Citation Nr: 21073167 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-29 665 DATE: December 7, 2021 ORDER A rating higher than 50 percent for migraines on an extraschedular basis is denied. FINDING OF FACT The Veteran's migraine symptoms are fully compensated under the schedular rating criteria and do not present with any symptoms not contemplated by the rating criteria. CONCLUSION OF LAW The criteria for a rating higher than 50 percent for migraines on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.32, 4.1, 4.2, 4.3, 4.10, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Navy from June 2001 to October 2011. His decorations include the Global War on Terrorism Expeditionary Medal, Iraq Campaign Medal, and Afghanistan Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board issued a decision granting a 50 percent rating for migraines and a 70 percent rating for posttraumatic stress disorder (PTSD). In a May 2021 Memorandum Decision, the Court of Appeals for Veterans Claims vacated the portion of the Board's November 2018 decision concerning migraines and remanded the claim for readjudication consistent with its decision. Migraines Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran contends that a higher rating is warranted for his migraines. For the following reasons, the Board disagrees and finds that a higher rating is not warranted. The Veteran's migraines are rated as 50 percent disabling under DC 8100. A 50 percent rating is the highest rating available under DC 8100 and is warranted for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Because migraines are directly addressed solely under DC 8100, employing an analogous rating under 38 C.F.R. § 4.20 is not appropriate as the disability is not unlisted. Neither the rating criteria nor the Court has defined "prostrating" attack. By way of reference, in Dorland's Illustrated Medical Dictionary 1531 (32 ed. 2012), "prostration" is defined as "extreme exhaustion or powerlessness." The rating criteria do not define "severe economic inadaptability." However, nothing in DC 8100 requires that the Veteran be completely unable to work to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 446 (2004). The Board notes that the Court has recently held that DC 8100 for migraines contemplates "all symptoms" experienced due to migraine attacks, such as various non-headache symptoms including, but not limited to, dizziness, nausea, vertigo, mood swings, sleep impairment, anxiety, isolation, and depression. Holmes v. Wilkie, 33 Vet. App. 67, 7375 (2020). As the Veteran is assigned the highest rating under the rating criteria, a higher rating cannot be awarded under the rating criteria for migraines. In a November 2021 brief, the Veteran's representative raised an argument that the Board failed to consider whether the Veteran's migraine symptoms required additional schedular ratings. Separate ratings are available if a veteran's symptoms are not adequately contemplated by the rating criteria. However, in this instance the Board finds that separate ratings are not appropriate. The Veteran's migraine symptoms of nausea, noise sensitivity, vomiting, vision issues, and slowed thinking are non-headache symptoms that were contemplated in assigned a 50 percent rating. These symptoms contributed in producing severe economic inadaptability, a crucial element for a 50 percent rating under the diagnostic code for migraines. As these symptoms are adequately contemplated by the rating criteria for migraines, separate ratings would not be appropriate. The Veteran's representative also raised an argument for an extraschedular Rating. For the following reasons the Board finds that an extraschedular rating is not warranted. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In November 2015, the Veteran underwent a VA examination. The Veteran reported that he experiences migraines two to three times a week. He experiences headaches at night and unless he vomits the night before he can awaken in the morning after vomiting with a headache. The examiner noted the Veteran's symptoms to include pulsating or throbbing head pain, pain on both sides of the head, pain worsens with physical activity, sharp pain in the back of the head, nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The Veteran reported pain lasting one to two days. The examiner found no prostrating attacks, but that the Veteran's migraines did impact his ability to work. The Veteran underwent another examination in December 2015. He reported that he experiences headaches twice a week with pain behind the eyes that radiates behind the head. These headaches last twenty-four hours and are associated with nausea, occasional vomiting, photophobia, sound sensitivity, dizziness, and bright spots. The examiner found the Veteran to suffer from prostrating attacks once a month that impact his ability to work. Another examination was conducted in January 2018. The Veteran reported that his migraines still occurred twice weekly, but the duration is shorter. His symptoms were constant head pain, pulsating or throbbing head pain, pain on both sides of the head, pain worsening with physical activity, nausea, sensitivity to light, and sensitivity to sound. The examiner found the Veteran to have prostrating attacks occurring once a month and that the Veteran's migraines impacted his ability to work. In a September 2015 VA treatment record, the Veteran reported worsening migraine headaches, which caused difficulty sleeping. He reported nausea and the need to lie down in a quiet room with the lights out. He also reported light sensitivity, noise sensitivity, and vision changes. A March 2016 VA treatment record noted the Veteran had symptoms of pressure in head, headaches behind his eyes, spots in his eyes, and pain that lasts 24 hours. The Veteran reported pain relief with vomiting. A July 2016 VA treatment record showed reports of migraines twice a week lasting up to 24 hours. The Veteran experienced symptoms of nausea, vomiting, photophobia, phonophobia, and stars in his vision. For relief, the Veteran reported lying in a dark room and taking medication. The Veteran reported taking a flex program in school because the frequency of his migraines would prevent him from going to school full-time. An August 2017 neurology examination noted that the Veteran's migraines caused significant disability. A July 2017 VA treatment record showed the Veteran reported daily headaches that start in his neck. In October 2017, the Veteran reported his dull headaches resolved with the use of a CPAP machine for sleep. The Veteran has submitted statements describing his symptoms. In a September 2015 statement, the Veteran reported that his migraines are accompanied by nausea and vomiting, severe sensitivity to light, sensitivity to sound, halos around objects, and a general inability to move. He found these symptoms to make it virtually impossible to work or concentrate. In his February 2016 Notice of Disagreement, the Veteran reported that he could not hold regular working hours due to migraines that occurred twice weekly that prevented him to move for a minimum of twelve hours. The Veteran reported again in his June 2016 VA Form 9 that his migraines occur twice a week and prevent him from obtaining full-time employment. The Board finds that an extraschedular rating is not warranted. The Veteran's migraine symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. As stated above, the Court has held that the symptoms experienced by the Veteran are all contemplated by the rating criteria in DC 8100. See Holmes, 33 at 7375. Furthermore, the Board does not find the frequency of symptoms to be beyond that contemplated by the rating criteria. The rating criteria for a 50 percent rating requires the Veteran to experience very frequent prostrating attacks. The rating criteria for a 30 percent rating require prostrating attacks to occur an average once a month. The Board reasons that "very frequent" means more than once a month, which the Veteran experiences. Though he experiences migraines at least twice a week, it was not found that he has prostrating attacks during every migraine episode. At none of his examinations did he report, or was it found that the Veteran had prostrating attacks whenever he experienced migraines. It was only found that he has attacks that require him to isolate in quiet dark spot. He did report that his migraines at time kept him from moving for twelve hours, but he did not report the frequency of these attacks. Without evidence of these migraines occurring at a frequency that exceeds "very frequent" the Board cannot find that the Veteran's disability picture is not contemplated by the rating criteria. Accordingly, the Board finds the Veteran to have a disability picture adequately described by the rating criteria and that the threshold issue under Thun is not met. As such, an extraschedular rating is not warranted. For the foregoing reasons, the preponderance of the evidence is against awarding a rating higher than 50 percent for migraines. In denying such a rating, the Board finds the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.