Citation Nr: 20058932 Decision Date: 09/08/20 Archive Date: 09/08/20 DOCKET NO. 15-01 959 DATE: September 8, 2020 ORDER Entitlement to initial rating of 30 percent, but no higher, for migraine headaches is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The evidence is in at least relative equipoise in showing that the Veteran’s migraine headaches have manifested with characteristic prostrating attacks occurring on average at least once a month over last several months. 2. The preponderance of the evidence is against finding that the Veteran’s migraines have manifested with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to initial rating of 30 percent, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2004 to July 2011. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2012 rating decision issued by the Department of Veterans Affairs (VA). See October 2012 Notice of Disagreement (NOD); November 2014 Statement of the Case (SOC); January 2015 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in a July 2018 hearing. See July 2018 Hearing transcript. In April 2019, the Board remanded the claim for further development. April 2019 Board decision. The Agency of Original Jurisdiction (AOJ) developed the evidence and continued the denial of the Veteran’s claim. June 2020 Supplemental Statement of the Case. The case is now back before the Board. Entitlement to initial rating of 30 percent, but no higher, for migraine headaches The Veteran asserts entitlement to a higher rating for his service connected migraine headaches based on having severe prostrating attacks weekly. October 2012 NOD. The Veteran relates that he is excused from work two to three times a week due to his migraines. January 2015 VA Form 9. During the July 2018 Board hearing, the Veteran testified he left work three to four times in the past two months due to his headaches, and that he is not paid when he misses days or leaves early. July 2018 Hearing transcript. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. See 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s migraine headaches are currently evaluated under Diagnostic Code 8100 and is noncompensable, rated as zero percent disabling. April 2012 Rating decision. Under Diagnostic Code 8100, a zero percent rating is warranted for migraines with less frequent attacks than one in 2 months over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The next higher rating of 10 percent is warranted with characteristic prostrating attacks averaging one in 2 months over last several months. Id. The next higher rating of 30 percent is warranted with characteristic prostrating attacks occurring on an average once a month over last several months. Id. The next and highest schedular rating for migraines of 50 percent is warranted with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. Although the rating criteria does not define “prostrating” attacks, the Board notes that “prostration” is generally defined as “extreme exhaustion or powerlessness.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 1531 (32nd Ed. 2012). “Very frequent” is also not defined by VA regulations. Because the criteria for a 30 percent rating requires prostrating attacks for an average of once a month, the Board finds that the “very frequent” criteria for a 50 percent rating must require at least 2 or more completely prostrating and prolonged attacks per month. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. “Completely prostrating” is also not defined by VA regulations. “Complete” is defined as “total, absolute.” MERRIAM-WEBSTER'S NEW COLLEGIATE DICTIONARY ONLINE. It is also defined as “to the greatest extent.” OXFORD DICTIONARIES ONLINE. “Prolonged” is not defined by VA regulations, Oxford Dictionaries defines “prolonged” as “continuing for a long time or longer than usual; lengthy.” OXFORD DICTIONARIES ONLINE. As to the term “productive of economic inadaptability,” such term could have either the meaning of “producing” or “capable of producing” economic inadaptability, but nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent disability rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). In addition, “economic inadaptability” does not mean unemployability, because it would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability (TDIU). Id at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at minimum, capable of producing “severe” economic inadaptability. As an initial matter, the Board finds that there has been substantial compliance with its April 2019 remand directives. See April 2019 Board decision. After careful and thorough review of the evidence, the Board finds that the Veteran’s migraine headache disability more closely approximates the criteria for a 30 percent rating. The Board considered, and finds probative, the Veteran’s statements about having headaches several times a month. October 2012 NOD; January 2015 VA Form 9; July 2018 Hearing transcript. However, while the Veteran is competent to report having headaches and associated symptoms, he is not competent to state whether they warrant a specific rating under the schedule for rating disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Service treatment records show the Veteran was treated for migraines with pounding head pain, light and sound sensitivity, and nausea. May 2010 Service treatment records; April 2011 Service treatment records. Treatment evidence since separation shows continued report of migraines two to three times per week with pounding pain and light sensitivity. March 2018 VA treatment evidence; August 2019 VA treatment evidence. The Board finds that the medical treatment evidence supports that the Veteran has had continuing treatment for headaches that occur more than once a month. The Veteran afforded two VA examinations for his migraines. The July 2011 VA examiner diagnosed the Veteran with migraine headaches based on his report of headaches lasting an hour with nausea and occasional vomiting, but no aura. July 2011 VA examination. The December 2019 VA examiner found the Veteran had headaches lasting less than a day that manifested with pain on both sides of the head, nausea, and light sensitivity. December 2019 VA examination for headaches. Lastly, the Veteran submitted evidence from his employer showing at least monthly absences from work from June 2017 to November 2017 and May 2018 to October 2018. See November 2019 Email correspondence; November 2019 Email Correspondence. The Board recognizes that the December 2019 VA examiner opined that the Veteran’s migraine headache symptoms did not amount to being considered characteristic prostrating attacks of migraines. December 2019 VA examination for headaches. It is also unclear if each “illness” listed for his reported work absences are due to migraine headaches and not another medical condition. See November 2019 Email correspondence; November 2019 Email Correspondence. A separate November 2019 email correspondence from his employer also suggests that the listed absences from June 2017 to November 2017 may not be about the about the Veteran. This evidence raises a reasonable doubt as to whether the Veteran’s migraine headaches manifested with characteristic prostrating attacks occurring on an average of once a month. In resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s migraine headaches manifested with characteristic prostrating attacks occurring on an average of once a month. Accordingly, the Board finds that a 30 percent rating for migraine headaches is warranted. The Board considered whether a higher 50 percent rating is warranted for the Veteran’s migraine headaches. The medical evidence shows the Veteran’s migraines during the period on appeal manifested with head pain, light sensitivity and some nausea, but no other symptoms. See July 2011 VA examination; August 2019 VA treatment evidence; December 2019 VA examination for migraines. This evidence does not suggest completely prostrating attacks. As discussed above, while the Veteran is competent to report having headaches and associated symptoms, he is not competent to state whether they warrant a specific rating under the schedule for rating disabilities, which includes describing his migraine headaches as “prostrating attacks” as contemplated under the rating criteria. See October 2012 NOD; Buchanan, 451 F.3d at 1337; Jandreau, 492 F.3d at 1376-77. Moreover, the Veteran testified that his migraines usually resolve by siting in the dark and taking medicine for nausea as needed; and that they usually occur at night. July 2018 Hearing transcript. The Board finds that the Veteran’s description of his migraines is also against finding completely prostrating attacks. The Board also considered that about half the work absences listed by his employer are for medical treatment appointments, and not “illness;” and half of the absences for illness are for less than a full 8-hour workday. See November 2019 Email correspondence; November 2019 Email Correspondence. While the Veteran testified that he is not paid by his current employer even when he only needs to leave early for the workday, his work absences do not support very frequent and prolonged attacks, or that his migraines cause severe economic inadaptability. The Board is sympathetic to the Veteran’s continuing migraine headaches symptoms. However, based on the probative lay and medical evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran’s migraine headaches had manifested with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. (Continued on next page)   Accordingly, entitlement to a rating higher than 30 percent is not warranted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Lin, M., 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.