Citation Nr: 21010166 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-09 282 DATE: February 24, 2021 ORDER An initial rating of 50 percent for migraine headaches associated with a traumatic brain injury (TBI) is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the evidence demonstrates that for the entire appeal period, the Veteran’s migraine headaches have more nearly approximated completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial rating of 50 percent for migraine headaches associated with a TBI have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8045-8100.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from March 2007 to June 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision by a Veterans Affairs (VA) Regional Office (RO). In February 2016 and again in December 2019, the Board remanded this issue for further development. 1. Entitlement to an initial rating in excess of 10 percent for migraine headaches associated with TBI Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 ; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is currently assigned a 10 percent initial rating for migraine headaches under Diagnostic Code 8045-8100. The hyphenated Diagnostic Code designates that the disability is migraine headaches due to TBI. Under that Diagnostic Code 8100, the current 10 percent rating contemplates that the condition be productive of headaches with characteristic prostrating attacks averaging one in two months over last several months. A 30 percent rating requires headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating requires that the disability be manifested by very frequent and prostrating and prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define “prostrating,” nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (1999), 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, the Board notes that according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” The Board notes that in assigning a disability rating, “the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As the rating criteria under 38 C.F.R. § 4.124a, DC 8100, do not explicitly contemplate the ameliorative effects of medication, the assigned rating for migraines should contemplate the frequency of characteristic prostrating attacks that would occur without medication. On a VA examination in July 2010, the Veteran reported headaches every day, with more severe headaches three to four times per week involving light sensitivity, nausea, stomach upset, but no vomiting. These were alleviated by sleep. The examiner noted post-concussive headaches, migraine type, incapacitating three to four times per week. On VA examination in January 2013, the Veteran reported pinching, stabbing, frontal orbital headaches that occurred twice per week and typically lasted less than one day. He did not take medication for headaches. The Veteran reported pulsating or throbbing head pain, and pain on both sides of the head. There were no non-headache symptoms associated with the headaches. The examiner stated that the Veteran did not have characteristic prostrating attacks of migraine headache pain or non-migraine headache pain. A VA examiner in March 2017 noted that history of the migraine headaches as follows: “Veteran is totally unable to describe his headaches. He states they’re 24/7 and front and top of head. No auras. Never completely goes away. He is very vague on these. No flares, no true migraine symptoms other than the squeezing pain. Rare headache with sharp pain into the back of the eyes that does not last > 30 minutes. This does not seem to impair his ability to sleep at night. Unclear if the headache is still there in the morning. Cannot elucidate what makes this better or worse.” During the examination, the Veteran reported constant head pain; pulsating or throbbing head pain; and pain on both sides of the head. He reported dizziness at times. The typical duration of headache was less than one day. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine / non-migraine headache pain once every month. The examiner noted the Veteran also had very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner stated that the Veteran was “very unclear on what functional impact the headaches have. States ‘I just push on through.’” On VA examination in April 2019, the Veteran reported that since his head injury in the service, he had experienced “ongoing headaches he describes as congestion in bifrontal area and stabbing pains in eyeballs. Headaches are moderate-severe. There is nausea and diaphoresis. States he wakes daily with headache. Tries lavender, essential oils, meditation which is helpful. Denies analgesic use aside from edible marijuana. Headaches last several hours and may subside for 1-2 hours per day then returns. States he was tried on several headache medications which caused side effects. No treatment visits specifically for headaches over past year.” The Veteran reported pain on both sides of the head. The pain worsened with physical activity. The Veteran described nausea and generalized diaphoreses associated with the headaches. The examiner stated that the Veteran did not have characteristic prostrating attacks of migraine / non-migraine headache pain. The examiner stated that the Veteran’s “headache description is not entirely consistent with migraine, tension-headache or other primary headache disorder. He