Citation Nr: 20045347 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 15-18 654A DATE: July 8, 2020 ORDER Entitlement to an initial rating in excess of 30 percent for service-connected migraine headaches, prior to June 4, 2013, is denied. Effective June 4, 2013, but no earlier, a rating of 50 percent for service-connected migraine headaches is granted. FINDING OF FACT Effective June 4, 2013, but no earlier, the Veteran’s migraine headaches were manifested by very frequent, completely prostrating, and prolonged attacks that were capable of producing severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent rating for service-connected migraine headaches have been met, effective June 4, 2013, but no earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.20, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1994 to March 1998. This appeal was previously before the Board in December 2018, at which time the Board granted an increased 30 percent rating for service-connected migraine headaches. The Veteran appealed the portion of the Board decision that denied a rating in excess of 30 percent for migraine headaches and, in August 2019, the U.S. Court of Appeals for Veterans Claims (Court) granted the parties’ Joint Motion for Partial Remand (JMR) to vacate the Board’s denial of a rating in excess of 30 percent and remanded that portion of the claim for compliance with the instructions in the JMR. The claim now returns to the Board for additional consideration. 1. Entitlement to an initial rating in excess of 30 percent for service-connected migraine headaches The Veteran’s service-connected migraine headaches are assigned a 30 percent rating, effective October 22, 2009, the date of receipt of the Veteran’s original claim. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Throughout the appeal period, the Veteran reported having headaches that were accompanied by a number of symptoms, including tinnitus, dizziness, muffled hearing, light and sound sensitivity, blurred vision, pain in her cheeks, nausea and vomiting. See e.g., April 2011 Audio, Eye, and General Medical VA examinations; April 2011 Nose/Sinus examination; June 2013 VA Headaches examination; September 2011 VA treatment record; April 2015 VA Headaches examination; April 2017 private treatment record. The evidence also shows the Veteran has taken over-the-counter and prescribed medications for her headaches throughout the appeal period and that she has consistently reported that the medications generally helped relieve the pain. See e.g., July 2011 VA treatment record; VA treatment records dated August and October 2012; July 2013 VA treatment record; February 2017 VA treatment record; February 2018 VA examination. Nevertheless, the evidence shows the Veteran experienced recurring headaches with episodes of more severe, prostrating-type headaches throughout the appeal period. In April 2011, she reported having headaches two times a month, with prostrating-type headaches once every other month. See April 2011 VA Headaches examination. In a July 2013 statement, the Veteran reported that her headaches worsened after luggage fell on her head and, in this regard, the evidence shows the Veteran sought treatment at the emergency room beginning in 2011, during which time she variously reported that her headaches lasted for one week, one hour, or two weeks. See e.g., VA treatment records dated July, September, and October 2011; July 2013 Veteran statement; March 2013 private treatment records. Despite the varying report as to the duration of her headaches, the evidence reflects that she reported being unable to function when the headaches occurred. See generally a July 2011 VA treatment record. In 2012, she also reported having two to three headaches a month over the last several months. See August 2012 Veteran statement. However, the evidence shows a significant increase in the frequency and severity of the Veteran’s migraine headaches in 2013. While some evidence continued to show the Veteran experienced moderate headaches once a month, the preponderance of the evidence shows she was experiencing more frequent episodes four to six times a week, which she reported were very severe. See June 2013 VA examination; July 2013 VA treatment record; July 2013 Veteran statement. During the June 2013 VA examination, the Veteran reported that her headaches lasted less than one day but, when she sought treatment at the emergency room in July 2013, she reported that her headache had persisted since noon the previous day while doing exercises at work. Notably, when describing the severity of her headaches during the June 2013 examination, the Veteran reported that she stayed in a dark room, and she also reported that her headaches were usually relieved by medication but that the episode in July 2013 was not. See June 2013 VA examination; July 2013 VA treatment record. The Board notes that, in 2012, the Veteran reported missing work frequently due to migraine headaches but, in 2013, the evidence reflected a significant impact on her ability to work. In March 2013, she received a Fitness Assessment Waiver at work, at least partially due to her headaches, as she reported getting headaches after running for more than 10 minutes. See March 2013 Fitness Assessments; March 2013 private treatment record. The Veteran also reported taking off work at least one week a month due to her headaches, which she asserted affected her productivity. See May 2013 Veteran statement; September 2014 Veteran statement. In this regard, the Veteran reported that her headaches were unexpected and persistent and she provided a daily log that shows that, between September 2013 and August 2015, she frequently left work early or took days off because of the severity of her headaches. See September 2014 Veteran statement; August 2015 headache log. The evidence also shows that her doctors prescribed time off work due to her headaches. See March and April 2013 statements from Dr. Millar. Notably, in 2013, the Veteran reported that she had exhausted all of her sick leave, which resulted in a financial hardship as she had to take time off work without pay. See May 2013 statement. While the evidence shows the Veteran continued to work with her migraine headaches and retained employment throughout the appeal period, clinicians noted that her headaches and medications would likely affect her level of physical activity, concentration, and mental awareness. See June 2013 VA examination. Notably, the evidence shows the Veteran’s migraine headaches continued with frequent prostrating attacks after 2013. The Board notes that the April 2015 VA examiner noted that the Veteran had less than one prostrating attack of migraine headaches every two months with no very frequent prostrating or prolonged attacks, as she noted the Veteran’s headaches lasted less than one day and were quiescent at the time. However, the examiner also noted the Veteran received pain relief from medication and was headache-free during the examination. She also noted, however, that the Veteran reported her symptoms often lasted one to two