Citation Nr: 21005162 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 13-00 741 DATE: January 29, 2021 ORDER Entitlement to a rating higher than 0 percent prior to September 3, 2020, and higher than 50 percent as of September 3, 2020, for migraine headaches is denied. FINDINGS OF FACT 1. Prior to September 3, 2020, the Veteran had headaches that did not result in characteristic prostrating attacks occurring an average of one in two months over the past several months. 2. As of September 3, 2020, the Veteran’s migraine headaches were manifest by very frequent completely prostrating attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 0 percent prior to September 3, 2020, and a rating higher than 50 percent as of September 3, 2020, for migraine headaches have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1980 to November 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a December 2017 videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. A September 2020 rating decision assigned a higher 50 percent rating for migraine headaches, effective September 3, 2020. However, as the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating for migraine headaches remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In light of the treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the Agency of Original Jurisdiction (AOJ), the Board finds that there has been substantial compliance with the prior remand requests. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). 1. Entitlement to a rating higher than 0 percent prior to September 3, 2020, and a rating higher than 50 percent for migraine headaches as of September 3, 2020 Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Diagnostic Code 8100 provides ratings for migraine headaches. That diagnostic code provides a 0 percent rating for less frequent attacks. A 10 percent rating is warranted for characteristic prostrating attacks occurring an average of once every two months over the several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define “prostrating,” nor has the Court. Fenderson v. West, 12 Vet. App. 119 (1999). According to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” “Productive of economic inadaptability” can be read as having either the meaning of “producing” or “capable of producing,” and nowhere in Diagnostic Code 8100 is “inadaptability” defined, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. But, nothing in Diagnostic Code 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 (2004). Prior to September 3, 2020 In a November 2010 statement, the Veteran remarked that he had been prescribed daily medication for headaches. He stated that he experienced daily headaches. He had never missed work for migraines, but he had left early from his shift. On VA examination in November 2010, it was noted that the Veteran had taken multiple over-the-counter prescriptions with minimal relief. He had recently started amitriptyline which had decreased the frequency of the headaches but increased their intensity. The Veteran reported having pulsating pain on a daily basis which could last anywhere from one to 15 minutes. The Veteran experienced photosensitivity, and nausea. The examiner specified that the Veteran had no incapacitating headaches in the last month, but the Veteran had wanted to lie down up to 15 times. In a May 2011 addendum, the November 2010 VA examiner stated that the Veteran had no incapacitating headaches in the last several months, but the Veteran has wanted to lie down at least 12 times a month if he could have. The Veteran stated that he had left his job early several times a month due to headache pain. The examiner stated that in respect to the Veteran’s complaint of dizziness, it was described as a change in the orientation of his horizon line. It was noted that the dizziness occurred both with and without the Veteran’s migraine headache. Romberg was negative, and the examiner found that the Veteran showed no ataxia or incoordination. The examiner opined that the Veteran’s dizziness was less likely as not related to his migraines, because the tilt in the Veteran’s horizon could occur even when he did not have a headache. In an August 2011 statement, the Veteran stated that when his headaches came on, he had to stop whatever he was doing. He stated that he had not missed work because he refused to let his headaches affect his job. He stated that he had learned to work through the pain. On VA examination in October 2012, the Veteran reported experiencing constant head pain localized to one side of his head that worsened with physical activity. The Veteran experienced loss of balance and sensitivity to light and sound. It was noted that the duration of typical head pain was less than one day. The examiner specified that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain, and the Veteran did not have very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. The examiner opined that migraines impacted the ability to work based on decreased tolerance for prolonged sitting and working at a computer terminal. At a December 2017 Board hearing, the Veteran stated that he experienced multiple headaches a day. He had been prescribed medication that slowed the headaches down. He said that lost balance. The headaches could last anywhere from two or three minutes up to a week. When he experienced headaches, he tried to go to a dark, quiet room. He stated that at work, the lights were on a dimmer. He stated that he just put up and work through the headaches while at work. He stated that his work had a nurse’s station, and when the headaches were bad, he could go to the nurse’s station and lay down. The company had set him up with an ergonomic set-up for his desk. On VA examination in September 2019, the Veteran reported experiencing nearly daily migraine pain with blurred vision and loss of balance. The pain was localized on the right side of the Veteran’s head. He experienced changes in vision. The duration of typical head pain was one to two days. The examiner specified that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain, and the Veteran did not have very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. Overall, the Board finds that the Veteran’s headaches do not warrant rating in excess of 0 percent prior to September 3, 2020. The symptoms he experienced do not more nearly approximate those described under the criteria for a 10 percent rating. While the evidence shows that the Veteran has experienced headaches, the weight of the evidence does not show that the headaches prior to September 3, 2020, were characteristically prostrating. The Board has carefully considered the Veteran’s assertions that the headaches were severe and caused him to want to lay down. However, the Veteran has not stated that he was required to be prostrate during attacks sufficient to constitute a quantity of characteristic prostrating attacks to support a higher rating. For example, the November 2010 VA examiner opined that the Veteran’s headaches were not incapacitating. More significantly, the October 2012 and September 2019 VA examiners considered the Veteran’s reports of headaches with dizziness, sensitivity to light and sound, and pain, as the symptoms were discussed in their examination reports. However, even considering those reports, the examiners opined that the Veteran’s headaches did not result in prostrating attacks. Regarding the matter of whether the Veteran’s headaches prior to September 3, 2020, resulted in characteristic prostrating attacks, the Board finds that the opinions of the October 2012 and September 2019 VA examiners outweigh the statements of the Veteran, as the VA examiners had the training and medical experience necessary to offer an expert opinion on medical matters. The examiners had the medical expertise to determine whether an attack constitutes a characteristic prostrating attack and has found that the symptoms in this case do not. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a higher rating prior to September 3, 2020. From September 3, 2020 On VA examination in September 2020, the Veteran reported that he experienced migraines almost daily. The migraines lasted from a few minutes to several days. He reported that he lost balance. He took acetaminophen as needed. He experienced sensitivity to light and sound. The Veteran stated that he would have pulsating or throbbing pain on both sides of the head that would worsen with physical activity. The examiner indicated that the Veteran had very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. Based on the evidence of record, the Board finds that the criteria for the assignment of a rating higher than 50 percent have not been met as of September 3, 2020. According to 38 C.F.R. § 4.124a, Diagnostic Code 8100, the maximum schedular rating available for migraine headaches is 50 percent. Therefore, a higher schedular rating is not available under 38 C.F.R. § 4.124a, Diagnostic Code 8100. As no higher schedular rating is available, and no other Diagnostic Code is more appropriate for rating, an increased schedular rating is not warranted. AB v. Brown, 6 Vet. App. 35 (1993); Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board has considered the Veteran’s complaints on examination in addition to the other lay statements of record but finds them to be consistent with medical findings that were identified by an impartial medical examiner during the course of the requested examination. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher rating for headaches, and the claim for increase must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.