Citation Nr: 21068951 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-27 236 DATE: November 17, 2021 ORDER The appeal as to the claim of entitlement to service connection for a lumbar spine disorder is dismissed. The appeal as to the claim of entitlement to a compensable 10 percent evaluation for service-connected migraine headache disability prior to November 5, 2015, is granted. The appeal as to the claim of entitlement to a 30 percent evaluation for service-connected migraine headache disability from November 5, 2015, to August 27, 2021, is granted. The appeal as to the claim of entitlement to an evaluation in excess of 50 percent for service-connected migraine headache disability from August 27, 2021, on an extraschedular basis, is denied. FINDINGS OF FACT 1. While in remand status, a September 2021 rating decision granted entitlement to service connection for a lumbar spine disorder. 2. Prior to November 4, 2015, the Veteran's migraine headache disability manifested with characteristic prostrating attacks averaging ine in two months over the last several months. 3. From November 5, 2015, to August 27, 2021, the Veteran's migraine headache disability manifested with characteristic prostrating attacks occurring on average once a month over the last several months. 4. The preponderance of the evidence of record does not show that the Veteran's disability picture for migraine headaches is unusual or exceptional. CONCLUSIONS OF LAW 1. As the benefit sought on appeal with respect to the matter of service connection for a lumbar spine disorder has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a lumbar spine disorder. 38 U.S.C. §§ 1110, 7105(d)(5) (2012); 38 C.F.R. § 20.101 (2020). 2. The criteria for a 10 percent rating but no higher, for migraine headache disability prior to November 5, 2015, have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110(a) (West 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27. 4.124a, Diagnostic Code 8100 (2020). 3. The criteria for a 30 percent rating but no higher, for migraine headache disability from November 5, 2015, to August 27, 2021, have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110(a) (West 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27. 4.124a, Diagnostic Code 8100 (2020). 4. The criteria for an evaluation in excess of 50 percent for migraine headache disability from August 27, 2021, on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321(b) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1973 to January 1974, with additional service in the National Guard, including active duty for training (ACDUTRA) in June 1974 to August 1975. His service was under honorable conditions. These matters are on appeal from an April 2010 rating decision. In a July 2014 rating decision, the issue of entitlement to service connection for migraine headache disability was granted, and a noncompensable rating was assigned effective November 12, 2009, the date of claim. In an April 2015 rating decision, the issue of entitlement to service connection for head injury, residual scar was granted, and a noncompensable rating was assigned effective November 12, 2009, the date of claim. In July 2015, the Board remanded the issues of entitlement to an initial compensable rating for the migraine headache disorder, and entitlement to an initial compensable rating for the head injury, residual scar disabilities, for the issuance of a statement of the case (SOC). In a March 2017 rating decision, an increased 10 percent rating was granted for the service-connected head injury, residual scar disability, effective November 12, 2009. In February 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ), at the Regional Office (RO). A transcript of the hearing has been associated with the record. In June 2019, the Board in pertinent part, granted the claim of entitlement to an initial evaluation of 10 percent, but no higher, for the service-connected migraine headache disorder, and denied the claim of entitlement to an evaluation in excess of 10 percent for the service-connected head injury, residual scar, disability. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a memorandum decision, and vacated the portion of the Board's June 2019 decision denying entitlement to an evaluation in excess of 10 percent for service-connected migraine headache disability and affirmed the portion of the decision denying entitlement to an evaluation in excess of 10 percent for service-connected head injury, residual scar. In July 2021, the Board remanded the claim of entitlement to an initial compensable evaluation for the service-connected migraine headache disability, for additional development. The claim has been returned to the Board for further appellate consideration. In a September 2021 rating decision, an increased 50 percent rating was granted for the service-connected migraine headache disability, effective August 27, 2021, and a noncompensable rating was continued prior to August 27, 2021. 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 Veteran 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). 1. Entitlement to service connection for a lumbar spine disorder. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, a September 2021 rating decision granted the Veteran's claim of entitlement to service connection for a lumbar spine disorder. This action resolved the claim for service connection. As a result, no case or controversy regarding the matter of service connection for a lumbar spine disorder remains, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105 (d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to the matter, and the matter is dismissed. Increased Rating Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2020). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2020). