Citation Nr: 21062068 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-31 933 DATE: October 6, 2021 ORDER For the entire initial rating period on appeal from October 24, 2016, a higher initial disability rating of 30 percent, but no higher, for the service-connected migraine disability is granted. FINDING OF FACT For the entire initial rating period on appeal from October 24, 2016, without taking account of the ameliorative effects of medication, the service-connected migraine disability most nearly approximated characteristic prostrating attacks averaging one once a month over a several month period, and did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, for the entire initial rating period on appeal from October 24, 2016, the criteria for a higher initial disability rating of 30 percent, but no higher, for the service-connected migraine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.27, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active duty service from October 2011 to October 2016. The instant matter is on appeal from a February 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that granted service connection for a migraine disability and established a noncompensable (0 percent) disability rating. The instant matter has been before the Board of Veterans' Appeals (Board) previously. In an April 2019 remand, the Board remanded for updated VA treatment records, a new VA examination, and the opportunity for the Veteran to provide employment documentation related to any leave he took related to the migraine disability. As there has been substantial compliance with the terms of the remand, the matter is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability Rating Legal Criteria 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. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Migraines are rated pursuant to Diagnostic Code 8100. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. Migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. Migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraines with less frequent attacks warrant a 0 percent (noncompensable) rating. 38 C.F.R. § 4.124a. An Initial Disability Rating of 30 Percent for Migraines is Granted. The Veteran appeals the noncompensable disability rating for the service-connected migraine disability and seeks a compensable rating. The Veteran asserts that he has prostrating attacks frequently enough to warrant a compensable rating. See June 2017 VA Form 9. The regulation does not define the term prostrating, but a medical dictionary defines prostration as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1531 (32nd ed. 2012). After a review of all the lay and medical evidence in this case, the Board finds that, for the entire initial rating period on appeal from October 24, 2016, without taking account of the ameliorative effects of medication, the service-connected migraine disability most nearly approximated characteristic prostrating attacks averaging one once a month over a several month period as required for a 30 percent disability rating. For the entire rating period, the weight of the evidence shows that the headaches did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability as required for a 50 percent rating. The Veteran separated from active service in October 2016, and filed the claim for compensation in November 2016, immediately after service separation. The service treatment records document frequently occurring migraine headaches during the last year and a half of service that required treatment with medication and consultation with neurology. There were a few isolated migraines earlier during the service period. In a July 2016 service treatment record, the Veteran reported nearly constant headaches that he had for as long as he could remember. In an April 2016 service treatment record, the Veteran reported headaches three to four times per week and greater than four hours per day. Neither of these records described the intensity or incapacitating nature of the migraines. In a March 2016 service treatment record, the physician documented that the Veteran reported that at least one time per month, the Veteran's headache will continue to worsen and get to a 9 out of 10 debilitating pain that requires him to find a dark room and sleep off a headache for a few hours until it resolves. At the May 2016 Report of Medical History, the Veteran reported "yes" to frequent or severe headache and said constant headache with frequent migraines. The examiner's comment stated that the Veteran had a history of a headache disorder with onset preceding service, currently under care of neurology, and taking medication both for prophylaxis and for abortion. This evidence shows that, without medication, the headaches caused attacks about once per month, and that the medication for the headaches had had both a prophylaxis effect to help prevent the headaches from starting or becoming severe, or for abortion, that is, to end the headaches that had already developed. The Board may not consider the ameliorative effects of medication when such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) ("Absent a clear statement setting out whether or how the Board should address the effects of medication, the Board erred in taking those effects into account when evaluating the [veteran's] disability, rather than limiting itself to the symptoms expressly contemplated by" the Diagnostic Code) Diagnostic Code 8100 does not explicitly contemplate the impact of medication on migraine headaches. In the June 2016 Report of Medical Examination at service separation, the neurological system was marked as not examined. A diagnosis of migraine headaches was given, but there were no details provided as to severity or its incapacitating nature. In a December 2016 VA examination, the Veteran reported that migraine headache episodes caused him to leave work early once or twice per year, but otherwise he dimmed the lights and persisted at work; however, the Veteran reported taking medication. The VA examiner characterized the headaches as prostrating attacks. This picture is consistent with the finding that, without the ameliorating effects of medication, prostrating headaches would occur about once per month. Considering the ameliorative effects of medication, the Board finds that, without medication to treat the headaches, the headaches would more nearly approximate prostrating attacks of once per month. While the recorded histories are inconsistent as to whether medication has been required or utilized, there is some evidence both before and later during the claim that shows the usage of medication to prevent or to treat the headaches. In a January 2017 traumatic brain injury screening, the Veteran reported migraines once or twice per month with light and noise sensitivity. While the examiner wrote that the migraine disability did not require medication, other evidence of record does suggest the use of medication to prevent or treat headaches. In a March 2017 Notice of Disagreement, the Veteran wrote that he has one or two prostrating attacks per month, but the suggestion of more than one prostrating attack of headaches per month is at odds with the other evidence of record during service and just a few months earlier. The evidence during service supported more frequent episodes of up to once per month that required rest and the post-service evidence shows one or two nonprostrating