days before she began taking medication. See April 2015 VA examination. Nevertheless, in April 2016, the Veteran’s physician, Dr. Panova, stated that the Veteran would have episodic flare-ups of migraine headaches that would require a dark room with no noise and require that the Veteran take medication and rest. Dr. Panova estimated that these flare-ups would occur two to three times a month and last eight hours. See April 2016 Statement of Serious Medical Condition. Subsequent medical evidence confirms the frequency and severity of the Veteran’s migraine headaches, as the Veteran reported having debilitating and severe headaches at least once a week but up to four or more times a week. See April, May and October 2017 private treatment records; November 2017 DBQ; February 2018 VA examination; July 2018 VA treatment record. In this regard, the Board notes that the February 2018 VA examiner stated that the Veteran did not have prostrating attacks of migraine headache pain; however, she noted that, when the Veteran did not take her medication, her pain was a throbbing, knife-like, piercing sensation that was accompanied by nausea, vomiting, and sensitivity to light and sound and required rest and medication, which is suggestive that her headache pain rendered her completely powerless. See February 2018 VA examination. The Board acknowledges that the evidence dated after 2013 contains various reports as to how long the headaches lasted; however, it appears the duration of the headaches was affected by the ameliorative effects of medication. Indeed, during the February 2018 VA examination, she stated that the headaches would last 30 minutes if she took her medication at the onset of the headaches. See February 2018 VA examination. Otherwise, she reported that the headaches lasted at least 24 hours or more. See e.g., August 2015 VA treatment record; November 2017 DBQ. The Veteran also endorsed feeling generalized weakness, fatigue, and muscle aches during and after the flare-ups or prostrating attacks of migraine headaches. See April 2017 private treatment record; November 2017 DBQ. Based on the foregoing, the Board finds the Veteran’s migraine headaches were manifested by very frequent completely prostrating and prolonged attacks that were productive of, or at least capable of producing, severe economic inadaptability, effective June 4, 2013. In making this determination, the Board again notes that the evidence shows the Veteran has taken over-the-counter and prescribed medications for her headaches throughout the appeal period and that the evidence of record generally reflects the frequency and severity of her headaches based upon the ameliorative effects of the medication. Where indicated by the evidence, the Board has noted the Veteran’s report as to the frequency and severity of her headaches without or prior to taking her medication. However, because the Board may not consider the ameliorative effects of medication in this case, the Board has resolved all reasonable doubt in favor of the Veteran in this regard in determining the frequency and duration of her migraine headaches, particularly the prostrating attacks thereof. As for the frequency of the Veteran’s headaches, the evidence dated on and after June 2013 shows that she reported having episodes of severe headaches four to six times a week. The evidence shows that, with the help of medication, the frequency of the headaches decreased but continued to occur at least once or twice a week. See June 2013 VA examination; July 2013 VA treatment record; April 2016 Statement of Serious Medical Condition; October 2017 private treatment record; July 2018 VA treatment record. Therefore, the Veteran’s headaches were “very frequent” as contemplated by DC 8100 and as interpreted by the Court, as they occurred more than once a month. See Johnson, 30 Vet. App. at 253. As for the severity of the Veteran’s very frequent headaches, the evidence dated on and after June 2013 shows the Veteran described her headaches as severe and debilitating and, in this regard, the evidence shows that the headaches required she stay in a dark room with no noise and rest. The Veteran also described having generalized weakness during flare-ups or prostrating attacks of migraine headaches, which, when combined with the other evidence, suggests a finding of extreme helplessness or powerlessness. Therefore, the Veteran’s very frequent episodes of migraine headaches were manifested by completely prostrating attacks as contemplated by DC 8100. As for the duration of the very frequent, completely prostrating headaches, the evidence dated on and after June 2013 suggests that, without the use of medication, the headaches would likely last at least 24 hours or more. See e.g., July 2013 VA treatment record; August 2015 VA treatment record; November 2017 DBQ; February 2018 VA examination. As for economic inadaptability, the evidence dated on and after June 2013 shows the Veteran began taking hours and days of leave due to her migraine headaches, including as directed by her doctor, and that she eventually exhausted all of her sick leave and took leave without pay. Despite the foregoing, the evidence shows the Veteran continued to work; however, the preponderance of the evidence dated on and after June 2013 shows that her ability to work an eight hour shift would be significantly impacted when she experienced her very frequent, completely prostrating migraine headaches. See June 2013 VA examination; April 2016 Statement of Serious Medical Condition; November 2017 Headaches Disability Benefits Questionnaire (DBQ); February 2018 VA examination. Therefore, the Board finds the Veteran’s very frequent, completely prostrating headaches were at least capable of producing a severe economic inadaptability. The Board notes there is evidence of economic inadaptability as early as 2012, given the Veteran’s report of missing 30 days of work due to her headaches and that she was noted to have an employment impairment and handicap due to her migraine headaches. See October 2012 VA PTSD examination; May 2012 Vocational Rehabilitation Counseling Narrative. The Board has considered this evidence, which was noted in the Joint Motion, however, as explained above, the record does not show very frequent, completely prostrating headaches until June 2013. For example, in April 2011, the Veteran reported a prostrating headache which lasted a week and occurred once every other month. Although the October 2012 PTSD examination noted that the Veteran missed approximately 30 days from work due to migraines, it does not indicate the frequency at which the Veteran experiences prostrating headaches. Therefore, because the rating criteria under DC 8100 is successive, the Board concludes that the Veteran’s migraine headaches met the criteria enumerated for a 50 percent rating until June 4, 2013 and no earlier. Accordingly, an initial rating in excess of 30 percent for service-connected migraine headaches is not warranted; however, a 50 percent rating is warranted, effective June 4, 2013. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.