Citation Nr: 21001430 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 15-02 865 DATE: January 8, 2021 ORDER A rating of 30 percent, but not higher, for cluster headaches is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, his conditions is productive of frequent headaches and pain with prostrating and prolonged attacks. CONCLUSION OF LAW The criteria for a rating of 30 percent, but not higher, for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a DC 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1982 to December 1992. Additionally, he served in the Air Force Reserve from September 1993 to June 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2018 decision, the Board denied a rating in excess of 10 percent for cluster headaches. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a February 2019 Joint Motion for Partial Remand (JMPR) by the parties. A February 2019 CAVC Order remanded the matter for compliance with the JMPR instructions. In November 2019, the Board remanded this case for additional development. Increased Rating The Veteran essentially asserts that a higher rating is warranted because the disability is productive of prostrating attacks occurring on an average once a month over last several months. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Headaches The Veteran is currently in receipt of a 10 percent disability rating for cluster headaches under DC 8100 effective March 14, 2011, the date the Veteran filed this claim seeking service connection for headaches. The Veteran maintains that the severity of his condition warrants a higher initial rating. Under DC 8100, migraine headaches, a 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over last several months; a 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over last several months; and a 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. “Productive of severe economic inadaptability” can be read as having either the meaning of “producing” or “capable of producing,” and nowhere in DC 8100 is “inadaptability” defined, nor can a definition be found elsewhere in title 38 of the Code of Federal Regulations. But, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Recently, the Court held that found that a schedular rating of 50 percent for migraine headaches was adequate because it contemplated all of the Veteran’s symptoms, including non-headache symptoms such as dizziness, anxiety, depression, isolation, and nausea. Holmes v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2131 (Nov. 25, 2020). The Board remanded this case in June 2019 for an evaluation of the current severity of the Veteran’s headache condition. In November 2020, the Veteran was afforded a VA examination. The examiner stated that the Veteran suffers from headaches episodes approximately daily and works full time. Additionally, his symptoms include stuffy nose, eye watering, head pain in right side of the head, and episodes that can last less than a day. Further, the examiner stated that currently he does not take medication to treat his condition and suffers from prostrating attacks. See VA medical examination (November 2020). The Board finds that the Veteran’s headache condition more nearly approximates a 30 percent rating. Indeed, the Veteran’s VA medical treatment records show extensive treatment and complains of migraines and cluster headaches. See VA medical treatment records (July 2019, October 2019, December 2019, and October 2020). The Board further finds, however, that the preponderance of the evidence shows that a rating of 50 percent is not warranted because the evidence on record and VA examinations do not reflect that the Veteran’s suffers from frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See VA medical examinations (November 2020). Therefore, a rating of 30 percent, but not higher, for his service-connected cluster headaches is warranted. (Continued on the next page)   In light of the foregoing, the Board finds that because of the severity and frequency of the Veteran's headaches, as well as the effects these attacks have on the Veteran's ability to function, to include frequent head pain, a 30 percent rating for headaches is warranted. Therefore, resolving all doubt in the Veteran's favor, the Board finds that the evidence is in equipoise as to whether the Veteran's headaches are productive of prostrating attacks occurring on an average once a month and that a 30 percent disability rating is warranted for headaches. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.