Citation Nr: 21061324 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-12 266 DATE: October 1, 2021 ORDER An initial rating of 30 percent, but no higher, for migraine headaches is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT For the entire appeal period, his migraine headaches are manifested by characteristic prostrating attacks occurring on an average of once a month, without more severe manifestations that more nearly approximating frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW For the entire appeal period, the criteria for a 30 percent rating for tension headaches, but no higher, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2003 to May 2003, July 2004 to April 2005, and March 2008 to April 2009, with additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board, in relevant part, denied an initial rating in excess of 10 percent for migraine headaches. Thereafter, the Veteran appealed such denial to the U.S. Court of Appeals for Veterans' Claims (Court). In October 2019, the Court granted the Parties' Joint Motion for Partial Remand (JMPR), vacating the February 2019 Board decision regarding the migraine headaches claim, and remanding the Board's denial. Thereafter, the Board remanded the claim in March 2020 and May 2021 for additional development. The case now returns for further appellate review. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board stems from the Veteran's April 7, 2014, claim for an increased rating for migraine headaches, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, his headaches are rated as 10 percent disabling pursuant to Diagnostic Code 8100. 38 C.F.R. § 4.124a. 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 is warranted for migraines with characteristic prostrating attacks occurring on an average of 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. The rating criteria do not define "prostrating;" nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson, supra (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that, 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." Also, the term "productive of severe economic adaptability" has not been clearly defined by regulations. The Court has, however, explained that "productive of" for purposes of Diagnostic Code 8100 can either mean producing, or capable of producing. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraine headaches need not actually produce severe economic inadaptability to warrant a 50 percent rating under Diagnostic Code 8100. Id. at 445-46. Similarly, "economic inadaptability" does not equate to unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; 38 C.F.R. § 4.16. The Board notes, however, that the migraine headaches must be, at a minimum, capable of producing severe economic inadaptability in order to meet the 50 percent criteria. As noted previously, the Veteran's headaches are currently rated as 10 percent disabling as of April 7, 2014. Upon review, the Board finds the evidence shows such disability was manifested by characteristic prostrating attacks occurring on an average of 2 to 4 times a month throughout the appeal period and, as such, a rating of 30 percent, but no higher, is warranted for the entire appeal period stemming from the Veteran's April 7, 2014 claim. In this regard, VA treatment records dated throughout the appeal period, or just prior, reflect that the Veteran experiences migraine headaches an average of 1 to 2 times a week. See December 2010, February 2011, January 2014, October 2014, and August 2019 records. The Board notes the Veteran has at times denied having headaches. However, it appears the Veteran was denying having a headache at the time of the question, not in general. See August 2019 and October 2020 records. On VA examination in March 2015, the Veteran reported sensitivity to light, and that at times he required a quiet and dark room. His migraine headaches were noted to affect his right side and were described as a pulsating or throbbing pain. Upon examination, the Veteran was noted to have headache pain localized to one side of his head, and the duration of such headaches were less than one day. The examiner noted the Veteran did not have characteristic prostrating attacks, to include very frequent prostrating and prolonged attacks, of migraine or non-migraine headache pain. However, the frequency of the Veteran's headaches was not recorded. At a January 2016 VA examination, the Veteran reported having headaches 1 or 2 times a week lasting up to 3 hours at a time. The Veteran had pulsating and throbbing head pain that was localized to the right side of the head. Further, he reported sensitivity to light. Based on the Veteran's description of symptoms, the VA examiner found he had characteristic prostrating attacks of migraine headache pain that occurred with less frequent attacks but did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. Further, at his January 2016 PTSD VA examination reported that his headaches were constant and feels like "you are going to explode." At his traumatic brain injury (TBI) VA examination on the same date, the VA examiner found the Veteran's headaches impacted his ability to work. In his March 2017 substantive appeal, the Veteran stated he gets headaches "once or twice a