Citation Nr: 21004029 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 11-00 034A DATE: January 25, 2021 ORDER 1. Entitlement to an increased disability rating for chronic headaches, in excess of 30 percent from June 24, 2009, and in excess of 50 percent from September 7, 2016, is denied. 2. Referral for extraschedular consideration for the Veteran’s chronic headache symptoms is not warranted. FINDINGS OF FACT 1. Prior to September 7, 2016, the Veteran’s chronic headaches were not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran’s chronic headache symptoms are adequately contemplated by Diagnostic Code (DC) 8100 and do not warrant referral for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for chronic headaches were not met prior to September 7, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8100. 2. The criteria for entitlement to referral for extraschedular consideration for chronic headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1990 to May 1994, to include service in Southwest Asia. His decorations include the Combat Action Ribbon. The Veteran’s service-connected headaches have been assigned a disability rating of 30 percent from June 24, 2009 and 50 percent as of September 7, 2016. In a November 2017 decision, the Board of Veterans’ Appeals (Board) previously found that the Veteran’s service-connected headaches were not productive of severe economic inadaptability, such that a higher rating of 50 percent was warranted. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). The Court implemented a Joint Motion for Remand (JMR) in which the Veteran and the Secretary of VA (parties) agreed to vacate and remand the portion of the Board’s decision that denied entitlement to a disability rating in excess of 30 percent for the headaches on the basis that the Board did not previously provide an adequate statement of reasons and bases explaining why the Veteran’s headache symptomatology did not more nearly approximate a 50 percent rating under DC 8100. In a May 2019 decision, the Board awarded a 50 percent disability rating for the chronic headaches as of September 7, 2016, but denied a higher rating prior to September 7, 2016. The Veteran again appealed the decision to CAVC, which granted another JMR in August 2020, in which the parties agreed to vacate and remand the May 2019 Board decision in order to provide an adequate statement of reasons or bases making clear that the Board discounted the ameliorative effects of medication when assigning disability ratings for the period on appeal. The Veteran contends that he has suffered from very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for the entire appeal period. His representative has argued that the Veteran’s symptoms of nausea, photosensitivity, eye soreness, and blurred vision warrant separate ratings because they are not specifically contemplated under DC 8100. Additionally, the representative contends that the Board has previously provided inadequate reasons and bases for denial by failing to define the terms used in the 50 percent rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Rating Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is 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 C.F.R. § 4.3. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. The alleviating effects of medication may not be considered in schedular ratings unless explicitly provided in the applicable schedular rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (noting that such improvement is “relevant to the appellant's overall disability picture”). Chronic headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100, for migraine headaches. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. 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 Veteran underwent a VA examination in August 2009 which showed that the Veteran experienced headaches that occurred once or twice a week. These headaches were mostly mild and the Veteran reported that once or twice a month his headaches would be severe with nausea and he would need to lie down. A July 2012 VA examination report shows that the Veteran reported his headaches had remained unchanged since the 2009 examination; he experienced headaches two to three times per week and a major headache approximately twice a month. He described his headaches as lasting for one hour and said if one occurred at work he would just work through it. The examiner stated that the Veteran did not experience very frequent prostrating and prolonged attacks of headache pain and that the headaches did not affect his ability to work. During a May 2013 VA psychiatric examination, the Veteran reported working in law enforcement and that he had had the same job for 10 years; he specifically reported having no work or performance issues. A September 2016 VA examination report shows that the Veteran reported his headaches increasing in that they happened frequently throughout the week and lasted a couple of hours. He described the headaches as being accompanied by nausea and photophobia once a week. The Veteran reported he had to turn off his office lights and close his door for an hour or so. The examiner indicated that the Veteran’s work was affected by diminished concentration and productivity and more absences. Private treatment records dated between March 2010 and June 2016 include several notations to the effect that the Veteran denied experiencing new/worsening headaches and denied headaches. These treatment notes are dated in November 2011; January 2012; September 2012; January 2014; August 2014; May 2015; and October 2015. