Citation Nr: 21077513 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-50 974 DATE: December 30, 2021 ORDER An initial 50 percent disability rating for the service-connected migraines prior to February 14, 2018 is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, prior to February 14, 2018, he had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent for the service-connected migraines prior to February 14, 2018 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 This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) that granted service connection for migraines and assigned a 0 percent (noncompensable) disability rating effective June 6, 2017. During the current appeal, and specifically in a February 2018 rating decision, the AOJ increased the rating for migraines to 50 percent effective February 14, 2018. As a 50 percent rating is the maximum allowed under Diagnostic Code 8100, which is specific to migraines, the only issue remaining on appeal is entitlement an initial compensable disability rating prior to February 14, 2018. In April 2021, the Board advised the Veteran that he was scheduled for a video conference hearing on August 9, 2021. The record indicates that he did not report to the hearing. The Veterans Appeals Control and Locator System (VACOLS) shows that the representative advised the Board that the Veteran would not be able to attend the hearing. There is no indication that he still wants a Board hearing. Thus, the Board hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). In any event, as the appeal is being granted in full, the Board finds that there is no prejudice to the Veteran in proceeding with the adjudication of this appeal. Increased RatingMigraines Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating is 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. Reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Effective June 6, 2017, the Veteran's migraines have been rated 0 percent under Diagnostic Code 8100. 38 C.F.R. § 4.124a. Under this diagnostic code, a maximum 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. 38 C.F.R. § 4.124a. An April 2017 VA treatment record shows that the Veteran has about two to three headaches per week that last for 36 hours but do not require him to lie down, and he is able to continue functioning. In a June 2017 statement submitted with this claim, the Veteran stated that he has at least two headaches per week that require him to lie down for the rest of the day and can last up to two days per incident. At a June 2017 VA examination, the Veteran reported two to three headaches per week that average 7/10 and can be as severe as 9/10 and last from 12 to 36 hours. He reported associated nausea, vomiting, dizziness, dysequilibrium, blurred vision, diploplia and scotomata and occasionally vertigo and numbness and tingling of the hands. He noted that the headaches are decreased by time, sitting and resting and trying to relax. The examiner noted that the Veteran does not have characteristic prostrating attacks of migraine headache pain. The examiner also noted that his headache condition does not impact his ability to work but that he is unable to drive or use a computer when he has a headache. In March 2018, the Veteran submitted a log of his headaches starting in December 2017. According to this log, the Veteran has frequent headaches, and many of them prevent him from performing his daily activities, including work, and require him to sit or lie down. At a February 2018 VA examination, the Veteran reported two to three headaches per week that last for one to two days and are associated with nausea and dizziness. The examiner indicated that the Veteran has characteristic prostrating attacks of migraine headache pain. The examiner also indicated that he has very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. However, the examiner then indicated that the Veteran's headache condition does not impact his ability to work. [The Board observes that this assessment may have been made in error or in light of the Veteran's unemployment status.] Given the above, while the record clearly shows that the Veteran has had frequent attacks of migraine headache pain, the record does not clearly show whether they have been completely prostrating or prolonged or productive of severe economic inadaptability. His June 2017 statement shows that he has at least two headaches per week that require him to lie down and can last up to two days. His log shows that many of his headaches require him to sit or lie down and that he cannot work during those times. The Board notes that the Veteran is competent to give evidence about observable symptoms such as the severity of his headache pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, an April 2017 VA treatment record shows that his headaches do not require him to lie down and that he can continue functioning. Based on the description of the Veteran's headaches, the June 2017 examiner indicated that the Veteran does not have characteristic prostrating attacks of migraine headache pain and that his headaches do not impact his ability to work. The Board observes, however, that the examiner also noted that the Veteran cannot drive or use a computer when he has a headache. Based on what appears to be a similarperhaps even less severedescription of the Veteran's headaches, the February 2018 examiner indicated that the Veteran has characteristic prostrating attacks of migraine headache pain. The examiner even indicated that the migraines are productive of severe economic inadaptability. While that assessment is just outside of the remaining period on appeal, it is still probative as to the severity of the Veteran's migraines during the pertinent portion of the appeal period. Hayes v. Brown, 9 Vet. App. 67 (1996). Indeed, the AOJ used this assessment in granting the currently assigned 50 percent rating effective from the February 14, 2018 date of the examination. In light of the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that, prior to February 14, 2018, he had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, an initial 50 percent disability rating for the service-connected migraines is warranted from the June 6, 2017 (the effective date of service connection) through February 13, 2018. That is the maximum rating allowed under Diagnostic Code 8100. In conclusion, the Board has resolved the benefit of the doubt in granting an initial disability rating of 50 percent for the service-connected migraines prior to (CONTINUED ON NEXT PAGE) February 14, 2018. As that is the maximum rating allowed under Diagnostic Code 8100, the appeal has been granted in full. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.