Citation Nr: 21006058 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-29 383 DATE: February 3, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1980 to April 1992. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In November 2019, the Veteran presented testimony via a video conference board hearing before the undersigned Veterans Law Judge. The claim was previously remanded in January 2020 for additional development. It has since been returned to the Board for further appellate consideration. During the pendency of the appeal, in a September 2020 rating decision the RO increased the disability rating for the Veteran’s service-connected migraine headaches to 10 percent, effective September 1, 2015. Because the RO did not assign the maximum disability rating possible, the appeal remains in appellate status and is properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, in the September 2020 rating decision, the RO granted service connection for the following: posttraumatic stress disorder with alcohol use disorder in early remission, effective September 1, 2015; bilateral plantar fasciitis, effective September 1, 2015; and chronic right shoulder strain with degenerative arthritis, effective September 1, 2015. This represents a full grant of the benefits sought, and the issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected migraine headaches. This issue is remanded to obtain another VA examination and opinion. The Veteran's migraine headache disability is assessed as having an initial 10 percent disability rating under Diagnostic Code (DC) 8100. 38 C.F.R. § 4.124a. Migraines are rated according to 38 C.F.R. § 4.114 DC 8100. That diagnostic code (DC) provides a noncompensable rating when migraines have less frequent attacks. A 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is assigned when characteristic prostrating attacks occur on an average once a month over the last several months. And finally, a maximum 50 percent rating is assigned when the migraines have very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Most recently the Veteran received a VA examination in September 2020. The Veteran reported a long history of migraines, 3-4 headaches a month lasting up to 2-3 days at the max. She stated some can be shorter. She described her headaches start at the right temporal near her eye socket and throbbing pain. She reported having associated photophobia, phonophobia. The Veteran also stated her headaches are worse with activity, with severe headaches requiring she lay down in a dark room or going to urgent care; typically, these headaches are migrainous in nature. The examiner, however, then described characteristic prostrating attacks of headache pain once every two months. No explanation was provided for this conclusion as it contradicts what the Veteran reported. Thus, the conclusions of the examiner are inadequate, and remand is necessary. The matters are REMANDED for the following action: Provide the Veteran with an appropriate examination to determine the severity of the service-connected headaches. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner must address the following: 1) the September 2020 VA examination, including the Veteran’s reported history of headaches; and 2) the December 2020 Appellate Brief. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.