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an award of increased rating or referral for extraschedular consideration. The reasons follow. Prior to September 7, 2016, the preponderance of the evidence is against a finding that the Veteran’s headaches resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The more probative evidence did not show very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability during this period, and the Veteran generally indicated his symptoms were rarely so severe as to interfere with his work. Instead, prior to September 2016, the Veteran described most of his headaches as mild in nature and the duration of the headaches was two hours or less. In addition, he continued to work in law enforcement and stated that he continued to work if a headache occurred while he was at work. He reported having no work or performance issues on VA examination in 2013. The preponderance of the evidence is against a finding that the Veteran’s headaches caused increased absenteeism with diminished concentration and productivity until he reported such at the VA examination on September 7, 2016. The Veteran’s representative has argued that, although the Veteran has, at times, reported experiencing milder headaches more frequently than more severe headaches, this does not automatically mean that the more severe headaches did not occur frequently enough to meet the standard of “very frequent” as considered by DC 8100. In this case, even if the Board were willing to accept that the Veteran experienced very frequent headaches, the evidence does not show that they were completely prostrating and prolonged such that they were, or could have been, productive of severe economic inadaptability, for the reasons stated above. The representative has further argued that, despite the fact that the Veteran was working for much of the appeal period, the question remains whether his headaches were productive of or capable of being productive of severe economic inadaptability prior to September 2016. The representative has argued that, although the Veteran reported during the June 2012 VA examination that when he gets a headache, he “takes Motrin and works through it,” this is not consistent with the entirety of the evidence of record. The representative points out that the Veteran has reported getting headaches at work that require him to close his office door and turn off the lights, and that he was unable to continue working until the medication kicked in, which was usually at least an hour. The representative further pointed to the Veteran’s reporting that there were times he had to leave work due to his headaches. The representative then cited to the September 2016 VA examination report and a November 2018 affidavit from the Veteran. In his affidavit, the Veteran stated that prior to his June 2018 retirement, headaches interfered with his ability to work, but he was lucky to have a flexible work environment and make his own hours, which allowed him to take breaks or miss work as needed. He stated that if he got a headache at work, he would usually close the door, shut off the lights, and wait for it to pass, losing hours of productive time. He also reported instances of having to leave work early. The Veteran stated that since his time in service, he has suffered from severe, frequent service-connected headaches. However, he did not report a time when the completely prostrating attacks were productive of severe economic inadaptability prior to September 2016. Although the Veteran’s attorney asserted that the Veteran’s statements regarding getting a headache, taking Motrin, and working through it, “is not consistent with the entirety of the evidence,” the Board does not agree. An increased rating is awarded when it is factually ascertainable that an increase in the symptoms occurred. The Board is generously construing the Veteran’s statements at his September 2016 VA examination to mean that his headaches were capable of producing severe economic inadaptability; however, the other evidence of record, prior to September 2016, where the Veteran consistently denied that his headaches were severe is highly probative. These records were created contemporaneously with the time period in question, and there was no motive for the Veteran at the time to misrepresent his symptoms. See Caluza v. Brown, 7 Vet. App. 498, 507-13 (1995). While the Veteran is competent to report his symptoms, his credibility is undermined by the reports of his stable and non-severe symptoms prior to September 2016 in contrast to the severity of symptoms that he currently alleges for the same period. