Citation Nr: 21006118 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 09-29 054 DATE: February 3, 2021 ISSUES 1. Entitlement to an initial compensable disability rating for headaches prior to December 12, 2017. 2. Entitlement to a disability rating in excess of 30 percent for headaches from December 12, 2017. ORDER Entitlement to a disability rating of 30 percent, but not higher, for headaches from the date of service connection on September 1, 2003, to December 11, 2017, is granted. Entitlement to a disability rating in excess of 30 percent for headaches from December 12, 2017, to January 26, 2020, is denied. Entitlement to a disability rating of 50 percent, but not higher, for headaches from January 27, 2020, is granted. FINDINGS OF FACT 1. From the date of service connection on September 1, 2003, to December 11, 2017, the Veteran’s headaches more closely approximated characteristic prostrating attacks occurring on an average of once a month over the last several months. 2. From December 12, 2017, to January 26, 2020, the Veteran’s headaches more closely approximated characteristic prostrating attacks occurring on an average of once a month over the last several months; they were not more closely approximated symptoms of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. From January 27, 2020, the Veteran’s headaches have more closely approximated symptoms of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. From September 1, 2003, to December 11, 2017, the criteria for an initial disability rating of 30 percent, but not higher, for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, Diagnostic Code 8100 (2017). 2. From December 12, 2017, to January 26, 2020, the criteria for a disability rating in excess of 30 percent for headaches have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, Diagnostic Code 8100 (2017). 3. From January 27, 2020, the criteria for a disability rating of 50 percent, but not higher, for headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to May 1991 and from March 2003 to August 2003. The Veteran also had active duty for training from June 1979 to November 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The VA RO in New Orleans, Louisiana, has jurisdiction over these claims. The Veteran testified in a videoconference hearing in October 2010 before a Veterans Law Judge (VLJ) who since retired. The Veteran and his spouse also testified in a travel Board hearing before the undersigned VLJ in August 2017. Transcripts of both hearings are associated with the electronic claims file. When this case was most recently before the Board in February 2019 it was decided in part and remanded in part for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of this appeal in an October 2020 rating decision, entitlement to service connection for right and left foot tinea pedis was granted. As such, these issues are no longer before the Board. In a November 2020 rating decision, the evaluation of headaches was increased to 30 percent, effective December 12, 2017. As higher evaluations are available, this does not constitute a full grant of the benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Disability Ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran’s service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board notes that when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102. Additionally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (West 2014); 38 C.F.R. § 4.3(2017). Where the criteria for a compensable rating are not met, a noncompensable rating will be assigned. 38 C.F.R. § 4.31 (2017). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  Headaches Diagnostic Code 8100 provides the criteria for evaluating migraine headaches. Headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. A 50 percent rating is the maximum rating provided under DC 8100. 38 C.F.R. § 4.124a. A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 10 percent evaluation is warranted when there are characteristic prostrating attacks averaging one in two months over the last several months. Where attacks are less frequent, a noncompensable evaluation is assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Diagnostic Code 8100 does not mention medication, and “the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Board therefore cannot take account of the ameliorative effects of the Veteran’s headache medication in its decision. Governing case law and regulations have not defined “prostrating.” For reference, the Board notes that “prostration” is defined as “extreme exhaustion or powerlessness.” See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d. ed. 2012). Also, the Board notes that “migraine” is commonly associated with irritability, nausea, vomiting, constipation or diarrhea, and often with photophobia. Also, attacks are preceded by constriction of the cranial arteries, often with resultant prodromal sensory (especially ocular) symptoms. Id. at 1166. Evaluation September 1, 2003, to January 26, 2020 Historically, the Veteran filed his claim for service connection for headaches in July 2004. Ultimately, in a May 2013 rating decision, entitlement to service connection for headaches was granted with an evaluation of 0 percent effective September 1, 2003. The Veteran was afforded a VA examination in July 2005 in which he reported taking BC powder for headaches and would get relief for at least two hours. He reported 0 time lost from work during the prior 12 months. The Veteran was afforded a VA examination in December 2012 in which he reported having headaches on and off most days, that he treated his headaches with Advil which relaxed him and would make the headaches go away for a while, and that his headaches were very frequent. He reported constant head pain, pain on both sides of the head, and pain usually bilateral frontal or fronto-temporal. He reported headaches that would come and go every day; often much of the day. He reported that his headaches interfered with his ability to concentrate at work with occasional inability to go to work or stay at work with approximately nine days lost due to headaches in the prior six