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2020) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to a compensable evaluation for service-connected migraine headache disability prior to August 27, 2021. See argument Below at 3 3. Entitlement to an evaluation in excess of 50 percent for service-connected migraine headaches on an extraschedular basis. The Veteran contends that his migraine headache disability warrants a compensable evaluation prior to August 27, 2021, and an evaluation in excess of 50 percent, to include an extraschedular evaluation, since August 27, 2021. Migraine headaches with less frequent attacks warrant a noncompensable evaluation. Migraine headaches with characteristic prostrating attacks averaging one in two months over last several months are entitled to a 10 percent evaluation. Migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. A 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The regulations do not define prostrating. Dorland's Illustrated Medical Dictionary defines prostration as extreme exhaustion or powerlessness. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1554 (31st ed. 2007). VA's Adjudication Procedures Manual (M21-1) defines prostrating under Diagnostic Code 8100 as "causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities." See M21-1, pt. III, Subpt. iv, Ch. 4, Sec. G(7)(b). In Pierce v. Principi, the Court examined the "productive of severe economic inadaptability" criterion for a 50 percent evaluation under Diagnostic Code 8100 and noted that "[n]owhere in the Diagnostic Code is 'inadaptability' defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.]." 18 Vet. App. 440, 446 (2004). The Court explained that, contrary to the Secretary's argument, "nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 [percent] rating" because "[i]f 'economic inadaptability' were read to import unemployability," a claimant who "met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)] . . . rather than just a 50 [percent] rating." Id. The Court therefore rejected the notion that "severe economic inadaptability" was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16 (a)). In addition, the Court in Pierce acknowledged the Secretary's concession that the phrase "productive of severe economic inadaptability" in Diagnostic Code 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Id. at 445. The Veteran's VA outpatient treatment records reflect a long and consistent history of seeking treatment for headaches. Records reflect the Veteran sought treatment for headaches in July 2007, May 2010, and July 2010. During treatment in July 2010, the Veteran reported symptoms of nausea associated with his headaches. In May 2011, the Veteran reported a history of headaches since service, following an injury, when he was hit with a bottle in the head. Since that time, he asserted that he experienced continuous intermittent headaches approximately one or two times a month, that do not resolve until he takes medication and sleeps. He further reported that his headaches have progressively worsened, to include a worsening of symptoms; the examiner ordered an MRI of the brain. Treatment records dated in October 2012, February 2013, July 2013, and December 2013 show the Veteran sought treatment for headaches. During a March 2014 VA headache examination, the Veteran reported headaches since 1973. He reported symptoms of pulsating or throbbing head pain on both sides of his head, symptoms of aura prior to headaches, and nausea, lasting less than one day. The examiner found that the Veteran did not have characteristic prostrating attacks of migraine headaches. An MRI of the brain was unremarkable; there was no evidence of intracranial masses, vascular abnormalities, or lesion to explain the Veteran's chronic headaches. A VA outpatient treatment records dated in May 2014 notes the Veteran's report of light-headedness associated with headaches. VA outpatient treatment records dated in August 2014 note the Veteran's report of ongoing headaches. The Veteran indicated that he took Advil for headache pain but found that it did not help relieve his symptoms. The Veteran reported symptoms of nausea and photophobia with pain on a 7/10 when he experienced a headache. A CAT scan of the head was negative for abnormality. The examiner prescribed Fiorecet for headache pain. Private treatment records dated in September 2014 show the Veteran's complaints of migraine headaches for the past five months, with increased pain on the right side of his head, blurry vision, and dizziness. During an October 2014 VA traumatic brain injury (TBI) examination, the Veteran reported occasional headaches, mild memory loss, and mild anxiety. The Veteran described right-side focused headaches. Neuropsychological testing revealed a MOCA score of 21/20; the score is abnormal. The examiner remarked that the Veteran shows impairment in visuospatial and executive skills, and mild deficits in naming and attention span. The examiner reviewed a May 2011 MRI of the brain and found it unremarkable. Upon examination and review of the record, the examiner found that there was no evidence of a diagnosis of a TBI. The examiner noted that the Veteran was hit in the head with a bottle during service in 1973, but noted that there was no loss of consciousness, thus, a TBI did not occur. The examiner noted that the residual from the in-service 1973 injury may include a scar from laceration of the scalp, and a headache associated with cut, "at most." The examiner indicated that the abnormal findings during testing were due to a combination of the Veteran's old age, eye diseases, and education. The examiner concluded that the neuropsychological findings were not specific for head injury. A VA outpatient treatment record dated in December 2014 notes the Veteran's report of ongoing headaches since service in 1973. He reported headaches several times a week with symptoms of blurry vision and photophobia. He denied nausea or neurological symptoms. In his May 2015 Notice of Disagreement (NOD), the Veteran reported symptoms of memory loss associated with headaches. During a November 2015 VA headache examination, the Veteran reported throbbing headaches three to fours times a week that last several hours since active service. He reported symptoms of nausea, mild sensitivity to light and sound, and blurry vision. The Veteran reported