Citation Nr: 21068432 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 13-20 778 DATE: November 10, 2021 ORDER An initial disability rating higher than 30 percent for migraines from August 11, 2012 onward is denied. FINDING OF FACT From August 11, 2012 onward, the Veteran's migraines were manifested by pain, nausea, sensitivity to light, blurred vision, and dizziness, with prostrating attacks occurring about once a month, and the headaches did not constitute prolonged attacks causing severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating higher than 30 percent for migraines from August 11, 2012 onward are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 2004 to August 2012. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Service connection for the Veteran's migraines was established by the December 2012 rating decision, at which time a noncompensable rating was assigned, effective August 11, 2012. The Veteran submitted a notice of disagreement and statement in support of claim in February 2013 requesting an increased rating for his migraines. The Board remanded the case in April 2015 for a VA examination. In a June 2015 rating decision, the RO granted an increased evaluation of 30 percent, effective May 26, 2015. Thereafter, the case returned to the Board in February 2020 and the Veteran was granted a rating of 30 percent starting August 11, 2012. From there, the case was appealed to U.S. Court of Appeals for Veterans' Claims (CAVC), where it was remanded in a Joint Motion for Remand and then subsequently remanded by the Board for further development in May 2021. Of particular note, the April 2015 Remand requested that the VA examiner discuss (1) the Veteran's February 2013 statements to a VA provider that he has two to five headaches per week (2) the Veteran's Notice of Disagreement indicating he experiences prostrating attacks one to two times a week. The Board finds the June 2021 examiner adequately discussed those statements. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. The Veteran contends that his migraines are serve enough that from the time of service connection to present he is entitled to a rating higher than 30 percent. The Veteran's migraines are rated under DC 8100. Under DC 8100, migraines are rated as follows: a 10 percent evaluation may be assigned for migraine with characteristic prostrating attacks averaging once in two months over the last several months; a 30 percent evaluation requires characteristic prostrating attacks occurring on an average once a month over the last several months; a 50 percent evaluation requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124(a). The rating criteria do not define "prostrating." The Court of Appeals for Veterans Claims recently noted that the phrase "characteristic prostrating attacks" means attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). In other words, the term "prostrating" takes on its plain meaning of "lacking in vitality or will; powerless to rise; laid low." Id. The Court held in Johnson that the criteria of DC 8100 are successive. Thus, 38 C.F.R. §§ 4.7and 4.21 are not for application. The Veteran was afforded a VA examination in August 2012. He reported throbbing pain in the right side of his head, nausea, and sensitivity to light. He said these symptoms typically lasted less than one day. The examiner noted the Veteran did not have characteristic prostrating attacks of migraine or non-migraine pain. However, the examiner also stated that the migraines impacted the Veteran's ability to work, mentioning the Veteran "should avoid working at unprotected heights or working around and operating hazardous moving machinery" when having a migraine. In February 2013 VA treatment records, the Veteran reported migraines that occurred two to five times per week that lasted several hours, and caused blurred vision, dizziness, and light sensitivity. Oddly, the same day that he reported having two to five migraines a week, he also reported having one migraine per week. However, he was consistent in his statement that the migraines lasted a few hours. During his appointment, the treating physician noted that the Veteran reported that acetaminophen, butalbital, and caffeine did not help the Veteran's migraines. The physician added that Maxalt should shortened the length of the Veteran's migraines. At the time, the Veteran had been prescribed Imitrex to treat his migraines. In the Veteran's 2013 statement in support of claim, he said he was "experiencing prostrating attacks averaging one to two times a week." He indicated that the medication prescribed somewhat alleviates the duration but does not stop the migraines from happening. The Veteran was afforded another VA examination in May 2015. He reported that when he had a severe migraine, he had to lie down in a quiet place. He said severe migraines lasted up to two days, even with medication. However, the Veteran could typically resume most of his activities in less than one day. At the time, he was taking Maxalt and Tylenol for his migraines. He reported that migraines caused constant throbbing pain on the right side of his head, along with nausea, light and sound sensitivity, changes in vision, and sensory changes. The examiner noted that once a month, the Veteran had prostrating attacks of migraine or non-migraine pain. The examiner also stated that the Veteran has to miss work up to one day a month when a prostrating attack occurred. In the Veteran's 2019 Appellate Brief, he reported the same symptoms as mentioned in his 2015 VA examination. During the June 2021 VA examination, the Veteran reported that weekly he had bad headaches that lasted a day or two. These were accompanied with sensitivity to light and sound, as well as changes in vision. The examiner stated that the Veteran experienced prostrating attacks once a month. The examiner remarked that the Veteran's headaches were not very frequent, completely prostrating, nor prolonged enough to cause severe economic inadaptability. That being said, the examiner remarked that the Veteran has had to miss work because of headaches. (Continued on the next page) The Board gives limited weight to the Veteran's claim that he experiences migraines two to five times a week. For one, the same day the Veteran stated that, he also stated he had migraines only once a week. Moreover, that frequency is not found elsewhere in the record. The Board finds that the examiners opinions concerning prostrating attacks to be credible. The examinations show that the Veteran is typically able to return to most normal activities within one day of a migraine. Evidence shows that for the most part, the headaches last a few hours. Therefore, due to the brief duration of the headaches, coupled with the infrequency of longer headaches, the Board finds that the Veteran's migraines would not render him unable to maintain a job. Evidence does not indicate that he would miss enough work or be unproductive for long enough periods to cause severe economic inadaptability. Thus, the Board finds that a rating of 30 percent, but no higher, for the entire period on appeal is warranted for migraine headaches. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, 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.