Citation Nr: 20054723 Decision Date: 08/18/20 Archive Date: 08/18/20 DOCKET NO. 15-00 273 DATE: August 18, 2020 ORDER Entitlement to an initial increased disability rating for headaches, currently rated as noncompensable prior to June 21, 2018 and as 30 percent disabling thereafter, is denied. FINDINGS OF FACT 1. Prior to June 21, 2018, the Veteran’s headaches were not manifested by characteristic prostrating attacks averaging one in two months over the last several months. 2. From June 21, 2018, the Veteran’s headaches were not manifested by frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to an initial increased disability rating for headaches, currently rated as noncompensable prior to June 21, 2018 and as 30 percent disabling thereafter, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.20, 4.7, 4.124a, Diagnostic Code 8199-8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1997 to January 1998. He also service in the Reserve from August 1998 to January 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In June 2018, the Veteran presented testimony at a videoconference hearing before the undersigned Veteran Law Judge. A copy of the transcript is associated with the claims file. This matter was previously remanded for further development in a January 2019 Board remand. In a June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s headaches to 30 percent, effective June 21, 2018. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to give evidence of symptoms observable by his senses, and the Board finds him credible as his statements are detailed and consistent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Entitlement to an initial increased disability rating for headaches currently rated as noncompensable prior to June 21, 2018 and as 30 percent disabling thereafter. The Veteran was originally granted a noncompensable disability rating for his service-connected headaches in an August 2013 rating decision. During the pendency of the appeal, in June 2020, the RO increased the disability rating to 30 percent effective June 21, 2018. The Veteran’s headache disability has been rated analogously to migraines pursuant to 38 C.F.R. § 4.20 and assigned staged ratings as noted above. 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100. Under Diagnostic Code 8100, a non-compensable rating is warranted for headaches with less frequent attacks. A 10 percent rating is assigned when there are characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is assigned for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. VA regulations do not define “prostrating,” nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson v. West, 12 Vet. App. 119 (1999). By way of reference, the Board notes that according to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “prostration” is defined as “complete physical or mental exhaustion.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which “prostration” is defined as “extreme exhaustion or powerlessness.” VA regulations also do not define “economic inadaptability.” However, the Court has noted that nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Prior to June 21, 2018 The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of a compensable rating for headaches prior to June 21, 2018. A July 2013 VA examination was administered and noted a diagnosis for a headache condition. The Veteran described his headaches as dull pain behind his right eye that caused him to lose sleep at night. The examiner indicated the Veteran’s headaches were localized to one side of his head and the duration of head pains varied as it was associated with neck pain. The examiner noted there were no characteristic prostrating attacks of migraine headache pain or non-migraine headache pain. The examination also reflected no use of medications for his headaches. The examiner indicated that the Veteran’s headache condition did not impact his ability to work. In his June 2014 Notice of Disagreement (NOD), the Veteran indicated that his headaches were more severe and persistent and affected his day to day functions as well as his ability to sleep. In his December 2014 substantive appeal, the Veteran continued to indicate that he experienced painful headache pains on a monthly basis, affecting his ability to sleep and to focus on his academics and work-related tasks. VA treatment records reflect complaints for migraines, constant headaches with eye pains since his in-service injury blast, and blurred vision at times. In a November 2016 VA examination for the Veteran’s neck condition, the Veteran reported flare-ups of the neck described as shooting pains across the head and into the eye. The Board has considered the medical evidence of record and the Veteran’s statements regarding the frequency and consistency of his headaches. However, prior to June 21, 2018, the evidence does not indicate that the nature of the Veteran’s headaches were manifested by prostrating attacks averaging at least once every two months over the last several months, an average of once a month over the last several months, or attacks productive of severe economic inadaptability. Furthermore, the July 2013 VA examiner indicated that there was no characteristic prostrating migraine or non-migraine headaches. The November 2016 VA examination for the neck condition does not indicate the duration and frequency of his flare ups to include shooting head pains. VA treatment records and private medical records do not support that the Veteran experienced, complained of, or sought treatment for characteristic prostrating attacks during this part of the appeal period. At best, the evidence reflects headaches with less frequent attacks. In sum, the evidence does not show that a compensable disability rating for headaches prior to June 21, 2018 is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. From June 21, 2018 The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 30 percent for headaches from to June 21, 2018. As noted above, the RO increased the Veteran’s disability rating for headaches to 30 percent effective June 21, 2018, the date of his Board hearing. The RO indicated this to be the date that it was factually discernible that the Veteran’s disability increased in severity. In his June 2018 Board hearing, the Veteran indicated that his migraines increased in frequency to three to four times per week for a few months, with pain in the right side of his face, dripping eyes, and slight paralysis into the neck. He stated that his headaches affected his work, sleep pattern, and livelihood and caused muscular discomfort. He further indicated that he works as a firefighter and had missed work eight times in the last six months due to his headache condition. He indicated that he is not currently seeking treatment for his condition but takes motrin to alleviate headache pains and avoids bright lights. The Veteran was afforded a VA examination to evaluate the severity of his headaches in September 2019. The examiner noted the headache diagnosis and the Veteran’s reports for migraine variants occurring eight to ten times per month, lasting one to four days at a time, with symptoms to include severe pains radiating from the occipital lobe to the back of the eye on the right side of his head, blurred vision, lightheadedness, and phonophobia. He also indicated that when his headaches occurred, he would need to rest in a dark room until his symptoms subsided. He reported the use of medications for this condition. The examiner noted that the Veteran experienced prostrating attacks once a month that were not productive of severe economic inadaptability. The examiner also indicated that the Veteran would have moderate to severe difficulty completing work and school tasks, as well as, daily activities during the headaches. VA treatment records from September 2016 to June 2020 continue to reflect reports for headaches, with pain concentrated in the right temporal regions, but do not indicate any recent changes in his condition. In considering the evidence of record, the Board concludes that the Veteran is not entitled to an increased rating for his headaches. The medical evidence of record does not show the Veteran to have migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Although the September 2019 VA examiner indicated the Veteran had prostrating and prolonged attacks of migraine pain, the examiner also noted that they were not productive of severe economic adaptability and the frequency of headaches occurred once a month. There is no other evidence contrary to this finding. Furthermore, a November 2019 VA treatment record indicates no recent changes in the Veteran’s headaches. As such, the Veteran has not been shown to have met the criteria for a higher initial rating in excess of 30 percent for his headaches. Therefore, the Board finds that the preponderance of the evidence is against the claim. See 38 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.