Citation Nr: A21020401 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 200521-87184 DATE: December 22, 2021 ORDER For the entire period on appeal, entitlement to an initial disability rating of 50 percent for migraine headaches (hereinafter migraines) is granted. FINDING OF FACT During the period on appeal, the Veteran's disability picture for migraines more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria to establish entitlement to an evaluation of 50 percent for migraines have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2001 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2020 rating decision. 38 C.F.R. § 20.301. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board notes that the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to an initial disability rating in excess of 10 percent for migraines. The Veteran contends that his service-connected migraines are more severe than what is represented by the current ratings. He specifically contends that he experiences prostrating migraines at least weekly and has missed work due to these migraines. The Veteran's migraines are currently rated as 10 percent disabling under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, 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. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In rating headaches or migraines under Diagnostic Code 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's migraines have more nearly approximated frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the appeal period, corresponding to the criteria for a 50 percent rating. In an August 2015 Veterans Health Administration (VHA) message, the Veteran reported that his headaches had worsened, but the duration has remained as before. That is seven to eight times a month. He indicated that he was using ibuprofen to deal with his headaches but changed to Tylenol because the ibuprofen was not working anymore. The Veteran added that he left his job twice. The VA clinician prescribed him Topiramate for the first time. An October 2015 VA internal note indicates that the Veteran's headaches are intermittent. The Veteran feels better in a dark room and is sometimes nauseous because of his headaches. The VA physician prescribed him Imitrex (Sumatriptan) tablets for acute headaches. A December 2015 VA headaches examination documented constant and/or pulsating or throbbing head pain. These headaches resulted in nausea, vomiting, changes in vision, sensory changes and sensitivity to light and noise. They could last up to three or four days a week for three to four hours at a time. The examiner noted that the Veteran does have very frequent prostrating and prolonged attacks of migraine headache pain. The examiner found that due to frequent headache episodes associated with nausea, vomiting, sensitivity to light and sound, it is hard for the Veteran to perform any job requiring work around machinery equipment or providing any type of customer service. The Veteran was provided with another VA headaches examination in December 2016 where the Veteran reported constant head pain. It was noted that these headaches typically last less than one day. He reported that his medication helps, and that it felt unbearable without his medication. These headaches resulted in nausea and sensitivity to light and noise. The Veteran reported that, on a numeric pain scale from one to ten, when he has his sharp pain exacerbation it is 10/10. The examiner noted that these were characteristic prostrating attacks of migraine/non-migraine headache pain, with less frequent attacks. The examiner found that the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. In August 2017, a VA physician prescribed the Veteran Propanolol for his migraines for the first time. See August 2017 VA internal note. The Veteran was provided with another VA headaches examination in November 2017 where he reported constant head pain. It was noted that these headaches typically last less than one day. These headaches resulted in nausea and sensitivity to light and noise. The examiner noted that these were not characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner found that the Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. An August 2018 VA psychiatry note indicates that the Veteran has often missed work due to headaches/migraines. In an August 2018 VA message, the Veteran reported that his headaches were "getting pretty bad." He noted that he has been absent a lot from work due to headaches. The Veteran indicated that his headaches are impacting his home life. He added that Sumatriptan was "becoming less effective." In an August 2018 VA primary care note, it was reported that the Veteran was "mostly bothered by increasing headaches." These headaches were most affected by bright light and sound, and sometimes caused nausea. The Veteran reported that his headaches can last two to four hours. During these episodes he had "to close his eyes and hold his head." The VA physician increased the dose of Sumatriptan from 50 mg to 100 mg. In addition, the VA physician prescribed Naproxen. In an August 2018 VA emergency department note, it was noted that the Veteran has a long history of migraines, gets them 1 to 2 times per week, but they are normally controlled with rest and Sumatriptan. A September 2018 VA mental health note indicates that the Veteran experiences "'massive migraines' which last for three days." It was also noted that the Veteran missed work as a result of these migraines. An October 2018 VA physical medicine note reflects that the Veteran experiences headaches at least twice a week or longer. These headaches resulted in sensitivity to light and noise and required him to lay down. In a November 2018 VA psychiatry note, the Veteran reported that his headaches "cause him to leave work early." In a May 2019 VA social work note, the Veteran noted that he is "having [a] hard time focusing on tasks due to headaches." In an August 2019 statement, the Veteran's treating provider, Dr. K.J., indicated that the Veteran has developed "severe" migraine headaches since his deployment and he is on medications for this (including prophylactic medications and those for acute headaches/migraines). In a September 2019 statement, the Veteran stated that his symptoms have been at the current level of severity since at least the date he filed his initial claim. The Veteran reported that his headaches and migraines result in nausea, dizziness and sensitivity to light and noise. He added that his headaches and migraines occur two to three times a week, and typically last two to three hours but sometimes longer. The Veteran noted that during these episodes he has to stop what he is doing and retreat to a dark and quiet room where he lays down until the episode subsides. The Veteran emphasized that his condition has impacted his "ability to obtain and maintain employment." The Veteran was provided with another VA headaches examination in February 2020 where he reported pulsating or throbbing head pain. These headaches resulted in sensitivity to light and noise. It was noted that they limited the Veteran's concentration. The examiner noted that these were not characteristic prostrating attacks of migraine/non-migraine headache pain. The Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The Veteran's statements to his treating providers regarding the frequency, duration, and severity of his migraine headaches are competent and credible and the Board affords them significant probative weight. The Board notes that the Veteran is competent to testify as to the frequency of his migraines and symptoms experienced. The Board finds that the preponderance of the evidence of record shows that the Veteran's migraine disability meets the 50 percent disability rating, the highest rating under Diagnostic Code 8100. The 50 percent disability rating requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board acknowledges that except for the December 2015 VA headaches examination, all other headache examinations did not report that the Veteran's headaches have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. However, the Veteran's description of his migraines in the September 2019 statement shows that his migraines occurred more frequently, more intensely, and cause him to miss work. In the Veteran's statements, he indicated that he had migraines up to three times per week which required him to stop work, avoid light, avoid sound, and lay down in a dark room. Further, the VA treatment records shows that the Veteran's headaches have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The Veteran described that without medication his migraines feel unbearable. During the appeal period, the Veteran was taking Sumatriptan, Naproxen and Propanolol for his migraines. Notably, none of the examiners have commented on the ameliorative effects of the Veteran's migraine headaches medication. The Board finds that the Veteran's at least once per week but up to three times per week migraines caused severe economic inadaptability with frequent completely prostrating and prolonged attacks which forced the Veteran to stop working and lay down. As the Veteran described his migraines occurring at least once a week and up to three times per week which resulted in the Veteran missing work, the Board finds that this would produce a severe economic inadaptability for the Veteran. When there is an approximate balance between positive and negative evidence, or equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. The evidence before the Board here indicates that the Veteran's claim must be resolved in favor of the Veteran, as the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, for the entire period on appeal, the Veteran is entitled to an initial disability rating of 50 percent for his migraine disability. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Oquendo, L., 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.