Citation Nr: 21000816 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-08 956 DATE: January 6, 2021 ORDER Entitlement to increases in the (10 percent prior to January 12, 2018 and 50 percent from that date) “staged” ratings assigned for post-traumatic headaches is denied. FINDING OF FACT Prior to January 12, 2018 the Veteran’s post-traumatic migraine headaches averaged more than one in two months over several months in frequency, but are not shown to have been manifested by characteristic prostrating attacks; from that date, the 50 percent rating assigned for the headaches is the maximum schedular rating for such disability, and factors warranting referral for extra-schedular consideration have not been alleged, and are not shown by the record. CONCLUSION OF LAW Increases in the 10 percent prior to January 12, 2018 and 50 percent from that date ratings assigned for post-traumatic migraine headaches is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4,3, 4.124a, Diagnostic Codes (Codes) 8045, 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1975 to June 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision (that granted service connection for post-traumatic headaches, rated 0 percent, effective November 8, 2010). In June 2014, an informal conference was held before a Decision Review Officer (DRO) at the RO; a signed summary report is in the record. A June 2014 DRO decision increased the initial rating for the headaches to 10 percent, effective from the date of award of service connection. In November 2015 a videoconference hearing was held before the undersigned; a transcript is in the record. In November 2017, the matter was remanded for additional development. A June 2019 rating decision increased the rating for the Veteran’s post-traumatic headaches to 50 percent effective January 12, 2018 (the date of a headache conditions examination). Entitlement to increases in the (10 percent prior to January 12, 2018 and 50 percent from that date) “staged” ratings assigned for post-traumatic migraine headaches is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Headaches due to trauma (here from an automobile accident) are rated under the criteria in 38 C.F.R. § 4.124A, Code 8045 (for rating residuals of TBI) which, in pertinent part, states “Evaluate subjective symptoms of TBI ………..under the subject complaints facet in the table entitled ‘Evaluation of Cognitive Impairment and other Residuals of TBI Not otherwise Classified.’ However, separately evaluate any residual with a distinct diagnosis that may be evaluated under a distinct diagnostic code, such as migraine headaches……if that diagnostic code is based on subjective symptoms…” Under the table for rating cognitive impairment and other residuals of TBIK not otherwise classified, Subjective symptoms warrant a 10 percent rating when there are 3 or more symptoms that mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. Examples include daily mild to moderate headaches. A 30 percent rating is when there are three or more subjective symptoms that moderately interfere with work. Examples include headaches requiring rest periods during most days. Under Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent, (maximum schedular) rating is warranted for migraines with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). On December 2010 examination, the Veteran reported having headaches since an accident in service, mainly in the left orbital frontal region. He reported headaches occurring two to three times a week, lasting thirty minutes to five hours. They were not prostrating, and he reported he worked through them. In an April 2014 DRO Informal Conference Report, it was noted that a new examination to ascertain the current severity of the headaches would be ordered. A June 2014 DRO decision increased the rating for the headaches to 10 percent, throughout, under diagnostic codes 8199-8100 (signifying an unlisted neurological disability rated by analogy to migraine headaches. On July 2014 headache examination, the diagnosis was migraine headaches. It was noted that the Veteran was taking medication for headaches, which he reported headaches occurred every other day for 30 minutes to one hour. They were described as sharp pain on both sides of the head. Other symptoms reported included nausea. There were no characteristic prostrating attacks. It was noted that the Veteran’s headache condition did not impact his ability to work. At the November 2015 videoconference hearing, the Veteran testified that he experienced three headaches per week, with the pain rated eight (on a scale of 10), and that he would take pain medication and lie down until the headache subsided (to a six or seven). He also testified that he experienced nausea, and sensitivity to noise, and that he was taking prescribed pain medication (Tramadol) for headaches, and that he was not working at the time. On January 12, 2018 headache examination, the diagnosis was post-traumatic headaches. It was noted that the Veteran was taking medication for headaches, described as constant head pain, and pain on both sides of the head. Other symptoms reported were nausea, and sensitivity to light. Characteristic prostrating attacks of migraine pain were not noted, but it was noted that the Veteran was prostrate enough a couple times a week to stop his activities. The examiner explained that the Veteran had the same type of headaches as before, but that they had gotten worse. In an April 2019 addendum/clarification, it was noted that the Veteran does have prostrating headaches briefly, every other day. Prior to January 12, 2018 Prior ot January 12, 2018, the Veteran’s headaches have been assigned a 10 percent rating by analogy to migraines (although the diagnosis of migraines was not reported prior to 2014). Regardless, non-migraine traumatic headaches do not warrant a rating in excess of 10 percent unless (with other subjective symptoms) they are shown to have moderately interfered with work. On July 2014 examination, the examiner specifically found that the headaches did not interfere with work. Under the guidelines in Code 8045, because the July 2014 examination assigned the Veteran’s post-traumatic headaches the diagnosis of migraine headaches, from the time of that diagnosis, that are to be rating under the criteria for rating migraine headaches in Code 8100. To warrant a rating in excess of 10 percent, migraine headaches must be shown to have been manifested by characteristic prostrating attacks at a frequency of (on average) occurring once (for a 30 percent rating) or more a month. Here, characteristic prostrating attacks of migraines occurring at least once a month on average were not identified on examination or in treatment records prior to the January 12, 2018 VA examination date. Consequently, a rating in excess of 10 percent for the Veteran’s headache disability is not warranted. From January 12, 2018 From January 12, 2018 the Veteran’s post-traumatic headaches (found on the examination on that date to be prostrating in nature) are rated 50 percent (which is the maximum schedular rating for migraine headaches under Code 8100) based on the frequency and severity he reported. A higher rating for migraine headaches from that date would have to be on an extraschedular basis, upon referral for extraschedular evaluation to the VA Director of Compensation service (or a delegate). 38 C.F.R. § 3.321. Such referral is warranted when the case presents a disability picture is found to be exceptional (due to such factors as marked interference with employment or frequent periods of hospitalization), rendering the schedular criteria to rate the disability. Here, the record does not show or suggest that the rating criteria are inadequate for rating the Veteran’s migraine headache disability. Symptoms or impairment not encompassed by the schedular rating criteria have not been specifically alleged, and are not evident from review of the evidence of record; and factors such as frequent periods of hospitalization for migraines or marked interference with employment due to migraines are not identified. The effects of the Veteran’s migraine headache disability are contemplated by the criteria for the 50 percent schedular rating that has been assigned. Therefore, referral for consideration of an extra-schedular rating is not necessary. Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, a rating in excess of 50 percent for migraine headaches is not warranted from January 12, 2018. The preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied/ GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.