Citation Nr: 21067349 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-12 535 DATE: November 4, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for migraine headaches on an extra-schedular basis is denied. FINDINGS OF FACT The Veteran's migraine headaches do not present an exceptional or unusual disability picture to render impractical the schedular rating criteria. CONCLUSIONS OF LAW The criteria for an extraschedular rating for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321(b), 4.7, 4.124a Diagnostic Code 8100 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1978 to February 1982, and again from, March 1983 to July 2000. Concerning the issue at hand, the matter comes to the Board of Veterans' Appeals (Board) from a December 2015 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). VA received an Intent to File a Claim for an increased rating for headaches on September 9, 2015. He is in receipt of the maximum schedular rating of 50 percent for migraine headaches under 38 C.F.R. § 4.124a, DC 8100 as of September 9, 2015. By way of procedural background, the Veteran filed a claim in September 2015 for an increased rating for headaches under 38 C.F.R. § 4.124a, DC 8100, which provides for a maximum schedular rating of 50 percent. In VA examinations dated October 2015, February 2017, and elsewhere, the Veteran asserted that he has other maladies, such as insomnia, along with the headaches. Based on the examinations and other evidence, the Board in January 2019 awarded the Veteran the highest schedular rating for Headaches available under DC 8100, namely 50%. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (CAVC). In an August 2020 Memorandum Decision, CAVC vacated and remanded the Board's denial of a rating higher than 50%. saying that the Veteran "asserts, however, that the Board has not compensated him for the ancillary symptoms produced by his headaches that were noted by medical experts in October 2015 and February 2017 and in other sources. He argued that the Board either should have awarded him separate disability ratings for those symptoms, or considered whether an extraschedular disability rating is appropriate." CAVC further said that "The Court will remand this case for the Board to explicitly account for the appellant's additional symptoms and explain, with adequate citation to authority, how (or whether) they figured into the disability rating that it assigned to the appellant's disorder. In compliance with the Court's remand, the Board remanded the claim in April 2021 to get a medical opinion as to whether the Veteran's claimed additional migraine headaches symptoms characterized as nausea, insomnia, fatigue, difficulty concentrating, memory problems, and noise and light sensitivity were headache symptoms or are separately diagnosable disabilities. Additionally, the remand stated that "for each separately diagnosable disability relating to the Veteran's claimed additional migraine headaches symptoms (to include nausea, insomnia, fatigue, difficulty concentrating, memory problems, and noise and light sensitivity), provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) proximately due to OR aggravated by the Veteran's service-connected migraine headaches. The remand went on to state, "Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation/worsening of a non-service-connected disability is not required." After performing the requested development, the RO issued an SSOC in August 2021 on the Veteran's migraine headaches, denying a rating in excess of 50%. The case is now before the Board. In August 2021, following the April 2021 Board remand and SSOC, the Veteran filed a fully developed claim seeking secondary service connection for 1. Insomnia associated with migraines, 2. Anxiety associated with migraines, 3. Sleep Apnea associated with migraines, and 4. Erectile dysfunction associated with migraines. Duties to notify and assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 Headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks producing severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. In a recent precedential case, the Court held DC 8100 contemplates more than just headache symptoms and requires that VA consider all symptoms the veteran experiences as a result of migraine attacks. See Holmes v. Wilkie, No. 19-2495, slip op. at 7 (Vet. App. Nov. 25, 2020). The Court noted a specific veteran's symptoms still may raise extraschedular considerations if they present an exceptional case with symptoms more severe, frequent, or long-lasting than what is contemplated in the rating criteria. Ratings shall be based, as far as practicable, upon the average impairment of earning capacity. In some exceptional cases, VA's schedular disability rating system may be inadequate to describe the Veteran's service-connected disability and to compensate for the impairment (to earning capacity) that the disability causes. In these exceptional cases, the Under Secretary for Benefits or the Director of Compensation Service can approve an extraschedular disability rating, which must be based on the is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture (with related factors such as marked interference with employment or frequent periods of hospitalization) which makes it impractical to apply the regular schedular disability rating criteria. 38 C.F.R. § 3.321 (b) The Court has set out a three-part test for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Factual Background The Board granted a 50 percent rating in January 2019, based on the fact that Veteran experiences migraine headaches with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. In granting the 50% rating, the Board relied first on a September 2015 VA examination where the Veteran reported that his migraines had increased in intensity and frequency which caused him to suffer from fatigue, difficulty concentrating, memory problems, and noise sensitivity. The Veteran also reported symptoms of constant head pain, pulsating or throbbing head pain, pain on both sides of the head, photosensitivity, and sensitivity to sound. The Veteran also reported having prostrating attacks more frequently than once per month. Ultimately, the examiner opined that the Veteran was unable to perform all work duties when he is having