Citation Nr: 21075734 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 19-06 092A DATE: December 21, 2021 ORDER Entitlement to an initial 50 percent disability rating for migraine headaches is granted. FINDING OF FACT For the entire period under appeal, the Veteran's headache disability has more likely been consistent with finding of very frequent prostrating and prolonged attacks that are capable of producing severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial evaluation of 50 percent, but no higher, for a migraine headache disability have been met. 38 U.S.C. §§ 1155, 5103. 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2002 to August 2006. These matters are before the Board of Veterans' Appeals (the Board) on appeal of an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2019 Board decision, the Veteran was granted a rating increase of 30 percent for his migraine headaches. However, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), arguing for a higher rating. A Joint Motion for Partial Remand (JMPR) was issued as the parties agreed that in assigning a 30 percent rating, the Board failed to provide an adequate statement of reasons and bases for its decision. The Court subsequently issued an Order granting the JMPR. In a November 2020 decision, the Board denied the Veteran's claim for a disability rating in excess of 30 percent for his migraine disability. The Veteran again appealed that decision to the Court. A JMPR was issued in May 2021 as the parties agreed that in assigning a 30 percent rating, the Board erred in failing to provide a sufficient rationale for its determination. In September 2021, the Board remanded this issue for additional development. The Board again notes that the issue of entitlement to service connection for a cervical spine disability is referred to the Agency of Original Jurisdiction (AOJ). Higher Initial Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). 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 that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his headache disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. The Veteran is currently in receipt of an initial 30 percent rating for migraine headaches pursuant to Diagnostic Code 8100. Under Diagnostic Code 8100, where migraine headaches occur with characteristic prostrating attacks on an average of once a month over the last several months, a 30 percent disability rating is appropriate. Migraine headaches with very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability warrant a maximum schedular 50 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). The rating criteria do not define the term "prostrating." According to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." Essentially the same definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), which defines "prostration" as "extreme exhaustion or powerlessness." Factual Background and Analysis The Veteran underwent a VA examination in July 2015. The Veteran reported that his headaches began in 2001 and were treated with Tylenol. He complained of headaches occurring 3 times per week, lasting 1 to 2 hours each time. Upon examination, his migraines resulted in pulsating or throbbing head pain that occurred on both sides of the head. He was also sensitive to light and sound. The duration of his headaches lasted less than 1 day. The examiner found that the Veteran did not exhibit characteristic prostrating attacks of migraine and did not demonstrate any other complications of his condition. In an April 2016 statement, the Veteran reported having prostrating migraine headache attacks. He reported having migraine headaches 3 times per week, with prostrating migraines about 4 to 8 times a month. During episodes of prostrating migraines, he was extremely sensitive to light and sound which forced him to sit down and wait for the pain to subside. He could not do anything else during these episodes except to wait for them to go away. The migraine affected his work as he had to go sit in a dark and quiet room until it subsided. In a statement received in June 2016, the Veteran argued that he was entitled to a rating of 30 percent for his headaches because he has three headaches a week on a regular basis. His pain was described as so severe that he is forced to sit down until the pain goes away and thus suffers from prostrating attacks. The Veteran underwent a VA examination in November 2018. The Veteran noted to be taking medication for his symptoms which included headache pain, pulsating or throbbing head pain, and pain on both sides of the head. He also experienced non-headache symptoms associated with headaches with sensitivity to light and sound. The Veteran indicated that his symptoms lasted less than 1 day with pain on both sides of his head. The examiner noted that the Veteran's migraines did not have characteristic prostrating attacks. However, the Veteran's headaches had a functional impact on his ability to work as he often needed a short break to rest to allow the pain medication to take effect. In a February 2019 statement, the Veteran reported that his migraine symptoms occurred at least weekly (3 to 4 times per month) and are so severe that he must sit alone or lay down in a room for it to subside. Each time, his migraines lasted between 30 minutes to hours. In a March 2019 statement, the Veteran contended that his migraines were productive of 'very frequent completely prostrating and prolonged' attacks, which resulted in severe economic inadaptability. Per the September 2021 Board remand instructions, the Veteran underwent a VA records review and interview in October 2021. The examiner noted that the Veteran reported that he was now getting headaches 2 to 3 times a week. He stated that at least once a week he had to lay down due to the pain. He reported that the headaches started as a constant dull ache but if not treated or if the aggravating