Citation Nr: 21010306 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-35 472 DATE: February 24, 2021 ORDER A higher 50 percent rating for migraine and tension headaches is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Veteran’s migraine and tension headaches have manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent for migraine and tension headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1985 to December 1985, from September 2005 to January 2008, and from February 2008 to May 2013. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which decreased the evaluation for migraine headaches from 30 percent to 0 percent, effective April 28, 2016, in response to a January 2016 increased rating claim. In July 2020, the Veteran testified before the undersigned Veterans’ Law Judge. A transcript of the hearing is of record. A July 2020 Board decision restored the 30 percent rating for migraine headaches effective April 28, 2016 and remanded the claim of entitlement to a rating higher than 30 percent for the Veteran’s headaches. The Veteran’s migraine and tension type headaches have been assigned a 30 percent rating under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a higher (and maximum) 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The phrase “characteristic prostrating attacks” means migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). In other words, the term “prostrating” takes on its plain meaning of “lacking in vitality or will: powerless to rise: laid low.” Id. Moreover, lay evidence may be probative of the frequency, prolongation, and severity of headaches. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Regarding “economic inadaptability,” the Court has held that under DC 8100, a headache disorder need only be “capable of producing” economic inadaptability, and that this standard is different from the “unemployability” standard applicable in the context of determining entitlement to a total disability rating based on individual unemployability (TDIU). Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004); see also 38 C.F.R. §§ 3.340, 4.16 (setting forth the requirements for establishing entitlement to TDIU). Relevant to this appeal, the criteria for rating migraines are “successive.” Johnson, 30 Vet. App. 245. “Successive” criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). In September 2015 VA medical records, the Veteran reported her migraine headaches had increased in frequency to three or more times per week, but there was no change in severity. She reported that migraine medication was making her lethargic and drowsy, and that she believed they were also causing double vision. In February 2016, the Veteran reported that experiencing migraine headaches associated with vomiting and nausea, and which were only relieved by sleeping or staying in a dark, quiet environment. At an April 2016 VA examination, the Veteran reported bifrontal headaches that were throbbing in nature, lasting a few hours to a day. She also reported tension type headaches in the back of the head that felt like aching pressure two to three times per week. The examiner noted pulsating or throbbing headache pain, associated with nausea, sensitivity to light and sound, and vision changes. The examiner found no characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner further found no functional impact on the Veteran’s ability to work due to the headaches. The examiner found the headaches to be moderate in nature. In May 2016, the Veteran reported migraine headaches three to five times per week, associated with nausea, vomiting, photophobia, and phonophobia. The headaches usually started after 6 pm, and were gone the following morning, so she tried to “sleep them away.” Medical records between July 2017 and June 2020 show reports of migraine headaches three to five times per week, usually associated with an aura of metallic taste, sparks of light and blurring vision. The headaches were accompanied with nausea, photophobia and phonophobia. The medications were helpful, but she still described the headaches as debilitating. The Veteran found sleep sometimes necessary for relief. Contemporaneous mental health records note the Veteran’s growing frustration with chronic, daily migraines requiring her to lay down. At an October 2020 VA examination, the Veteran reported bifrontal headaches lasting four to six hours to a day, in addition to aching pressure and moderate tension headaches three to four times per week. The examiner noted pulsating or throbbing headache pain, associated with nausea, vomiting, and sensitivity to light. The examiner found no characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner noted that the headaches did have a functional impact on the Veteran’s ability to work but explained that the Veteran had been functional and able to participate in various health care visits and programs at VA and was not incapacitated by the headaches. The examiner further noted that the headaches did not require frequent emergency room visits, hospitalizations, neurology visits or injectable medications. For these reasons, the examiner opined that the headaches were not considered as prostrating attacks. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a higher 50 percent rating is warranted for the Veteran’s migraine and tension type headaches. While the VA examiners found that the headaches were not prostrating in nature, the Veteran’s neurology followups for migraines document that she experiences severe headaches multiple times a week, for which sleep or laying down in a cold, quiet and dark room, is often the only relief. While medications help with the pain, the Veteran has consistently reported that they do not fully alleviate the pain, and that she suffers from side effects, including lethargy, drowsiness and blurred vision. The Veteran has testified that she cannot participate in activities the same way as she used to because of the headache pain. The Boar finds the probative value of VA follow-up records for headaches specifically more probative than VA examinations in this case, as they document contemporaneous complaints and the history of the progression of the Veteran’s disability. (Continued on the next page)   The Board finds the frequency and severity of the Veteran’s headache symptoms is comparable to very frequent prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. Accordingly, a 50 percent rating is granted for the Veteran’s migraine and tension type headaches. This is the highest schedular rating allowed under DC 8100 for headaches. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.