Citation Nr: 21006150 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 19-11 120 DATE: February 3, 2021 ORDER A rating of 50 percent for post-traumatic headache disability is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s post-traumatic headache disability has been characterized by very frequent completely prostrating and prolonged episodes productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating of 50 percent, but no higher, for post-traumatic headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.6, 4.7, 4.124, 4.124a, Diagnostic Codes (DCs) 8045, 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1958 to October 1960. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2011 rating decision. In an August 2012 decision, the Board denied service connection for the Veteran’s post-traumatic headache disability. Pursuant to a March 2013 Joint Motion for Remand (JMR), the claim was remanded to the Board because it failed to address favorable evidence. In a January 2014 Board decision, the matter of service connection for a post-traumatic headache disability was granted. In an April 2017 Board decision, an increased rating for a post-traumatic headache disability was denied. Pursuant to a November 2017 Joint Motion for Partial Remand (JMPR), the claim was remanded to the Board because it failed to evaluate the Veteran’s post-traumatic headache disability under 38 C.F.R. § 4.124a, DC 8045, Traumatic Brain Injury (TBI) residuals. In a June 2018 decision, the matter was remanded to obtain a new VA examination, and in a July 2019 decision an increased rating was denied. Pursuant to a September 2020 JMPR, the claim was remanded because the Board erred when it required evidence that Veteran’s disability is actually productive of severe economic inadaptability and when it provided inadequate reasons or bases as to whether the Veteran’s post-traumatic headaches are prostrating. Thus, the claim has been returned to the Board for further proceedings consistent with the September 2020 JMPR. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Post-traumatic Headaches The Veteran asserts that he is entitled to a higher rating for his post-traumatic headache disability. Ratings regarding traumatic brain injuries (TBIs) and neurological conditions are assigned under 38 C.F.R. § 4.124a. The Veteran’s post-traumatic headache disability has been rated under 38 C.F.R. § 4.124a, DC 8045 regarding residuals of a TBI; however, DC 8045 provides that any residuals with a distinct diagnosis may be evaluated under another diagnostic code, specifically including migraine headaches. Thus, the Veteran’s post-traumatic headache disability has been recharacterized as rated under 38 C.F.R. § 4.124a, DC 8100. A rating under DC 8100 is assigned when the evidence demonstrates: • characteristic prostrating attacks averaging one in two months over the last several months (10 percent rating); • characteristic prostrating attacks occurring on an average of once a month over the last several months (30 percent); or, • very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability (50 percent maximum). 38 C.F.R. § 4.124a, DC 8100. The rating criteria do not define prostrating. Dorland’s Illustrated Medical Dictionary defines prostration as extreme exhaustion or powerlessness. Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). In Pierce v. Principi, 18 Vet. App. 440 (2004), the Court held that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating,” and “[i]f ‘economic inadaptability’ were read to import unemployability, the appellant, if he met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability resulting from a service-connected disability (TDIU) rather than just a 50% rating.” 18 Vet. App. 440, 446 (2004). In Pierce, the Court examined the “productive of severe economic inadaptability” criterion for a 50% evaluation under DC 8100 and noted that “[n]owhere in the DC is ‘inadaptability’ defined, nor can a definition be found elsewhere in title 38 of the [C.F.R.].” 18 Vet. App. at 446. The Court explained that, contrary to the Secretary’s argument, “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating” because “[i]f ‘economic inadaptability’ were read to import unemployability,” a claimant who “met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)]... rather than just a 50% rating.” Id. The Court therefore rejected the notion that “severe economic inadaptability” was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16(a)). In addition, the Court in Pierce acknowledged the Secretary’s concession that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Id. at 445. The Board finds that a rating of 50 percent for the Veteran’s post-traumatic headache disability is warranted. In the July 2019 decision, the Board provided an analysis of the Veteran’s symptoms related to his post-traumatic headache disability; however, as noted above, in the September 2020 JMPR the parties agreed that the Board erred when it required evidence that Veteran’s disability is actually productive of severe economic inadaptability and when it provided inadequate reasons or bases as to whether the Veteran’s post-traumatic headaches are prostrating. Based on a review of the evidence of record the Board now finds that the Veteran’s post-traumatic headache disability causes both severe economic inadaptability and prostrating episodes consistent with the 50 percent rating criteria. First, in support of his claim, the Veteran and his family have provided multiple credible and consistent statements, which indicate that the Veteran’s post-traumatic headache episodes are very frequent and completely prostrating. In a February 2012 statement, the Veteran reported that he requires daily pain medication for his headache disability and that his headache disability causes sleepless nights. In a statement submitted in February 2010, the Veteran’s daughter stated that she observed the Veteran experience headache episodes that caused him to wake up at night. In a second statement submitted in February 2010, the Veteran’s wife stated that she observed the Veteran experience headache episodes almost every day. In a statement submitted in April 2012, the Veteran’s wife stated that she observed the Veteran experience headache pains, which require pain medication and cause difficulty sleeping. In a May 2015 affidavit, the Veteran provided a thorough description of his headache disability. He stated that his headaches occur two to three times per day. He stated that the headache episode length may vary but usually lasts for about 20 minutes. The Veteran stated that during a headache episode his vision gets