Citation Nr: 21062177 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 20-28 688 DATE: October 6, 2021 ORDER Entitlement to a 30 percent rating, but no higher, for headaches is granted, subject to the laws and regulations governing payment of monetary awards. FINDING OF FACT The Veteran's headaches were manifested by approximately three characteristic prostrating headache attacks over the past several months; very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability was not shown. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating, but no higher, for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1962 to July 1970. This appeal to the Board of Veterans' Appeals (Board) is from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned during a video conference hearing; a transcript of the hearing is of record. During the hearing, the undersigned agreed to keep the record open for 30 days to allow the Veteran to submit additional evidence, but no records were received. In May 2021, the Board remanded the matter to obtain the Veteran's private treatment records; however, did he did not submit a signed release or submit the records on his own. Entitlement to a rating in excess of 10 percent for headaches. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, it will assign the lower rating. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Service connection for the Veteran's headaches was established in a December 1970 rating decision, under Diagnostic Code 8100. He filed a claim for an increased rating in May 2016. Under Diagnostic Code 8100, a noncompensable rating is assigned with less frequent attacks. A 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is assigned for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is assigned for very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria for Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. See Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. See Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, 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, 445-46 (2004). The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). March 2016 VA treatment records noted the Veteran had headaches, but the records contained no discussion of their frequency or severity; one record only noted that his headaches were controlled by intermittent use of codeine. See July 2016 CAPRI records. The July 2016 VA examination shows the Veteran had a history of generalized headaches associated with light and sound intolerance that were treated with codeine. The disability included pain on both sides of the head and non-headache symptoms were sensitivity to light and sound. The headaches typically lasted longer than two days but did not involve characteristic prostrating attacks of headache pain. The Veteran was taking codeine to treat his headaches, and there were no other pertinent findings. The functional impact of his headaches was that the pain was distracting. See July 2018 C&P Exam. In September 2017, the Veteran reported that his headaches occurred at least once a month and that they worsened since VA stopped prescribing opioids. See September 2017 NOD. A September 2017 VA treatment record shows his headaches had significantly improved when he was on narcotics and that he had them only once or twice a year while on them. He was being weaned off the medication and had two headaches since May. On February 13, 2018, the Veteran reported that that since weaning off codeine his headaches occurred every ten days and lasted for several hours. During his headaches, he went into a dark room and put a pillow over his head. See June 2020 CAPRI records. During his March 2021 hearing, the Veteran indicated that he did not get headaches often because he was back on codeine. If he woke up with headaches then he just stayed in bed or in a dark room, which happened once a month. He had not kept track of the frequency of his headaches. Dr. Singh prescribed codeine for a cough, which also helped his headaches, but he did not treat the Veteran for headaches. He treated the Veteran's cough with codeine which helped the headaches as well. See March 2021 Hearing Transcript. During most of the appeal, the Veteran was either taking medication for his headaches, as noted during the July 2016 VA examination, or he was on medication to treat something else that had the side benefit of helping his headaches. In either case, the medication lessened the frequency, severity, or duration of his headaches. Thus, much of this evidence reflects the ameliorative effect of medication. The Board notes that with or without medication, the Veteran's headaches had the frequency for a higher rating with reports of them occurring from once a month to every ten days, which translates to approximately three times a month. The evidence beginning February 13, 2018 indicates the severity of his headaches when not taking medication. The evidence reflects his headaches are severe enough to be more consistent with the criteria for a 30 percent rating. On this date, he reported that they led to him going into a dark room and putting a pillow over his head. As the Veteran was not taking medication at the time, so this evidence more accurately reflects the severity of his headaches. His description suggests that his headaches were severe enough to result in characteristic prostrating attacks. Thus, the Board will resolve doubt and grant a 30 percent rating throughout the appeal period. A higher rating of 50 percent is not assignable at any time because the Veteran's headaches were not very frequent. In this regard, they only occurred a few times a month. The headaches were also not prolonged, since he reported they only lasted several hours. His March 2021 testimony is also consistent with no more than a 30 percent rating since headaches kept him in bed once a month. Furthermore, there is no evidence that his headaches were completely prostrating and produced severe economic inadaptability. For the reasons stated, the Board finds that a preponderance of the evidence is in favor of a 30 percent rating throughout the appeal period. At no time did the evidence suggest the criteria for a 50 percent rating was met or approximated. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.