Citation Nr: 21008489 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-31 341A DATE: February 17, 2021 ORDER Prior to September 8, 2014, an initial 10 percent rating for migraine headaches is granted, subject to controlling regulations governing the payment of monetary awards. From September 8, 2014, an initial 30 percent rating for migraine headaches is granted, subject to controlling regulations governing the payment of monetary awards. An initial rating higher than 30 percent for migraine headaches is denied. FINDINGS OF FACT 1. Prior to September 8, 2014, the Veteran’s migraine headaches were productive of, at most, characteristic prostrating attacks averaging one in 2 months over the last several months. 2. From September 8, 2014, the Veteran’s migraine headaches are manifested by characteristic prostrating attacks occurring on an average once a month over the last several months. 3. The Veteran’s migraine headaches are not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for migraine headaches prior to September 8, 2014, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for an initial rating 30 percent for migraine headaches, from September 8, 2014, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, DC 8100. 3. The criteria for an initial rating higher than 30 percent for migraine headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1992 to September 2012. He also had an additional 1 year, 5 months and 11 days of active service. This case comes from a February 2013 rating decision. In October 2018, the Veteran testified at a Board hearing. In November 2018, the Board granted service connection for a left knee disability and remanded the increased rating claim for migraine headaches for additional development. By a June 2020 rating decision, the rating for migraine headaches was increased to 30 percent, from September 12, 2014. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial compensable rating for migraine headaches prior to September 12, 2014; and in excess of 30 percent thereafter. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is “factually ascertainable,” all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraine attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Analysis The Veteran contends that his migraine headaches are worse than reflected in the initial staged ratings assigned. See October 2018 Board hearing testimony. Pursuant to the Board’s November 2018 remand, the Veteran was afforded a VA examination in September 2019. In view of the September 2019 VA examination report reflecting that migraine headaches were diagnosed in 2007 with symptoms of nausea and sensitivity to light and sound, together with private records in May 2013 reflecting migraines with symptoms of nausea, photophobia, and phonophobia, see February 2014 private treatment records, the Board finds that an initial 10 percent rating is warranted for migraine headaches throughout the rating period on appeal, prior to September 8, 2014. This is particularly so when resolving doubt in favor of the Veteran. Although the Board is granting a 10 percent rating, an even higher rating is not warranted prior to September 8, 2014. The June 2012 VA headaches examination report reflects that the Veteran did not have characteristic prostrating attacks averaging one in 2 months over the last several months, that the only symptom was pain on both sides of the head, and that headaches did not impact the Veteran’s ability to work. In addition, an April 2013 record reflects that the Veteran denied recurrent headaches. Further, records in May 2013 note that the Veteran’s pain level due to headaches was “2” for which the lowest dose of headache medication available was prescribed. See September 2014 VA treatment records. Additionally, and although the Veteran’s May 2013 statement notes a migraine once a month, the Veteran’s migraine log reflects that he had no characteristic prostrating attacks in September 2013, October 2013, November 2013, January 2014, and June 2014. See September 2014 Web/HTML Documents. Further, the impression of neurological evaluation in August 2014 was infrequent but bothersome headaches. See September 2014 VA treatment records. As such, the Board finds that a rating higher than 10 percent is not warranted for migraine headaches, prior to September 8, 2014. The Board notes that although the RO assigned a 30 percent rating from the date of receipt of an examination report on September 12, 2014, the Board finds that the 30 percent level of disability was factually ascertainable on September 8, 2014, the date of the VA examination. See Swain, 27 Vet. App. at 224. As reflected above, prior to the September 8, 2012 examination, characteristic prostrating attacks occurring on an average once a month over the last several months are not shown. In addition, the Board finds that the Veteran’s symptoms are adequately contemplated by the 30 percent rating currently assigned under the migraine rating criteria, and a rating higher than 30 percent is not warranted. The Board notes that the 30 percent rating contemplates the Veteran’s functional impairment due to migraine headache symptoms. See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages represent the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations). Additionally, and even though the Veteran described having to lie down at work when he had a migraine, often for two to four hours, noting early morning migraines prevented him from driving making him late for work, the September 2019 VA examination report notes only one to two weeks of work time lost in the previous 12 months. Moreover, both the September 2019 and September 2014 examination reports specifically state that the Veteran does not have prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. Further, and although not dispositive, the Veteran has been working throughout the rating period on appeal period despite his headaches and the evidence does not show that he stopped working due to his headache symptoms. In addition, and even though the September 2019 VA examination report reflects the Veteran’s report of ear ringing and blurred vision during a recent migraine, the Veteran’s service-connected disabilities include vertigo and tinnitus. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. Further, in Johnson, it was held that the criteria set forth in DC 8100 are conjunctive. As the evidence does not show that the Veteran’s migraine headaches result in very frequent prostrating and prolonged attacks that are also productive of severe economic inadaptability, a higher rating is not warranted. The Board has considered not only whether there has been severe economic inadaptability but also whether the headaches have been capable of such. See Pierce, 18 Vet. App. at 445-46. Furthermore, the Board is not equating severe economic inadaptability with unemployability. Id. (Continued on the next page)   The Veteran is competent to report his symptoms, to include migraine headache pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). The Board considered the lay statements, and the clinical findings of record. Although the apparent alteration of the September 2014 examination report may have an impact on credibility, see REMARKS section, it does not alter the examiner’s finding that the Veteran does not have very frequent completely prostrating and prolonged attacks of migraine headaches productive of severe economic inadaptability. In this case, the Board attributes greater probative value to the clinical findings which do not reflect that prior to September 8, 2014, the Veteran has migraine headaches with characteristic prostrating attacks occurring on an average once a month over several months, or that he has had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In sum, an initial 10 percent rating is warranted for migraine headaches throughout the rating period on appeal prior to September 8, 2014, and a 30 percent rating is warranted from September 8, 2014. As the preponderance of the evidence does not show that the migraines manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, a rating higher than 30 percent is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.