Citation Nr: 21000934 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-04 750 DATE: January 6, 2021 ORDER Entitlement to an initial disability rating of 50 percent, but no higher, for post traumatic headaches, residual of traumatic brain injury, effective April 16, 2014, is granted. FINDING OF FACT From the date of award of service connection, April 16, 2014, the Veteran’s migraine headaches result in a disability picture which more nearly approximates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; these manifestations are adequately contemplated by the currently assigned 50 percent schedular evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8100 for migraine headaches. CONCLUSION OF LAW The criteria for entitlement to an initial disability evaluation of 50 percent, but no higher, for the Veteran’s service-connected migraine headaches, effective April 16, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321(b), Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8100. . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1982 to January 1986. By way of background, a December 2018 Board decision granted a 30 percent rating for the Veteran’s headache disability, effective April 16, 2014, the date of award of service connection.  The Veteran appealed the assigned rating to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion) and, in an October 2019 order, the Court granted the Joint Motion, partially vacating the Board’s December 2018 decision and remanding the matter for compliance with the Joint Motion. Subsequently, in April 2020, the Board remanded the case for further development. The Board finds that there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thereafter, in an August 2020 rating decision, the RO increased the disability rating for headaches to 50 percent, effective May 20, 2020. Nevertheless, an appellant is presumed to be seeking the maximum possible benefit for the rating appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). As such, the matter of entitlement to an initial higher rating both before and after May 20, 2020 effective date remains on appeal. The Board notes that the evidence indicates that the Veteran’s headaches impact his ability to work. The Court has held that a request for a total disability rating based on individual unemployability, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in the instant case, the Veteran has already been awarded a TDIU throughout the course of the appeal from April 16, 2014 based on his service-connected disabilities, including his headaches disability. Entitlement to an initial higher rating for post traumatic headaches The Veteran, and his representative, contends that a higher rating is warranted for his headache disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating.38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran’s post traumatic headaches have been rated under Diagnostic Code 8100. Under this code, 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 maximum 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. The rating criteria do not define “prostrating,” and the courts have not undertaken to define “prostrating” for purposes of Diagnostic Code 8100. See Fenderson, 12 Vet. App.at 119. 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.” The Court has determined “productive of severe economic inadaptability” can be read as having either the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Yet, “severe economic inadaptability” remains undefined, but nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id.at 445-46. Based on the evidence of record and when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 50 percent disability rating is warranted from the date of award of service connection, April 16, 2014, pursuant to the diagnostic rating criteria for migraine headaches. 38 C.F.R. § 4.124a, Diagnostic Code 8100. In this regard, during the course of the appeal, the Veteran has consistently reported frequent, severe headaches. Significantly, VA clinical records show that the Veteran experienced daily headaches. Importantly, the March 2015 VA examination report describes headaches characterized by constant head pain, pulsating or throbbing, on both sides of head and worsened with physical activity. These headaches result in nausea and vomiting. Unfortunately, despite describing severe symptoms, the examiner provided no response to questions about prostrating attacks. The examiner notes continued treatment with Excedrin for migraines. Significantly, the examiner did find that the Veteran’s headache disability impacted his ability to work. The examiner noted that the Veteran had daily headaches that affected him. A subsequent December 2016 VA examination describes headaches in similar terms to prior exam. The Veteran reported his head pain had not improved since the previous examination. He continued to experience frontal headaches, which he managed with Excedrin. Pain was again noted on both sides of his head, as well as nausea. The examiner indicated no presence of prostrating attacks, though he remarked that the Veteran reported that his chronic pain from headaches, fibromyalgia, and chronic back issues rendered him unable to work. However, the examiner did not provide any findings concerning the frequency of attacks. Taken together, although the VA examiners did not describe any prostrating attacks, the evidence shows the Veteran experienced frequent, severe headaches with flares that produced nausea, vomiting, weakness, fatigue, and functional impairment. Significantly, the May 2020 VA examiner described similar symptoms as the prior examinations. Moreover, the examiner noted that the duration of the Veteran’s headache pain was more than two days. The Veteran also experienced characteristic prostrating attacks more frequently than once a month. The examiner also found that the Veteran had very prostrating and prolonged attacks productive of severe economic adaptability, which is the criteria for a 50 percent rating. It was noted that the Veteran’s headaches had not changed since the onset in service. Essentially the disability had stayed the same. The Veteran experienced daily generalized throbbing headaches associated with photophobia, phonophobia, nausea and vomiting. He also experiences blurred vision and dizziness with the headaches. The headaches were severe about 5 days per week. He has attended the ED once for intractable head pain in the past 12 months, which occurred 6 months ago. He reported about 5 days out of the month he has prostrating type headaches where he cannot leave a dark room or physically function. Given that the most recent examination documents similar symptoms as prior VA examinations and indicates that the Veteran’s disability has stayed the same, the Board finds that the disability picture has remained consistent throughout the appeal period and the 50 percent disability rating should be awarded, effective April 16, 2014. See Fenderson. In sum, the Board finds that the evidence is in at least relative equipoise as to whether the Veteran has experienced frequent, completely prostrating and prolonged attacks productive of severe economic adaptability since the date of award of service connection. Accordingly, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that a 50 percent disability rating is warranted for the Veteran’s service-connected migraine headaches from the date of award of service connection. See 38 U.S.C. § 5107. In conclusion, a 50 percent rating is warranted for the Veteran’s service-connected migraine headaches, effective April 16, 2016. This rating is the highest rating assignable under the rating criteria for migraine headaches. See 38 C.F.R. § 4.124(a), Diagnostic Code 8100; Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Board acknowledges that the Veteran’s representative asserted in a December 2020 brief that extraschedular consideration was warranted. However, based on thorough consideration of the evidence, the Board finds that the Veteran’s disability picture is not so exceptional or unusual as to render impractical the application of the regular schedular criteria. In so finding, the Board acknowledges that the Veteran’s headaches are frequent, severe, and prostrating in nature, and that they limit his work productivity because he must lie down during attacks. However, all of these factors, including economic inadaptability, are considered in the assignment of the 50 percent rating under Diagnostic Code 8100. Significantly, the most recent VA examination in May 2020 specifically noted that the Veteran did not have any other pertinent physical findings, complications, conditions, signs and/or symptoms related to the Veteran’s headaches. In the instant case, the Board has carefully compared the level of severity and symptomatology of the Veteran’s service-connected headaches with the established criteria found in the rating schedule; and finds that the Veteran’s symptomatology is fully addressed by the rating criteria under which such disability is rated. In turn, there is nothing exceptional or unusual about the Veteran’s disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Accordingly, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, in this case, the schedular rating criteria fully contemplate the Veteran’s symptoms. Therefore, referral for an extraschedular evaluation under 38 C.F.R. § 3.321(b) is not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.