Citation Nr: 21007625 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-36 641 DATE: February 10, 2021 ORDER A rating in excess of 10 percent for migraine headaches prior to September 9, 2019, is denied. A rating in excess of 30 percent for migraine headaches since September 9, 2019, is denied. FINDINGS OF FACT 1. The Veteran served active duty from December 1968 to July 1971. 2. Prior to September 9, 2019, migraine headaches were manifested by subjective complaints of pain, ringing in the ears, sound sensitivity; objective findings did not show characteristic prostrating attacks. 3. Since September 9, 2019, migraine headaches have been manifested by subjective complaints of headaches accompanied by symptoms of pulsating or throbbing head pain, pain localized to one side of the head, pain on both sides of the head, pain worsened with physical activity, and sensitivity to sound; objective findings include characteristic prostrating attacks averaging once a month and are not productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for migraine headaches prior to September 9, 2019, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.124a, Diagnostic Code (DC) 8100 (2020). 2. The criteria for a rating in excess of 30 percent for migraine headaches since September 9, 2019, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.124a, DC 8100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran provided testimony at an April 2017 Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In August 2020, the Board notified the Veteran that he had the opportunity to testify at another hearing. He did not request a new hearing. A transcript of the April 2017 hearing is of record. In September 2018, the Board remanded the case for further development. A June 2020 rating decision increased the rating for headaches to 30 percent, effective September 9, 2019. As the June 2020 decision did not represent a total grant of benefits sought on appeal, the claim for an increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). 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. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran contends that a higher evaluation is warranted for his migraine headaches. He is rated as 10 percent prior to September 9, 2019, and at 30 percent since under DC 8100. Under DC 8100, a higher rating would be warranted for: • 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). Prostration has not been defined by the rating criteria or by the Veterans Claims Court. According to Webster’s New World Dictionary of American English (p.1080, 3rd College Ed. (1986)), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary (p 1554, 31st Ed. (2007)), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Prior to September 9, 2019 Turning to the evidence, at a May 2009 VA examination, the Veteran complained of mild headaches 3-4 times per week and severe headaches 3-4 times per month. His headaches started on the left and then all over his head, with ringing in the ears, sound sensitivity, and pain was 5/10. He reported treating his headaches with nonsteroidal anti-inflammatory drugs (NSAIDs) and migraine specific medications. The diagnosis was migraine headaches. He denied any nausea or vomiting. VA treatment notes dated December 2011, indicated that the Veteran reported chronic mild headaches 1-2 times every two weeks. He denied blurred vision or dizziness. On an April 2012 Traumatic Brain Injury (TBI) Signs and Symptoms Questionnaire, he reported that he experiences headaches 2 to 3 days in a row. He noted that he stayed home from work sometimes as a result of his symptoms. In an April 2018 VA treatment note, the clinician noted that the Veteran took acetaminophen every few weeks due to headaches. Based on the above evidence, a rating in excess of 10 percent for migraine headaches prior to September 9, 2019, is not warranted. While the Veteran reported experiencing mild 3 to 4 headaches a week and severe headaches 3-4 times per month, the record does not indicate that he averaged at least one prostrating attack per month. In this regard, the evidence does not show characteristics of prostrating attacks, occurring on average, once a month warranting a 30 percent rating. Consequently, the medical evidence does not support a higher rating. Since September 9, 2019 Turning to the evidence, at a September 2019 VA examination, the Veteran described experiencing “headaches as (no aura) and left sided or holocranial throbbing associated with phonophobia” with frequency 3-4 times per month, and lasting all day. He noted symptoms of pulsating or throbbing head pain, pain localized to one side of the head, pain on both sides of the head, pain worsened with physical activity, and sensitivity to sound, lasting less than 1 day. He reported experiencing characteristic prostrating attacks of migraine headaches once a month. The headaches did not cause pain or productive of severe economic inadaptability. Based on the above evidence, a rating in excess of 30 percent for migraine headaches since September 9, 2019, is not warranted. A review of the medical evidence, including the clinical records, does not show very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. The examination and lay statements establish that the Veteran had characteristic prostrating attacks of migraine and non-migraine headache pain at worst once a month. However, the examinations revealed that he does not experience very frequent prostrating attack of headache pain, and that the attacks did not result in severe economic inadaptability. Accordingly, the medical evidence does not support a higher rating. The Board has also considered the Veteran’s testimony and lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s migraine headaches has been provided by the medical personnel who have examined him during the current appeals and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.