Citation Nr: 21061340 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-32 319 DATE: October 1, 2021 ORDER Entitlement to a rating for migraine headaches in excess of 30 percent prior to January 8, 2021 and in excess of 50 percent thereafter is denied. FINDINGS OF FACT 1. For the appeal period prior to January 8, 2021, the Veteran's migraine headaches have been productive of characteristic prostrating attacks occurring on an average of once a month over the last several months and without very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. For the appeal period beginning on January 8, 2021, the Veteran's migraine headaches have been productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for migraine headaches for the appeal period prior to January 8, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a rating in excess of 50 percent for migraine headaches for the appeal period beginning on January 8, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1981 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2016 Department of Veterans Affairs (VA) rating decision. The Board previously remanded the claim in April 2020 for additional development, specifically to obtain updated VA treatment records and to obtain an examination to determine the current nature and severity of his migraine headaches. In a March 2021 rating decision, the agency of original jurisdiction (AOJ) granted a 50 percent rating for migraine headaches, effective January 8, 2021. However, a higher rating is available for migraine headaches prior to January 8, 2021. The Veteran is presumed to seek the maximum available benefit for a disability. As such, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating Disability evaluations 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 Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); 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 basis of disability evaluation 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. The rating schedule provides criteria for evaluating headaches is as follows: a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Governing case law and regulations have not defined "prostrating." For reference, the Board notes that "prostration" is defined as "extreme exhaustion or powerlessness." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d. ed. 2012). The use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met. Melson v. Derwinski, 1 Vet. App. 334 (1991); Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for a higher rating to be assigned). Here, each of the criteria listed in the 50 percent rating must be met in order to warrant a 50 percent rating. Tatum v. Shinseki, 23 Vet. App. 152 (2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to a rating for migraine headaches in excess of 30 percent prior to January 8, 2021 and in excess of 50 percent thereafter is denied. The Veteran generally asserts his headaches are worse than contemplated by the currently assigned ratings. In his September 2016 claim, the Veteran reported that the frequency of his headaches had increased and the severity is making it more difficult to live normal life. He takes prescription medication in order to function after his headaches, and he often does not have enough to get him through the month. In a November 2015 private treatment note, the Veteran was seen for a migraine lasting a few days covering his right eye. He stated he gets migraines monthly that last for about a week. In a December 2015 private treatment note, the Veteran reported he seems to be having more interval cluster headaches which respond to non-steroidal anti-inflammatory drugs (NSAIDs). The Veteran underwent a VA examination in September 2016. At that time, the Veteran's treatment plan included taking medication for the migraine headaches. The Veteran reported headache pain for more than two days on the right side of the head. Symptoms attributable to his migraine headaches included headache pain; constant head pain, pain localized to one side of the head. Non-headache symptoms included nausea and blurred vision. The Veteran was shown to have characteristic prostrating attacks of migraine headache pain that occurred less frequently, and he did not have very prostrating and prolonged attacks of migraines or non-migraine pain productive of severe economic inadaptability. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The examiner noted the Veteran's migraine headaches did not impact his ability to work. The examiner noted he is out of work unrelated to his headaches. In an October 2016 VA progress note, the Veteran reported he gets headaches about once a month and they can last for days. He will take medication during this time period. He is sensitive to light and get nauseated will dry heave if he tries to eat during a headache. He stated the pain is in the right side of his head, unilateral, throbbing sharp pain. He has been to the emergency room twice in the past two years due to headaches. He thinks the pain is getting worse and more frequent. He had one episode of blurry vision a year ago with headache that resolved with no episodes since. In a December 2016 notice of disagreement, the Veteran asserted that his rating should be increased due to the severity of the headaches and the duration that he has them. He reported he has had to increase use of pain medication in order to relieve the pain and be able to function but normal over the counter medications do nothing. In a January 2017 VA progress note, the Veteran reported he has migraine headaches without aura that have worsened in the past few years in that they are lasting longer (10 to 12 days). The headaches are commonly located in the right temporal area and occur once per month. He would rate the headaches at a 10/10 on the pain scale and described the pain as constant (not pulsating). The headaches are accompanied by nausea, photophobia, phonophobia and neck stiffness. His headaches can be brought on or aggravated by stress, hunger, and the taste of onions. The Veteran has been under a lot of stress lately as he started a new business in October and had family issues. The Veteran's headaches are relieved by his sumatriptan medication which he often has to take twice a day (once every 12 hours) or every day and he finds himself running out of pills. When he cannot take sumatriptan he takes Tylenol or Excedrin migraine and finds that Excedrin does help. He also stated that kneading his temporal area or squeezing the top of his ear helps alleviate his pain. In a June 2017 substantive appeal, the Veteran again asserted that an increased rating is warranted for his migraine headaches as he has provided proof of increase in medication to combat his symptoms and the severity of his symptoms. His prescription for sumatriptan was not adequate to treat his symptoms because his one headache lasts for 15 days and his prescription equals nine pills, so he