Citation Nr: 21077077 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-33 084 DATE: December 28, 2021 ORDER An initial rating of 50 percent for service-connected migraine headaches is granted. FINDING OF FACT Since June 29, 2010, the Veteran's headaches have occurred very frequently with completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial 50 percent rating for service-connected migraine headaches have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 2003 to June 2005, and from April 2009 to June 2010, including active duty for training from June 1997 to August 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). It was previously remanded by the Board in September 2019. Increased Ratings The Veteran is service-connected for migraine headaches. His headaches are rated as 0 percent disabling from June 29, 2010 to December 18, 2019 and 50 percent disabling since December 19, 2019. The Veteran filed a claim for an increased rating received by VA on July 25, 2014. The RO issued an April 2017 statement of the case (SOC) denying an increased rating from June 29, 2010 to January 13, 2014, of which the Veteran formally appealed to the Board, noting that the issue date is to present. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 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. An initial rating of 50 percent for service-connected migraine headaches is granted. The Veteran's migraine headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100, which compensates for headaches and migraines. Under the applicable diagnostic criteria, headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Rating Schedule does not define "prostrating." The Board therefore turns to the plain meaning of "prostration" in both a medical and societal context to inform its own understanding of the term. "Prostration" has been defined as "complete physical or mental exhaustion." MERRIAM-WEBSTER'S NEW COLLEGIATE DICTIONARY 999 (11th ed. 2007). "Prostration" has also been defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007). According to STEDMAN'S MEDICAL DICTIONARY, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013) (The Board adopts the Court's definition as its own.). In both the plain meaning definitions, a consistent characteristic of prostration involves extreme powerlessness and exhaustion. The Board therefore differentiates between symptoms of discomfort or interference with activities such as pain, nausea, and visual changes from symptoms of complete prostration, such as the inability to remain upright or awake. As such, in assessing the frequency of characteristic prostrating attacks, the Board looks for evidence not just that the Veteran experienced headaches and headache-related symptoms, but that those headaches rendered her so powerless or exhausted that she was unable to participate in regular daily activities for a substantial period of time, and instead was forced to lie down or sleep. The rating criteria under DC 8100 makes clear that the use of the conjunctive "and" means that to warrant a 50 percent rating, headaches must be both completely prostrating as well as prolonged. Johnson v. Wilkie, 30 Vet. App. 245 (2018). Prolong is defined as to lengthen in time: extend duration: draw out: continue, protract. Id. at 253. The Board considers these criteria in its evaluation. Additionally, the term "productive of severe economic adaptability" has not been clearly defined. "Productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as that would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446. The Board notes, however, that the migraines must be, at minimum capable of producing "severe" economic inadaptability. Again, turning to the plain meanings of these words, the Board notes that the term "severe economic inadaptability" refers to a great degree of inability in adjusting to the environment of an economic marketplace. See, Merriam-Webster definitions of "inadaptability," "adaptation," "severe," and "economic." Accordingly, the Board evaluates the Veteran's symptoms in light of these criteria. After careful review, the Board finds that the Veteran's headaches should be rated as 50 percent disabling for the entire period on appeal. A review of the Veteran's available medical records reveals that as early as April 2010, the Veteran was suffering from severe pain and headaches four to five times per week. The Board first looks to the Veteran's lay statements. In his March 2016 Notice of Disagreement (NOD), the Veteran said that he has migraines at least three to seven times a week and takes the medication from the VA. He said that his migraines come during random times, he had two on the day of the statement, and they are always in the same spot. He stated that he gets migraines chronically and, on a scale of one to ten, are an eight to ten. He said that the VA medication works from time to time, but he was unable to get to the hospital at the time due his job to get documentation of how bad they are. He stated that he deals with the pain, the headaches are very frequent, and the pain is not easy to bear. He said that he keeps tracks of how often he gets tm and the last month he had twenty-one migraines. In his June 2017 formal appeal to the Board, the Veteran stated that he believes he has debilitating prostrating attacks more than once a week, every week, of each month, of the last seven years. He is on medications that reduce frequency, but still has several per week that cause him to stop his current actions. When at work he has to sit down due to nausea and dizziness. He has to take a moment to sit and squeeze his head to try and relieve pressure as he covers his eyes with his hands for darkness. After a few minutes, he has to soldier on and continue with his daily duties. When at home, he has to completely stop what he is doing, take his prescribed medication, and