Citation Nr: 20053083 Decision Date: 08/11/20 Archive Date: 08/11/20 DOCKET NO. 16-01 212 DATE: August 11, 2020 ORDER A 30 percent rating for headaches is granted from August 26, 2015, and from October 23, 2019 a 50 percent rating is granted. FINDINGS OF FACT 1. From August 26, 2015, the Veteran experienced headaches with characteristic prostrating attacks occurring on average once a month over the last several months. His headaches did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. From October 23, 2019, the Veteran experienced headaches that manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. From August 26, 2015, the criteria for a disability rating of 30 percent for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8100. 2. From October 23, 2019, the criteria for a disability rating of 50 percent for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from May 1970 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This matter was remanded by the Board in September 2018 for further development. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability have exhibited signs or symptoms that would warrant different ratings under the rating criteria. The Veteran contends he is entitled to a higher rating for his headaches. A November 2013 rating decision granted service connection for headaches and assigned a noncompensable rating. After remand, the Veteran’s headaches were assigned a 10 percent rating effective the date of an October 2019 VA examination. The Veteran’s headaches are rated under Diagnostic Code (DC) 8100. Under DC 8100, a noncompensable evaluation is assigned for headaches with less frequent attacks. A 10 percent evaluation is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability evaluation is assigned where there are characteristic prostrating attacks occurring on average once a month over the last several months. For a higher 50 percent disability evaluation to be warranted, there must be headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The Rating Schedule does not define prostrating, nor has the Court of Appeals for Veterans Claims (Court). Fenderson v. West, 12 Vet. App. 119 (1999). By way of reference, the Board notes that according to DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), “prostration” is defined as “extreme exhaustion or powerlessness.” Severe economic inadaptability is also not defined in VA statutes or regulations. Pierce v. Principi, 18 Vet. App. 440 (2004). In addition, the Court has held that nothing in DC 8100 requires that the claimant be completely unable to work to qualify for a 50 percent rating. If economic inadaptability were read to import unemployability, then if the appellant met the economic inadaptability criterion, the appellant would be eligible for a TDIU rather than only a 50 percent rating. 38 C.F.R. § 4.16. Consideration must also be given as to whether the disability can produce severe economic inadaptability, regardless of whether the disability was causing severe economic inadaptability. VA conceded that the words “productive of” could be read to mean either producing or capable of producing. The Veteran was afforded a VA examination in September 2013. The Veteran reported that his headaches last up to 30 minutes and experiences them about one to two times a month. His headaches were described to being temporally and behind eye orbits unilaterally before radiating into entire head. The Veteran described his headaches as a throbbing pain, like a toothache. He experiences some phonosensitivity, but no photosensitivity. The Veteran described no numbness, tingling, nausea, vomiting, or visual disturbances associated with his headaches. Stress was identified to be the only precipitating factor. He took over the counter medication to relieve his headaches. The Veteran’s headaches were not characterized as prostrating at this examination and were found to not interfere with work in the past six months. At an August 2015 VA examination for posttraumatic stress disorder (PTSD), the Veteran reported to the examiner that his headaches resulted in one to two days of missed work per month. After remand, the Veteran was afforded a VA examination in October 2019. At this examination the Veteran estimated in the past six months he has had four incapacitating headaches. He reported that his headaches last four to five hours, recur two to three times a month, and missed 45 days of work in the past six months due to his headaches. The examiner characterized the Veteran’s headaches to be recurring a couple of times a month with prostrating attacks every couple of months. The claims file also includes VA treatment records for the Veteran’s headaches. In January 2016, the Veteran reported that he suffers from chronic headaches. In November 2016 the Veteran reported he experienced headaches once a day with no nausea, vomiting, or change in vision. The Veteran also submitted two statements describing his headaches. In a statement received in January 2016,, the Veteran argued that he was entitled to at minimum a 30 percent evaluation. He stated that his headaches affect him on a daily basis and that he could not take his medication and operate a commercial vehicle. His occupation at the time was a truck driver and he operated a dump truck. He described his headaches to cause him nausea at times. In a June 2020 statement that Veteran described his headache episodes and how he treats them. He stated that when he experiences a headache, he will take Imitrex and then sleep for 10 to 12 hours. After waking up, the Veteran will be so mentally and physically exhausted that it takes him 48 to 72 hours to be fully functional again. The Board finds that the evidence of record supports awarding a 30 percent rating effective August 26, 2015. The Veteran reported at his August 2015 PTSD examination that he had missed one to two days of work a month due to headaches. The Board finds this evidence to indicate that the Veteran was experiencing prostrating attacks occurring on average of once a month. A compensable rating cannot be awarded earlier than the date assigned. Though the Veteran suffered from headaches throughout the appeal period, they cannot be classified as prostrating. At his September 2013 VA examination, the Veteran described his headaches to be a throbbing pain as if a toothache. He described no nausea, vomiting, numbness, tingling, or visual disturbance. The Veteran did not report that his headaches interfered with his ability to work. Furthermore, no incapacitating episodes or ER visits associated with headaches were reported at the September 2013 VA examination. The Board cannot find that the Veteran was experiencing prostrating episodes prior to August 2015 and as such cannot award a compensable rating for his headaches prior to the August 2015 VA examination. Resolving reasonable doubt in the Veteran’s favor, the Board finds that from October 23, 2019, the Veteran’s headaches warrant a 50 percent rating. At his October 2019 VA examination the Veteran reported that he experienced about two to three headaches a month, with four incapacitating episodes over the past six months, and had missed 45 days of work over the past six months because of his headaches. The Veteran also reported in June 2020 that when he experiences a headache episode, he takes about 48 to 72 hours to be fully functional again. Resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s headaches to have increased in severity to the point that they can produce severe economic inadaptability. The Veteran missing 45 days of work over a period of six months and having to take 48 to 72 hours to recover from a headache supports that he experiences headaches with very frequent completely prostrating attacks that are capable of producing severe economic inadaptability. As such, his headaches warrant a 50 percent rating. The Board cannot award a 50 percent rating earlier than the date of his October 2019 VA examination. The claims file does not include evidence of how the Veteran’s headaches have interfered with his work to the extent necessary for a 50 percent rating prior to the date of the examination. Though the Veteran has reported missing work due to his headaches, this was limited to one to two days a month, which is contemplated by the 30 percent rating assigned for that time period. The Veteran also reported daily headaches in November 2016, but these were not described to be completely prostrating. Without evidence of completely prostrating headaches capable of producing severe economic inadaptability, the Board cannot award a 50 percent rating earlier than the date assigned in this decision. Accordingly, the Board finds that a 30 percent rating is warranted effective August 26, 2015, and a 50 percent rating is warranted effective October 23, 2019, for the Veteran’s headaches. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.