Citation Nr: 21000468 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-10 166 DATE: January 5, 2021 ORDER 1. Entitlement to an initial rating of 30 percent, and no higher, for tension including migraine-variant headaches and occipital neuralgia from May 22, 2003 to February 10, 2012 is granted. 2. Entitlement to an initial rating of 50 percent for tension including migraine-variant headaches and occipital neuralgia from February 10, 2012, is granted. FINDINGS OF FACT 1. From May 22, 2003 to February 10, 2012, tension including migraine-variant headaches and occipital neuralgia were more closely approximated by characteristic prostrating attacks occurring on average once a month over the last several months, but were not manifested by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. As of February 10, 2012, the service-connected tension including migraine-variant headaches and occipital neuralgia were manifested by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability, which is the maximum schedular rating for such disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent, and no higher, for tension including migraine-variant headaches and occipital neuralgia from May 22, 2003 to February 10, 2012 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for an initial rating of 50 percent for tension including migraine-variant headaches and occipital neuralgia from February 10, 2012, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to October 1993. The claim for service connection for tension headaches was granted in a December 2008 rating decision and assigned a 10 percent rating, effective May 22, 2003, the date of the original claim. In an October 2014 rating decision, the RO granted a 30 percent rating, effective June 21, 2013. In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2018, the Board remanded the claim for an initial increased rating for tension headaches for a VA examination and readjudication by the AOJ. The Board finds there was substantial compliance with this development. In January 2020, the Board again remanded the claim for an initial increased rating for tension headaches. The claim was remanded for employment records, private and VA treatment records, and a VA examination. In a September 2020 rating decision, the RO granted a 50 percent rating, effective January 9, 2013 and recharacterized the service-connected disability as tension including migraine-variant headaches and occipital neuralgia. The Board finds there was substantial compliance with this development. The claim now returns to the Board for further appellate review. The Board notes that the VA treatment records document that the Veteran was still working in 2020, and a claim for entitlement to a total disability rating for compensation based upon individual unemployability (TDIU) is not raised by the record. The Veteran had previously filed a claim for entitlement to a TDIU, but then withdrew the claim because he was still working. The Veteran contends he has suffered from headaches since he returned from Desert Storm. He stated that he missed work frequently, two to three days at a time, and he has a negative attendance record due to frequent headaches, back pain and high blood pressure. The Veteran testified that he presented with frequent headaches, which began in service prior to deploying to the Gulf and has continued thereafter including until today. He testified that he missed four to 10 days a month due to headaches or low back pain. His headaches cause attitude changes, and he becomes angry and must leave work when this situation occurs. He testified that he will alert his wife to his headaches so that she can warn his children to be quiet when he returns from work to allow him time to rest. The Veteran contends his rating should be higher than 10 percent because he has a headache almost every time he sees Dr. V and his medications have been increased because his headaches have worsened. His headaches have worsened to the point that he has to call in sick to work. When he is home sick from work, he has to lay down because his headaches are so bad. His medication has been changed at least 10 times in two years, and his headaches affect his day to day living. The Veteran contends his headaches affect his job the worst because his medicine puts him to sleep. The Veteran’s service-connected headaches is rated under DC 8100, which addresses migraine headaches. A 10 percent rating is assigned for migraine headaches with characteristic prostrating attacks averaging one in two months over last several months. A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average once per month over the last several months. A maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define "prostrating," nor has the United States Court of Appeals for Veterans Claims. See Fenderson v. West, 12 Vet. App. 119 (1999) (quoting DC 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). 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 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." 