episodes per year (December 2016 VA examination) or one or two nonprostrating episodes per month (January 2017 TBI examination). The Veteran provided lay statements from a former supervisor and coworker, who both wrote that the Veteran used all his accrued sick leave as well as nonpaid leave due to migraine, which average two to three days per month. These reports of use of sick leave are consistent with the credible reports of headaches and having to take some time from work; however, the statements do not show prostrating attacks associated with the headaches even during the time taken from work due to headaches, notwithstanding that both of the statements uncharacteristically inserted the word "prostrating" into their statements. The statements do not otherwise describe headaches of a severity to cause prostration; rather, they describe headaches at the workplace for which the Veteran took time off work after having been at work. The April 2019 Board remand provided the Veteran with an opportunity to provide documentation related to sick leave and unpaid leave, but the Veteran did not provide any response. For this reason, the Board is unable to determine how much time was actually lost from work due to the headaches, and is unable to find that the headaches were prostrating, or were of such frequency or duration to warrant a higher rating. While the Veteran took off some time from work due to headaches, there is no suggestion that the hours or afternoons or whatever time he took off was of such a duration to suggest a prostrating attack. The Board need not speculate whether the headaches were prostrating, or interfered with work more than once per month for a rating in excess of 30 percent, as there is no factual basis to make such a finding. The Veteran did not help his own case when he chose not to obtain and submit the work pay and leave records, which also might have help substantiate a 50 percent rating if they showed severe economic inadaptability. The record as it stands does not show or event suggest severe economic inadaptability; rather, the Veteran is able to use sick leave to leave work when necessary. The evidence does not even show or suggest that the Veteran has lost any income or work opportunities due to the headaches; rather, the testimonial evidence, unsupported by employment records, shows time off from work due to headaches. In September 2019, the Veteran submitted a private Disability Benefits Questionnaire (DBQ) that repeats the Veteran's own unsupported description of headaches as prostrating, and shows that the Veteran told a different history to the examiner of significantly increased frequency of headaches that is more than double the number of headaches he had just reported several months earlier. The physician stated that the Veteran has prostrating attacks occurring more frequently than once per month. The Veteran's report of three headaches per month to the DBQ examiner in September 2019 is not credible, as it is inconsistent with the other histories provided by the Veteran, and the larger context of headaches in this case that occur without the use of medication. The other evidence includes reports of headaches both without and with the use of medication, so provides a context in which to compare the noncredible history the Veteran reported to the DBQ examiner. Had this history of three headaches per month been a recent increase in severity, it would have, or should have, been recorded as such by the DBQ examiner, while noting the longer history of much less frequent and much less severe headaches just a few months prior. Unfortunately, this non-credible reported history by the Veteran to the DBQ examiner, without longer chronological context or assertion of recent worsening, means that the DBQ examiner relied on an inaccurately reported history of the frequency and severity of headaches when forming assessments solicited by the DBQ form. In the functional impact, the DBQ examiner wrote that the Veteran reports an average of three incapacitating migraines per month and that flare symptoms interfere with productivity, making him unable to attend class or work; however, this assessment of three "incapacitating" migraines per month is little more than a description of the Veteran's non-credible reports of three prostrating headaches per month. The history provided by the Veteran at the September 2019 DBQ is inconsistent with his other reports of frequency and severity of headaches and is inconsistent with other descriptions of impact caused by headaches, so it is not credible. The Veteran reported that he experienced three incapacitating episodes of headaches per month. To this point during the claim, with the use of medication, neither the Veteran nor the other evidence showed that headaches were incapacitating. It is only when the frequency, severity, and duration of headaches without the use of medication is considered that the evidence shows the headaches approximated one prostrating attack per month that is not prolonged or productive of severe economic inadaptability. This same lay history reporting "prostrating" headaches is the basis for the September 2019 DBQ's notation of the history of prostrating headaches, without a separate medical finding that the headaches were prostrating. Instead, the DBQ characterizes the headaches as incapacitating. The September 2019 DBQ, which was written for the Veteran in support of his claim for compensation, is at variance with the other lay and medical descriptions of the severity of the Veteran's headaches, including just four months later at another VA examination. In February 2020, the Veteran participated in a VA examination. The February 2020 VA examiner assessed that there were no characteristic prostrating attacks of migraine/non-migraine headache pain. In explanation, the February 2020 VA examiner noted that the Veteran had not been seen by neurology or a primary care doctor for migraines at VA in over a year and does not take any medication for the migraines, despite his self-reported assertion that the headaches caused him to miss 10 days of work in the past six months. The Board finds that the evidence, both lay and medical, demonstrates that the migraine disability does not cause symptomatology and functional impairments that warrants a compensable rating in excess of 30 percent disabling. It is only with resolution of reasonable doubt in the Veteran's favor, and consideration of some potential ameliorating effects of medication and some unquantifiable time lost from work, that the Board finds that the episodes of headaches have some semblance of prostration at the frequency of once per month in order to grant the 30 percent rating. As the 2019 DBQ reports of frequency of headaches are not credible, and the Veteran chose not to substantiate time lost from work even after being specifically asked to do so, there is no factual basis for finding that the prostrating attacks are very frequent, or completely prostrating, or prolonged, or caused severe economic inadaptability to warrant a rating in excess of 30 percent. Accordingly, while the Board will resolve reasonable doubt in the Veteran's favor and grant a 30 percent initial disability rating for the service-connected migraine disability, the weight of the lay and medical evidence strongly weighs against a higher rating than 30 percent. 38 C.F.R. §§ 4.3, 4.7. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.