Citation Nr: 21064702 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-40 045A DATE: October 21, 2021 ORDER Prior to June 15, 2021, entitlement to a 50 percent rating for migraine headaches is granted. FINDING OF FACT Throughout the pendency of the claim, the Veteran's service-connected migraine headaches have been productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Prior to June 15, 2021, the criteria for a 50 percent rating for migraine headaches are met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1985 to February 1998, and from January 2005 to September 2005, in the United States Marine Corps (USMC). This case initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In April 2021, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since been returned to the Board. In his August 2017 substantive appeal, the Veteran indicated that he wanted a compensable rating for headaches granted retroactively to the date of his original February 21, 1998, claim. The Board notes that a final February 1999 rating decision granted service connection and assigned an initial noncompensable rating effective February 21, 1998. His statement suggests a desire to pursue a claim for an earlier effective date for a compensable rating based on clear and unmistakable error (CUE) in the February 1999 rating decision; however, that issue is not currently on appeal. If the Veteran wants this issue to be considered, he must first file the claim on a standard form prescribed by VA. Increased Rating - Headaches In September 2013, the Veteran filed a claim for an increased rating for his service-connected headache disability. In an August 2014 rating decision, the RO continued a noncompensable rating for the headache disability. The Veteran appealed, requesting a higher rating. In a December 2014 rating decision, the RO increased the rating for the Veteran's headache disability to 30 percent effective November 4, 2014. In a June 2021 rating decision, the RO increased the rating to 50 percent effective June 15, 2021. Because the Veteran is presumed to seek the maximum available benefits, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2013, the Veteran stated that he had headaches three times per month that lasted two to four hours and required continuous use of medication. The Veteran submitted a pain management journal dated from January 2014 to March 2014. It was noted that he had headaches most days and experienced severe headaches one to two times per week, which lasted two to six hours. During a June 2014 VA examination, the Veteran reported experiencing spontaneous, intermittent migraine headaches. It was noted that he did not take medication. He reported that he experienced headache pain on both sides of his head, sensitivity to light, and sensitivity to sound. It was noted that he experienced characteristic prostrating attacks of migraine headaches less than once every two months that lasted less than one day. The examiner indicated that the Veteran did not have very frequent prostrating attacks of migraine headaches. The examiner indicated that the Veteran's headache condition impacted his ability to work by resulting in poor concentration, sensitivity to bright light, and sensitivity to loud noise. In a September 2014 statement, the Veteran indicated that he had severe headaches, which required him to lie down until the symptoms resolved and he could function again. He stated that if the headaches occurred at night, it was impossible to sleep. He indicated that he treated his headaches with over-the-counter Motrin (800mg), which relieved much of the pain, but not all of it. He stated that the pain was so intense that it was difficult to concentrate or function at a normal level until the Motrin started to take effect. During a November 2014 VA examination, the Veteran reported experiencing constant head pain, pulsating or throbbing head pain, pain on both sides of his head, and pain worsening with physical activity. He indicated that he also experienced nausea, sensitivity to light, and sensitivity to sound. It was noted that he experienced characteristic prostrating attacks of migraine headache more frequently than once per month that last less than one day. The examiner indicated that he had very frequent prostrating and prolonged attacks of migraine headaches. The examiner indicated that the Veteran's headache condition impacted his ability to work, noting that when severe migraines occurred, he had to rest. A November 2014 VA treatment record indicated that the Veteran was seen in the intake clinic for enrollment in primary care. At that time, he indicated that he had a history of headaches but denied experiencing a headache at that time. VA treatment records dated from November 2014 to May 2018 do not show any complaints or treatment for headaches. During a May 2018 VA examination for mental disorders, the Veteran reported that he had migraine headaches three to five times per week. An August 2018 VA treatment record indicated that the Veteran requested medication to treat his migraine headaches. He stated that the pain was mostly on the right side and was excruciating, like an ice pick. He reported that the headaches were sometimes associated with nausea and photo/phonophobia, but no vomiting or aura. He indicated that the headaches lasted a couple of hours and that he had only treated them with Tylenol in the past. He indicated that he had tried Zomig from a friend