Citation Nr: 21002935 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-17 317 DATE: January 19, 2021 ORDER Entitlement to an initial 50 percent disability rating for migraine headaches is granted, subject to the criteria applicable to the payment of monetary benefits. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran experienced migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Throughout the entire period on appeal the criteria for a disability rating of 50 percent for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from June 1954 to June 1957. In January 2019, the claim was remanded for additional development. The Board notes that the January 2019 Board remand listed the issue as a claim for a rating in excess of 30 percent for migraine headaches. However, following a review of the record it appears that the entire initial rating period is on appeal. Therefore, the Board has recharacterized the issue. 1. Entitlement to a higher initial disability rating for migraine headaches, rated as noncompensable prior to August 12, 2016, and 30 percent thereafter The Veteran contends that he is entitled to higher ratings for his service-connected migraine headaches. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, 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). The Board concludes that the Veteran has had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, corresponding to the criteria for a 50 percent rating under DC 8100. The August 2015 VA examination report documented symptoms of pulsating or throbbing head pain, pain on both sides of the head, nausea, sensitivity to light, and changes in vision. The headaches lasted less than one day. The examiner found that the Veteran did not experience characteristic prostrating attacks of headache pain. The examiner also determined that the Veteran’s migraine headaches did not impact his ability to work. In November 2015, the Veteran stated that he experienced severe headaches that forced him to go into a quiet room. He stated that the severe headaches occurred at least two times per week. In August 2016, the Veteran presented with worsening headaches. His headaches were associated with nausea and occasional blurred vision. He reported less than 12 hours of pain free intervals. At the October 2016 VA examination, the Veteran reported that his headache intensity varied. His headache symptoms were pulsating or throbbing head pain, pain localized to one side of the head, nausea, sensitivity to light and sound, and sensory changes. Walking worsened the pain if he already had a headache. His headaches lasted less than a day and affected both sides of his head. The examiner determined that the Veteran had characteristic prostrating attacks that occurred once every month. The examiner found that the Veteran’s migraine headaches impacted his ability to work because during his headache episodes he had to stop the activity and sit in a quiet room for several hours. It was noted that the severe headaches occurred once a month but that the less severe headaches occurred approximately 12 times per month. The headaches made it difficult to concentrate and be attentive to what was happening around him. In March 2017, the Veteran again reported that his most severe headaches occurred multiple times per week and that he had to lay down without sound or light during those times. The Veteran’s most recent VA examination was in December 2019. He reported severe headaches that occurred once per month. It started on the right side of the head and then radiated to the entire head. The migraine lasted five to six hours. The examination report documented his symptoms as pulsating or throbbing head pain, pain on both sides of the head, pain that worsened with activity, nausea, vomiting, and sensitivity to light and sound. The headaches lasted less than one day and affected both sides of the head. The examiner determined that the Veteran’s characteristic prostrating attacks occurred once every month. He did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. It was also found that the Veteran’s migraine headaches impacted his ability to work. The Veteran is retired, but the examiner noted that he missed approximately one week of work in the last 12 months. His migraine headaches also caused poor concentration, decreased ability to multi-task, and lessened his ability to stay focused. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Considering all relevant evidence of record, the Board finds that a 50 percent rating is warranted throughout the entire period on appeal. The Board acknowledges the August 2015 VA examiner’s finding that the Veteran did not experience characteristic prostrating attacks. However, a review of the Veteran’s lay statements shows that he consistently described severe headache episodes throughout the period on appeal. Such descriptions were used to support findings by multiple examiners that the Veteran experienced characteristic prostrating attacks. Additionally, the Veteran testified that he experienced severe headaches that occurred multiple times per week and lasted five to six hours. VA treatment records noted that he had less than 12 hours without pain between headaches. Therefore, the Board finds that the attacks were very frequent and prolonged. The evidence also shows that the Veteran’s prostrating attacks were productive of severe economic inadaptability. In this regard, the October 2016 and December 2019 examiners found that the Veteran’s migraine headaches impacted his ability to work. Although he is retired, it was found that he could miss approximately one week of work per year due to his headaches. Moreover, the Veteran’s prostrating attacks required him to rest in a dark room for hours. The migraine headaches also made it difficult to concentrate, pay attention, multi-task, and stay focused. The Board acknowledges that a 50 percent rating can be assigned where migraine headaches could be productive of severe economic inadaptability, even if they are not actually productive of severe economic inadaptability. Resolving all doubt in the Veteran’s favor, the Board concludes that the Veteran has had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the entire period on appeal. Accordingly, a 50 percent rating is warranted for the Veteran’s service-connected migraine headaches for the entire period on appeal under 38 C.F.R. § § 4.124a, Diagnostic Code 8100. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. N. Nolley, 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.