Citation Nr: A21020074 Decision Date: 12/16/21 Archive Date: 12/15/21 DOCKET NO. 190629-10583 DATE: December 16, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, for the period from August 15, 2011, to October 27, 2016, for migraine and tension headaches is granted. Entitlement to a rating in excess of 30 percent for the period from October 27, 2016, to February 6, 2019, for migraine and tension headaches, is denied. Entitlement to a rating of 30 percent, but no higher, from February 6, 2019, for migraine and tension headaches, is granted. FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, for the period from August 15, 2011, to October 27, 2016, the Veteran's migraine and tension headaches have more nearly approximated prostrating attacks occurring an average of one in two months over the last several months. 2. For the period from, October 27, 2016, to February 6, 2019, the Veteran's migraine and tension headaches were without very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. From February 6, 2019 forward, the Veteran's migraine and tension headaches more nearly approximate characteristic prostrating attacks occurring on average once a month, but were without very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. From August 15, 2011, to October 27, 2016, the criteria for entitlement to a disability rating of 10 percent, but not higher, for migraine and tension headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. From October 27, 2016 to February 6, 2019, the criteria for a rating in excess of 30 percent disability rating for migraine and tension headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 3. From February 6, 2019, the criteria for a 30 percent disability rating, but no higher, for migraine and tension headaches 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from a June 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), on a Direct Review under the Appeals Modernization Act (AMA). The Board notes that a rating decision was issued under the legacy system in April 2015. In January 2018, the Veteran opted into the AMA by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the supplemental claim lane. The Agency of Original Jurisdiction (AOJ) issued a RAMP supplemental claim decision in March 2019. Thereafter, in April 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of the March 2019 rating decision. The AOJ denied the Veteran's claim in the June 2019 rating decision that is the subject of this appeal. The Veteran thereafter appealed this matter to the Board via a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), and he selected the direct review lane. Accordingly, the Board may consider the evidence of record as of through the June 2019 rating decision on appeal. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). 1. Entitlement to an increased rating for migraine and tension headaches Service connection for migraine and tension headaches was established in a March 2019 rating decision, with a noncompensable rating assigned, prior to October 27, 2016, a 30 percent rating from October 27, 2016 to February 6, 2019, and a 10 percent rating from February 6, 2019. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. 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 DC 8100. As is the case here, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts that a higher rating is warranted for his migraine and tension headaches because his condition has not improved, and in fact, it has gotten worse. The Veteran underwent a VA examination in August 2009. He reported headaches that occur once per week, were moderate in severity, and last up to one day. The examiner did not indicate the headaches were prostrating in nature. The Veteran also reported that his headache symptoms are improved when he takes over-the-counter medication to relieve his symptoms. During an August 2012 VA examination, the Veteran reported that he experiences headache pain on both sides of the head, lasting less than one day, and the non-headache symptom of nausea. The examiner found the Veteran did not have characteristic prostrating attacks of migraine headache pain and his condition did not impact his ability to work. Examination noted no treatment plan for the Veteran's condition. During a September 2013 VA examination, the Veteran reported experiencing migraine headaches three to four times per week, which typically last less than one day. He described headache pain starting in the occipital area and radiating forward. The Veteran did not report any associated symptoms or taking any medication for his condition. The examiner indicated that the Veteran did not have characteristic prostrating attacks of migraine headache pain and his headaches did not impact his ability to work. In October 2016, the Veteran underwent a VA examination, at which time he reported intermittent headaches in varying locations. He also reported that his headache pain worsens with physical activity, typically last less than one day, and that he also experiences changes in vision associated with his headaches. The examiner found characteristic prostrating attacks of migraine headache pain with a frequency of, on average, once every month, but without pain productive of severe economic inadaptability. The examiner further indicated that the Veteran's headache condition affected his ability to concentrate when present and prevent him from doing anything except laying down when severe, thus, impacting his ability to work. In February 2019, a VA examiner indicated that the Veteran experienced symptoms of constant head pain, pulsating or throbbing