sit or lie down in the dark due to nausea, dizziness, feeling weak all over, and throbbing pain. Each migraine episode causes extreme sensitivity to light and sound, as well as lightheadedness. They are not life threatening such that he needs to go to the emergency room every time and the limited availability of VA appointments prevents him from having more medical documentation. He reported he normally had to wait over a month for a VA appointment, so he just continued to take his prescribed medication, as well as over the counter medication. He believes a 50 percent or higher rating applies. In a September 2017 argument, the Veteran's representative contended that the records show that the headaches were severe, the Veteran failed prophylactic medications for migraine headaches and reported that he has to sit down and cover his face weekly due to migraine attacks with nausea. In a September 2016 statement, the Veteran said that the migraines take a toll on him, there are days he can barely sit-up or function, watch television, or go outside because the tiniest bit of light increases the pain level. He stated that he goes weeks at a time where he is having severe migraine headaches once or twice a day that either lasts a few hours or al day, which would happen consistently five to seven days each week. He said that during the last year, he has had chronic migraine pain at a minimum of eight to ten months out of the year, each year. He stated that episodes make him want to just lay down in a dark room and go to sleep to be relieved of the pain. He stated that during the migraines, the light gives him a feeling of stabbing pain behind his eyes that shoots a pulsating pain up to a specific spot in his head that is already pounding and the feeling of sunglasses on his nose creates enough pressure that can cause or prolong the migraine. He said the pain is bad enough for him to want to leave work. He stated that as he nears the end of his career, when asked during his evaluation of migraines, he would say no, although he still has to work full time. He said a 50 percent rating would allow him to work less and cope with his migraines. He requested a 100 percent rating for his migraines. In a September 2016 statement from the Veteran's wife, she said that the Veteran had another migraine attack episode. She said they occur randomly but now happen quite often, sometime lasting for the entire day, and other times just most of the day. She said that in a good week he may have one or two episodes and more like three or four in a bad week. She stated that it effects their way of life, sometimes they cannot do certain things because of the Veteran's migraines, and it is not fun when the Veteran can barely sit-up, which has been going on for years, months at a time, at least seven out of twelve months. She said there are many times he has not been able to cope with it and there are the days they sit in the dark with very little volume on the television and between them and their life revolves around his episodes, which has become their norm. Turning to the medical evidence of record, an April 2010 report of medical assessment notes the Veteran's severe migraines at least four to five times per week. A June 2010 VA Emergency Department note reflects that the Veteran has a history of recurrent headaches and complains of frontal headache for three days not relieved with motrin, sore throat, mild photophobia, some nausea present. He said that it was the worst headache of his life. He was diagnosed with a migraine. The Veteran underwent a July 2010 VA general examination and was diagnosed with migraine headaches. The examiner noted that the compensation folder was not provided and therefore not reviewed. The examiner noted that the Veteran stated that for he saw a doctor for his headaches and received ibuprofen. His headaches became chronic. He described his headaches as frontal, occurring two to three time a week, lasting twenty to thirty minutes or staying all day, not becoming any worse or better over time. The examiner noted that the Veteran uses over the counter Excedrin for his headaches with benefit and, when he has a headache, he works through it. The examiner noted that the Veteran stated that he does not go and lie down in a dark quiet place and that the Veteran does not think that headaches are prostrating and in between headaches he does not have any neurologic deficits. A November 2013 private treatment record reflects the Veteran's complaint of migraines. The examiner noted that the Veteran was given Amytrip from VA. The examiner noted normal findings upon examination and prescribed Zomig. A November 2014 VA medical center treatment record reflects that the Veteran was referred to neurology, failed Imitrex, now migraines increasing in frequency to four to five times per week. The examiner noted a history of migraines, previously tried sumatriptan but it was not effective, previously was taking Zomig and reported it was effective and will approve use of Zomig as requested. A December 2014 VAMC treatment record reflects the Veteran was seen for evaluation of migraine headaches and an impression of migraine headaches without aura was noted. The examiner noted that he was last seen in neurology clinic many years ago for the same complaints in 2010 and 2011. The headaches started in 2009, right frontal, throbbing, photophobia, no nausea or vomiting, the severity varies, duration varies with an average of one hour, he takes ibuprofen or Excedrin and sleeps in a dark room. The examiner indicated no vision changes, no speech, sensory or motor problems but getting more frequent for the last month, approximately four to five a week and he takes Zolmitriptan at the onset which helps, but now does not take any more as he ran out of them. The examiner noted that he was recently started on Gabapentin which scaled down