activity had stopped, he will end up with a pulsating, throbbing headache. He reported light sensitivity with occasional nausea but no vomiting. He had some sound sensitivity, flashed of light "stars" in vision, lightheadedness and weakness. These could last anywhere from 15 minutes to hours at a time. His current treatment was an ice pack, rest, meditation, Aleve and increased water intake. His impact on his work (prior to Covid-19) was him having to take frequent bathroom breaks to rest while having a headache. Now that he worked from home, he would block off time on his schedule for fake meetings to give himself time to lay down and rest in a dark room due to the headaches. He did this at least once a week. He also could not look at his bright computer screen for too long as it caused increased pain. His headaches also made it too hard to concentrate and focus on reports or deliver an effective presentation. He also reported that at his home his chores and yard work took twice as long when he had a headache. He took breaks every 30 minutes. He had also modified his diet and decreased his alcohol and caffeine intake. On the examination report, the examiner noted that the Veteran needed medication for his headache condition as he took Aleve. The examiner noted that the Veteran experienced constant headache pain, pulsating or throbbing head pain, pain on both sides of the head and pain worsening with physical activity. He experienced non-headache symptoms as he had nausea, sensitivity to light, sensitivity to sound, changes in vision and lightheadedness, weakness and "stars" in his eyes. The duration of the head pain typically lasted less than a day but was on both sides of his head. The Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain that occurred once every month. He did not have prostrating and prolonged attacks of migraine/non-migraine headache pain that was productive of severe economic inadaptability. The examiner noted that they were unable to be perform a physical examination due to the utilizing the Acceptable Clinical Evidence (ACE) process. Based on a review of the record, the Board finds that a maximum 50 percent rating is warranted under Diagnostic Code 8100 for the entire period on appeal. As noted above, in order to be entitled to a rating exceeding 30 percent, the evidence must show that the Veteran has headaches of very frequent completely prostrating intensity, and prolonged attacks productive of (or capable of producing) severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Notably, the May 2021 JMPR found that the Board, in its November 2020 decision, erred in previously assigning a 30 percent rating by failing to provide a sufficient rationale for its determination that the Veteran's prostrating attacks associated with his migraines were not "very frequent." Additionally, the Board did not clearly state the extent to which it considered the ameliorative effects of his prescribed medication. The Board observes that the November 2018 VA examiner found that the Veteran's migraines did not have characteristic prostrating attacks. However, the examiner also found that the Veteran's headaches had a functional impact on his ability to work as he often needed a short break to rest to allow the pain medication to take effect. The Board also notes that the more recent VA examination in September 2021 noted that that the Veteran experienced constant headache pain, pulsating or throbbing head pain, pain on both sides of the head and pain worsening with physical activity. He also experienced non-headache symptoms as he had nausea, sensitivity to light, sensitivity to sound, changes in vision and lightheadedness, weakness and "stars" in his eyes. The examiner also found that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain that occurred once every month. While the September 2021 VA examiner found that the Veteran did not have prostrating and prolonged attacks of migraine/non-migraine headache pain that was productive of severe economic inadaptability, the Veteran has credibly and consistently indicated that his headaches have increased in frequency and severity which included episodes of incapacitation as the Veteran reported that when he worked in his office, he had to take frequent bathroom breaks to rest while having a headache. Now that he worked from home, at least once a week he would block off time on his schedule for fake meetings to give himself time to lay down and rest in a dark room due to the headaches. The Veteran also reported that his headaches made it too hard to concentrate and focus on reports or to deliver an effective presentation and that his home his chores and yard work took twice as long when he had a headache. Accordingly, the evidence of record supports a finding that he has had very frequent and prolonged prostrating headaches. The Board also concludes that the evidence of record likely demonstrates that the severity of the Veteran's headache disability is productive (or capable of producing) severe economic inadaptability. Based on the foregoing, the evidence shows that the Veteran has very frequent completely prostrating and prolonged headache attacks that are capable of producing severe economic inadaptability. Consequently, the Board finds that the Veteran's headache disability merits an initial 50 percent rating. The Board has considered entitlement to an initial evaluation in excess of 50 percent but notes that a rating higher than 50 percent is not supported by regulation. As the maximum scheduler evaluation under the rating code for migraine headaches is in now effect, no additional discussion is necessary. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board has also considered the use of other rating codes but finds that there are no appropriate codes that provide for an evaluation in excess of 50 percent for headaches. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.