describes severe insomnia, and headaches on waking in this context are likely related to his insomnia.” In December 2019, the Board remanded the appeal. The Board indicated that the April 2019 VA examination was inadequate for adjudication purposes. The Board explained that although the examiner confirmed the Veteran has headaches, the report did not specify how many of those headaches are prostrating in nature. Rather, the examiner stated that the Veteran did not have any prostrating headaches, which was problematic because a favorable determination has already been rendered that at least some of his headaches are prostrating in nature. Pursuant to the Board’s remand, the VA examiner who conducted in April 2019 examination provided an addendum opinion in December 2019. The examiner clarified that he: “did not identify any prostrating headaches or impact of headaches on occupational functioning. Therefore, examiner is unable to comment on the frequency of prostrating headaches. In this examiner’s opinion, the Veteran does not have migraine headaches or other primary headache disorder which may cause prostrating headaches. Headaches due to insomnia are not expected to be prostrating. If the Veteran requires repeat examination to resolve this question, he should be scheduled with an examiner other than myself as this examiner does not agree with the conclusion that he is experiencing prostrating headaches.” A VA examination was conducted in November 2020. The Veteran reported that his current symptoms are mild to severe headaches/ long lasting headaches that cause throbbing, stabbing pain and low and high pitch ringing in the ears, ear popping, and dizziness. He reported that headaches impact his ability to focus due to pain. The headaches caused stress that sometimes made it harder for him to communicate. The Veteran stated, “[w]hen I have a headache I have to stop everything and sit or lay down.” The Veteran took aspirin for his headaches. The Veteran reported he experienced nausea, sensitivity to light, sensitivity to sound, and dizziness associated with his headaches. His headaches typically lasted less than one day. The examiner noted characteristic prostrating attacks of migraine pain once every month. The examiner also noted very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. In discussing the frequency of these headaches, the examiner stated “the Veteran needs to go and lay down to bed four to seven times a week to rest due to the headaches.” Based on the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board finds that the nature and frequency of the headaches described by the Veteran and medical professionals for the entire appeals period were prostrating and incapacitating. Although the term “severe economic inadaptability” is not defined in the regulation, his headaches would appear to approximate this definition. In Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004), the United States Court of Appeals for Veterans Claims (Court) held that severe economic inadaptability does not mean the claimant is completely unable to work, and acknowledged VA’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. Moreover, the Court held that, where the Board refused to award a 50 percent disability rating for a headache disorder without discussing the “interplay” among the regulations found at 38 C.F.R. § 4.3 (reasonable doubt resolved in favor of claimant), 38 C.F.R. § 4.7 (higher possible evaluation applies “if disability picture more nearly approximates the criteria for that rating[;] otherwise, the lower rating will be assigned”), and 38 C.F.R. § 4.21 (all the elements specified in a disability grade need not necessarily be found although “coordination of rating with impairment of function will, however, be expected in all instances”), the Board committed reasons or bases error. Id. at 445. The evidence is at least approximately evenly balanced as to whether the Veteran’s migraine headaches more nearly approximate the criteria for a 50 percent rating under DC 8100. It is reasonably clear that the Veteran has experienced severe headaches throughout the period of appeal. The July 2010 examiner noted incapacitating headaches three to four times per week. The March 2017 and November 2020 examiners both noted very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The Board has previously determined that the April 2019 VA examination report is inadequate for adjudication purposes. While the April 2019 examiner opined that the Veteran did not have migraine headaches, this opinion is not controlling in this context, as the Veteran is already service-connected for migraine headaches that have been conceded to be productive of prostrating attacks. Resolving any reasonable doubt created by the evidence in favor of the Veteran, entitlement to the maximum schedular 50 percent rating for his migraine headaches under DC 8045-8100 is warranted for the entire appeals period (which is from the date of the grant of service connection). See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. A rating in excess of 50 percent is not available under any other provision of the rating schedule that is relevant. The Board has carefully reviewed the rating schedule and finds no other Diagnostic Code that would provide a basis to grant a higher evaluation for this disorder. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.