Citation Nr: 21000720 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-20 743 DATE: January 6, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for migraine headache disorder is denied. FINDING OF FACT At worst, the Veteran’s migraine headache disorder is not characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 30 percent for migraine headache disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Marine Corps from August 1981 to July 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that granted service connection for migraine headaches and assigned an initial 30 percent rating, effective August 7, 2014. In September 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the Veteran’s claims file. In November 2019, the Board remanded the issue on appeal for additional evidentiary development. The Board finds that there has been substantially compliance with it remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Competent Evidence Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether an increased disability rating is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Increased Disability Ratings The Veteran contends that the initial 30 percent disability rating assigned to service-connected migraine headache disorder does not contemplate the severity of his symptoms. 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. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO has evaluated the Veteran’s migraine headache disorder under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Specifically, 38 C.F.R. § 4.124a, Diagnostic Code 8100 provides a 30 percent disability rating for migraine with characteristic prostrating attacks occurring on an average of once a month over the last several months. The maximum disability rating of 50 percent is warranted when migraine is characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. Neither the disability rating criteria nor the Court of Appeals of Veterans Claims (Court) has defined the term “prostrating.” According to Webster’s New College Dictionary, Third Edition 909 (2008), “prostration” is defined as “complete exhaustion.” Likewise, prostration is defined in Dorland’s Illustrated Medical Dictionary 1531 (32nd ed. 2012), as “extreme exhaustion or powerlessness.” Medical reports may not refer to the exact term “prostration.” However, VA must make an adjudicative determination based on the extent to which the facts meet the definition of the term. The term “productive of severe economic inadaptability” is not defined by VA regulations. The Court, however, has stated that this term is not synonymous with being completely unable to work and that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). The words “severe,” as used in the various Diagnostic Codes, are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Regarding lay evidence and migraine, the Court has held that lay evidence may be probative of the frequency, prolongation, and severity of headaches. See Pierce, supra. Evidence and Analysis VA received the Veteran’s claim for entitlement to service connection for migraine headache on August 7, 2014. The Veteran underwent a VA headache examination in January 2015. He reported prostrating attacks more than once per month that last less than one day. The attacks included sensitivity to light. He reported that the attacks cause occasional lateness in reporting to work and difficulty concentrating. In a February 2015 notice of disagreement in part with the assigned rating, the Veteran noted that he experienced migraine headaches several times per month so that he carried aspirin with him. He noted that he awakened with a headache twice per week which was difficult to control because he had not taken the preventive medication as he would when the headache onset while he was awake. In a May 2015 lay statement (resubmitted in February 2017), the Veteran’s spouse wrote that she witnessed the Veteran’s experiencing severe and chronic attacks of migraine headaches. She also noted that the Veteran was prescribed medication for migraine headache disorder because the onset of Veteran’s “attacks” occurred so quickly. In an April 2016 VA eye consultation, a clinician indicated that the Veteran had a medical history of migraines. In February 2017, a VA clinician noted that the Veteran’s problem list includes migraine without aura. The Veteran’s treatment included the use of medication. The February 2017 clinician noted that the Veteran would try the drug rizatriptan to assess whether it had a faster onset. Additionally, the Veteran would continue taking ibuprofen. In a June 2017 VA primary care initial evaluation note, a clinician noted that the Veteran experienced intermittent migraines once or twice weekly, adding that these headaches were stable in terms of frequency and intensity. The Veteran reported that he sometimes wakes with a headache; however, headaches never wake him from sleep. The Veteran also indicated that ibuprofen relieves these morning headaches. With the onset of a headache, he took sumatriptan, which provided effective control. The Veteran reported one episode of blurred vision and nausea with a very severe headache, which occurred a year earlier. The Veteran rarely experienced photophobia, which has never been immobilizing. As to his work, the Veteran stated that his headaches might be bad enough to skip work “rarely,” but he had never allowed himself to do so. In a June 2017 headaches disability benefits questionnaire (submitted by the Veteran in August 2017), this same clinician noted her findings as noted above. The clinician added that the Veteran experienced pain at the base of his neck; the front corner of his head; and the sides of his head. Also, the clinician noted that magnetic resonance imaging (MRI) of the Veteran’s brain, performed in 2016, provided essentially normal results. In a January 2018 letter associated with the VA treatment records, the Veteran wrote that he went to an emergency room (ER) for an “extremely bad” migraine. The Veteran expressed concern with the use of rizatriptan and the length of time this drug took to work, noting he has experienced two bouts of bad migraine while taking this medication. The Veteran also reported that 45 minutes after arriving at the ER, his nausea and eye pain began to ease. In May 2018, VA received private medical treatment records from S. A review of these records discloses that the Veteran sought ER care for his diagnosed migraine (headache, recurrent) in January 2018. A clinician noted that the Veteran took sumatriptan; experienced nausea; and did not experience vomiting. This clinician reported that neither