Citation Nr: 21076095 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-62 236 DATE: December 22, 2021 REMANDED Entitlement to an initial compensable rating, prior to January 24, 2014, for migraines is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1991 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2014 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for migraines and assigned an initial noncompensable disability rating. Later in the appeal period, the RO increased the assigned rating to 50 percent, effective May 3, 2016. In July 2018, the Board denied the Veteran's claim of entitlement to an earlier effective date for the assignment of a 50 percent rating for migraines. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In September 2019, pursuant to a September 2019 joint motion filed by the parties to this matter, the Court vacated the decision and remanded the case because the Board failed to adjudicate whether any compensable rating was warranted prior to May 3, 2016. In May 2020, the Board granted an effective date of January 24, 2014 for the assignment of a 50 percent disability rating for migraines and denied a compensable initial rating prior to January 24, 2014. The Veteran appealed the decision to the Court. Pursuant to an August 2021 Joint Motion for Partial Remand, the Court found that the Board must provide a proper foundation for why it found reasonable to assume that prostrating migraine attacks would have been recorded in the medical evidence of record for the time period between May 2010 and January 2014. The case is again before the Board for appellate review. 1. Entitlement to an initial compensable rating, prior to January 24, 2014, for migraines is remanded. The Veteran is seeking a compensable rating prior to January 24, 2014 for his migraines. The Board finds that in light of the points raised by the parties to the Joint Motion for Partial Remand and a Board review of the claims file, a remand for additional development is warranted. Here, the Veteran contends that his migraines have been primarily the same level of intensity throughout the appeal period. Migraines are rated under DC 8100 of 38 C.F.R. § 4.124a. In order to establish a compensable rating of 10 percent, the medical evidence of record must at least reflect characteristic prostrating attacks averaging one in two months over last several months. Migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months are rated as 30 percent disabling. Migraine headaches with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation. The Veteran was afforded VA examinations for his migraines in January 2014 and May 2016. In May 2020, the Board found that a 50 percent disability rating was warranted from January 2014, the date the Veteran was provided his first VA headache examination during the appeal period. Here, the Veteran's appeal period commenced on May 28, 2010, the date in which VA received the Veteran's claim to reopen service connection for headaches. Thus, the Boards finds that a retrospective opinion is warranted in order to determine the severity of the Veteran's migraines prior to January 24, 2014. The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion from a physician regarding the severity of the Veteran's service-connected migraine headaches from May 2010 and prior to January 24, 2014. The examiner must review the entire claims file to include this Board Remand. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Following review of the record and the Veteran's reported history of the frequency and severity of his migraine headaches, the examiner is asked to address the following: Were the Veteran's migraines accompanied by characteristic prostrating attacks at any point prior to January 24, 2014? If so, please indicate the frequency and duration of those attacks. Were the Veteran's migraines very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability at any time prior to January 24, 2014? In answering these questions, determining whether the Veteran experiences prostrating attacks, the examiner is requested to address the Veteran's lay statements of record. The examiner is reminded that the Veteran is competent to report symptoms capable of lay observation, such as headache pain. Regardless of whether the examiner determines the Veteran's headaches to be prostrating, the examiner should state the frequency with which the Veteran experiences headaches which require him to lay down, refrain from driving, stay home, and/or miss work. The examiner is advised that the term "prostrating attack" can be defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1531 (32nd ed. 2012). The examiner must provide a complete rationale on which his/her opinion is based and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner finds that he/she cannot provide an opinion without resorting to speculation, he/she should explain the inability to provide an opinion. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. The Board's decision in this case is binding only with respect to t he 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.