blurry, pain travels all over his head, he drinks water, takes pain medication, and sits in a dark and quiet room until the episode passes. The Veteran also stated that he has experienced nausea and vomited due to his headache episodes and that he cannot travel during a headache episode. Additionally, the Veteran stated that when a headache episode occurs while he is at work he must sit in the restroom until the episode subsides. Lastly, the Veteran stated that he requires sleep medication when a headache episode occurs at night. The Board finds that lay evidence of record provides credible and consistent evidence demonstrating that the Veteran’s symptoms associated with his post-traumatic headache disability support a rating consistent with the 50 percent rating criteria. First, the Board finds that the Veteran’s description is consistent with a prostrating attack as he is unable to function during his headache episodes and must stay in a dark and quiet room until the episode passes; thus, causing powerlessness and a substantial inability to engage in ordinary activities. Further, based on the credible and consistent lay evidence, the Board finds these episodes to be very frequent as they occur almost daily and sometimes multiple times per day. Therefore, the Board finds these symptoms to be properly contemplated by the 50 percent rating criteria. Next, the medical evidence of record also indicates that the Veteran’s post-traumatic headache episodes are very frequent and completely prostrating. In January 2010 VA treatment records, the Veteran reported that his headache episodes occurred daily and make it difficult for him to fall asleep. In August 2010 VA treatment records, the Veteran again reported frequent headache episodes, and in December 2010 VA treatment records the Veteran reported that he requires daily pain medication for his headache episodes. In April 2012 VA treatment records, the Veteran complained of headaches, which he described as global. Regarding the Veteran’s private medical treatment, in March 2010 correspondence, the Veteran’s private physician indicated that the Veteran’s headache episodes occur on a frequent basis. In April 2012 private treatment records, the Veteran’s physician characterized the Veteran’s headaches as global. In March 2013 private treatment records the Veteran complained of short headache episodes that occurred three to four times per day. In July 2015 correspondence, the Veteran’s private physician stated that the Veteran experienced frequent headache episodes with sharp and stabbing pain. The Board finds the evidence in the VA and private treatment records to be of highly probative value. Specifically, the evidence indicates that Veteran experiences headache episodes almost daily and sometimes multiple times per day, which cause an inability to engage in ordinary activities. Therefore, the Board finds that this evidence establishes that these symptoms are properly contemplated by the 50 percent rating criteria Lastly the evidence indicates that the Veteran has been afforded VA examinations regarding his post-traumatic headache disability. In a March 2015 VA examination, the Veteran stated that he experiences at least four to five headaches per day, which affect his vision and require pain medication. The examiner documented that the Veteran’s headaches cause radiating head pain, blurry vision, sensitivity to light, and sensitivity to sound. The Veteran stated that the pain is sharp and compared it to an ice pick in the top of his head. The examiner diagnosed the Veteran as having migraine headaches. The examiner found that the Veteran’s headache episodes are not characteristic of prostrating headaches. The Veteran was also afforded a VA examination in February 2019 regarding his post-traumatic headache disability. The Veteran reported that he experiences headache episodes every day, multiple times per day, and of varying intensity. The examiner documented that the Veteran’s headache episodes cause throbbing pain, constant pain, sensitivity to light, sensitivity to sound, nausea, vomiting, and changes in vision. The examiner found that the Veteran does experience headache episodes that are completely prostrating and prolonged but determined that those episodes are less frequent. Lastly, the examiner determined that Veteran does not have very frequent completely prostrating and prolonged headache episodes that are productive of severe economic inadaptability. The Board finds that evidence in the March 2015 and February 2019 VA examinations also support a rating consistent with the 50 percent rating criteria. Both examiners documented that the Veteran experiences headache episodes that occur multiple times per day. Additionally, both examiners documented that the Veteran’s headache episodes are accompanied by severe symptoms including radiating pain, throbbing pain, constant pain, sensitivity to light, sensitivity to sound, nausea, vomiting, and changes in vision. The March 2015 VA examiner determined that the Veteran’s headache episodes are not are not characteristic of prostrating headaches and the February 2019 VA examiner determined that the Veteran’s headache episodes are prostrating but are not very frequent and prolonged; however, as noted above, the Board finds the Veteran’s detailed description of a powerlessness and a substantial inability to engage in ordinary activities during headache episodes to warrant the characterization of prostrating episodes. Moreover, the VA examiners did not provide a rationale for these findings, which are not supported by the numerous medical treatment records and numerous credible and consistent lay statements demonstrating that the Veteran’s headache episodes occur multiple times per day with severe symptoms, require him to withdraw to a dark and quiet room until the episode subsides, cause powerlessness, and prevent the Veteran from substantially engaging in ordinary activities. Therefore, the Board finds as these prostrating headache episodes occur very frequently, that these episodes are productive of severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 440 (2004). Thus, the Board finds that the totality of the evidence demonstrates that the Veteran’s post-traumatic headache disability causes very frequent completely prostrating and prolonged episodes productive of severe economic inadaptability, which is properly contemplated by the 50 percent rating criteria. Resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the requirements for establishing a 50 percent rating for the Veteran’s post-traumatic headache disability have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.