other day and several times a day. He would treat them by taking Naproxen and retreating to a dark room away from external stimuli. However, the pain was so intense that there was often nothing that would help, and some would last a few days and occur with nausea. The Veteran was afforded a VA examination in January 2017 for his migraine headaches. On examination, the Veteran reported that he would take Naproxen for his migraines. His headache pain was described as pain on both sides of the head, and was associated with nausea symptoms. The typical headache would last less than one day. The examiner noted that the Veteran had characteristic prostrating attacks of migraine head pain, with less frequent attacks over the prior several months. The examiner stated that the Veteran’s headache condition impacted his ability to work, as he reported that, when he experienced a headache, he would have to go to a quiet, dark room. The Veteran reported to a VA medical treatment provider in July 2017 that he was having two to three headaches per week which were less severe, and only having “really big ones” about one to two times per month. He was being treated with daily prescription medication for migraines prescribed by VA neurology. The Veteran submitted a written statement with his notice of disagreement in March 2018. He argued that the January 2017 VA examination did not adequately quantify the amount of migraines he was experiencing, nor did VA adequately consider the effect of his headaches on his ability to work in assigning a noncompensable rating. In July 2018, the Veteran submitted an informal headache journal for the period of March 2018 through June 2018, which tracked the severity and frequency of his headaches and associated symptoms. In March 2018, he had nine headaches, two of which were severe. All occurred with light sensitivity and six lasted four to twelve hours. In April 2018, he had 11 headaches, one which was severe. All occurred with light sensitivity and six lasted four to 12 hours. In May 2018, he had 11 headaches, two of which were severe. He experienced light sensitivity in 10 episodes, nausea/vomiting in two, and nine of the episodes lasted four to 12 hours, with two lasting 13 to 24 hours. In June 2018, the Veteran had 12 headaches, three of which were severe. He experienced light sensitivity in ten episodes, nausea/vomiting in three episodes, and six lasted four to 12 hours, with three lasting 13 to 24 hours. The Veteran underwent another VA headaches examination in December 2018. The examiner noted that the Veteran had characteristic prostrating attacks of migraine pain once a month and that he had very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. The examiner also noted that the Veteran’s headache condition impacted his ability to work and that he was a student who had lost one to two weeks of work time in the prior 12 months. The worsening migraine intensity and frequency resulted in inability to maintain consistent employment. The Veteran would have to leave work and remain in a quiet dark room when his migraines occurred. The Veteran had been granted a 50 percent rating for his service-connected migraine headaches based upon what he had told the December 2018 VA examiner. The Board finds that, considering statements the Veteran made to his VA treatment providers and in his headache journal, his headaches have been of the same severity throughout the period on appeal as they were in December 2018. Although the January 2017 VA examination report indicates that his migraines may have been less severe, that examination is inconsistent with statements he made to providers shortly before and after that examination took place. Further, it does not actually quantify the frequency of the Veteran’s headaches anywhere in the examination report. Thus, it only provides a vague description of the severity of the Veteran’s migraine symptoms. As such, affording the Veteran the benefit of the doubt, and viewing the entire evidentiary record as a whole, the Board finds that the Veteran’s headaches have consistently been of the same severity both before and since the December 2018 VA. As such, given that the severity has been determined by VA to meet the rating criteria for a 50 percent evaluation from December 2018, the Board finds that a 50 percent rating for the Veteran’s migraine headaches is warranted throughout the entirety of the appeal period. A 50 percent evaluation is the maximum schedular evaluation available under Diagnostic Code 8100. Consequently, a schedular rating in excess of 50 percent cannot be assigned at any time during the appeal period. The Board also finds that there are no other potentially applicable diagnostic codes. Thus, a schedular rating in excess of 50 percent for the Veteran’s migraine headaches at any time during the appeal period, pursuant to another Diagnostic Code, is not warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.