Citation Nr: 21064611 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-01 226 DATE: October 21, 2021 ORDER Entitlement to an initial rating of 30 percent, but no higher, for headaches, throughout the entire period on appeal, is granted. FINDING OF FACT Beginning April 30, 2015, the Veteran has had migraine headaches with prostrating attacks occurring on average once a month over the last several months; frequent completely prostrating and prolonged attacks productive of severe economic inadaptability have not been shown. CONCLUSION OF LAW The criteria for an initial rating of 30 percent, but no higher, for migraine headaches, throughout the entire period on appeal, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1988 to September 1992 and from February 2003 to July 2004. He also had active duty for training from August 1985 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded this claim in November 2019 to the agency of original jurisdiction (AOJ) for further development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). The Board will also consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to an initial compensable rating, and in excess of 30 percent from February 18, 2016 and onward, for migraine headaches The Veteran's headaches have been rated under DC 8100. Under DC 8100, a 0 percent (noncompensable) disability rating is warranted for migraines with less frequent attacks. A 10 percent disability rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent disability rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent disability rating (the highest available schedular rating) is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating. Prostration is defined by a medical dictionary as "extreme exhaustion or powerlessness." See Dorland's Illustrated Medical Dictionary 1531 (32nd ed. 2012). "Prostrating" has also been defined as "lacking in vitality or will: powerless to rise: laid low." See Johnson v. Wilkie, 30 Vet. App. 245, 252, citing English Language Unabridged 376, 1822 (1966). The phrase "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." See Pierce v. Principi, 18 Vet. App. 440 (2004). Thus, headaches need not actually "produce" severe economic inadaptability to warrant a 50 percent disability rating. Further, the Court found that "severe economic inadaptability" does not mean unemployability. The Board notes, however, that the headaches must be, at minimum, capable of producing "severe" economic inadaptability. The Veteran was initially afforded a VA headache examination in August 2015. At that time, the Veteran reported experiencing daily throbbing headaches. He reported that his pain was initially controlled with over-the-counter pain medication. The Veteran reported taking prescription medication to alleviate his symptoms. The examiner noted that the Veteran experiences constant headaches, pulsating or throbbing in nature, on both sides of the head. Although the VA examiner noted that the Veteran did not have characteristic prostrating attacks, no rationale was provided or further explanation. The examiner also noted that the Veteran's headaches do not impact his ability to work. Pursuant to November 2019 Board's remand directives, the Veteran underwent another VA examination for his headaches in December 2019. At that time, the Veteran reported experiencing constant headaches from the moment he wakes up until he falls asleep. He reported that his chronic daily headaches are throbbing and pulsating in nature. He also reported experiencing pressure in his eyes and visual changes. The Veteran reported taking prescription and over-the-counter pain medication to alleviate his symptoms. He also uses a transcutaneous electrical nerve stimulation (TENS) unit for tightness in his neck, which does not help with his headaches. He received acupuncture every 2 weeks and that was helpful, but he could not afford to miss work to go to appointments and he had to stop the treatment. He reported being scheduled to start Botox. The examiner noted that the Veteran's headaches are constant, pulsating or throbbing in nature, with pain on both sides of the head. The examiner further noted that the Veteran experiences nausea, sensitivity to light and sounds, and changes in vision associated with his headaches. As to characteristic prostrating attacks of migraine headaches, the examiner noted that the Veteran experiences those attacks more frequently than once per month. However, the examiner noted that the prostrating attacks are not productive of severe economic inadaptability. The examiner also noted that the Veteran's headaches impact his ability to work because he is a truck driver, and he has to pull over to cover his eyes for 20 to 30 minutes when the headaches become severe. The examiner added that the Veteran pushes through the headaches and keeps working as he cannot afford to lose work. The Board has reviewed extensive VA treatment records throughout the period on appeal. Treatment records in November 2015 note chronic headaches pounding in nature, with flare-ups a few times per week. At that time, the Veteran reported taking prescription medication and sought acupuncture treatment for his symptoms. In December 2015, the Veteran again sought acupuncture treatment for his chronic headaches. At that time, he reported that the prior treatments were helpful, and he had an improvement of his symptoms for about a week post-treatment. In February 2016, the Veteran reported ongoing headaches with no relief from prescription and over-the-counter medication. At that time, he also reported experiencing sensitivity to light and sound, and changes in vision. A May 2017 VA treatment record shows that the Veteran returned to acupuncture clinic to seek treatment for his chronic headaches. A December 2017 VA treatment record shows active daily prescriptions for headache medication. An August 2018 VA treatment record shows that the Veteran was seeing a neurologist for his headaches and prescription medication appeared to control his symptoms. A December 2019 VA treatment note shows that the Veteran reported constant headaches that have grown in intensity over the years. He reported associated lightheadedness and photophobia. He also reported taking prescription and over-the-counter pain medication to alleviate his symptoms. At the August 2019 Board hearing, the Veteran reported experiencing prostrating headache attacks 2 to 3 times per week while working as a truck driver. However, he reported that he continues to push through with work as he does not wish his condition to adversely impact his job. In an August 2021 Written Brief Presentation from his representative, it was noted that the Veteran has been experiencing throbbing daily headaches and over-the-counter medication is no longer helpful with his symptoms. It was also noted that in his July 2016 notice of disagreement (NOD), the Veteran reported experiencing frequent incapacitating episodes that occur at least twice per week. Based on a review of all the medical evidence and lay statements, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the frequency and severity of the Veteran's headaches and resulting functional impairment is commensurate with characteristic prostrating attacks occurring on an average of once a month over the last several months throughout the entire period on appeal. Accordingly, a rating of 30 percent for the entire period on appeal is warranted. The Board further finds that a disability rating in excess of 30 percent is not warranted. A 50 percent disability rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Although the Veteran has been experiencing some functional impairment, there is no indication that his headaches have been productive of severe economic inadaptability. In this regard, the August 2015 VA examiner indicated that the Veteran's headaches do not impact his ability to work. While the December 2019 VA examiner noted that the Veteran's headaches impact his ability to work, a severe economic inadaptability was not noted. The examiner also added that the Veteran takes 20 to 30 minutes breaks from work when his symptoms become severe. Otherwise, he continues to work. VA treatment reports show that the Veteran works full-time as a truck driver. The successive rating criteria for the assignment of a 50 percent rating are not met. Johnson, supra. The Board notes that in accordance with the Court's holding in Pierce, the consideration of 38 C.F.R. § 4.3 has been utilized to award a 30 percent disability rating in this case, as reasonable doubt was resolved in the Veteran's favor in order to find that the Veteran's headaches have been manifested by characteristic prostrating attacks throughout the entire period on appeal. In sum, the Board finds that the Veteran's headaches were manifested by characteristic prostrating attacks occurring at least on an average once a month over the last several months and that they were not manifested by very frequent completely prostrating and prolonged attacks. As such, the Board concludes that a disability rating of 30 percent, but no higher, is warranted for the Veteran's headaches throughout the entire period on appeal. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8100. To this extent, the Veteran's claim is granted. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.