Citation Nr: 21069614
Decision Date: 11/19/21	Archive Date: 11/19/21

DOCKET NO. 16-53 845
DATE: November 19, 2021

ORDER

Entitlement to a rating of 50 percent prior to May 25, 2019 for a service-connected headache disability is granted. 

Throughout the appeal period, entitlement to a rating in excess of 50 percent for a service-connected headache disability is denied.  

FINDING OF FACT

Throughout the period on appeal, the Veteran's headaches have been characterized by very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 

CONCLUSION OF LAW

1. Prior to May 25, 2019, the criteria for an increased rating of 50 percent for migraine headaches were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045-8100. 

2. Throughout the appeal period, the criteria for entitlement to a disability rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102. 3.159, 4.124a, Diagnostic Code 8100.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the U.S. Army from July 1971 to July 1974. 

This claim comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in December 2018, at which time the Board remanded the claim for an additional VA examination. It was before the Board again in June 2021, at which time the Board remanded the claim so that the RO could issue a Supplemental Statement of the Case (SSOC) addressing the entire period on appeal. The Board is satisfied there was substantial compliance with the prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (199). 

Increased Rating

Disability evaluations are determined by applying a schedule of ratings, which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7.

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).

Since May 25, 2019, the Veteran's headache disability has been rated as 50 percent disabling under Diagnostic Code (DC) 8100. 38 C.F.R. § 4.124a. Prior to May 25, 2019, his headaches were characterized as post traumatic headaches with dizziness and were rated as 30 percent disabling under DC 8045-8100. A hyphenated DC may be used to identify the proper evaluation of a disability or a residual from disease. The first DC of a hyphenated code identifies the diagnosed disease or condition. The second DC of a hyphenated code identifies the criteria in the Schedule for Rating Disabilities used to evaluate the disability. 

The Veteran was granted service connection for a headache condition in a rating decision dated January 2011. In correspondence dated October 2014, the Veteran asserted his headache condition was more disabling than reflected by the 30 percent rating assigned. Thus, the period on appeal begins October 27, 2014.  

DC 8100 provides ratings for migraine headaches. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, DC 8100.

The rating criteria do not define "prostrating," nor has the Court. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). However, the Board notes that, according to WEBSTER'S NEW COLLEGE DICTIONARY 909 (3d ed. 2008), "prostration" is defined as "complete exhaustion." Similarly, DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007) defines "prostration" as "extreme exhaustion or powerlessness."

Severe economic inadaptability is also not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the Court has held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. It was explained by the Court that if "economic inadaptability" were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating. Id. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words "productive of" could be read to mean either "producing" or "capable of producing." Id. at 446-447.

Turning to the evidence of record, the Veteran was afforded a VA examination in February 2015. He had a continued diagnosis of chronic post traumatic headaches. He reported daily constant headaches that disturbed sleep, with light sensitivity and nausea. In order to treat this condition, he took over-the-counter extra-strength Advil. He reported that he had to leave his job as a maintenance man due to loss of concentration from his daily headaches. While the Veteran's February 2015 VA examiner stated that these headaches were not prostrating, resolving reasonable doubt in the Veteran's favor, the Board interprets the lay and medical evidence to show that they were. Specifically, VA treatment notes from March, April and December 2015 indicate the Veteran suffered from headaches 90 percent of everyday. Further, these notes show that his prescribed medication had little to no effect, and his symptoms of bi-frontal head pain, pressure and throbbing continued, resulting in nausea with light and sound sensitivity. While the Veteran's February 2015 VA examiner opined that the Veteran's headaches were not "prostrating" in nature, the Board finds more probative the Veteran's competent and credible statements of his symptoms in this instance. The Veteran's daily headaches caused a lack of sleep and concentration. During these episodes he was fatigued due to sleep disturbances and suffered from photosensitivity and throbbing pain. In other words, he became exhausted and powerless. 

Due to the frequency, duration, and severity of his headaches, and resolving reasonable doubt in his favor, the Board finds the Veteran's credible description of these headaches during the period prior to May 25, 2019 meets the above-listed definition of prostration - extreme exhaustion or powerlessness. Therefore, a 50 percent rating is also warranted during the claim period prior to May 25, 2019. 

The Veteran is now in receipt of the maximum schedular rating for migraine headaches throughout the claim period. Thus, a higher schedular rating is not warranted. Under these circumstances, the disposition of this claim is based on law, and not the facts of the case, and the claim for an increased schedular rating beyond 50 percent must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

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.

 

 

L. STEPANICK

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald