Citation Nr: 21065647 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 09-09 201 DATE: October 27, 2021 ORDER For the entire period on appeal, entitlement to an initial disability rating of 50 percent for migraine headaches is granted. REMANDED Entitlement to a separate compensable rating for speech difficulties associated with the service-connected migraine headaches is remanded. FINDING OF FACT The evidence is in equipoise as to whether the Veteran experiences migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW For the entire period on appeal, the criteria for an initial disability rating of 50 percent for migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from April 1982 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Procedural History In a July 2007 rating decision, the RO granted service connection for migraine headaches and assigned an initial disability rating of 10 percent, effective May 2, 2006. In a July 2010 rating decision, the RO granted service connection for speech difficulties secondary to the Veteran's migraine headaches. The RO determined that speech difficulties were a symptom and would therefore be evaluated as part of the Veteran's migraine headaches. In a January 2015 rating decision, the RO increased the rating for migraine headaches with speech difficulties to 30 percent, effective May 7, 2010. In a June 2017 decision, in pertinent part, the Board awarded an initial disability rating of 30 percent for migraine headaches for the entire period on appeal. The Veteran timely appealed the Board's June 2017 decision to the United States Court of Appeals for Veterans Claims (Court). By way of a January 2019 Memorandum Decision, the Court vacated the Board's decision insofar as it denied entitlement to an initial disability rating in excess of 30 percent for migraine headaches and did not consider whether the Veteran was entitled to a separate compensable rating for the speech difficulties associated with his migraine headaches. Accordingly, the Court remanded the matter to the Board for further adjudication consistent with the Memorandum Decision. In November 2019, the Board remanded the matter for additional development. The matter has now returned to the Board for further appellate consideration. 1. Entitlement to an initial disability rating in excess of 30 percent for migraine headaches Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Under DC 8100, a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over a several month period. A 50 percent rating, the maximum schedular rating allowed, is assigned for migraines with very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, DC 8100. The rating criteria does not define "prostrating." By way of reference, the Board notes that according to Dorland's Illustrated Medical Dictionary (32d ed. 2012), "prostrating" is defined as "extreme exhaustion or powerlessness." On review of the evidence, both lay and medical, and with resolution of all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's migraine headache symptoms more nearly approximate the criteria for a 50 percent disability rating under DC 8100. Specifically, the evidence is at least in equipoise as to whether the Veteran experiences migraine headaches with very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. Throughout the entire period on appeal, the evidence shows that the Veteran has experienced prostrating attacks of migraine headaches more frequently than once per month, which exceeds the criteria for a 30 percent rating under DC 8100. The Veteran has reported that his migraine headaches occur on a weekly basis, up to multiple times per week or daily, that most attacks are prostrating, and that medications do not relieve his symptoms. See VA examinations dated March 2007 to August 2021; October 2008 private neuropsychological evaluation report; lay statements by the Veteran dated May 2006 to August 2015; September 2016 "Headaches" Disability Benefits Questionnaire (DBQ) completed by the Veteran. The Veteran is competent to report observable symptoms of migraine headaches and the Board has no reason to doubt his credibility. Additionally, the evidence reflects that the Veteran's migraine headaches have produced, or are capable of producing, economic inadaptability. VA examiners noted that the Veteran's migraine headaches have significant effects on his usual occupation because his pain results in increased tardiness and absenteeism, with many weeks' time lost due to migraines each year. See VA examination reports dated March 2007 to March 2011; August 2007 "Leave Used Summary;" September 2016 "Headaches" DBQ completed by the Veteran. The Veteran has also reported that his migraine headaches prevent him from completing his work duties effectively. See lay statements dated August 2007 to August 2015; September 2016 "Headaches" DBQ; VA 21-8940 Veterans Applications for Increased Compensation Based on Unemployability dated October 2013 to February 2018. Notably, the August 2018 and September 2018 VA examiners determined that the Veteran had very prostrating and prolonged attacks of migraines or non-migraine pain that were productive of severe economic inadaptability. See August 2018 and September 2018 VA headaches examination reports. For these reasons, and with resolution of all reasonable doubt in favor of the Veteran, the Board finds that his migraine headache symptoms and level of impairment more nearly approximate the criteria for an initial disability rating of 50 percent for the entire period on appeal. A 50 percent rating is the maximum schedular rating allowed under DC 8100. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to a separate compensable rating for speech difficulties associated with the service-connected migraine headaches is remanded. As previously mentioned, in the January 2019 Memorandum Decision, the Court determined that the Board erred in its June 2017 decision insofar as it did not consider whether the Veteran was entitled to a separate compensable rating for the speech difficulties associated with his migraine headaches. In November 2019, the Board remanded the matter to provide the Veteran a VA examination to obtain "sufficient evidence to evaluate the Veteran under a different diagnostic code that addresses speech impairment," to include DCs 6516, 6519, 6521, and 9310. In August 2021, the Veteran was provided an additional VA examination to address the nature and severity of the claimed speech difficulties associated with his migraine headaches. However, the August 2021 VA examiner determined that the Veteran's speech difficulties had resolved, as he did not report any current difficulty with word finding and denied any dysphasia or dysarthria. He instead described difficulty concentrating and participating in conversations during migraine headaches. The Board regrettably finds that another remand is necessary for further medical clarification. Even if the Veteran does not currently experience speech difficulties during migraine headaches, there is still competent evidence of speech difficulties throughout the period on appeal which the Board must consider. See May 2010 VA neurological disorders examination report; February 2017 VA headaches examination report. The Board requires further information to be able to determine the proper rating for any speech difficulties that existed during the appeal period. Therefore, remand is required to obtain a medical opinion as to the nature and severity of the Veteran's speech difficulties associated with his migraine headaches, to the extent they existed during the period on appeal, with adequate findings to allow the Board to evaluate the speech difficulties under DCs 6516, 6519, 6521, 9310, or any other applicable DC. Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum medical opinion regarding the nature and severity of the Veteran's speech difficulties associated with his migraine headaches, preferably from the VA examiner who completed the August 2021 VA examination reports, if possible. If this is not possible, the opinion should be rendered by another appropriate examiner. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. If another examination is indicated, one should be provided to the Veteran. After a thorough review of the claims file, the examiner is asked to assess the Veteran's speech difficulties associated with his migraine headaches during the period on appeal under diagnostic codes 6516, 6519, 6521, 9310, or any other applicable diagnostic code(s). The Board emphasizes that, even if the Veteran does not currently have speech difficulties associated with his migraine headaches, the examiner should still provide an opinion as to the severity of the speech difficulties to the extent they existed during the period on appeal (i.e., since May 2006). (Continued on the next page) 2. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.