month." Further, in March 2017, the Veteran's wife, K.H., submitted a statement in which she noted the Veteran had severe headaches that required him to stay in bed for three days. As noted in the introduction, in February 2019, the Board denied an initial rating in excess of 10 percent for the Veteran's migraine headaches. Specifically, the Board found the Veteran's prostrating attacks occur once per month (a criterion for a 30 percent rating), but later in the decision found such attacks occur once every two months (a criterion for a 10 percent rating), and that no treatment records show attacks averaging once per month. Thus, given such discrepancies, the October 2019 JMPR found the Board's statement of reasons or bases was inadequate. Pursuant to the March 2020 remand, an addendum opinion was obtained in May 2020 regarding the nature and frequency of the Veteran's migraine headaches. In this regard, the examiner noted the Veteran has ongoing headache symptoms with headaches occurring 1 to 2 times per week, lasting less than a day. The examiner noted the Veteran had pulsating or throbbing head pain, with pain localized to the right side of the head, which worsened with physical activity. Further, the Veteran had photophobia, and the examiner noted the Veteran's headaches interfere with concentration and productivity as he may require decreased sensory stimulation (darkened room). Upon consideration of the Veteran's description of his headaches, the VA examiner found did not have characteristic prostrating attacks of migraine pain once every month, nor very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. However, while only the January 2016 VA examiner found the Veteran to have characteristic prostrating attacks of migraine headache pain that occurred with less frequent attacks, the Board affords the January 2016 examiner's opinion more probative weight as such included a physical examination of the Veteran, rather than the March 2020 addendum opinion, which is based on a review of records only. In addition, as the March 2015 VA examiner did not record the frequency of the Veteran's headaches, such opinion is also afforded less probative weight than the January 2016 examiner's opinion. Moreover, the Board has paid particular attention to the Veteran's statements that, during throbbing attacks, headaches interfered with concentration and productivity, and when such occurred, he may need to spend time in a darkened room due to photophobia. Further, such resulted in missing up to one week of work during the prior 12 months. Further, the Board notes, as stated supra, VA treatment records, January 2016 and March 2020 VA examinations, and the Veteran's statements reflect headache attacks on average of 1 to 2 times a week, and his January 2016 PTSD VA examination describes his headaches as constant with pain that feels like "you are going to explode." Consequently, the Board finds such severity of symptomatology is equivalent to that of a prostrating attack under the rating criteria. Based on the above severity and frequency of the Veteran's migraine headaches, the Board finds the criteria for a 30 percent rating are met for the entire appeal period. However, the Board finds a rating in excess of 30 percent is not warranted at any time during the pendency of the appeal. As noted above, the evidence must show very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability to warrant a 50 percent rating. In this respect, the March 2015 and January 2016 VA examiners specifically found the Veteran's migraine headaches did not impact his ability to work. However, the same January 2016 VA examiner conducted the Veteran's January 2016 TBI examination, and on that examination cited the Veteran's headaches as impacting his ability to work. Additionally, although the May 2020 examiner determined the Veteran's migraine headaches did impact his ability to work, all examiners found he did not experience very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. In conclusion, after reviewing the totality of the evidence, and with consideration of the Veteran's subjective reports of headache symptoms, the Board finds the evidence reflects characteristic prostrating attacks occurring on an average of once or twice a week and, therefore, a rating of 30 percent is warranted for the entire appeal period. However, as the evidence does not demonstrate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during the pendency of the appeal, a rating in excess of 30 percent for headaches is not warranted. Further, the Veteran has not raised any other issues nor have any other issues been reasonably raised by the record in connection with his initial rating claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching the foregoing determination, the Board has resolved all doubt in the Veteran's favor, which has resulted in an increased rating of 30 percent for migraine headaches. However, to the extent that a higher rating is denied herein, the Board finds that the preponderance of the evidence is against such aspect of the Veteran's claim. Consequently, the benefit of the doubt doctrine is not applicable in such regard, and the Veteran's claim for a higher initial rating is otherwise denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.