that he lost time from work as a commercial truck driver due to headaches, with one instance of having to go to the emergency room for a prostrating headache. The Veteran reported the use of prescription medication to include Fiorecet for headache pain. Examination revealed pulsating throbbing headache pain localized to one or both sides of the head that worsened with physical activity, nausea, sensitivity to light, sensitivity to sound, dizziness, and lightheadedness. The examiner found that when the Veteran experienced a headache, the duration was less than one day, on both sides of his head. The examiner noted characteristic prostrating attacks of migraine headache pain with less frequent attacks. The examiner indicated that the Veteran did not have prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The examiner concluded that the Veteran's headaches impacted his job attendance and productivity to some extent but noted that the Veteran did not report that he received adverse performance reviews and there were no medical restrictions as a result of his headaches. The examiner diagnosed migraine headaches. VA outpatient treatment records dated in March 2016 and October 2016 note the Veteran's report of ongoing headaches several times a week lasting for several hours. During treatment in October 2016, the Veteran reported right eye blurriness, during headaches. The examiner noted that the Veteran should take a maximum of 3000 mg of Acetaminophen per day. VA outpatient treatment records in February 2017 note the Veteran continues to take prescription medication for migraine headaches, to include Fioricet and Butalbital, as needed. Vocational records dated in April 2017 note the Veteran's report of headaches while driving, to include symptoms of sleepiness. VA outpatient treatment records dated in 2018 note the Veteran's reports of ongoing headaches. A VA outpatient treatment record dated in January 2019 notes the Veteran's report of headaches with anxiety. VA outpatient treatment records dated in May 2019 note the Veteran's continued report of ongoing weekly headaches and the use of prescribed medication to treat symptoms. During an August 2021 VA headache examination, the Veteran reported ongoing headaches since active service, with symptoms of pain on both sides of his head, nausea, sensitivity to light, and changes in vision. He reported that the duration of a typical headache was more than two days. There was evidence of characteristic prostrating attacks of migraine headaches once every month. The examiner indicated that the Veteran had very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The examiner found that the Veteran's headache disability impacted his ability to work, as the headaches interrupt activities and job tasks, because the Veteran cannot focus and must go to a dark and quiet place when he a headache occurs. The examiner concluded that the migraine headache disorder was a progression of the previous diagnosis, as the Veteran's headache frequency and intensity had worsened. Prior to November 5, 2015 In sum, the Veteran reports relatively consistent symptomatology associated with his migraine headaches. For the period prior to August 27, 2021, he has reported monthly headaches that last for hours. He experiences associated symptoms of nausea, photophobia, dizziness, sensitivity to light, mild anxiety, and mild difficulty with respect to memory loss. During the course of VA outpatient treatment in 2007 through 2013, he asserted that he experienced continuous intermittent headaches approximately one or two times a month, that did not resolve until he took medication and slept. In September 2014, the Veteran sought private treatment for ongoing migraine headaches for the past five months, with symptoms of increased pain on the right side of his head, blurry vision, and dizziness. In October 2014, a VA examiner noted the Veteran's report of occasional headaches, mild memory loss, and mild anxiety. The examiner noted that neuropsychological testing revealed abnormal findings, but found there was no diagnosis of TBI, as the Veteran did not lose consciousness in service, when he was hit in the head with a bottle. The examiner noted that the residual from the in-service 1973 injury may include a scar from laceration of the scalp, and a headache associated with cut, "at most." The examiner indicated that the abnormal findings during testing were due to a combination of the Veteran's old age, eye diseases, and education. The examiner concluded that the abnormal neuropsychological findings were not specific for head injury. In March 2014, a VA examiner noted the Veteran's symptoms of pulsating or throbbing head pain on both sides of his head, aura prior to headaches, and nausea, lasting less than one day; the examiner found that the Veteran did not have characteristic prostrating attacks of migraine headaches. Despite consistent reports of headaches with symptoms of nausea, photophobia, dizziness, blurry vision, and sensitivity to light, which occurred at least once every two months over the last several months, that could last for hours and sometimes all day, the March 2014 VA examiner found that the Veteran did not have characteristic prostrating attacks of migraine headaches. Resolving reasonable doubt in favor of the Veteran, the Board finds that a 10 percent evaluation is warranted for the Veteran's migraine headaches prior to November 5, 2015, as the record consistently shows that they are manifested with characteristic prostrating attacks (headaches that do not resolve for hours without prescribed medication and a dark environment to sleep) averaging at least one in two months over the last several months. From November 5, 2015, to August 27, 2021 In sum, the Veteran reports consistent symptoms of nausea, mild sensitivity to light and sound, and blurry vision associated with his migraine headaches. Since November 5, 2015, he has reported weekly headaches that last for hours. The Veteran reported use of prescription medication to alleviate headache pain, as well as the need to lie down in a dark place