procedures nor treatment were carried out because the Veteran left the ER prior to being seen by a healthcare provider. In an October 2018 VA evaluation note, a clinician noted the Veteran’s report of experiencing about 5 headaches per week; one of these headaches developed into a migraine. The Veteran took rizatriptan early in the headache process. While the Veteran reported that he often woke up with a headache, headache rarely disrupted his sleep. In hearing testimony in September 2019, the Veteran testified that his migraine headache symptoms had worsened considerably, from the number of incapacitating episodes to functional impacts which cause increased tardiness at his employment site. He testified that he experienced headache episodes two or three times per week that become incapacitating about every other month if he did not use medication. During these episodes, he experienced vison distortions and sensitivity to sounds but did not miss work as a fuel terminal operator that required work in the field testing fuels. His employer allowed him to work other hours to make up his hourly pay and provided locations for rest in a quiet, dark area. He reported that he was never considered for termination because of the disability. September 9, 2019 Hearing Transcript, pp. 5-11. A VA telephone encounter note of December 2019 shows that the Veteran reported that he gets headaches frequently. According to a clinician, the Veteran denied dizziness; changes in hearing acuity; or changes in vision. In March 2020, the Veteran was afforded a VA examination. A nurse practitioner (NP) reviewed the claims file; considered the Veteran’s accounts of his medical history; and conducted an appropriate evaluation. This NP provided a current diagnosis of migraine headaches. The NP noted that the Veteran reported an increase in frequency and intensity and headaches alternating from the right to left side, twice a week for a duration of two-to-three hours. Headache pain included pulsating or throbbing head pain; pain on both sides of the head; and pain worsening upon physical activity. The duration of each typical head pain episode lasted for less than one day. The Veteran also reported nausea; vomiting; mood swings; light sensitivity; and sound sensitivity. The NP noted that the Veteran took rizatriptan (10 mg) upon onset of headaches. The Veteran also took sumatriptan (5 mg) in the form of nasal spray for a quicker response. Lastly, the Veteran took over-the-counter (OTC) Advil (200 mg) two times daily as needed. Further, this NP indicated that the Veteran did not experience characteristic prostrating attacks of migraine or very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. As to functional impact on the Veteran’s ability to work, the Veteran indicated that he lost one-to-two weeks of work as a terminal operator in the last year. Migraine headaches impact the Veteran’s ability to tolerate climbing heights (which is part of his occupational duty). Moreover, migraine headaches impact the Veteran’s tolerance working with a computer because of light sensitivity. In an associated individual unemployability statement, the NP opined that the Veteran’s service-connected migraine headache disorder presented no restrictions for job activities required. In August 2020, VA received a copy of a lengthy personal journal in which the Veteran described his migraine episodes in entries from January 2018 to January 2020. A review of the journal entries show frequency, severity and activity restrictions that are consistent with his earlier reports. The Veteran also appended his copies of VA treatment records, as noted above. The same month, the Veteran submitted another lay statement in which he repeated his earlier reports. Additionally, the Veteran wrote that he “tuffs” (sic) his migraines with showers; room darkening; taking sleep medication; and listening to sea sounds. The Veteran also noted that he was issued a written warning for tardiness because of his migraines (as noted in his journal). However, the Veteran noted that he did not let migraines cause him to miss work because he needed the income. As noted above, to receive a disability rating in excess of 30 percent there would need to be a showing that migraine is characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Such is not shown in the competent evidence of record. The Board finds that the severity of the Veteran’s migraine headache disorder most closely approximates a 30 percent disability rating. The Board has considered the Veteran’s and his spouse’s lay statements and testimony and they are competent to report that which is discernable through the senses (such as pain) and the frequency and impairment associated with the episodes. The reports including the hearing testimony and headache journal warrant probative weight for frequency, duration, and restriction of activity, generally depending on the time of onset and use and effectiveness of medication. The Board also assigns probative weight to the January 2015, June 2017, and March 2020 examinations. These clinicians reviewed the claims file; considered the Veteran’s accounts of his medical history; and conducted an appropriate evaluations. Notably, the most recent 2020 examiner NP found that the Veteran’s migraine headache disorder did not manifest as characteristic prostrating attacks of migraine. As such, according to the NP, the Veteran did not have very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. At issue is how often the attacks become prostrating to the extent that the Veteran is unable to continue activities and must stop and rest in a quiet, dark area. The Board finds that the Veteran does have frequent migraine attacks and that they become prostrating from about every other month as he testified in the 2019 hearing to more than once per month in the 2015 NOD and other reports, especially if preventive or mitigating medication is not available or promptly taken. The Board places greatest weight on the Veteran’s reports that the headaches occasionally make him late for work but that he is allowed to make up time later. The headaches to impair concentration but he is able to use the employer rest area. He continues to be able to work full time and accomplish his duties. Therefore, notwithstanding the variable frequency and occasional prostrating nature of the attacks, they are not productive of severe economic inadaptability. Therefore, the Board finds that the preponderance of evidence is against assigning an initial disability rating in excess of 30 percent for migraine headache disorder. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.