head pain, pain of both sides of the head, and pain that worsens with physical activity. The Veteran reported head pain, which lasts one to two days, and non-headache symptoms of nausea, sensitivity to light and sound, changes in vision, sensory changes, and dizziness and blurred vision aura with headaches. The examiner found that the Veteran has characteristic prostrating attacks of migraine headache pain with a frequency of, on average, once every two months. The examiner further noted that the Veteran's headache condition impacts his ability to work, as he has difficulty focusing when he has a headache and must lay down and apply heat to his head or neck. VA treatment records from July 2013 and September 2013 reveal the Veteran reported headaches that occur three to four times per week, lasting two to three days. He reported his headaches woke him up at night. A January 2019 VA treatment record reflects the Veterans report of worsening chronic headaches four to five times per week. Of record, are statements submitted in 2019, from the Veteran's spouse and his co-worker. These statements reflect the Veteran suffers from headaches multiple times per week. The Veteran's spouse reports his headaches have not decreased in severity but have only worsened. She noted the Veteran used over-the-counter-medication to assist with symptomatology but that it only worked 30 percent of the time. His co-worker indicated that the Veteran's pain is evident, but he can still work through the symptoms. After resolving all doubt in the Veteran's favor, the evidence shows that prior to October 27, 2016, the Veteran's migraine and tension headaches have more nearly approximated the criteria for a 10 percent rating. The evidence during that period shows that the Veteran suffered from weekly headaches varying in frequency and severity. Treatment medical records during this period indicate the condition was chronic and document his reports of the pain impairing his ability to sleep multiple times a week. Based on this evidence, the Veteran has experienced constant headaches during the appeal period, equivalent in severity to prostrating attacks once every two months. Notwithstanding this determination, the Board finds that the evidence preponderates against finding entitlement to a rating in excess of 10 prior to October 27, 2016. As stated, to warrant a higher 30 percent rating, the evidence must show that the Veteran had characteristic prostrating attacks occurring on average once a month over the last several months. The Board notes, however, that, despite the Veteran's reports of having severe/throbbing headache pain, the evidence does not reflect that his headaches were prostrating or debilitating in nature or caused him to have to lay down once a month over several months. To that end, the Veteran was able to control his symptomatology with over-the-counter medication and regularly no medication. That said, the Board does not deny that, prior to October 27, 2016, the Veteran's headaches were severe and affected his ability to work. Nevertheless, the more probative evidence of record, to include the VA examination reports, does not support a finding that the Veteran's headaches were so severe to result in characteristic prostrating attacks occurring on average once a month over the last several months (i.e., the criteria for a higher 30 percent rating). Moreover, the record is negative for competent medical findings, to include treatment records, supporting the Veteran suffered from requisite prostrating symptomatology to warrant increase rating. Accordingly, for the period prior to October 27, 2916, a higher initial rating in excess of 10 percent for headaches is denied From October 27, 2016, the evidence shows the Veteran's migraine and tension headaches have more nearly approximated characteristic prostrating attacks occurring on average once a month. The record establishes these symptoms have remained consistent from October 27, 2016 forward, as such, the Veteran is now entitled to an increased 30 percent rating for the period from February 6, 2019. This increase is predicated on the combined findings of the VA examiners, treatment records, and reports of the Veteran, his spouse, and his coworker, which support his symptomatology has consistently more nearly approximated a disability which warrants a 30 percent rating throughout the remainder of the appeal. That said, neither the Veteran nor his representative have provided arguments as to why a rating in excess of 30 percent should be considered. Indeed, in the Veteran's June 2019 appeal to the Board, the Veteran argued for the assignment of a 30 percent rating. Moreover, while the record shows some migraine attacks are prostrating, the evidence does not show completely prostrating and prolonged attacks of migraine symptoms resulting in severe economic inadaptability. To the contrary, the Veteran has maintained his ability to function largely with only over-the-counter medication. Of note, per the record, his functionality is maintained, albeit in a diminished capacity, while at work despite his symptomatology. Accordingly, the Board finds that a rating in excess of 30 percent is not warranted for any portion of the appeal. In sum, the most probative evidence of record reflects that a rating of 10 percent, but no higher, is warranted prior to October 27, 2016, a rating in excess of 30 percent is not warranted for the period from October 27, 2016 to February 6, 2019, a rating of 30 percent, but no higher, is warranted from February 6, 2019. J. L. BURROUGHS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.