runs out. In a February 2019 VA progress note, the Veteran reported he had not been seen since January 2017 and that at that time he was not interested in headache prophylaxis medications. Since then, he stated he feels like his headaches have worsened, particularly in the mornings. He reported one to two headaches per month that can last up to 15 days. He noticed that they fluctuate in intensity and tend to be worse after he wakes up. He reported he takes Tylenol almost daily which provides mild relief. Taking sumatriptan does help abort some of his headaches at time. In an October 2019 VA progress note, the Veteran reported he was last seen in clinic in February 2019. He has noted a decreased in his headaches since he started using his continuous airway pressure (CPAP). He used to have a headache about 15 days per month and now about five days per month. He was also started on topiramate after his last clinic visit but he discontinued this medication due to dizziness. He stated he takes Excedrin and sometimes sumatriptan which do help abort some of his headaches. He reported that neck pain is usually one of his major triggering factors. In a September 2020 VA progress note, the examiner noted the Veteran was last seen in clinic in November 2019, at that time Topiramate was discontinued due to side effect of dizziness. He stated that recently he was found to have severe hypertension and his Verapamil dose was increased and a month ago he was started on Amitriptyline for migraine prophylaxis. He has noticed improvement in the frequency and severity of the headaches. He used to have a headache daily and he has been headache free for 10 days. He reported he is still using Sumatriptan as abortive therapy. In a January 2021 private VA headaches Disability Benefits Questionnaire, the examiner noted the Veteran has history of migraine headaches which occur on a regular basis. He currently complains of worsening headache pain often accompanied by nausea, vomiting, and sensitivity to light. The pain is usually moderately, however severe episodes last for multiple days at a time, requiring the use of leave. His headaches are progressively becoming worse and condition is affecting financial status. The examiner noted the Veteran's treatment plan included taking medication for the migraine headaches. The Veteran reported headache pain typically one to two days with constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain worsened with physical activity. Non-headache symptoms included nausea, vomiting, sensitivity to light, and changes in vision. The Veteran was shown to have characteristic prostrating attacks of migraine and nonmigraine headache pain that occurred more frequently than once per month, and he had very prostrating and prolonged attacks of migraines or non-migraine pain productive of severe economic inadaptability. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. During bad episodes, the Veteran has to stay home and avoid any activities. He has had to call out sick multiple times per month when conditions are at their worst, which is affecting his financial status. The Veteran also went under a VA examination in March 2021. The Veteran reported several headaches a month, resolved with medication. He reported he was seen in the emergency department in January 2021 for a headache, treated and released. He stated that sometimes can feel a headache coming on, sometimes it just comes on rapidly, lasts five minutes to half of a day. He reported if neck is out of place, chiropractic treatment will relieve his headache. He stated he has pain with prolonged standing. He had increased headaches prior to identification of and treatment of elevated blood pressure. The examiner noted the Veteran's treatment plan included taking medication for the migraine headaches. The Veteran reported headache pain typically less than one day with constant head pain, pain on both sides of the head, and pain worsened with physical activity. Non-headache symptoms included nausea, sensitivity to light and sound, and blurred vision and vomiting on at least one occasion. The Veteran was shown to have characteristic prostrating attacks of migraine headache pain that occurred once in two months, and he did not have very prostrating and prolonged attacks of migraines or non-migraine pain productive of severe economic inadaptability. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The examiner noted that during an acute headache the Veteran would likely have decreased productivity. Based on the foregoing evidence, the Board finds that a rating in excess of 30 percent for migraine headaches is not warranted for the appeal period prior to January 8, 2021. In this regard, a next-higher rating of 50 percent requires migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Here, there is no evidence that the Veteran experienced headaches to such a degree. In a September 2016 VA examination, the VA examiner noted that the Veteran did not experience very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. Moreover, the examiner noted the Veteran's migraine headaches did not impact his ability to work and indicated he is out of work unrelated to his headaches. For the period from January 8, 2021, the Veteran is in receipt of a 50 percent rating for his migraine headaches. A rating in excess of 50 percent is not warranted for this period, however, as the 50 percent rating this is the highest schedular rating available. Accordingly, for the period from January 8, 2021, a rating in excess of 50 percent for migraine headaches is denied. The Board acknowledges the Veteran's statement that his migraine headaches are more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for a rating in excess of 30 percent have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for migraine headaches. However, these records do not address the specific rating criteria necessary to determine severity. Specifically, prior to January 8, 2021, the Veteran has not contended, and the record does not show, that his headaches have resulted in severe economic inadaptability. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board has considered whether further staged ratings under Hart, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning a staged rating is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. 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). Finally, the Board notes the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran's employment status is unknown, and he has not alleged that he is unemployable as a result of his migraine headaches. As such, Rice is inapplicable in this case. In this case, the preponderance of the evidence is against a rating for a migraine headache disability in excess of 30 percent prior to January 8, 2021, and in excess of 50 percent thereafter. Therefore, the claim must, accordingly, be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.