Citation Nr: 21075225 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 09-32 896 DATE: December 17, 2021 ORDER For the period on appeal, a rating of 50 percent for migraine headaches is granted. FINDING OF FACT The competent and probative evidence shows that the Veteran has had migraines occurring very frequently that are completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW For the period on appeal, the criteria for a separate rating of 50 percent for headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.120, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from October 1980 to September 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's December 2020 decision that denied a rating in excess of 30 percent for migraine headaches. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are not appropriate in this matter as the evidence establishes that the Veteran's service-connected disability largely remained stable and constant. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Entitlement to a rating in excess of 30 percent for migraine headaches. In the JMPR, the Court directed the Board to respond the Veteran's request for additional time. Since the Court's JMPR, the Veteran's attorney has submitted a brief in support of the Veteran's claim. Additionally, the Board is granting the highest rating for migraine-headaches below. The Veteran's attorney asserts entitlement to a rating of 50 percent. In the November 2021 brief, the Veteran's attorney explains that her medication does not truly alleviate her symptoms and that her headaches prevent her from fully-functioning. The Veteran only works part-time. Under 38 C.F.R. § 4.124a, DC 8100, in pertinent part, a 30 percent evaluation is appropriate in cases of characteristic prostrating attacks occurring on an average of once a month over the last several months; and, a 50 percent rating is appropriate with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Here, because of the successive nature of the rating criteria in DC 8100, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria in the 50 percent rating must be met in order to warrant such a rating. Section 4.7 is not applicable to DCs that apply successive rating criteria, such as DC 8100. See Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018) (holding that criteria of DC 8100 are successive). Though Diagnostic Code 8100 does not provide a definition for "prostrating," prostration is defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007). Similarly, the term "productive of severe economic inadaptability" is also not defined in veterans' law. However, the Court has stated that this term is not synonymous with being completely unable to work and VA has conceded 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, 44647 (2004) (stating that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating"). Additionally, "Characteristic" is "a trait, quality, or property or a group of them distinguishing an individual, group, or type." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 376 (1966). "Prostrating" means "lacking in vitality or will: powerless to rise: laid low." Id. at 1822. "Completely" is defined as "to complete degree: entirely." Id. at 465. In other words, the headaches must render the veteran entirely powerless. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). The Veteran underwent an examination in December 2016. She stated that her headaches had worsened over time. She took medication. She had pain on both sides of her head. She also had nausea and sensitivity to light. Her pain would last between one and two days. She had characteristic prostrating attacks of migraine/non-migraine headache pain. However, the examiner reported that she did not have prostrating and prolonged attacks of severe economic inadaptability. Comparatively, the examiner also reported that her headaches impacted her ability to work as it limited occupational productivity during severe attacks due to photophobia. In August 2020, the Veteran underwent an additional examination. She reported that she would have two to three headaches per week that would affect her ability to perform occupational functioning and ordinary activity and she would need to lay down in a dark room. She took Sumatriptan and Imitrex among other medications. She had constant head pain, pulsating or throbbing pain, and pain that worsened with physical activity. Nausea, sensitivity to light, and changes in vision were noted. Her headache pain (occipital region) would last between one and two days. The examiner reported that she did not have characteristic prostrating attacks of migraine/non-migraine headache pain. She also did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. Yet, the examiner reported that her headaches affected her ability to work as nausea and light sensitivity made it difficult for her to concentrate and use her computer as well as needing to lay down in a dark room. Her medication made it difficult for her to function. Her migraines did not respond to prescribed medication in May 2018. Her treatment records showed daily headaches in May 2020. She would have blurred vision and dizziness. She had migraines with vertigo in December 2020. In January 2021, she reported that her medication was working less often. She submitted lay statements that she had headaches everyday as well as severe sensitivity to light and noise. She took multiple medications which did not work. She stated her primary care physician increased the dosage of Topiramate and prescribed Imitrex. She reported excruciating headaches three or more times per month. After review of the competent and probative evidence, the Board finds that a rating of 50 percent is warranted for the period on appeal. The Veteran has had symptoms that include nausea, and light and sound sensitivity. The Board acknowledges the VA examination reports do not explicitly show the Veteran's headaches were very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. However, the Board finds the Veteran's lay statements to be competent and credible. Her lay statement combined with a holistic view of the relevant evidence does support such a finding. For example, she has asserted she needs to lay down in a dark room to avoid light and sound. This evidence tends to support a finding of very frequent prostrating attaches with economic impacts. In this regard, this period where she needs to lay down in a dark, quit room would have a negative impact on her work productivity. Additionally, both examinations reflect that her headaches made it difficult for her to concentrate and work. She had impaired productivity. Also, the Veteran has submitted credible lay testimony that she has had near daily headaches, severe headaches more than three times per month, and that her prescribed medications would only work sometimes. The Board finds that the combination of the Veteran's frequent symptoms, in addition to need to rest in a dark room, is more analogous to characteristically prostrating as the Veteran requires a quiet, dark room, and there is evidence that she is unable to work fulltime due to her migraine headaches. As such, the Board finds that the evidence tends to show that the Veteran's migraines are productive of severe economic adaptability. Resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence shows that she has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.3. The benefit of the doubt has been applied as applicable to the entire period on appeal. In light of the above, after reviewing the probative, competent medical evidence and the Veteran's contentions, the Board finds that the preponderance of the evidence supports a rating of 50 percent for the period on appeal. 38 C.F.R. § 4.124a, DC 8100. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.