Citation Nr: 21071954 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-54 829 DATE: December 1, 2021 ORDER Entitlement to a uniform 30 percent migraine headache rating for the entire period on appeal is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's migraine headaches manifested as characteristic prostrating attacks occurring on an average of once to three times per month but were not both very frequent and completely prostrating prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial rating of 30 percent for migraine headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from April 1992 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2014 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). In February 2020, the Veteran testified before a Veterans Law Judge who is no longer employed by the Board. The Veteran was notified in a letter of her options regarding a new hearing before a different Judge under 38 C.F.R. § 20.106(b). As the Veteran did not respond within 30 days of this correspondence, her right to an additional hearing is assumed to be waived. The Board previously remanded this matter for further development in May 2020. 1. Entitlement to a compensable rating for migraine headaches prior to February 28, 2020, and in excess of 30 percent thereafter This claim arises out of the Veteran's appeal of an initial noncompensable (zero percent) rating for her service-connected migraine headaches. As noted above, the Board previously remanded this claim in order to provide the Veteran with a contemporaneous VA headache examination. After this examination, the AOJ issued a December 2020 rating decision granting entitlement to a 30 percent rating for migraine headaches from the date of a Board hearing, February 28, 2020. However, as less than the maximum available benefit was awarded, the case remains in controversy. See AB v. Brown, 6 Vet. App. 35 (1993). Disability evaluations are determined by the application of 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 the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's disability is rated under DC 8100, used to evaluate migraine headaches. 38 C.F.R. § 4.124a, DC 8100. This DC provides that migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. A 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The term characteristic prostrating attacks means migraine attacks that typically produce powerlessness or a lack of vitality, and completely prostrating attacks must render a veteran to be entirely powerless. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The term "productive of severe economic inadaptability" is not defined by VA regulations. The Court, however, has stated that this term is not synonymous with being completely unable to work and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). The Veteran was afforded a VA headache examination in June 2014. She reported headaches occurring four to five times per week and lasting approximately three to four hours but sometimes longer. The Veteran described multiple types of headaches and indicated she was currently seeing a private neurologist, who speculated her headaches were due to sleep issues. She stated that during headaches she tried to sleep or relax but was more limited by her other physical disorders. She reported treatment with Vicodin for her worst headaches, as well as heat and ice packs for muscle tension that accompanied some of her headaches. The examiner indicated that the Veteran did not experience characteristic prostrating attacks but noted she "would need time to rest and access to her medications," and that the medications have side effects, including sedation. During the February 2020 hearing, the Veteran reported sinus, tension and migraine headaches, stating "[with] some of them, I have to like stay in a quiet area, just kind of by myself and not to have any kind of noise or anything going on to aggravate it." She noted chronic pain and other physical issues, stating her symptoms were "hard to separate sometimes." She and her husband testified to times when she was unable to get out of bed to go to work on time, laying in bed for several hours due to headache severity. The Veteran and her husband were unclear as to the exact timeline but estimated this happened approximately three times per month before she ceased working in 2013. She reported that her headaches had worsened in frequency and severity since 2013, occurring four to five times per week and sometimes manifesting as brief sharp shooting pains and other times as dull pain over several hours. In compliance with the Board remand directives, the Veteran was afforded an additional VA headache examination in December 2020. She reported a 1993 onset for her headaches with increasing frequency since and currently occurring two to three times per week. She also described brief and sharp stabbing pains in the back of her head seven to eight times per day lasting five to 10 seconds each, which she believed could be related to her diagnosed sinusitis and cervical spine arthritis. The Veteran reported taking oxycontin for her worse headaches, which manifest as constant frontal head pain with nausea as well as sensitivity to light and sound and lasting several hours but less than a day. The examiner recorded characteristic prostrating attacks occurring once per month. In determining a proper rating, the Board must interpret various examination reports in light of the entire medical history, reconciling any contrary findings into a consistent picture. 38 C.F.R. § 4.2. In this case, the Veteran has reported headaches since at least 2013, including approximately three headaches per month which produced powerlessness or a lack of vitality, causing her to lay in bed and report several hours late to work. The Board notes the Veteran is competent to describe the nature and circumstances surrounding her headaches and finds her hearing testimony credible. Although the 2014 VA examination records no prostrating attacks, the examiner noted that the Veteran would need time to rest and access to her medications during her most severe migraines. As such, the Board resolves reasonable doubt in favor of the Veteran and finds that the criteria for a 30 percent rating have been met for the entire period on appeal, as her migraines have more closely approximated characteristic prostrating attacks occurring at least once per month since 2013. The Board finds, however, that entitlement to a rating higher than 30 percent disabling is not warranted as there is no evidence that the Veteran's headache attacks are not both very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. The term frequent is defined as happening at short intervals. See Dictionary by Merriam-Webster, https://www.merriam-webster.com/dictionary/frequent. The term "very" is defined as to a high degree. Id. at https://www.merriam-webster.com/dictionary/very. The term prolonged is defined as continuing for a notably long time or extended in duration. Id. at https://www.merriam-webster.com/dictionary/prolonged. At the February 2020 Board hearing, the Veteran and her husband estimated that she exhibited prostrating migraines approximately three times per month. The Veteran also emphasized that while she would go into work late, she was still able to report to work and accomplish her required tasks, indicating the headaches were not prolonged or productive of severe economic inadaptability. Both VA examiners and the Veteran herself noted that she suffers from numerous other physical disorders which cumulatively have a greater effect on her ability to function in an employment environment than her headaches. There is no indication that the Veteran's prostrating migraines occur frequently as defined above, and while she reported sharp stabbing pains occurring more often, she indicated that these attacks are not prolonged, lasting no more than 10 seconds. As such, the Board finds that while some of the Veteran's headaches are prostrating and others are frequent, in general they do not more closely approximate very frequent, completely prostrating, prolonged and productive of severe economic inadaptability. Therefore, a rating in excess of 30 percent is denied. (continued on the next page) The Board further notes that the Veteran has been awarded a total disability rating based upon individual unemployability effective April 22, 2014, which is the date she reported as no longer earning substantially gainful employment. As such, the issue of TDIU is not reasonably raised as a continuing issue on appeal. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.