Citation Nr: 21061966 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 04-31 861 DATE: October 6, 2021 ORDER Subject to the laws and regulations the award of VA monetary benefits, a 30 percent rating, but no more, for migraine headaches, including migraine variants with tension headaches, for the period prior to August 9, 2016, is granted, subject to regulations governing the payment of monetary benefits. FINDING OF FACT For the period prior to August 9, 2016, the Veteran's migraine governing headaches resulted in characteristic prostrating attacks occurring on an average once a month. CONCLUSION OF LAW The criteria for a 30 percent rating, but no more, for migraine headaches for the period prior to August 9, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.14, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1981 to June 1983. In September 2017, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In a February 2019 decision, the Board, in part, denied a rating in excess of 10 percent for migraine headaches for the period prior to August 9, 2016, and a rating in excess of 50 percent therefrom. The Veteran appealed the Board's February 2019 decision deny a rating in excess of 10 percent for migraine headaches for the period prior to August 9, 2016 to The United States Court of Appeals for Veterans Claims (CAVC). The Court issued a Memorandum decision in February 2021 in which it vacated the Board's prior decision pertaining to a denial of a rating in excess of 10 percent for migraine headaches for the period prior to August 9, 2016. As such, the Court remanded the issue for further proceedings consistent with the Memorandum decision. The below decision is written in accordance with the Court's February 2021 Memorandum decision. The Veteran has been assigned a 10 percent rating for his migraine headaches for the period prior to August 9, 2016 under Diagnostic Code (DC) 8100. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under DC 8100, Migraine headaches are evaluated under 38 C.F.R. § 4.124a, DC 8100. Under this code, a 10 percent rating is assigned for migraine headaches with characteristic prostrating attacks averaging one in two months over last several weeks. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. Migraine headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation, which is also the maximum evaluation available under this diagnostic code. Id. As noted previously herein, in a February 2019 decision, the Board denied a rating in excess of 10 percent for migraine headaches for the period prior to August 9, 2016. In denying the claim, the Board found that the medical evidence of record did not show that the Veteran had characteristic prostrating attacks that occurred on average once a month over a several month period, criteria necessary for the next higher 30 percent evaluation under Diagnostic Code 8100. See February 2019 Board decision at page (pg.) 8)). In reaching its conclusion, the Board relied on a September 2014 VA examiner's finding, with respect to the duration of the Veteran's headaches, that they lasted less than one (1) day and that his "characteristic prostrating attacks of migraine head pain" had been "less frequent over the prior several months." Id. at pg. 9. The Board had also relied on VA treatment reports that included brief notes about headaches that were part of a general review of the Veteran's neurological system. For example, a January 2016 VA cardiology outpatient note states: "Neuro: denies severe headache, loss of balance, paresthesia[]s, weakness, history of CVA/TIA seizures." See Court documents, to include the February 2021 Memorandum Decision at pg. 57. The Court noted that other VA treatment reports referenced by the Board contained similar if not identical entries with no discussion of headaches. Id. In its February 2021 Memorandum Decision, the Court found that the September 2014 VA examination report was insufficiently descriptive and, therefore, was inadequate with respect to the frequency of the Veteran's migraine headaches. Crucially, according to the Court, the September 2014 VA examiner did not state the frequency, on average, of the Veteran's headaches over the previous months. Rather, the VA examiner only indicated that the Veteran had suffered from one to two severe migraines a year, during which he was incapacitated. Thus, it was not clear to the Court whether the one to two migraines a year during which the Veteran was incapacitated also represented the number of characteristic prostrating attacks of migraine pain, thus, the Court found the September 2014 VA examination inadequate. Conversely, the Court noted that the Veteran had testified before the undersigned in 2017 stating that in 2014, he had experienced prostrating attacks once or twice a week, with each attack lasting from 20 to 40 minutes or longer, and that these attacks occurred approximately five (5) times a month that caused left eye pain. The Board notes that the Veteran is competent to report the extent and severity of migraine symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Thus, considering the disability picture presented by the Veteran's headache disorder, his competent testimony before the undersigned, and a finding that the September 2014 VA examination report was insufficiently descriptive, and, therefore, inadequate with respect to the frequency of the Veteran's migraine headaches, the Board finds the evidence supports the assignment of an increased 30 percent rating for migraine headaches for the period prior to August 9, 2016. In noting such increased symptoms were productive of characteristic prostrating attacks of headache pain once every month. Accordingly, a 30 percent rating for the Veteran's headaches is warranted from for the period prior to August 9, 2016. To this extent, the appeal is granted. The Board has considered whether a further increased rating in excess of 30 percent may be warranted in this case prior to August 9, 2016. While the Veteran has described painful headaches, he has not reported that his headaches were either very frequent completely prostrating and prolonged attacks, or that they were productive of severe economic inadaptability. Additionally, there is no suggestion in the September 2014 VA examination report that the Veteran's headaches caused severe economic inadaptability nor does a review of the Veteran's VA treatment records support such finding. Likewise, the Veteran's representative argued in a 2021 Brief that a 30 percent rating was warranted prior to August 9, 2016, but did not suggest that a rating in excess of 30 percent was warranted. On a longitudinal view of the record, and with resolution of reasonable doubt in the Veteran's favor as required, the Board finds it is reasonably shown that the Veteran's migraine headaches warrant a 30 percent rating (and no higher) for the period prior to August 9, 2016. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.