Citation Nr: 21075413 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-28 826 DATE: December 20, 2021 ORDER For the period beginning September 22, 2020, a 30 percent rating for migraines is granted. A rating higher than 30 percent for migraines is denied. FINDINGS OF FACT 1. Prior to September 22, 2020, the evidence did not show that the Veteran's migraine headaches involved or resulted in prostrating attacks. 2. For the entire period on appeal, the Veteran's migraine headaches do not involve headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability rating for migraine headaches prior to July 6, 2021 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for a rating higher than 30 percent for migraine headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to April 1975. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2015 rating decision, which granted service connection for migraine headaches and assigned a noncompensable rating. In March 2021, the Board remanded the issue for further development, to include a VA examination. Subsequently, the RO issued a July 2021 rating decision which increased the disability rating to 30 percent effective July 6, 2021. As the disability rating assigned does not represent a total grant of benefits sought on appeal, the claim for an increase remains before the Board. AB v Brown, 6Vet. App.35, 39 (1993). Entitlement to an initial compensable rating prior to July 19, 2021 for migraines prior to July 19, 2021 and in excess of 30 percent thereafter The Veteran asserts that his migraine headache disability warrants a compensable rating prior to July 19, 2021 and higher than 30 percent thereafter under DC 8100. Under DC 8100, a noncompensable rating is assigned for headaches with less frequent attacks. A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation, the highest available under DC 8100, is assigned for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating" as used in DC 8100. By way of reference, the Board notes that according to Webster's New College Dictionary 909 (3d Ed. 2008), "prostrate" is defined as "physically or emotionally exhausted." The word "incapacitated" is listed as a synonym. A very similar definition is found in Dorland's Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." Similarly, the regulations provide no clarification as to the meaning of the phrase "productive of severe economic inadaptability." The Court, however, has issued a precedential decision which focuses on the meaning of this phrase. In Pierce v. Principi, 18 Vet. App. 440 (2004), the Court interpreted the phrase as follows: "nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating" because "[i]f 'economic inadaptability' were read to import unemployability," a claimant who "met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [ (TDIU) ]... rather than just a 50% rating." Id. The Court therefore rejected the notion that "severe economic inadaptability" was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for a TDIU. Id. (citing 38 C.F.R. § 4.16 (a)). In addition, the Court in Pierce acknowledged the Secretary's concession that the phrase "productive of severe economic inadaptability" in DC 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Id. at 445. Turning to the evidence in this case, the Board notes that a March 2015 VA examination report reflects review of the Veteran's file. The examiner noted that the Veteran experienced headache pain localized to one side of the head that lasted less than one day and was treated with Tylenol twice per week. The examiner noted that the Veteran did not have characteristic prostrating attacks of migraine or any other pertinent signs or symptoms of migraines. A review of the medical records did not indicate ongoing complaints of headaches at the time. In September 2020, he submitted correspondence from his daughters, which indicated that the Veteran had to lay down nearly five or six times a day in a dark and quiet room. The Veteran also complained of dizziness, lightheadedness, and nausea. A July 2021 VA examination report notes reflects review of the Veteran's file. The examiner noted that the Veteran experienced throbbing pain in the frontal lobe and behind the eyes that lasts less than one day. The examiner noted that the Veteran had characteristic prostrating attacks of migraine once every month and experienced symptoms, such as nausea and sensitivity to light. After review of all the evidence, lay and medical, the Board finds that a 30 percent rating for migraine headaches is warranted from the date the Board received the statements from the Veteran's daughters regarding their observations of the Veteran's migraine symptoms. This is the earliest date that the evidence shows that the Veteran's migraine headaches resulted in prostrating attacks. The evidence does not show that the Veteran's migraines resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Therefore, a 30 percent disability rating is warranted from September 22, 2020, but no higher. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill 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.