Citation Nr: 21064523 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 13-22 839 DATE: October 20, 2021 ORDER Entitlement to a 50 percent rating, and no higher, for service-connected migraines is granted. REMANDED Entitlement to an increased rating in excess of 10 percent for service-connected right knee disability is remanded. Entitlement to an increased rating in excess of 10 percent for service-connected left knee disability is remanded. Entitlement to an increased rating in excess of 20 percent from February 25, 2020, for service-connected cervical spine disability is remanded. FINDING OF FACT The Veteran's migraine headaches are manifested by very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a maximum 50 percent rating for service-connected migraines have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Army from June 2006 to April 2010. The Board issued a decision in October 2020 granting an initial 30 percent rating, and no higher, for tension headaches, a 10 percent rating for prior to February 25, 2020 and a 20 percent rating thereafter for cervical spine strain, a 10 percent rating for right knee subluxation, and a 10 percent rating for both right and left knee retropatellar pain syndrome. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). He did not challenge the award of the 10 percent rating prior to February 25, 2020 for his cervical spine and the 10 percent rating for right knee subluxation. Pursuant to a Joint Motion for Partial Remand (JMPR), the Court set aside the October 2020 Board decision as to the ratings assigned for service-connected headaches, cervical spine, and right and left knee disabilities. and remanded the appeal for further development consistent with the JMPR. 1. Entitlement to an increased rating in excess of 30 percent for service-connected migraines. The Veteran's migraine headaches have been rated as 30 percent disabling under Diagnostic Code 8100. A maximum 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. As noted above, the Court set aside the Board's decision to award an initial 30 percent rating for migraine/tension headaches. The JMPR indicated that the Board erred in considering the ameliorative effects of medication and finding that there was no evidence of severe economic inadaptability. Specifically, the effects of medication are not explicitly contemplated by the rating criteria for evaluation tension headaches. Treatment records confirm stress and anger triggered headaches. He was in counseling for stress management/biofeedback. There was no evidence showing the frequency or severity of his headaches. During the October 2010 VA examination, the Veteran reported that his headaches used to come once per week but decreased to once per month. These headaches lasted 30-60 minutes without medication or 15 minutes with medication. There were no associated symptoms or loss of function. The intensity was measured at 4 to 7 out of 10. The Veteran was afforded a VA examination in February 2020 and reported headaches three times a week. After taking sumatriptan, he is able to return to work after about 30 minutes. The headache pain was throbbing and sharp, lasted less than one and occurred on both sides of his head. He also experienced sensitivity to light and sound. He had characteristic prostrating attacks of headache pain once a month, but these attacks were not productive of severe economic inadaptability. The Veteran has consistently reported very frequent headaches, occurring at least one to three times weekly. The February 2020 VA examination notes the Veteran's migraines are characteristic of prostrating attacks but documents that they were not productive of severe economic adaptability based on use of medication. However, the Veteran indicated that he was unable to concentrate and complete tasks during these headaches. Given the rate at which the Veteran reports having migraines and the fact that taking medication was the only way he could return work after the onset of a headache/migraine, the Board acknowledges this evidence goes toward proving severe economic inadaptability. After a full review of the evidence, both lay and medical, the Board finds the evidence is at least evenly balanced as to whether the Veteran's migraine symptoms have more nearly approximated the criteria for a 50 percent rating throughout the appeal period. When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, the Veteran's claim is granted and the Veteran's disability for migraine headaches is increased to 50 percent. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 10 percent for service-connected right knee disability is remanded. 2. Entitlement to an increased rating in excess of 10 percent for service-connected left knee disability is remanded. 3. Entitlement to an increased rating in excess of 20 percent from February 25, 2020, for service-connected cervical spine disability is remanded. The JMPR found that the February 2020 VA examinations for the knees and cervical spine were inadequate because the examiner failed to elicit information as to flare-ups or functional loss in the knees and did not describe functional limitation in terms of range of motion for his cervical spine disability. As such, a remand is appropriate to schedule the Veteran for new VA examinations. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine and bilateral knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.