Citation Nr: 21000476 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-02 334 DATE: January 5, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to October 22, 2019 and in excess of 30 percent thereafter for the service-connected migraine variant headaches is denied. FINDINGS OF FACT 1. Prior to October 22, 2019, the Veteran has not been shown to have characteristic prostrating attacks occurring on an average once per month over the last several months. 2. From October 22, 2019, the Veteran has not been shown to have migraine headaches characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Prior to October 22, 2019, the criteria for entitlement to a disability rating in excess of 10 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code (DC) 8100. 2. From October 22, 2019, the criteria for entitlement to a disability rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from October 1973 to January 1974, and from March 1974 to December 1976. She served honorably on active duty with the United States Air Force from June 1991 to December 1991; from April 2007 to October 2007; and from December 2009 to July 2010. She had overseas service in support of Operation Desert Shield/Storm, Operation Iraqi Freedom, and Operation Enduring Freedom. She also had service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. This matter was previously remanded in December 2018 for further development. In addition to the current issues, in December 2018, the Board remanded the issues of service connection for a gastrointestinal disability, to include gastrointestinal reflux disease (GERD) and an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). During the pendency of the appeal, in an October 2020 rating decision, the RO granted service connection for GERD and PTSD, effective March 22, 2013. Because the Veteran was granted service connection for these disabilities and she has not disagreed with the effective date or disability ratings, the issues of service connection for GERD and PTSD are no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In the October 2020 rating decision, the RO also granted an increased rating for migraine variant headaches from 10 percent to 30 percent disabling, effective October 22, 2019. 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 her senses, and the Board finds her credible as her statements are detailed and consistent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Entitlement to a disability rating in excess of 10 percent prior to October 22, 2019 and in excess of 30 percent thereafter for the service-connected migraine variant headaches is denied. The Veteran was granted a 10 percent disability rating for her service-connected migraine headaches in a January 2014 rating decision. During the pendency of the appeal, in October 2020, the RO increased the disability rating to 30 percent effective October 22, 2019. Under DC 8100, a 10 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once in two months over the last several months. A 30 percent rating is assigned for migraine headaches when a veteran has characteristic prostrating attacks averaging once per month over the last several months. A 50 percent rating is assigned for migraine headaches when a Veteran has very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a. 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 October 22, 2019 The Veteran was first afforded a VA examination to evaluate the severity of her headaches in May 2013. The examiner noted a diagnosis of migraines including migraine variants. The Veteran reported her headaches began in Iraq in 2010 and have been steady since. She reported frequency of headaches occurred four to five times a week with occasional use of ibuprofen for pain. She also indicated that her headaches required her to sit quietly until they subsided. On examination, symptoms of constant, pulsating, or throbbing bilateral head pain that worsened with physical activity were noted. Other non-headache symptoms included nausea and sensitivity to light lasting less than a day. The examiner noted that the Veteran did not experience characteristic prostrating attacks of migraine headache pain or prostrating attacks of non-migraine headache pain. The examiner also noted the Veteran’s headaches did not impact her ability to work. An October 2013 VA neurology consultation record reflected the Veteran’s complaints for chronic headaches, bilaterally, with variable severity, visual problems, and photophobia during worsened episodes. The Veteran complained of severe headaches, five to six times a month, with milder headaches many other days or no headaches at all. The Veteran reported onset of bad headaches affected daily activities and that ibuprofen helped with pain on occasion. She described the pain as a sharp/pulling feeling and indicated rubbing on her head helped ease the pain at times. She also reported light sensitivity, distortions in field of vision, flickering “zig zags” with black spots, and sound sensitivity. Diagnostic imaging demonstrated episodic migraine with visual aura and five to six severe headaches per month, with some escalation in frequency in the past 6 to 12 months. An MRI and prescribed medication were recommended for worsened headaches. See April 2014 CAPRI. During her December 2018 Board hearing, the Veteran reported that her headaches were mostly on the right side and had worsened in severity. She reported that she would often rest and massage her head to lessen the severity. She also reported the use of ibuprofen for pain but indicated the severity of her symptoms did not require hospitalization. She also indicated the frequency of her headaches increased from 5 to 6 times per month to 7 to 8 times per month and that onset of her headaches required rest and take medication. The Veteran further reported that warm air, driving, or lightening increased intensity of her headaches. This required her to wear sunglasses or pull over and take a break from driving. The evidence indicates that prior to October 22, 2019, the Veteran’s migraine headaches did not result in characteristic prostrating attacks averaging once per month over the last several months, which is the criteria necessary for a 30 percent rating under DC 8100. At worst, the May 2013 VA examiner noted the Veteran experienced constant and pulsating headaches, nausea, and light sensitivity that lasted less than a day. The examiner stated that there were no complications associated with the migraine headaches, characteristic prostrating attacks, or effects on daily activities or the Veteran’s occupation. The Veteran reported severe headaches occurring at most 7 to 8 times per month and at times more milder headaches many other days. VA treatment records likewise do not support that the Veteran experienced, complained of, or sought treatment for characteristic prostrating attacks during this part of the appeal period. This evidence weighs against a finding that the Veteran’s migraine headaches resulted in characteristic prostrating attacks occurring on an average once per month over the last several months. In sum, the evidence does not show that a disability rating in excess of 10 percent for migraine headaches prior to October 22, 2019 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); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). From October 22, 2019 An October 2019 VA examination echoed the May 2013 VA examiner’s diagnosis of migraines including migraine variants. The Veteran reported that she suffered from “Iraqi Crud” and experienced severe headaches since service. She described her headaches as pulling on the left side of her head and at times on the right. She reported the use of ibuprofen for pain. On examination, symptoms of pulsating or throbbing head pain all around her head, as well as, nausea and sensitivity to light and sound, lasting anywhere from 1 to 2 days were noted. The examiner indicated that the Veteran experienced characteristic prostrating attacks of migraine pain once a month but not prostrating and prolonged attacks productive of severe economic inadaptability. The examiner also indicated normal neurological findings of the upper and lower bilateral extremities. The examiner noted the Veteran’s reports of difficulty focusing on tasks. VA treatment records noted the Veteran’s reports of left sided headaches, improved by self-massages, and headaches due to chronic coughing. See May and October 2020 CAPRI. (Continued on the next page)   In considering the evidence of record, the Board concludes that the Veteran is not entitled to an increased rating for her migraine headaches from October 22, 2019. The medical evidence of record does not show the Veteran has migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The October 2019 examiner indicated the frequency of her headaches were once a month but not productive of severe economic inadaptability. Although the Veteran reported that her migraine headaches lasted anywhere between 1 to 2 hours, 7 to 8 times a month; she did not indicate that her constant daily headaches were disabling. In fact, she reported her headaches improved with self-massages and ibuprofen. In sum, the Veteran has not been shown to have met the criteria for a disability rating in excess of 30 percent for migraine headaches from October 22, 2019. 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 C.F.R. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (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). 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.