Citation Nr: 21001307 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-22 920A DATE: January 7, 2021 ORDER Entitlement to a 50 percent disability rating for migraine headaches is granted throughout the pendency of this claim, subject to the criteria applicable to the payment of monetary benefits. REMANDED Entitlement to a disability rating in excess of 10 percent for chronic low back strain is remanded. Entitlement to a disability rating in excess of 10 percent for retropatellar pain syndrome, left knee, with mild degenerative joint disease is remanded. INTRODUCTION The Veteran served on active duty from November 1991 to November 1995. In December 2020, the Veteran attended a hearing before the undersigned Veterans Law Judge. FINDING OF FACT Throughout the period of the claim, the Veteran’s migraine headaches have been manifested by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent rating for migraine headaches have been met throughout the pendency of this claim. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a , Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2020). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2020). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Factual Background and Analysis The Veteran’s service-connected migraine headaches are rated under 38 C.F.R. § 4.124a , Diagnostic Code 8100. The Veteran initiated a claim for an increased rating for his migraine headaches in October 2012. In a January 2014 rating decision, the RO confirmed and continued his previously assigned 30 percent disability rating. The Veteran submitted new and material evidence prior to the expiration of the appeal period, and sought reconsideration of his claim for an increased rating in October 2014. See 38 C.F.R. § 3.156 (b). In a February 2015 rating decision, the RO again confirmed and continued his 30 percent disability evaluation. The initial question in this case is whether the maximum, 50 percent rating, is warranted. The maximum schedular disability rating of 50 percent is warranted for migraine headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating,” nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (Diagnostic Code 8100 is quoted verbatim, but the Court does not specifically address the matter of what is a prostrating attack.). According to DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), “prostration” is defined as “extreme exhaustion or powerlessness.” On VA examination in September 2013, the Veteran reported experiencing headaches 4-5 times a month, and stated his headaches would last for 3-4 days per episode. The Veteran also reported missing time from work as a result of his headaches. The examiner concluded the Veteran did experience prostrating attacks of migraine headaches more frequently than once per month. The Veteran has also submitted private treatment reports from Internal Medicine at Wright Health, which show ongoing treatment for his migraine headaches. These treatment reports show the Veteran has experienced roughly 2 migraines per week, which last about 12 hours per episode, and often recur the next day. Additionally, the Veteran has provided his occupational leave summary for the period under appeal. These records show the Veteran has utilized considerable leave without pay, which the Veteran has indicated was the result of his migraine headache attacks. Additionally, the Veteran provided a March 2015 headache disorder disability benefit questionnaire, which was completed by his private physician. This report indicates the Veteran’s headaches commence roughly 3-5 times a month, and last for 3 days at a time. The clinician found the Veteran experiences very frequent prostrating and prolonged attacks of migraine headache pain. Further, the clinician also indicated the Veteran frequently misses work as a result of his severe migraines. Upon review of the evidence as outlined above, the Board finds the Veteran is entitled to the maximum 50 percent rating for his migraine headaches throughout the period of the claim. The evidence clearly shows that he experiences very frequent headaches, well more than once per month, which cause him to miss work several times per month. Additionally, the Veteran has provided testimony illustrating his headaches have been productive of severe economic inadaptability, such as to in fact significantly impair his ability to maintain employment. Thus, the Board finds that a 50 percent rating is warranted throughout the period of this claim. Again, 50 percent is the maximum scheduler rating allowable for migraine headaches. At the Veteran’s December 2020 hearing, he testified that a 50 percent disability rating would satisfy his appeal. Given his testimony and the 50 percent rating assigned, the Veteran’s claim is satisfied in full. REASONS FOR REMAND In the course of his recent December 2020 Board hearing, the Veteran reported his lumbar spine and left knee disabilities had worsened. The Veteran most recently underwent a VA examination to assess his disabilities in December 2014 and January 2015 respectively. As there is evidence of a worsening of the disabilities the claims must be remanded for examinations to determine the current severity of the disabilities. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, these matters are REMANDED for the following actions: Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected lumbar spine and left knee disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.