Citation Nr: 21006616 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-57 514 DATE: February 4, 2021 ORDER Entitlement to a rating in excess of 30 percent for migraine headaches is denied. FINDING OF FACT Throughout the period of appeal, headaches manifested as characteristic prostrating attacks occurring, on average, once a month over the last several months; very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability have not been shown. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2009 to July 2012. In May 2020, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). During the course of the appeal, an August 2020 rating decision increased the rating for migraines from 0 percent to 30 percent, effective August 31, 2015, the date of the original claim. However, as the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran's headaches have been rated under Diagnostic Code 8100. Under Diagnostic Code 8100, a 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted with evidence of very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. Diagnostic Code 8100. 38 C.F.R. § 4.124a. Prostrating means “causing extreme exhaustion, powerlessness, debilitation, or incapacitation with substantial inability to engage in ordinary activities.” Dorland's Illustrated Medical Dictionary 1534 (32nd ed. 2012); Merriam Webster's New Collegiate Dictionary 999 (11th ed. 2007); Stedman's Medical Dictionary 1461 (27th ed. 2000). Completely prostrating means extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. Although prostration is substantially defined by how the disabled individual subjectively feels and functions when having migraine symptoms, medical evidence is required to establish that the reported symptoms are due to migraines. The term “productive of severe economic adaptability” has not been clearly defined by regulations. For the purposes of Diagnostic Code 8100, “productive of” can either mean producing, or capable of producing. While migraines need not actually produce severe economic inadaptability, they must, at a minimum, be capable of producing severe economic inadaptability to warrant a 50 percent rating under Diagnostic Code 8100. Similarly, “economic inadaptability” does not equate to unemployability, as that would undermine the purpose of regulations pertaining to a TDIU. Pierce v. Principi, 18 Vet. App. 440 (2004); 38 C.F.R. § 4.16. Entitlement to a rating in excess of 30 percent for migraine headaches The Veteran asserts that she is entitled to an increased rating for migraine headaches, currently rated 30 percent effective August 31, 2015. During a May 2020 Board hearing, the Veteran reported that daily headache pain interfered with activities such as yard work, driving, and working on a computer. The Veteran stated that she was employed but headaches caused her to miss a day of work per quarter. VA and non-VA medical records show ongoing complaints of and treatment for headaches. An October 2015 VA examination diagnosed tension headaches. The Veteran reported daily headaches with constant and throbbing pain localized to the left side of the head which worsened with activity. Headaches caused light and sound sensitivity, lasted one to two days, and required medication and rest for relief. The examiner indicated that the Veteran had prostrating attacks of migraine and non-migraine headache pain once every month. The examiner stated that the Veteran did not have prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. An August 2017 VA examination diagnosed tension headaches. The Veteran reported that daily headaches caused pain localized to the left side of the head, lasted less than one day, caused light and sound sensitivity, and required medication. The examiner indicated that the Veteran had prostrating attacks of migraine and non-migraine headache pain with less frequency; but no prostrating and prolonged attacks productive of severe economic inadaptability. A July 2020 VA examination diagnosed migraine headaches. The Veteran reported constant pulsating or throbbing head pain which was localized to the left side of the head, lasted less than one day, caused nausea, vomiting, light and sound sensitivity, and required medication. The examiner indicated that the Veteran had prostrating attacks of migraine and non-migraine headache pain which occurred once every month; but no prostrating and prolonged attacks productive of severe economic inadaptability. The Board finds that the preponderance of the evidence shows that service-connected migraine headaches do not warrant rating in excess of 30 percent. The evidence of record shows that prostrating attacks of migraine or non-migraine headache pain occurred, on average, once a month and that the Veteran missed about one day of work per quarter. The next-higher rating of 50 percent requires migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The evidence does not show, and the Veteran does not assert headaches to that degree. The Veteran reported prostrating attacks once per month and that she missed about one day of work per quarter. As the evidence does not support a 50 percent rating for the appeal period, a rating in excess of 30 percent is not warranted. The Board finds that the most persuasive evidence of record is the VA examinations which found that the Veteran did not have very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. The Board has considered the Veteran's lay statements. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the question of severity of migraine headaches is a medical issue that requires medical training and expertise which the Veteran has not been shown to possess. Therefore, the Veteran's assertions are of less probative value. The Board notes that Diagnostic Code 8100 contemplates migraine symptoms such as pain, associated sensory (such as audio/visual) impact, and nausea. The Veteran's reports of sensitivity to light and sound, nausea, and pain, all contributed to the prostrating nature contemplated in Diagnostic Code 8100. Therefore, a separate rating under a different diagnostic code is not warranted. Accordingly, as the preponderance of the evidence is against the assignment of a separate or higher rating, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.