Citation Nr: 21008069 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 09-07 199A DATE: February 11, 2021 ORDER An increased rating of 30 percent, but no higher, from September 1, 2014 to May 8, 2019, for a headache disorder is granted. FINDING OF FACT From September 1, 2014 to May 8, 2019, the Veteran’s headache disorder manifested with prostrating attacks occurring on average three times per month over several months that were not productive of severe economic inadaptability. CONCLUSION OF LAW From September 1, 2014 to May 8, 2019, the criteria for a 30 percent rating, but not more, for a headache disorder were met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1984 to August 1984 and from February 1995 to June 2006. Effective October 2014, the Veteran’s combined disability rating of service-connected disabilities is 100 percent. In May 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In an October 2019 decision, the Board of Veterans’ Appeals (Board) granted a 30 percent rating for a headache disorder, effective May 8, 2019, and denied a compensable rating prior to that date. The Veteran appealed to the United States Court of Appeals for Veterans’ Claims (Court), and in a September 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the denial of a compensable rating for a headache disorder prior to May 8, 2019 and remanded that issue to the Board. Specifically, the Court directed the Board to consider the Veteran’s hearing testimony that he experienced prostrating headache attacks prior to May 2019. The Veteran did not appeal the 30 percent evaluation—the only issue now before the Board is whether a compensable rating was warranted before May 2019. The October 2019 Board decision also remanded the issue of service connection for an eye disorder and directed the VA Regional Office (RO) to obtain an addendum medical opinion. The claims file indicates that a medical opinion has not yet been obtained, although a request was submitted in January 2021. This issue will be addressed in a separate decision after all development has been completed as directed by the 2019 Board remand. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a compensable rating for a headache disorder from September 1, 2014 to May 8, 2019. Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. See 38 C.F.R. § 4.7. VA assesses the level of disability from a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). VA received the Veteran’s application for an increased rating on September 1, 2015. Thus, the rating period begins September 1, 2014. In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s headache disorder has been assigned a noncompensable (zero percent) rating from September 1, 2014 to May 8, 2019, and a 30 percent rating thereafter. He contends a compensable rating was warranted before May 8, 2019. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124(a), DC 8100. DC 8100 provides: A 50 percent rating is warranted for very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability; A 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on average once a month over at least several months; A 10 percent rating is assigned for characteristic prostrating attacks averaging one in two months over the last several months; and A noncompensable rating is warranted for less frequent attacks. See 38 C.F.R. § 4.124(a), DC 8100. The Rating Schedule does not define “prostrating,” nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, “prostration” is defined as “extreme exhaustion or powerlessness.” See Dorland’s Illustrated Medical Dictionary 1531 (32nd ed. 2012). Similarly, “prostrate” is defined as “physically or emotionally exhausted; incapacitated.” See Webster’s II New College Dictionary 889 (2001). Additionally, the term “productive of severe economic adaptability” has not been clearly defined by regulations or by case law. “Productive of” can either have the meaning of producing or capable of producing. “Economic inadaptability” does not mean unemployability, as that would undermine the purpose of regulations pertaining to unemployability. Pierce v. Principi, 18 Vet. App. 440 (2004); 38 C.F.R. § 4.16. The frequency and severity of headaches are matters to which laypersons may competently testify because they require no expertise. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran is competent to provide evidence of observable symptoms, including pain. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran was afforded a VA headaches examination in February 2015. The Veteran reported a history of headaches since 2001. He reported experiencing bilateral, throbbing headaches at least once per week, at least thirty minutes in duration. He stated his headaches occasionally lasted all day. The Veteran reported additional symptoms of nausea, sensitivity to light and sound, and denied taking medication for his headaches. He also denied having characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner indicated the Veteran’s headache disorder did not impact his ability to work. In an October 2015 VA primary care note, the Veteran reported intermittent right-sided headaches with episodes in the prior week. He denied fever/chills, vision changes, neck stiffness, or nausea/vomiting. He stated his headaches lasted for one minute then resolved. He speculated his headaches were stress-related and denied taking any medication for the condition. The attending clinician noted the Veteran was seen in the emergency (E.R.) clinic the previous month for reports of dizziness, which was attributed to the Veteran’s failure to take his blood pressure medication. Review of the September 2015 E.R. records reveals that the Veteran denied headaches at that time. At the December 2015 VA examination, the Veteran reported experiencing tension headaches since 1997. He reported brief periods of dizziness, vertigo and a spinning sensation associated with quick movements of his head. He described his headaches as bitemporal (affecting both sides of the head) and throbbing. He denied nausea and vomiting but continued to report sensitivity to sound and light during headache attacks. The Veteran indicated his headache medication (Nortriptyline) had run out six months prior and that his headaches had become more frequent since that time. He reported missing several days from work over the past six months due to headaches, although he denied experiencing prostrating attacks. He indicated he had not received treatment from the VA neurology clinic for the condition since 2010. In a May 2016 primary care note, the Veteran reported his headaches were improving and his medication was working “with good effect.” At the May 2019 Board hearing, the Veteran testified that he experiences three to four prostrating attacks per month due to his headache disorder. He stated these attacks are severe enough that he has to leave work, cancel appointments, and rest. Although he reported his headache pain changed over time, the Veteran indicated that the number of headache episodes remained the same since he was first service-connected for the condition. The Veteran further testified that about twice per month, his headaches required him to lie down for about thirty minutes in a quiet, dark room at work. He stated his primary care doctor advised him to rest during these types of headaches. The Board will grant a 30 percent rating from September 1, 2014 to May 8, 2019 based on the benefit-of-the-doubt doctrine. The Veteran testified that, throughout the rating period, he has had headache attacks an average of three times per month, with dizziness, throbbing pain, changes in vision, and sensitivity to light and sound. He reported that about twice per month, he must stop what he is doing, including work, and either sit in a quiet and dark room or sleep to relieve his headache symptoms. The Veteran is competent to describe the frequency and severity of his headaches. See Pierce, supra. While no VA examiner has described the Veteran’s headaches as “prostrating,” the Board finds that these reported episodes involve “extreme exhaustion and powerlessness,” and are analogous to “migraine headaches with characteristic prostrating attacks” within the meaning of DC 8100. A rating of more than 30 percent is not warranted at any point during the rating period because the Veteran’s headaches have not produced severe economic inadaptability. Throughout the majority of the appeal, the Veteran has maintained full-time employment with the Department of Transportation and has not reported any decrease in income because of his headaches. The Board notes the Veteran’s reports that his headaches negatively affect his ability to work, resulting in increased absences from work, and/or require him to stop working and recover in a dark room for about 30 minutes. Given that the Veteran is often capable of recovering in a relatively short time and returning to work, and given that attacks occur an average of three times per month, his headache symptoms are not capable of producing “severe” economic inadaptability. (Continued on the next page)   For these reasons, the Board will award a 30 percent rating (but no higher) for the Veteran’s headache disorder, for the period of September 1, 2014 to May 8, 2019. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.