Citation Nr: 21075500 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-23 103 DATE: December 20, 2021 ORDER Entitlement to a 50 percent rating for cluster headaches from February 10, 2015 is granted. FINDING OF FACT During the appeal period, the Veteran experienced cluster headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to a 50 percent rating for cluster headaches from February 10, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from September 1991 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a video conference Board hearing in May 2019. A transcript of the proceeding has been associated with the claims file. The issue was most recently remanded by the Board in a June 2021 decision. The RO was directed to obtain an updated VA examination, which was completed in August 2021. The Board finds that the RO has substantially complied with the June 2021 Board remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a 50 percent rating for cluster headaches from February 10, 2015 The Veteran contends that his service-connected cluster headaches are more disabling than reflected by his current rating. Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 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 service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's migraines are currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 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 Diagnostic Code 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. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to a 30 percent rating under Diagnostic Code 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 rating criteria for a 50 percent rating contains 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 Diagnostic Code 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). Most recently, in Holmes v. Wilkie, 33 Vet. App. 67 (2020), the United States Court of Appeals for Veterans Claims held that Diagnostic Code 8100 encompasses all migraine symptoms. Therefore, to evaluate migraines under Diagnostic Code 8100, the VA must consider all the symptoms the Veteran experiences as a result of migraine attacks, and then rate those symptoms based on the frequency, duration, severity, and economic impact of the attacks. Id. at 73. The Board notes that the Veteran filed his claim for an increased evaluation on February 10, 2015; the Board has considered the evidence of record since February 10, 2014 in conjunction with this decision. See 38 C.F.R. § 3.400 (o). The evidence relevant to the severity of the Veteran's service-connected migraines includes VA treatment records, VA examinations, and statements from the Veteran. During the April 2015 VA examination, the Veteran contended that he has headaches most days. His headaches often occur during the day with pain in his left temple and to the left side of his neck and shoulder. He stated that his headaches are also associated with sweating, nasal congestion, tearing in the left eye, and sensitivity to light and sound. The Veteran also contended that he has prostrating headaches 3 to 6 times a month lasting 4 hours on average, and they are so bad he has to leave work early or he may be up all night with a headache. He estimated he has missed 7 days of work in the past 6 months due to his headaches and stated that he has a flexible schedule and can make up missed work. The examiner summarized that the Veteran's headaches are treated with medication. Symptoms of his headaches include constant pain, pulsating or throbbing pain, pain localized to one side of the head, and are improved with physical activity. His non-headache symptoms include sensitivity to light and sound, tearing, and congestion. His headaches last less than 1 day and are located on the left side of his head. The examiner opined that the Veteran has characteristic prostrating attacks, but they are not productive of severe economic inadaptability. The rationale for this opinion Is that because the Veteran's schedule is flexible and his employer is accepting of his headaches, there is no economic impact. The Veteran was afforded another VA examination in March 2016. The Veteran contended that the pain on his left temple and radiates out and his headaches are nearly daily with flares that are most consistent with migraines. He also stated that his headaches are associated with photophobia, phonophobia, smells, tearing in eye, and occasional nausea. His headaches can last from 30 minutes to 3 to 4 hours. His migraines last all day, and he estimates they occur 6 times per week. The examiner determined that the Veteran's headaches are treated with medication. His symptoms include constant pain, pulsating or throbbing pain, and pain localized to one side of head. His non-headache symptoms include sensitivity to light and sound, sensitivity to certain smells, and tearing. His head pain lasts less than 1 day and are located on the left side of his head. The examiner opined that the Veteran has characteristic prostrating attacks once every month, but they are not productive of severe economic inadaptability. The examiner also opined that the Veteran's headaches impact his ability to work as the examiner anticipates that the Veteran would experience increased absenteeism due to headaches and estimates that he has lost about 3 to 4 whole or partial days per month due to his headaches. In October 2020, a VA examination was completed based on a review of available records and did not include any input from the Veteran. The examiner determined symptoms of the Veteran's headaches include constant head pain localized to one side of the head. Non-headache symptoms include sensitivity to light. The examiner found that the headaches last less than 1 day and occur on the left side of his head. She opined that his headaches are not characteristic of prostrating attacks and are not productive of severe economic inadaptability. In the June 2021 Board remand, the Board concluded that the VA examination is inadequate as it is not based on an accurate factual premise, as the examiner did not interview the Veteran when rendering an opinion. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993). A new VA examination was conducted in August 2021, and includes input from the Veteran. The Veteran reported experiencing cluster headache located on the left side at his temple and down the side of his head to the shoulder. He stated that the headaches come on quick and get very intense. He experiences sensitivity to light and sound. The Veteran stated that he gets cluster headaches 2 times per week and he rarely goes 2 days in a row without a headache. He misses time with his family and job due to his headaches, and at least 2 times per week his headaches are so severe he needs to miss work from an hour up to a full day. The examiner determined that the Veteran's treatment includes medication. His symptoms include pain on both sides of the head, increased pain with physical activity which starts on the right side of head and proceeds down to the shoulder. He described the pain as feeling like someone is putting a pin into the side of his head and the morning after a headache his head feels like he was hit in the head by a baseball bat, or it feels like a broken tooth. His non-headache