a severe migraine. Next, the Board relied on a February 2017 VA examination where the Veteran reported daily migraine headaches averaging seven out of ten pain on a ten-point pain scale. The Veteran also reported that his pain levels would reach ten out of ten about twice per week resulting in prostration once or twice per week. The Veteran also reported symptoms of constant head pain, pulsating or throbbing head pain, exacerbation with physical activity, photosensitivity, sensitivity to sound, changes in vision, and insomnia. The Veteran also reported prostrating attacks six to seven times per month. In completing the examination, the examiner noted that the Veteran's migraines impacted his ability to work and, that the Veteran resigned a job due to his inability to concentrate on a computer screen due to his frequent headaches. The Board also relied on a headache log submitted by the Veteran in May 2016. The log detailed the dates, duration, severity, and type of migraine headaches he experienced between September 2015 and May 2016. In summary, the Veteran reported ninety-three headaches, forty-two of which he classified as prostrating. Based on all of the above, the Board awarded the Veteran the highest schedular rating for headaches available under DC 8100, namely 50 percent. In its August 2020 remand, CAVC expressly stated that "the Board's decision to increase the disability rating assigned to the appellant's headaches to 50% is favorable to him. The Court will not disturb it. See Medrano v Nicholson, 21 Vet. App. 165, 170 (2007)." The Veteran contends that a higher rating is warranted because he has an unusual or exceptional disability picture that is not contemplated by the diagnostic code. In August 2021, following the Board's remand and issuance of the SSOC, the Veteran filed a fully developed claim for 1. Insomnia associated with migraines (secondary). 2. Anxiety Disorder associated with migraines (secondary). 3. Sleep Apnea associated with migraines (secondary) and 4. Erectile dysfunction associated with migraines (secondary). Analysis In this case, the Veteran is currently in receipt of the maximum schedular rating under Code 8100, a 50 percent rating for migraine headaches with very frequent completely prostrating and prolonged attacks producing severe economic inadaptability. 38 C.F.R. § 4.124 (a), Code 8100. Discussing the word "prostrating," in more detail, the VA rating criteria fails to define "prostrating." Moreover, relevant case law has not defined it either. It is thus necessary to define "prostrating" by its dictionary definition. See Fenderson v. West, 12 Vet. App. 119 (1999). According to Webster's New World Dictionary of American English, Third College Edition (1986), p.1080, "prostration" is defined as "utter physical exhaustion or helplessness." The Board acknowledges that the Veteran's VA examinations and reports show that his headaches have caused him to suffer from functional impairment, including interference with employment. However, he is already receiving the maximum schedular evaluation for this disability. The Board finds that the rating criteria that supports the Veteran's evaluation contemplates "severe economic inadaptability," which expressly contemplates interference with employment. Moreover, the Veteran's headache symptoms do not present such an exceptional or unusual disability picture that is not contemplated by DC 8100. Particularly, the 50 percent rating is warranted with very frequent completely prostrating and prolonged attacks. As previously discussed, the Veteran's symptoms include fatigue, difficulty with concentration/focus, nausea, insomnia, sensitivity to light, sound, visual changes, and memory problems. The Board finds that these symptoms are contemplated by DC 8100 in that (1) the Code addresses "attacks" in the general sense and (2) the language of the Code contemplates severe impairment such as that which the Veteran experiences. In other words, DC 8100 uses very broad language that includes all headache symptoms that could result in such attacks and result in such severe economic inadaptability including the ones the Veteran reports. Finally, it is necessary to address whether the Veteran's insomnia, sleep apnea, erectile dysfunction, and anxiety disorder are headache symptoms, or are separate and distinct disabilities. Nowhere under DC 8100 are any of the above distinct disabilities mentioned. The Board finds that the Veteran's insomnia, sleep apnea, erectile dysfunction, and anxiety disorder are separate and distinct disabilities that the Veteran asserts were caused or aggravated by his service-connected headache disability. Under the VA regulatory framework, disabilities that are proximately due to or aggravated by service-connected disease or injury are properly considered not as symptoms of a service-connected disability to be rated thereunder, but rather as a distinct type of claim called secondary service connection, under 38 C.F.R. § 3. 310. Indeed, the Veteran submitted secondary service connection claims for the above disorders in August 2021. The RO is currently evaluating those claims, but no rating decision has been issued yet. Absent a rating decision and notice of disagreement, the Board lacks the jurisdiction to adjudicate these claims for secondary service connection. In summary, a schedular rating in excess of 50 percent is denied because the Veteran is receiving the highest schedular rating under DC 8100. An extraschedular rating is not warranted because all headache symptoms are contemplated by the broad language of DC 8100. In other words, because the evidentiary record fails to demonstrate that the symptoms consistently associated with the Veteran's service-connected migraine headaches were not wholly contemplated by the criteria used to assign the 50 percent evaluation, the threshold under Thun is not met. In terms of the Veteran's non-headache diagnoses of insomnia, sleep apnea, erectile dysfunction, and anxiety disorder, they are properly before the RO as claims for secondary service connection because they are separate disorders rather than symptoms of a headache under the regulatory framework set out in 3.310. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mintz, Allison 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.