Citation Nr: 20047574 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 16-58 529A DATE: July 16, 2020 ORDER Entitlement to an initial compensable rating prior June 19, 2019 and an evaluation in excess of 50 percent thereafter for migraines is denied. FINDINGS OF FACT 1. Prior to June 19, 2019, the Veteran’s migraines were not productive of characteristic prostrating attacks averaging one in 2 months over several months. 2. After June 19, 2019, the Veteran’s migraines were, at worst, productive of characteristic prostrating attacks occurring on an average once a month over several months, resulting in severe economic adaptability. CONCLUSIONS OF LAW The criteria for a compensable rating prior to June 19, 2019 and an evaluation in excess of 50 percent for migraines are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1976 to July 1995. The Board previously remanded the issue for further development in June 2018. The case has now been returned to the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations 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. § 4.97. During an appeal of a disability rating, either from an initial rating assigned on granting of service connection or on appeal of a subsequent denial of an increased rating, it may be found that there are varying and distinct levels of disability impairment severity during an appeal. So, staged ratings (different disability ratings during various time periods) are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial compensable rating prior June 19, 2019 and an evaluation in excess of 50 percent thereafter for migraines. Diagnostic Code 8100 provides for a 10 percent rating for characteristic prostrating attacks occurring an average of once every two months over the several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating.” The phrase “characteristic prostrating attacks” means attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). In other words, the term “prostrating” takes on its plain meaning of “lacking in vitality or will: powerless to rise: laid low.” Id. (citation omitted). Dorland’s Illustrated Medical Dictionary defines “prostration” as “extreme exhaustion or powerlessness.” See Dorland’s Illustrated Medical Dictionary 1531 (32nd ed. 2012). In Johnson v. Wilkie, the Court held that the criteria of Diagnostic Code 8100 are successive, and 38 C.F.R. §§ 4.7 and 4.21 are therefore not for application. Where a rating code does not contain a noncompensable rating, such rating will be assigned if the minimum schedular criteria are not met. 38 C.F.R. § 4.31. A July 2015 VA examination reflects a diagnosis of migraine including migraine variants and cervicogenic headaches. The Veteran’s treatment plan does not include taking medications. The Veteran reported pulsating or throbbing head pain on both sides of the head, originating in the neck and spreading upwards. The Veteran stated that typical head pain lasted less than one day on both sides of head. The Veteran reported non-headache symptoms of nausea, sensitivity to light, and changes in vision. The Veteran had characteristic prostrating attacks of migraine headache pain with less frequent attacks over the last several months. The Veteran did not have very prostrating and prolonged attacks of migraines or non-migraine pain productive of severe economic inadaptability. The Veteran’s headaches impacted his ability to work, in that when he was working, he had to take unscheduled breaks, though he rarely had to leave the premises. In August 2015, the Regional Office (RO) granted service connection for migraines and assigned a non-compensable rating effective April 27, 2014. In an August 2016 notice of disagreement, the Veteran stated that his migraine was a daily or nightly occurrence. In a December 2016 VA Form 9, the Veteran reported that his migraine attacks, though not prostrating, are very often a daily occurrence and they were brought on by turning his head or torso. In June 2018, the Board remanded the issue of higher rating for migraine. The Board directed the RO to schedule a new examination in order to ascertain the current severity of his migraines since the Veteran’s statements indicated that his migraines might have increased in frequency since the last examination. In June 2019, the Veteran was afforded a new examination. The examination reflects a diagnosis of migraine including migraine variants. The Veteran was not taking medication to treat his migraines. The Veteran reported pulsating or throbbing head pain, localized to one side of the head and also on both sides of the head. The pain worsened with physical activity. The Veteran also reported non-headache symptoms of nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. Typical head pain was reported to last less than one day on the right side of head. The Veteran had characteristic prostrating attacks of migraine or non-migraine headache pain once every month, and his very prostrating and prolonged attacks of migraines or non-migraines were productive of severe economic inadaptability. The examiner stated that the Veteran’s migraine impacted his ability to work. Further, the examiner described that the Veteran was retired, but when he worked, his headache episodes caused him to leave work or take unscheduled breaks. The examiner noted that the Veteran was unable to drive at night due to oncoming headlights that precipitated headache. The Veteran stated he could not engage in occupations that were full-time and had regular schedules. The Veteran further reported that he had depleted his sick leave due to headaches in his last occupation. Based on the above evidence, the Board finds that a compensable rating was not warranted prior to June 19, 2019. The lay and medical evidence shows that during the period prior to June 19, 2019, the Veteran’s migraines were productive of non-prostrating attacks daily with accompanying symptoms of nausea, sensitivity to light, and change in vision and the severity of the migraines did not give rise to the level of characteristic prostrating attacks averaging one in 2 months over last several months. The degree of debilitation indicated by the Veteran in both his statements and on the VA examination did not reflect the extreme exhaustion, powerlessness, debilitation or incapacitation indicated by the dictionary definition and Johnson. At worst, the Veteran had to take unscheduled breaks without leaving the premises when he was working. For the period after June 19, 2019, the Veteran is currently rated at 50 percent for his migraines, which is the maximum schedular rating permissible. Accordingly, the Board must determine if a higher rating is warranted based on an extraschedular basis. To determine whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. 38 C.F.R. § 3.321 (b)(1) (2017); Thun v. Peake, 22 Vet. App. 111 (2008). The lay and medical evidence shows that during the pertinent period, the Veteran’s migraines were productive of pulsating or throbbing head pain accompanied with nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision and that he had characteristic prostrating attacks of migraine once every month. Moreover, the Veteran’s migraine attacks were productive of severe economic inadaptability. The evidence does not reflect any unusual or otherwise exceptional   symptoms. The primary symptoms of pain, prostrating attacks, and resulting severe economic inadaptability are fully contemplated by the rating criteria. Thus, the first element of Thun is not met, and consequently, referral for an extraschedular rating is not warranted. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Taylor, 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.