months. The Veteran was afforded a VA examination in April 2013 in which he reported headaches that were intense aching pain in the frontal area and on the top of his head, the headaches were daily, and that he had headaches three to four times a day. He reported feeling dizzy/lightheaded with his headaches. The Veteran stated in his June 2013 notice of disagreement that his headache attacks were at least once and sometimes twice a week; on many occasions he experienced nausea, vomiting, and sensitivity to light and sound. He stated that he tended to isolate himself more due to the headaches. The Veteran testified before the undersigned in August 2017 that he missed work due to his headaches, sometimes several days a month. He testified that he had headaches two to three times per day, had to have things dark in his house, and that laying down with a cool towel on his head would help. VA treatment records from this time period show reports of constant, throbbing headaches and headaches that occurred every day. Specifically, August 2017 VA treatment records document the Veteran’s report of constant and chronic pain and sensitivity to light. He also requested medication for his headaches and was subsequently prescribed Propranolol. In response to the Board’s October 2017 remand, the Veteran was afforded a VA examination on December 12, 2017, in which he reported headaches occurring three to four times daily, taking medication multiple times a day, and that his condition had gotten worse. He reported experiencing pain, nausea, vomiting, and sensitivity to light with his headaches. The examiner noted that the Veteran did not have characteristic prostrating attacks of migraine / non-migraine headache pain. Based on this examination, in a November 2020 rating decision, the RO increased the evaluation of headaches to 30 percent, effective December 12, 2017. In this case, the Board finds that the evidence shows that from September 1, 2003, to December 11, 2017, the Veteran’s headaches more closely approximated characteristic prostrating attacks occurring on an average of once a month over the last several months. However, during this appeal period, the Board does not find that the headaches were more closely manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. To this point, the Board acknowledges that in July 2005 that the Veteran reported 0 time lost from work during the prior 12 months, but that he subsequently reported missing work due to this headaches. However, severe economic inadaptability was not noted by any VA examiner on the aforementioned VA examinations conducted during this time period, and the Board does not find symptomology comparative to the criteria required for a 50 percent rating. Most significantly, the Board finds the objective medical evidence to be probative and credible in determining that the Veteran does not meet the criteria for a rating in excess of that assigned. See Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition to the medical evidence above, the Board has considered the lay evidence in the form of the Veteran’s correspondence. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer, 7 Vet. App. 379, 384; Falzone, 8 Vet. App. 398, 403; Caldwell, 1 Vet. App. 466. However, even affording the Veteran full competence and credibility, the statements do not show impairment more closely approximating the criteria for higher ratings. Evaluation From January 27, 2020 In response to the Board’s remand, the Veteran was afforded a VA-contracted examination on January 27, 2020, in which he reported constant head pain, pain on both sides of the head, pain worsening with physical activity, nausea, and sensitivity to light. He reported that the headaches never really went away but that over-the-counter medication kept them soothed. He reported having two to three really bad headaches most days. The examiner noted characteristic prostrating attacks of migraine / non-migraine headache pain once every month and very prostrating and prolonged attacks of migraine / non-migraine pain productive of severe economic inadaptability. The Veteran reported that when at work at times he had to go sit down somewhere to rest and get away from light. The examiner noted that the Veteran would have nausea at times as well, pain seemed to last at times for a day, he would sometimes have bad headaches two to three times a day, and this would leave the Veteran tired which could cause a decrease in function while performing his job. The Veteran was afforded a VA telephone interview in October 2020 in which the examiner stated that his headaches should be considered prostrating as he described severe headaches causing nausea, vomiting, light/sound sensitivity and blurred vision refractory to treatment. Within the report, it was noted that the Veteran had very prostrating and prolonged attacks of migraines / non-migraine pain productive of severe economic inadaptability. The examiner stated that severe headaches caused decreased focus/concentration and lead to missed work. In this case, the Board finds that the evidence shows that from January 27, 2020, the Veteran’s headaches more closely approximated symptoms of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board has considered entitlement to an evaluation in excess of 50 percent but notes that a rating higher than 50 percent is not supported by regulation. As the maximum scheduler evaluation under the rating code for migraine headaches is in now effect, no additional discussion is necessary. 38 C.F.R. § 4.124a , Diagnostic Code 8100. This claim has also been reviewed with consideration of whether staged ratings would be warranted. The evidence shows no distinct periods of time when the Veteran’s symptoms have varied to such an extent that ratings in excess of the currently assigned ratings would be warranted. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. § 3.344 (2017); See Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505. The Board has also considered the use of other rating codes, but finds that there are no appropriate codes that provide for higher ratings. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.