Citation Nr: 21074476 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-35 158A DATE: December 15, 2021 ORDER The claim of entitlement to a disability rating of 50 percent, but no higher, for migraine headaches is granted. FINDING OF FACT The Veteran's migraines manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a disability rating of 50 percent, but no higher, for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from October 2000 to October 2004. This matter comes before the Board of Veteran's Appeals (Board) from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the Board in August 2019. A transcript of that hearing has been associated with the claims file. In December 2020, the Board issued a decision that, in pertinent part, denied entitlement to a rating in excess of 30 percent for migraine headaches. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA's General Counsel (the parties) filed a joint motion for partial remand (JMPR), seeking to return the matter to the Board for readjudication and provision of adequate reasons and bases for the Board's conclusions. In August 2021, the Court granted the parties' motion, vacated relevant portions of the Board decision, and remanded the matter for readjudication consistent with the JMPR. The matter has returned to the Board for readjudication. The Board notes that according to the JMPR, the Veteran did not appeal the Board's denial of entitlement to an evaluation in excess of 30 percent for bilateral pes planus with left foot plantar fasciitis (foot conditions) and, as such, the Court dismissed that issue. Accordingly, the rating pertaining to bilateral foot conditions is not before the Board at this time. The claim of entitlement to a disability rating of 50 percent, but no higher, for migraine headaches. The Veteran contends entitlement to a 50 percent disability rating for migraine headaches. Disability ratings are determined by 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. Disability evaluations are determined by applying the criteria set forth in 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. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100, for migraine. Under DC 8100, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Id. Still, if a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran pursuant to 38 C.F.R. § 4.3. Id. at 247. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Having considered all relevant evidence of record, including the findings of the parties in the JMPR, and having resolved all reasonable doubt regarding the degree of disability in favor of the Veteran, the Board concludes that the Veteran has had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, corresponding to the criteria for a 50 percent rating under DC 8100. According to the Veteran's January 2014 VA examination, she was diagnosed with migraines including migraine variants. The Veteran reported that she had headaches two times per month that lasted two to three days. She indicated that her activity slowed with migraines and that when she got home, she would go to bed. The examiner noted the Veteran's symptoms as pulsating or throbbing head pain, localized to one side, and made worse with physical activity. The Veteran was noted as having non-headache symptoms of sensitivity to light and sound, that lasted less than one day. The examiner found that the Veteran had characteristic prostrating attacks of migraine headache pain more frequently than once per month, also very frequent prostrating and prolonged attacks of migraine headache pain. The examiner noted a functional impact of slowing activity with the migraines and going to bed when she got home. The Veteran was noted as not having prostrating attacks of non-migraine headache pain. As the Board found previously, the Board assigns significant probative weight to this examination. In considering the examination in the additional light of the JMPR, the Board notes that it interprets the examiner's statements that the Veteran's migraines were "made worse with physical activity" and caused her to take to her bed, to indicate that the lengthy attacks caused the Veteran extreme exhaustion and were capable of producing severe economic inadaptability. Further, at this time, the Veteran's migraine attacks were very frequent (e.g., at a frequency at least greater than once a month, as required for a 30 percent rating), as the Veteran reported that she had headaches two times per month that lasted two to three days. The Veteran is competent to report her readily observable symptoms, and the Board finds the Veteran's statements included in the VA examination report to be competent and credible as they are generally consistent with her contemporaneous reports from other sources. VA treatment records show that the Veteran complained of migraines, had medications that did not work, and continued to experience an increase in the frequency of migraines. See February 2015 VA treatment notes. Additionally, in September 2018 the Veteran indicated in a doctor's note that she had lost her bladder due to her having a migraine and being unable to get to the bathroom fast enough. The VA treatment records of the Veteran also indicated that in March 2020, the Veteran experienced headaches three to four times per week, with pain on the right side and blurred vision; however, a treating physician noted that the Veteran's occasional loss of bladder and incontinence existed independent of her headache condition and that she was being treated for her incontinence. At the August 2019 hearing the Veteran testified about her symptoms of blurred vision and nausea with her migraines. She described that her migraines had continued to increase in duration lasting three to four days at a time. The Veteran also testified as to her use of sunglasses indoors, and the need to stay in a dark room during a headache. A July 2019 VA treatment record reflects that the Veteran wore sunglasses during an appointment as she was bothered by the light in the room. As previously found by the Board, the Veteran's VA treatment records and testimony are competent and credible, and entitled to significant probative weight. The evidence of record also includes a December 2019 VA treatment examination. During this examination, the Veteran reported headaches on the right side of her head three to four days a week with a duration of three to four days, with nausea, blurred vision, and light and sound sensitivity. The Veteran also indicated an increase in her migraine frequency and prolonged intensity, and her headaches affected her productivity both at home and at work, which led to her manager allowing her to rest her head during the onset of headaches at work. The examiner confirmed these symptoms and noted additional symptoms of pulsating or throbbing head pain and worse pain with physical activity. The examiner noted the migraines lasted more than two days but concluded they did not cause prostrating attacks of migraine pain productive of severe economic inadaptability. The examiner considered the functional impact on the Veteran to cause one to two weeks of work time in the last 12 months, with an impact on her productivity as she was unable to remain focused and tolerate working on her computer during the onset of headaches. Upon review of this examination evidence, and resolving reasonable doubt in her favor, the Board concludes that the severity of the Veterans symptoms outlined in this examination are adequate to meet the criteria for a 50 percent rating. While the Veteran's migraines do not render her nearly unemployable, the frequency and severity of her prolonged migraine attacks are capable of severe economic inadaptability. The evidence of the Veteran missing weeks of work due to headaches, and the evidence that she was permitted to rest during workhours shows to the Board that the Veteran's migraine attacks were capable of causing severe economic inadaptability. Further, the Board finds the Veteran's symptoms of blurred vision, nausea, and need for rest in a dark room to, in this case, indicate that the migraine attacks were prostrating. It is also clear that her migraine attacks were prolonged, lasting several days at a time. Having considered all relevant evidence of record and the JMPR, the Board finds that the evidence is at least in balance as to whether the higher 50 percent rating criteria is met. As such, a 50 percent rating the highest available schedular rating - is warranted under DC 8100. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.