symptoms include sensitivity to light and sound. His headache pain lasts 1 to 2 days localized on both sides of his head. The examiner opined that the Veteran's headaches have characteristic prostrating attacks once every month but are not productive of severe economic inadaptability. The examiner also opined that the condition does impact his ability to work as he reported 2 to 4 weeks lost time in the last 12 months. It was also noted that when the Veteran gets headaches, it is more difficult to look at a computer screen or function. He has a 90-minute drive to work, and he cannot drive with a headache, so he ends up stuck because he cannot go home, and he cannot work. It was also noted that he uses all his sick time in first half of year, and eats into his paid time off. In the past 12 months, he took off at least 20 days' worth of work hours with a mix of full and half days. The Veteran's VA treatment records include an extensive history of treatment for his cluster headaches and migraines. In October 2015, his neurologist noted that the Veteran's headaches are poorly controlled. In email correspondence to his doctor in November 2015, he stated that his headaches are pretty constant, and he keeps having to leave work early due to his headaches. In January 2016, he noted that he experiences memory issues with his headaches. In an March 2016 email to his neurologist, the Veteran recalled a work trip where he experienced a severe headache, he was unable to focus on anything and a work colleague had to help cover for him. The Veteran reported continued regular daytime headaches in May 2016. In June 2016, he reported that he consistently gets sleepy after getting to work in the morning and feeling drowsy on the way home. During an October 2017 neurology consultation, the Veteran stated that he experiences cluster headaches on the left side of his head, he wakes up several time a night with a headache, and then will have several headaches during the day. He stated that he also experiences migraines a few times per week, but these are much less debilitating. In July 2018, the Veteran reported cluster headaches occurring on the left side last only 15 to 30 minutes but wake him up from his sleep. He again reported migraines occurring during the daytime that are less debilitating but increasing in severity and frequency. In November 2018, he reported headaches occurring approximately 5 days per week, mostly at night. But he also experiences twice weekly dull headaches that linger. During an October 2020 neurology appointment, the Veteran indicated that he continues to have both migraine and cluster headaches. He has 3 to 5 cluster headaches per week and 1 to 2 migraines per week, each interfering with his sleep. Most recently, in June 2021, the Veteran's neurologist noted that the Veteran continues to experience debilitating headaches that have not responded to several preventative or abortive medications. Throughout the appeal the Veteran has provided statements regarding the severity, frequency, and duration of his headaches, as well as their effect on his employment. In May 2015, the Veteran contended that he gets severe debilitating headaches that cause him to miss work and leave work early. His headaches come almost daily and sometimes multiple times per day lasting from 30 minutes to a full day. He also has less severe small headaches throughout the day. He reported that in 2014, he missed over 90 hours of work. He sometimes comes to work after having a headache all night and tries to do tasks that do not require a lot of concentration. In August 2015, the Veteran provided timesheets from 2014 showing missed work and use sick leave for 12 pay periods between January to December 2014. The sick leave used totaled roughly 92 hours or 12 days. During the May 2019 Board hearing, the Veteran provided sworn testimony indicating that he has about 3 to 4 headaches per week, and sometimes he has daily cluster headaches that last several hours. He testified that he wakes up from sleep due to his headaches and cannot concentrate to perform occupational tasks during headaches. When he has headaches at night, they result in a "hangover" sensation making him late for work. The Veteran further testified that his headaches are debilitating, and they leave him weak and helpless. The previous year he estimated hat he lost about 15 days of work due to his headaches. Most recently, in September 2021, the Veteran provided timesheets for 2021 showing that he has taken 52 hours of sick leave due to headaches, which is roughly 7 days total. The Board finds that the Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board finds that the Veteran's statements are credible as they have been consistent throughout the duration of the appeal. Accordingly, the Board finds that the Veteran's statements regarding his headache symptoms are highly probative. After careful consideration of the evidence, the Board finds that the preponderance of the evidence supports a rating of 50 percent for the Veteran's cluster headaches for the duration of the appeal. The Board finds that the Veteran's VA treatment records, statements made to medical providers, and statements in support of the claim are more reliable and far outweigh the opinions offered by the VA examiners regarding the frequency, severity, and duration of his headaches. The Board notes that the VA examiners' opinions were all based on a finding that the Veteran's headaches did not produce severe economic inadaptability due to the Veteran's fortunate circumstance of having flexible employment with generous benefits where he is allowed to use paid leave. However, the legal standard is whether the Veteran's headaches are "capable of producing" severe economic inadaptability. Here, the Board finds that the evidence overwhelmingly demonstrates that the Veteran's headaches are capable of producing severe economic inadaptability. The VA treatment records and statements indicate that the Veteran experiences headaches at least daily prohibiting him from being able to concentrate from anywhere from one hour to an entire day. The headaches have been described as "debilitating" with constant pain and sensitivity to light and sound that make him feel sleepy, weak, and helpless. The records indicate that the Veteran has missed numerous hours and days of work throughout the appeal period due to his headaches. In 2014, provided paystubs showed that he used 92 hours of sick leave due to his headaches. Most recently, in 2021, the Veteran has used 52 hours of sick leave for his headaches. Although the Veteran has been able to use sick leave and vacation leave or adjust his schedule, if he did not have access to paid leave, the frequency, severity, and duration of his headaches would have resulted in severe economic inadaptability. Significantly, the March 2016 and August 2021 VA examiners opined that the Veteran's headaches impact his ability to work and have resulted in lost work time. Therefore, the Board concludes that the Veteran's headaches are manifested with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Accordingly, entitlement to a rating of 50 percent for cluster headaches from February 10, 2015 is granted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.