Citation Nr: 21070470 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-28 351 DATE: November 24, 2021 ORDER Entitlement to a 50 percent disability rating for tension and migraine headaches is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran's migraines were manifested with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to a 50 percent disability rating for tension and migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.33, 4.124a, 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 2007 to June 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously before the Board but was remanded for additional development in February 2019. The Board finds that there has been substantial compliance with its remand directives, and the matter is now properly before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). Subsequent to the February 2019 Board remand development, the RO granted the Veteran a 30 percent disability rating for his tension and migraine headaches in a June 2020 rating decision. As this does not represent a full grant of the benefits sought by the Veteran, the matter has returned to the Board for consideration. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Law and Analysis Neither the Veteran nor his representative has raised any other 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 in a liberal manner 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). 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. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his/her present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under DC 8100, migraine headaches with characteristic prostrating attacks occurring on an average once a month over 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. The term "prostrating attack" is not defined in regulation or case law but can be defined as extreme exhaustion or powerlessness. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack); DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012). Further, "severe economic inadaptability" is also not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the United States Court of Appeals for Veterans Claims (Court) has held that nothing in DC 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, citing 38 C.F.R. § 4.16. 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. The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The relevant evidence regarding the Veteran's migraines begins with a June 2011 general VA examination. The Veteran stated his headaches began in service and were aching in nature, non-radiating, caused a sensitivity to light, were associated with floating light/ blurring vision and nausea, and lasted approximately 30 minutes per episode. The examiner found the course of onset of the migraines to be stable and that the Veteran was not undergoing treatment for them. In November 2011, the Veteran underwent a VA examination to evaluate a potential traumatic brain injury. In the examination, the Veteran stated he had headaches two to three times per day in service but was currently experiencing three to four headaches per week that lasted minutes. He also explained that he carried over-the-counter pain medicine on his person in preparation for the headaches. The Veteran submitted a lay statement in June 2013 noting he had headaches every day or every other day and continued to carry pain medication at all times. In February 2014, the Veteran submitted a notice of disagreement in which he said his headaches were constant and severe. He noted his constant carrying of pain medication and that he would retreat to a dark and quiet room in attempt to help resolve the headaches. The Veteran was afforded a VA examination in December 2016 for his headaches. He reported that his headaches occurred every three days and would last for approximately an hour, for which he would take pain medication. The examiner found that the Veteran did not have characteristic prostrating attacks of migraine/ non-migraine headache pain and that his headaches did not have an impact on his ability to work. A VA Form 9 was submitted by the Veteran in May 2017, on which he noted his headaches required him to lay in a dark room with no noise. He explained these attacks would last about an hour and had recently occurred every day for 12 days, multiple times per day. These statements were echoed in his representative's June 2017 statement. In February 2018, the Veteran's wife submitted a statement indicating the Veteran often spent days locked in his bedroom without light. She said his migraines were of such severity that he could not see or speak. The Veteran's parents submitted a statement in April 2018 noting the Veteran recently had five or so severe headaches in a month. The Veteran would lay in a dark room for a day or so to alleviate the headache and would be weak and lethargic afterwards. Upon review, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's migraines are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, corresponding to the criteria for a 50 percent rating under DC 8100. Taking the terms in the DC in order, the Board finds that the Veteran's migraines were very frequent. In his November 2011 VA examination, the Veteran said his headaches occurred three to four times a week. His February 2014 notice of disagreement stated his headaches were constant. The December 2016 TBI VA examination reaffirmed the frequency of the Veteran's headaches. The April 2018 lay statement from the Veteran's parents explained the Veteran had five headaches in a month. The May 2019 VA Form 9 shows the Veteran having headaches every day. With respect to whether the Veteran's migraines were manifested by "completely prostrating and prolonged attacks," the Board finds the evidence indicates that the Veteran's migraines were of extended duration and rendered him essentially powerless. In regard to duration, the majority of the evidence suggests the Veteran's migraines last from thirty minutes to days. See June 2011 VA examination (saying his headaches lasted 30 minutes per episode), December 2016 VA examination (affirming his headaches last 30 minutes per episode), May 2017 Form 9 (saying his headaches would last about an hour), February 2018 Statement from the Veteran's wife (saying his headaches would last days), April 2018 statement from the Veteran's parents (saying his headaches would last about a day). The Board recognizes the Veteran's statement in his November 2011 VA examination saying his headaches would last minutes but find the majority of the evidence indicates a longer duration. As to being "completely prostrating," the Veteran described his symptoms in the June 2011 VA examination as sensitivity to light, blurry vision, nausea, and pain. On his May 2017 VA Form, the Veteran says he must stop whatever he is doing and lay in a dark room with no noise. The Veteran's wife's February 2018 letter said the Veteran would spend days locked in his bedroom with no lights on and would not be able to speak or see during his migraines. The April 2018 letter by the Veteran's parents described the Veteran's headaches as severe, causing him to lay in a dark room for a day or so and then be weak and lethargic afterwards. The Board acknowledges the Veteran's December 2016 VA examination where the examiner stated the Veteran did not have characteristic prostrating attacks. The Board finds this opinion competent and credible, but ultimately outweighed by the evidence listed above demonstrating symptoms that rendered the Veteran powerless. With respect to whether the migraines were productive of severe economic inadaptability, the Board notes that analysis under this DC is focused on whether the disability is capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. Pierce, 18 Vet. App. at 440. The Board finds migraines that cause the Veteran to remain in his room for days, be unable see or speak, and that render him lethargic and weak afterwards, to be capable of producing severe economic inadaptability. In sum, under all the facts and circumstances of this case, the Board resolves all reasonable doubt in the Veteran's favor and finds that a 50 percent disability rating, and no higher, is warranted for his service-connected migraine headaches for the entire appeal period. As noted above, a higher rating would exceed the highest schedular disability rating for migraine headaches. 38 C.F.R. § 4.124(a), DC 8100. Thus, the Board cannot assign a rating in excess of 50 percent for this disability. Continued on Next Page Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (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). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.