and that it helped. It was agreed that he first try a trial of Imitrex, and if that did not work, he would be prescribed Zomig. In September 2018, he telephoned and indicated that Imitrex was not working, and he was given a prescription for Zomig (zolmitriptan). In February 2019, he reported that Zomig worked great. During a January 2021 Board hearing, the Veteran testified that he had one or two debilitating headaches a week and quite a few in addition to that. He stated that when he had migraine attacks, he had to stop working, cancel appointments, and pull over in a vehicle if he was driving. He stated that he had to take medication and wait for the pain to go away, and that the headaches were debilitating. He stated that he was a field-based employee working remotely outside of a corporate office. He indicated that when he had pain or migraines, he would adjust his work by canceling appointment, rescheduling appointments, or doing whatever he had to do. He stated that he supervised himself and had been managing it on his own. He indicated he was a sales representative in the healthcare industry, which required travel and face-to-face meetings with customers. He indicated that at times, his headaches were so severe that he had to cancel or reschedule conferences. He stated that having to reschedule or cancel appointments indirectly affected his work performance by not being able to deliver the message to the customer. He stated that the VA prescribed Zomig, a migraine medication, which he took as needed. He stated that he also took Tylenol for less severe headaches. He indicated that his headaches had gotten a little bit worse since the November 2014 VA examination and that is why he went to VA to ask for a migraine medication. During a June 2021 VA examination, the Veteran reported that he began having headaches during service and was diagnosed with migraine and cluster headaches. He indicated that had one to three headaches per week that pattern had continued since service. He stated that he was taking Zomig at the onset of his headaches and a high dose of Motrin, which did not relieve his symptoms. He indicated that he had constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain worsening with physical activity. It was noted that he also experienced nausea, sensitivity to light, sensitivity to sound, changes in vision, and sensory changes. The examiner indicated that he had characteristic prostrating attacks of migraine/non-migraine headaches at least once every month lasting less than a day, and that his headaches were productive of severe economic inadaptability. The examiner noted that he had to stop his career as a pilot due to his headaches, which was a lifetime disappointment. The examiner also noted that his headaches could be debilitating as he could not work, travel, converse, or do any activities when he experienced headaches. It was noted that when he experienced headaches, he had to seek rest and quiet in a dark room until they resolved with medication or time. Based on the foregoing, the Board finds that a 50 percent rating for migraine headaches is warranted throughout the pendency of the claim. Although the June 2014 VA examiner indicated that the Veteran experienced prostrating attacks of migraine headaches less than once every two months, i.e., the criteria for a 10 percent rating, other evidence indicates more frequent prostrating attacks. In September 2013, the Veteran indicated that he had headaches three times per month. In his pain management journal dated from January 2014 to March 2014, he reported having severe headaches one to two times per week. In addition, only five months after the June 2014 VA examination, the November 2014 VA examiner noted that the Veteran had very frequent prostrating and prolonged attacks of migraine headache pain. Throughout the appeal period, the Veteran has generally reported having frequent and severe headaches occurring one to three times per week. The evidence also indicates that his headaches were prostrating and required him to stop what he is doing and rest until the pain subsided. This evidence is consistent with the criteria for a 50 percent rating. 38 C.F.R. § 4.124A, Diagnostic Code 8100. Regarding economic inadaptability, the June 2014 and November 2014 VA examiners both indicated that the Veteran's headaches impacted his ability work, by resulting in poor concentration, sensitivity to light, and loud noise. The November 2014 VA examiner indicated that when his headaches occurred, rest was required. The Veteran's written statements and testimony also indicated that when his headaches occurred, he had to lie down and rest until the pain subsided and he was able to function again. His headaches required him to cancel or reschedule work appointments. Given the frequency and duration of his headaches and resolving reasonable doubt in his favor, the Board finds that his headaches have been productive of severe economic inadaptability throughout the pendency of the claim. Therefore, the Board finds that a 50 percent rating is warranted prior to June 15, 2021. 38 C.F.R. § 4.124A, Diagnostic Code 8100. The Board notes that a 50 percent rating is the maximum rating under Diagnostic Code 8100. The Veteran has not raised nor does the evidence show entitlement to an extraschedular rating for his service-connected migraine headaches. 38 C.F.R. § 3.321(b). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.