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board is affording more probative weight to the contemporaneous evidence of record, which shows that severe economic inadaptability was not demonstrated until the September 2016 VA examination. Specifically, the Board finds it highly probative that the Veteran specifically denied at various times experiencing new/worsening headaches or experiencing headaches up until the September 2016 VA examination (see November 2011; January 2012; September 2012; January 2014; August 2014; May 2015; and October 2015 private treatment records). Instead, these treatment records show he was seeking treatment for other medical complaints, not headaches, and the denial of headaches and “new/worsening headaches” was documented within these treatment records when the examiner performed a review of systems. Statements made while seeking medical treatment tend to be highly reliable, which is why the Board has found these clinical findings highly probative. Taking breaks and lying down does not necessarily equate to severe economic inadaptability; rather, the Veteran demonstrated that he possessed the adaptability to continue to work a full-time job in law enforcement without special accommodations that were not afforded any other similarly-situated employee. The Veteran specifically reported experiencing no work or performance issues in 2013 and denied increased severity of symptoms on multiple occasions thereafter. This is evidence against the Veteran’s chronic headaches producing or being capable of producing severe economic inadaptability prior to September 2016. As to the most recent JMR, the Board has not considered the ameliorating effects of the Veteran’s medication in assessing the Veteran’s disability rating, as such is not contemplated by DC 8100. The Board has merely documented the Veteran’s reported medication use throughout the period on appeal. As the Veteran has consistently used medication to manage his symptoms, there is no evidence of significant exacerbations of the Veteran’s disability without the use of medication to warrant a higher disability rating during the relevant period. The evidence of record does not demonstrate recurrent prostrating attacks causing severe economic inadaptability prior to September 2016 with or without consideration of the Veteran’s medication. The Board cannot assume increased severity of symptoms to qualify for a higher disability rating in the absence of medication when such decreased functioning is not discernable from the evidence of record. Additionally, and more importantly, the Veteran denied worsening headaches in statements he made to medical professionals while seeking treatment from 2011 to 2015. His own contemporaneous statements are evidence against an increased rating prior to September 2016. In sum, the Board finds that a rating in excess of 30 percent is not warranted for the service-connected chronic headaches prior to September 7, 2016, because, prior to that date, the preponderance of the evidence is against a finding that the Veteran’s headaches were very frequently completely prostrating such that they were productive of economic inadaptability. As noted above, this is consistent with the Veteran’s own statements of record. The criteria for a 50 percent rating require that all elements be met – very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. Therefore, even after resolving all reasonable doubt in the Veteran’s favor, a higher rating is not assignable for the service-connected headaches prior to September 7, 2016. Since that date, however, a 50 percent rating is warranted. This is the highest rating available for service-connected headaches. The Board notes the argument of the Veteran’s representative that symptoms reported by the Veteran to accompany his headaches, such as nausea, photosensitivity, and blurred vision, warrant separate ratings because they are not specifically considered under DC 8100. The Board finds that the Veteran's chronic headache symptoms do not warrant a separate rating or ratings or extraschedular consideration. The Court has held that DC 8100 contemplates all symptoms a veteran experiences resulting from chronic headaches, even if not specifically enumerated by the DC. Holmes v. Wilkie, No. 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131 (Vet. App. November 25, 2020). An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1) (2017). However, the Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected chronic headaches with the established criteria found in the rating schedule, and the Board finds that the symptoms of the Veteran's chronic headaches are contemplated by the applicable rating criteria, namely the Veteran's frequency of headaches and the resulting effect on his employment. As such, the effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. To the extent the Veteran has reported symptoms related to his headaches that result in prostrating attacks and/or prolonged attacks, such as nausea, light sensitivity, sore eyes, or blurred vision, those symptoms are adequately contemplated by the currently assigned 50 percent disability rating, which also specifically takes into account the effects of his headaches upon his employability. Therefore, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. See Thun v. Peake, 22 Vet. App. 111 (2008). A review of the evidence during the appeal period demonstrates that the Veteran's headaches have not been as frequent or severe as to suggest that the rating criteria is insufficient. Accordingly, additional ratings and/or referral for extraschedular consideration is not warranted in this instance. For all the reasons stated herein, the weight of the evidence is against an award of an increased rating for chronic headaches prior to September 7 2016, and is against referral for extraschedular consideration throughout the appeal period. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.