until his symptoms passed. He further reported that he lost time from work as a commercial truck driver due to headaches, with one instance of having to go to the emergency room for a prostrating headache. The November 2015 VA examiner noted the Veteran's pulsating throbbing headache pain localized to one or both sides of the head that worsened with physical activity, nausea, sensitivity to light, sensitivity to sound, dizziness, and lightheadedness, that lasted less than one day, and concluded that the Veteran experienced characteristic prostrating attacks of migraine headache pain with less frequent attacks. The examiner found that the Veteran's headaches impacted his job attendance and productivity to some extent, however, he concluded that there were no medical restrictions or adverse performance reviews. The examiner indicated that the Veteran did not have prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The Veteran continued to seek treatment for migraine headaches in March and October 2016, February and April 2017, and throughout 2018 and 2019. During treatment, he consistently reported ongoing headaches with symptoms of nausea, blurry vision, and dizziness, often weekly, that lasted for hours. In January 2019, the Veteran reported symptoms of anxiety associated with headaches; however, subsequent VA outpatient treatment records dated in November 2020 to August 2021, document a generalized anxiety disorder associated with sleep deprivation and nightmares, not headaches. Despite consistent reports of headaches with symptoms of nausea, photophobia, dizziness, blurry vision, and sensitivity to light, which occurred at least once a month over the last several months, that could last for hours, and some impact on job attendance and productivity, the November 2015 VA examiner found that the Veteran had characteristic prostrating attacks of migraine headaches with less frequency. Resolving reasonable doubt in favor of the Veteran, the Board finds that a 30 percent evaluation is warranted for the Veteran's migraine headaches from November 5, 2015, to August 27, 2021, as the record consistently shows that they are manifested with characteristic prostrating attacks averaging at least once a month over the last several months. From August 27, 2021 In sum, during an August 2021 VA headache examination, the Veteran reported ongoing headaches since active service, typically lasting more than two days, with symptoms of pain on both sides of his head, nausea, sensitivity to light, and changes in vision. The August 2021 VA examiner indicated that the Veteran had very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability, as his headaches impeded the Veteran's ability to perform job tasks, because he could not focus and had to go to a dark and quiet place when he a headache occurred. The examiner concluded that the migraine headache disorder was a progression of the previous diagnosis, as the Veteran's headache frequency and intensity had worsened. Thus, the Board finds that a 50 percent evaluation is warranted for the Veteran's migraine headaches from August 27, 2021, as they are of such a frequency and severity that they are productive of economic inadaptability. Extraschedular Consideration The Veteran's representative raised the issue of entitlement to an extraschedular evaluation for migraine headaches during the course of treatment in August 2021. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular 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 such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id.; see also Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. See Thun, 22 Vet. App. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) in the first instance. However, the Board is not precluded from raising this question and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has considered the evidence of record and the Veteran's lay assertions. However, there is no basis for referral for extraschedular consideration in this case. The Board incorporates the factual history of the Veteran's migraine headaches as outlined in the schedular discussion. With regard to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. In this case, the Veteran has been assigned the 50 percent rating for his disability from August 27, 2021, which contemplates "migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." The Veteran's symptomatology is contemplated by the rating criteria. Diagnostic Code 8100 indicates migraines should be rated according to the frequency of prostrating attacks. Prostration incorporates the additional symptomatology reported by the Veteran that is associated with migraines, to include sensitivity to light and sound, changes in vision, nausea, and vomiting. With respect to the Veteran's reported symptoms of anxiety, the medical evidence of record indicates that such symptom is associated with the Veteran's sleep deprivation, not his headache disability. Regarding the Veteran's report of mild memory loss, the medical evidence of record shows that this symptom is due to the Veteran's age, eye disease, and education, not his headache disability. Altogether, the 50 percent rating from August 27, 2021, adequately contemplates the severity and frequency of the Veteran's headaches and reasonably describes the Veteran's disability level and symptomatology. As such, it is not necessary to discuss whether he exhibited other related factors such as those provided by the regulation as 'governing norms' (including marked interference with employment and frequent periods of hospitalization). In light of the foregoing, the Board finds that the Veteran's service-connected migraine headaches are not manifested by an exceptional or unusual disability picture that renders impractical the application of the regular schedular standards. In sum, the Board concludes that the facts here do not suggest an exceptional or unusual disability picture. Referral of this claim to the Agency of Original Jurisdiction (AOJ) for extraschedular consideration is not warranted. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.