Citation Nr: 21005326 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-26 863 DATE: February 1, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for a migraine headache disability is denied. FINDING OF FACT The Veteran’s headaches are not manifested by very frequent prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to an initial rating greater than 30 percent for migraines have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.124a, Diagnostic Code (DC) 8100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from May 1993 to May 2013. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. On his VA Form 9, dated July 2014, the Veteran requested a hearing before a member of the Board. In an e-mail, dated May 2016, VA notified the Veteran that he was scheduled for a hearing on July 8, 2016. The Veteran was also mailed a letter in May 2016 notifying him of his hearing date. This notice was mailed to the Veteran’s last known address of record. It was not returned as undeliverable by the postal service. The Veteran failed to report for this scheduled hearing without good cause. VA has received no communication, written or otherwise, from the Veteran pertaining to the hearing. Because the Veteran has failed to appear for his scheduled hearing without good cause and there has been no request for postponement, his request for a hearing will therefore be considered withdrawn. 38 C.F.R. § 20.704(d) (2019). The record reflects that the Veteran received a letter in October 2020 indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, he does not have a pending hearing request. The Board most recently remanded this issue in March 2020 to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In the January 2021 informal hearing presentation, the Veteran’s representative contended that the Veteran’s headache disability had progressed in severity. The representative cited documents already of record and is considered argument and not a new evidence of the Veteran’s condition. Accordingly, remand is not necessary. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2019). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2019). VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2019). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Entitlement to a rating in excess of 30 percent for a migraine headache disability The Veteran’s headache disorder has been evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. This Diagnostic Code provides that very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. When characteristic prostrating attacks occur an average of once a month over the last several months, a 30 percent rating is warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Neither the rating criteria nor the Court has defined the term “prostrating”. According to Webster’s New World Dictionary of American English, Third College Edition 1080 (1986), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1367 (28th ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” “Inadaptability” is not defined in Diagnostic Code 8100, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). Further, it has been held that nothing in Diagnostic Code 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, 446 (2004). February 2013 VA treatment records reflect that the Veteran reported nausea related to his vertigo, and specifically not associated with headaches. He reported migraines 1-3 times a week. May 2013 treatment reflects that the Veteran reported his headaches were “not a big component.” The Veteran attended a VA examination in October 2013. He described his headaches as pain on both sides of his head, accompanied by nausea, sensitivity to light, and sensitivity to sound. He told the examiner that his head pain typically occurred for more than two days at a time. Following an examination and review of the claims file, the examiner concluded that the Veteran did not have characteristic prostrating attacks of migraine headache pain or non-migraine headache pain. October 2013 Social Security Administration (SSA) records reflect that the Veteran started a lawn care business with employees. On his February 2014 notice of disagreement, the Veteran reported migraines 3-5 times monthly and a constant sensitivity to light. April 2014 SSA records reflect that the Veteran denied headaches. On his July 2014 VA Form 9, the Veteran stated that he believed his headache disability deserved a disability rating of no less than 30 percent because he experienced debilitating headaches several times a month. August 2014 SSA records reflect that the Veteran denied headaches. January 2015 SSA records reflect that the Veteran had “infrequent migraines.” January 2015 VA treatment records reflect that the Veteran reported “some intermittent migraines” which were not always coincident with his vertigo. April 2015 SSA records reflect that the Veteran was training to become a paramedic. June 2016 and July 2016 SSA records reflect that the Veteran denied headaches. July 2019 VA treatment records reflect that the Veteran attended a follow-up consultation regarding a traumatic brain injury. Noted in the medical evaluation was that the Veteran experienced headaches, but that his headache disability had, “little to no impact on life.” The Veteran attended a VA examination in September 2019. He reported that his headache disability had “been about the same since onset.” He reported 1-2 migraines monthly, that lasted a few hours to about two days and was accompanied by nausea, sensitivity to light, and sensitivity to sound. Following an examination and review of the claims file, the examiner concluded that the Veteran’s migraines were characteristic prostrating attacks occurring once every month, but that he did not have very prostrating and prolonged attacks or migraines productive of severe economic inadaptability. The examiner estimated that the Veteran’s migraine disability would cause less than a week annually of time lost at work. The questions for the Board in rating this disability include the severity and frequency of the Veteran’s migraines during the appeal period, and specifically whether there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. There is no indication of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Neither the VA nor non-VA treatment record indicates such severity that approximates a 50 percent rating under DC 8100. In the Veteran’s treatment records, the reports of frequency and severity of headaches has consistently been minimally invasive to the Veteran’s life. The Board finds the treatment records highly probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The weight of competent and credible evidence does not support a higher disability for the headache disorder. There would need to be a showing of headaches or migraines that are very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. This is not shown in the competent and credible evidence of record. To the extent that the Veteran urges that the criteria for a higher rating are met or approximated, his assertions as to frequency of attacks and the prostrating nature of the attacks are outweighed by the treatment and examination records which contradict his assertions, as discussed above. The criteria for higher rating are not met or approximated at any time throughout the appeal period. See 38 C.F.R. § 4.7. There is no reasonable doubt regarding the degree of disability. See 38 C.F.R. § 4.3. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.