Citation Nr: 21003115 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-36 160 DATE: January 19, 2021 ORDER An initial rating of 50 percent for migraine headaches is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for the entire period on appeal. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1986 to April 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in May 2020, on which occasion the issue on appeal was remanded for further development. Inasmuch as there has been substantial compliance with the May 2020 Board Remand directives, with the necessary examination that is adequate for the reasons discussed below having been associated with the claims file, there is no need for additional remands to ensure compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In April 2019, the Veteran testified at a Board videoconference hearing. A transcript of the hearing has been associated with the virtual file. Increased Rating Entitlement to an initial compensable rating prior to October 29, 2020, and in excess of 50 percent thereafter for migraine headaches. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In view of the number of atypical instances 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, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The Veteran contends he is entitled to an initial compensable rating prior to October 29, 2020, and in excess of 50 percent thereafter for migraine headaches evaluated under DC 8100. Specifically, the Veteran reports that he has continuously suffered from strong headaches triggered by sunlight and intermittent seizures since his in-service head trauma. The Veteran contends his headaches are totally disabling (he cannot do anything but lay in bed until they stop), last at least four to six hours at a time, occur every seven to 10 days (or four times per month), and have persisted despite taking prescribed medications. See July 2018, Correspondence; VA Form 21-4138 dated September 2000, February 2005, and October 2014. The Veteran’s service-connected migraine headaches were assigned an initial noncompensable rating under Diagnostic Code 8100. In November 2020, the RO increased the non-compensable rating for migraine headaches to 50 percent, effective October 29, 2020. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. Finally, a maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that an initial rating of 50 percent is warranted for migraine headaches. VA treatment records indicate the Veteran’s numerous complaints of severe headaches causing dizziness, nausea, and blurred vision. In May 2011, the Veteran reported persistent headaches that occur two to three times per week with nausea, photophobia, and noise sensitivity. See VA treatment records dated October 2001, December 2001, April 2007, March 2008, May 2011, July 2012, A September 2002 VA examination indicates the Veteran gets severe prostrating headaches that cause throbbing pain and nausea when he is exposed to direct sunlight. He further stated headaches began when he suffered an in-service head trauma. VA examinations dated March 2014 and June 2015 indicates the Veteran’s headaches are severe and cause nausea, sensitivity to light and sound, and changes of vision. The examiners stated the Veteran’s headaches were not prostrating but later noted headaches totally prevent the Veteran from performing any activity. See VA examinations dated September 2002, March 2014, and June 2015. An October 2020 VA examination indicates prostrating migraines began in June 1987 after the Veteran hit the back of his head. The Veteran stated headaches have remained the same since 1987 with the following symptoms: throbbing squeezing head pain, nausea, vomiting, sensitivity to light and sound, blurred vision, feeling of pins and needles in the extremities. The Veteran reported headaches last all day and occur two to three times per month. The VA examiner indicated headaches are very prostrating and prolonged attacks of migraine pain are productive of severe economic inadaptability. See October 2020, VA examination. The Board finds the October 2020 VA examination competent, credible, and highly probative as it is supported by an in-person examination, the Veteran’s lay statements, service treatment records, and all available medical records in the claims file. See October 2020, VA examination; Stegall, 11 Vet. App. 268; Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In August and November 2020, the Veteran, without raising any objections to the accuracy of the October 2020 examination report, requested another VA examination for headaches because the examiner was a nurse practitioner and not a neurologist. See Correspondences dated August 2020 and November 2020. The United States Court of Appeals for Veterans Claims (the Court) has held that there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties. Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Both the Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) have held that the Board is entitled to presume the competence of a VA examiner and that specific challenges to a VA examiner’s competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)) ( “[T]he Board is entitled to assume the competence of a VA examiner.”); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). Here, the Board finds the October 2020 VA examiner is adequately qualified to examine the Veteran for a headache disability and indicate the nature, severity, and frequency of his symptoms. The issues in this case are not of sufficient detail or complexity so as to require the opinion of a medical doctor or specialist. Additionally, the Veteran’s general assertion that a nurse practitioner is not competent to provide a headache examination or medical opinion does not overcome the presumption of competency of a VA medical examiner, whether that examiner is a doctor, nurse practitioner, or physician’s assistant. See Cox, 20 Vet. App at 569. In light of the above, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran experiences very frequent prostrating and prolonged attacks of migraines productive of severe economic inadaptability during the entire period on appeal, thus warranting the maximum rating of 50 percent. See 38 C.F.R. § 4.124a, DC 8100. The Board considered all potentially applicable diagnostic codes in accordance with Schafrath, 1 Vet. App. 589; however, the evidence does not show symptoms that could be rated higher under another diagnostic code. See 38 C.F.R. § 4.124a. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.