the frequency and that he has tried propranolol without any benefit, Amitriptyline was prescribed, but was never used daily. The examiner noted that he sleeps okay, some soda-no excessive caffeine. The Veteran underwent a VA examination in February 2015 at which time he was diagnosed with migraine including migraine variants. The examiner indicated that the Veteran's treatment plan does include taking medication. The examiner noted that the Veteran was currently taking Zolmitriptan and Topiramate, his frequency of headaches decreased to one to two times a week since starting the Topiramate and they usually last up to two hours. The examiner indicated symptoms of headache pain, constant head pain, pain localized to one side of the head in the right frontal. The examiner indicated that the Veteran has non-headache symptoms of nausea, sensitivity to light, sensitivity to sound for two hours, less than a day in the right frontal. The examiner indicated that the Veteran does not have characteristic prostrating attacks and opined that the Veteran's headache condition does not impact his ability to work. A February 2016 service treatment record (STR) reflects that the Veteran has three to four migraines per week, previously was tried on Topamax for prophylactic, but no improvement and also used Motrin or Excedrin migraine with slight improvement. January and September 2017 treatment records note that the Veteran reported increasing number of migraines, no prescribed medications have helped, headaches described over entire head with feeling of pressure and photo/phonophobia, lasting multiple hours or days. He was advised to keep headache journal. An October 2017 STR reflects that the Veteran has continued migraines since his last and reports photosensitivity and phonophobia. An April 2018 VAMC treatment record reflects the examiner noted the Veteran's history of chronic migraines. The migraines were described as sharp pain behind the eyes usually on the right but occasionally on the left, lasting up to two to three days, headache occurring every four days, associated with photophobia and phonophobia, no nausea or vomiting. Prior to this he has been tried on three prophylactic medications with varying success, discontinued as he felt the improvement was not enough. A July 2018 VAMC treatment record notes the migraines were described as sharp pain behind the eyes usually on the right but occasionally on the left, lasting up to two to three days, headache occurring every four days, associated with photophobia and phonophobia, no nausea or vomiting. An October 2018 VAMC neurology note reflects the Veteran's history of chronic migraines. The examiner indicated a frequency of initially daily, now every three days for a duration of one to two days, used to last up to four days. The Veteran indicated that pain was nine out of ten. With aura there was numbness above eyes, photophobia, phonophobia and aggravation with pressure in the back of head and wearing glasses that are uncomfortable on his nose. There was alleviation by sitting in dark room, occasionally taking a nap. In a March 2019 statement, the Veteran said that his neurologist confirmed that his migraines are prostrating and chronic in nature. He said that his migraines are frequent and referenced his included migraine tracker. He stated there are days when he cannot really move or function, can only sit or lay in a dark room due to the level of pain and there have been many times when the severity will cause him to stop work, but he cannot simply stop work and go to the doctor or emergency each and every time he gets daily migraines. He said that he gets migraines headaches all the time and feels his situation warrants a 50 to 60 percent rating. His migraine log revealed migraines tracked from April to March, the year was not recorded but appears to be from April 2017 to March 2019. The migraine log included daily tracking, consecutive days, then some skipped days, at various times of the day, lasting for hours, some multiple times a day, some noted as waking him up, taking medication, being unable to watch television due to lighting. The tracker includes descriptions of throbbing headache, really hurting, really throbbing, pounding, severe, had to stop shopping and go home. The locations are described as pain behind eyes, left side front, front right in one small spot, pain in back of head, behind right temple, and left side of jaw. The Veteran underwent a VA examination in December 2019 at which time the examiner confirmed a diagnosis of migraine including migraine variants. The examiner noted that the Veteran experiences sharp pulsating headache pain across the bifrontal region, pressure over the bridge of the nose is intolerable and the pain is rated as ten of ten, lasting anywhere from two to three hours to more than a day. The examiner noted pulsating pain behind the eyes, associated light and sound sensitivity and nausea and interrupting work duties, as noted in the migraine log the Veteran presented. The examiner indicated that the Veteran's treatment plan does include taking medication. The examiner noted that the Veteran was currently taking Zolmitriptan and Amitriptyline. The examiner indicated symptoms of headache pain, pulsating or throbbing head pain, pain on both sides of the head, pain worsens with physical activity. The examiner indicated that the Veteran has non-headache symptoms of nausea, sensitivity to light, and sensitivity to sound. The examiner indicated the duration of the head pain is one to two days, located on both sides of head. The examiner indicated that the Veteran has characteristic prostrating attacks more frequently than once per month and that the Veteran has very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner indicted that the Veteran has other related pertinent physical findings, complications, conditions, signs