1. Entitlement to an initial rating in excess of 10 percent for tension including migraine-variant headaches and occipital neuralgia prior to January 9, 2013. The Board has carefully reviewed the evidence of record and finds that the evidence supports an initial rating of 30 percent, but no higher, for the service-connected headaches from May 22, 2003 to February 10, 2012. The reasons follow. The evidence during this part of the appeal period shows that the Veteran’s headaches were more closely approximated by characteristic prostrating attacks occurring on an average once per month over the last several months to warrant an initial 30 percent rating. For example, the August 2003 VA examiner documented the Veteran had headaches once or twice a month lasting two to four days at a time. The examiner documented the Veteran’s statement that headaches were not incapacitating and required no treatment beyond occasionally taking Tylenol. The Veteran’s headaches usually permit function, but he does try to lay down in a dark, quiet room with wet cloth on his forehand when possible. Although the Veteran’s headaches generally permit function, he usually has to modify or shorten his workday when he experiences a headache. The Veteran denied headache symptoms such as nausea, vomiting, dizziness, and blurred vision, but he reported photophobia and phonophobia. March 2005 VA treatment records document the Veteran reported having daily, mild vascular headaches. At the August 2006 Board hearing (while seeking service connection for headaches), the Veteran testified that he missed multiple days at work due to his headaches. The October 2008 VA examiner documented that for the previous five or six years the Veteran reported experiencing headaches approximately twice a week lasting two to three hours. The Veteran reported the headaches permitted ordinary function, and there were no associated symptoms such as nausea, dizziness, vomiting, or blurred vision. The examiner documented stress, bright light, and loud noises can incite or aggravate a headache while rest and relaxation in a dark, quiet room attenuated the pain. In September 2009, the Veteran reported that his headaches were occurring more frequently and were more intense. In December 2009, a VA examiner wrote that the Veteran’s headaches were more consistent with tension headaches than migraine headaches. The December 2010 VA examiner documented headaches occur on average of four times a month and last for six days. Pain was described as throbbing pain from the front to the back of the head and very persistent. The Veteran was able to work with medication. The Veteran stated he had missed at least four days of work in the past year due to his headaches. April and June 2011 private treatment records documented headaches occurring three or four times a week that lasted hours to a whole day. Pain was throbbing in quality and associated with photophobia and phonophobia with no significant nausea. An August 2011 private discharge summary documented the Veteran was admitted for a headache and high blood pressure. The summary noted in the last few days the Veteran developed accelerated hypertension with headache. The Veteran is not service connected for hypertension. An August 2011 private treatment record documented daily headaches with severe headaches occurring three or four times a week. Photophobia and phonophobia were documented, but the examiner noted the Veteran did not experience significant nausea. In January 2012, the Veteran reported having headaches that lasted up to two days. Resolving reasonable doubt in favor of the Veteran, the Board finds that the symptoms described during the period from May 22, 2003 to February 10, 2012 more closely resemble the symptoms described under the 30 percent rating. The Veteran was able to work during this time and took time off here and there from work, which would be indicative of characteristic prostrating attacks occurring on an average once a month over last several months. Thus, a 30 percent rating from May 22, 2003 to February 10, 2012 for the service-connected headaches is granted. The Board finds that prior to February 10, 2012, the preponderance of the evidence is against a finding that the Veteran’s headaches were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In July 2012, when the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, he documented he was working full time from 1993 to January 2012. This is evidence against severe economic inadaptability to establish a 50 percent rating prior to February 10, 2012. Thus, an initial rating in excess of 30 percent is not warranted for this part of the appeal period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. Entitlement to an initial rating in excess of 10 percent from February 10, 2012 for tension including migraine-variant headaches and occipital neuralgia At the time of the August 2017 hearing, the Veteran submitted documentation showing that he had submitted a request under the Family and Medical Leave Act beginning on February 10, 2012 due to his headaches. That same month, a medical professional documented that the Veteran would be unable to work when his headaches occurred due to the associated symptoms. The Board finds that such establishes that the Veteran’s headaches, at that point, had risen to the level of causing severe economic inadaptability as of February 10, 2012, which is why the Board has chosen this as the effective date for the award of a 50 percent rating for the service-connected headaches. This is the highest schedular rating for migraine headaches. There are no additional, expressly or reasonably raised issues presented on the record regarding the Veteran's headaches. Absent any exceptional factors associated with the Veteran's tension including migraine-variant headaches and occipital neuralgia, the Board finds that referral for extraschedular consideration is not warranted. See Doucette v. Shulkin, 28 Vet. Ap. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). To reiterate, the 50 percent rating for the service-connected headaches is granted as of February 10, 2012, and a higher initial rating is not available. To this extent only, the claim of entitlement to an initial rating in excess of 50 percent as of February 10, 2012, for tension including migraine-variant headaches and occipital neuralgia is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.