Citation Nr: 21070650 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-48 014 DATE: November 24, 2021 ORDER The Board having determined the Veteran's tension headaches warrant a 50 percent initial rating throughout the pendency of this claim, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. INTRODUCTION The Veteran had active service from October 1990 to December 1990 and January 1991 to June 1991. In March 2019, the Veteran attended a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in October 2019 and March 2021, the above-noted issue was remanded for further development. The case has since been returned for additional appellate review. FINDING OF FACT Throughout the period of the claim, the Veteran's tension headaches have been manifested by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial 50 percent rating for tension headaches have been met throughout the pendency of this claim. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist In this decision, the Board grants the Veteran the maximum schedular rating of 50 percent for the Veteran's headache disorder throughout the entire appeal period. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to assist is necessary. 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. 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; 38 C.F.R. §§ 3.321 (a), 4.1. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran's service-connected tension headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. She was granted service connection for this disability by way of a January 2015 rating decision, and a noncompensable rating was assigned at that time. Thereafter, in a September 2021 rating decision the RO assigned a 30 percent rating for the disability. The initial question in this case is whether the maximum, 50 percent rating, is warranted. The maximum schedular disability rating of 50 percent is warranted for tension headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating," nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (1999) (Diagnostic Code 8100 is quoted verbatim, but the Court does not specifically address the matter of what is a prostrating attack.). According to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), "prostration" is defined as "extreme exhaustion or powerlessness." On VA examination in July 2014 the Veteran reported experiencing throbbing and pulsating head pain, with nausea and vomiting, which lasted 1-2 days at a time. The examiner found the Veteran's headaches were not prostrating, but failed to explain how this conclusion was rendered given the Veteran's reported manifestations. During a subsequent August 2016 VA examination, the Veteran reported her headaches occurred frontally initially, and then radiate in a band-like distribution around her head. She reported experiencing nearly constant head pain, which manifest in a throbbing/pulsating fashion. She also reported experiencing sensitivity to light and changes in vision. This examiner again found the Veteran's headaches were non-prostrating, but also failed to explain how she came to that conclusion. The Veteran underwent a third VA examination in January 2020, wherein she reported nearly identical symptoms as her prior VA examinations. Again, the examiner found the Veteran did not experience prostrating headaches, and like the prior examiners failed to explain how that conclusion was rendered or provide the frequency in which the Veteran experienced headaches. In the course of her most recent VA examination, in August 2021, the Veteran reported experiencing headaches 8-9 times a month that result in pulsating and throbbing pain, and sensitivity to light. The Veteran reported using numerous medications to treat her headaches at that time. The examiner also found the Veteran did not experience prostrating headaches, but curiously noted the Veteran could not work, and needed to call out when a headache occurred. The examiner also noted the Veteran's reports of needing to lay in a dark room when she experienced her headaches. During her March 2019 Board hearing, the Veteran reported she had to "shut everything down" and leave work to lay down in a darkened bedroom when she experienced her headaches. Importantly, the Veteran also provided her employment absences in May 2019, which show a lengthy history of sick absences which were attributed to her tension headaches. Upon review of the evidence as outlined above, the Board finds the Veteran is entitled to the maximum 50 percent rating for her tension headaches throughout the period of the claim. The evidence clearly shows that she has experienced very frequent headaches, which caused her to lie down. Additionally, copious evidence indicates the Veteran's headaches have been productive of severe economic inadaptability, such as to in fact significantly impair her ability to pursue her employment. Thus, the Board finds that a 50 percent rating is warranted throughout the period of this claim. Again, 50 percent is the maximum scheduler rating allowable for tension headaches. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.