or symptoms of NAD, extraocular movements intact, Pupils, Equal, Round, Reactive (to), Light, Accomodation (PERRLA), left eyelid ptosis (Veteran born with this), and mild tenderness to palpation in right and left trapezius. The examiner opined that the Veteran's condition impacts his ability to work and described such impact as when headache pain occurs at work, the Veteran must take a break or leave early, at times. When he works through headache pain, he has an inability to focus and has difficulty looking at the computer due to the light. He misses on average three workdays per year secondary to migraine headache pain. For his part, the Veteran has submitted statements indicating regular and severe prostrating headaches, occurring on a regular basis, and interfering with his employment, to the extent of causing him to be unable to sit-up, to stop work and to sit in a dark room, and be unable to watch television due to the light. Here, the Board acknowledges that the Veteran, as a lay person, is competent to report observable symptomatology of an illness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Affording the Veteran, the benefit of the doubt, the Board is satisfied that this is credible evidence of the severity of his headaches from the date of service-connection. Particularly, the Board notes that in March 2019, the Veteran provided VA with a migraine log noting the durations and description of his, pain, notably characterized as throbbing and severe. Thus, given reports of severe frequent headaches dating as early as April 2010, the Board finds the Veteran's lay testimony regarding the severity and frequency of his headaches to be competent and credible evidence in assessing this claim. Further, although the medical evidence does not explicitly document treatment for prostrating headaches prior to December 19, 2019, specifically during April 2010 and notably as shown in the July 2010 VA examination, this does not actively prove that he did not experience them. Rather this evidence merely speaks to a lack of documentation of specific language or the Veteran's interpretation of what prostrating indicates thereof. However, the Board notes that this does not explicitly indicate he did not experience regular severe headaches, various times per week, of a severe level. Moreover, for the entire time period on appeal, the record continuously note that the Veteran reported weekly severe headaches since April 2010. Furthermore, the Veteran and his wife have indicated that he has been unable to sit-up at certain times. In sum, the Board is satisfied that since June 29, 2010, the Veteran's migraine headaches occurred very frequently (certainly more than once a month) and resulted in completely prostrating and prolonged attacks productive of severe economic inadaptability. As such, the Board will afford the benefit of the doubt and assign a 50 percent rating from the date of service connection. The Veteran seeks a higher rating for his service-connected headaches, which is currently assigned a 50 percent disability evaluation under DC 8100. The maximum schedular rating for this particular disability is 50 percent. 38 C.F.R. § 4.124a, DC 8100. A 50 percent rating contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Thus, the only possible means of receiving a higher rating for this disability is on an extra-schedular basis under the special provisions of 38 C.F.R. § 3.321(b)(1). The remaining question of whether an extraschedular rating is warranted is a component of an increased rating claim. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). While the Board is precluded by regulation from assigning an extraschedular rating in the first instance, it can specifically adjudicate whether to refer a case to the VA Director of Compensation Services for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Under Thun, there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluations do not contemplate the Veteran's level of disability and symptomatology and are found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Here, however, the Veteran has not asserted, and the evidence of record has not suggested, that the service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. The Board has reviewed the evidence of record to include the Veteran's and his wife lay statements and the medical evidence of record. Outside of requesting a rating higher than 50 percent, the Veteran has stated that there have been many times when the severity will cause him to stop work, but he cannot simply stop work and go to the doctor or emergency each and every time he gets daily migraines, as reflected in his March 2019 statement, as well as similar statements of record. The Veteran's September 2016 statement reflects that he said that a 50 percent rating would allow him to work less and cope with his migraines. Such symptoms are contemplated by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, as contemplated by the 50 percent maximum rating under DC 8100. On the other hand, this evidence does not present such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Although there is a June 2010 emergency department record and the December 2019 examiner noted that he misses on average three workdays per year secondary to migraine headache pain, the Veteran, such does not demonstrate marked interference with employment or frequent periods of hospitalization, as required for extraschedular consideration. The Board finds that referral for extraschedular adjudication pursuant to 38 C.F.R. § 3.321(b)(1) of the Veteran's claim for an increased rating for his headaches is not warranted. Here, there is no legal basis upon which to award a higher schedular evaluation for his migraine headaches under DC 8100. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Shamil Patel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.