Citation Nr: 20056901 Decision Date: 08/28/20 Archive Date: 08/28/20 DOCKET NO. 16-53 594 DATE: August 28, 2020 ORDER An initial rating in excess of 30 percent for tension headaches is denied. FINDING OF FACT The Veteran’s tension headaches have not been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any point during the appeal period. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for tension headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1978 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified before the undersigned Veterans Law Judge. In July 2019, the Board remanded the appeal for further development. In June 2020, the RO issued a rating decision assigning an initial 30 percent rating for the entire appeal period. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran’s tension headaches are rated pursuant to DC 8100, which rates migraine headaches, and appeal period is from August 14, 2014, the effective date of service connection. Under DC 8100, a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. VA regulations do not define “prostrating,” nor has the Court of Appeals for Veterans Claims. See Fenderson v. West, 12 Vet. App. 119. 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 1554 (31st Ed. 2007), in which “prostration” is defined as “extreme exhaustion or powerlessness.” “Productive of economic inadaptability” can be read as having either the meaning of “producing” or “capable of producing,” and nowhere in DC 8100 is “inadaptability” defined, nor can a definition be found elsewhere in title 38 of the Code of Federal Regulations. But, 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). Where the effects of medication are not specifically contemplated by the rating criteria, a higher rating may not be denied simply because symptoms are relieved by medication. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012). Here, the Veteran was afforded a VA examination in April 2015, at which time he reported headaches three times per week for which he took medication, with no emergency room visits and no prostrating headaches endorsed. The examiner noted symptoms of headache pain, namely pulsating or throbbing head pain; pain on both sides of the head; and typical head pain lasting less than one day. Notably, the examiner found no characteristic prostrating attacks of migraine/non-migraine headache pain, and physical examination findings were normal. The examiner determined that the Veteran’s headaches did not impact his ability to work. During the March 2019 Board hearing the Veteran reported flare-ups of severe headaches two or three times a month where he has to take over-the-counter pain medication, sit and hold his head, and sometimes lie in a dark room for a half an hour. He also reported less severe headaches multiple times per week. See March 2019 Board Hearing Transcript at 3-5. The Veteran presented for a second VA examination in November 2019, at which time he reported taking aspirin for his headaches. The Veteran reported that he has prostrating headaches two to three times per month. The examiner noted symptoms of constant head pain, pulsating or throbbing head pain, pain on both sides of the head, nausea, sensitivity to light and sound, and changes in vision. The examiner indicated that the duration of typical head pain lasted less than one day, and that the Veteran had characteristic prostrating attacks of headache pain, but not very prostrating and prolonged attacks of pain productive of severe economic inadaptability. The examiner determined that the Veteran’s headache disability did not impact his ability to work. VA treatment records indicate the Veteran’s report of headaches in July 2016, with a notation that he was “not concerned” about them. A September 2019 VA emergency room treatment record notes reports of a headache and dizziness, but this was attributed to “near-syncope” episode and an abnormal EKG. Here, the above-cited evidence, including the Veteran’s competent and credible testimony, reflects that he experiences characteristic prostrating attacks of headache pain two to three times per month, along with less severe headaches multiple times per week. However, the competent evidence does not reflect the Veteran’s headaches are productive of severe economic inadaptability. In this regard, both VA examiners determined that the Veteran’s headaches did not affect his ability to work, and the Veteran, who worked as a mechanic and electrician for 30 years until 2000 (see September 2012 VA treatment record), has not asserted otherwise. Indeed, he specifically requested a 20 percent rating in this appeal. See January 2016 Notice of Disagreement. Moreover, while the record reflects the Veteran’s use of medication to treat his headaches, there is no indication in the competent evidence of record that the Veteran’s headaches would be productive of severe economic inadaptability absent those medications. Finally, there are no other potentially applicable Diagnostic Codes addressing headache symptomatology for application. Accordingly, an initial rating in excess of 30 percent is not warranted for tension headaches during the appeal period. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.