Citation Nr: 21011010 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-05 086 DATE: February 26, 2021 ORDER A 50 percent disability rating for migraine headache disability is granted. FINDING OF FACT Resolving any doubt in the Veteran’s favor, the Veteran has had very frequent, completely prostrating and prolonged migraine headache attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a maximum 50 percent schedular disability rating for migraine headache disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1993 to August 1997 and from February 2007 to November 2007. This matter comes before the Board on Veterans’ Appeals (Board) on appeal of a November 2016 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). In June 2019, the Board denied entitlement to an increased rating in excess of 30 percent for the Veteran’s migraine headache disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). On June 10, 2020, the parties agreed to a Joint Motion for Remand (JMR) moving the Court for an Order vacating and remanding the June 2019 Board decision. By an Order dated June 16, 2020, the Court granted the parties JMR and remanded the matter to the Board for actions consistent with the JMR. Entitlement to an increased rating of 50 percent for migraine headache disability is granted. The Veteran contends that his migraine headache disability is worse than reflected by his current 30 percent disability rating. Specifically, he contends that he has very frequent prostrating migraine headache attacks which are impacting his employment. See November 2016 Notice of Disagreement. The RO initiated a routine examination to review his migraine headache disability in September 2016. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski,1 Vet. App. 589(1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58(1994). However, where the appeal stems from a request for higher rating following the award of service connection, evaluation of the medical evidence pertinent to the original claim, and consideration of the appropriateness of staged rating (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West,12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470(1994). The Veteran’s migraine headaches are evaluated under Diagnostic Code 8100. Diagnostic Code 8100 provides a 10 percent disability rating for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent disability rating for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months; and a 50 percent disability rating for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria do not define “prostrating” as used in DC 8100. According to Webster’s New College Dictionary 909 (3d Ed. 2008), “prostrate” is defined as “physically or emotionally exhausted.” The word “incapacitated” is listed as a synonym. A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Similarly, the regulations provide no clarification as to the meaning of the phrase “productive of severe economic inadaptability.” However, the Court of Appeals for Veterans Claims (Court) in Pierce v. Principi, 18 Vet. App. 440 (2004), noted that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating” because “[i]f ‘economic inadaptability’ were read to import unemployability,” a claimant who “met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)] [...] rather than just a 50 percent rating.” Id. The Court therefore rejected the notion that “severe economic inadaptability” was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16 (a)). The Board has reviewed the evidence of record, to include the VA examinations, VA outpatient treatment records and the Veteran’s contentions. Resolving reasonable doubt in the Veteran’s favor, a 50 percent rating for migraine headache disability is warranted. The Veteran had a VA examination for migraine headaches in September 2016. The Veteran reported having migraine headaches several times per month. The examination report reflects that the Veteran’s migraine headaches are described by the Veteran as constant pulsating or throbbing head pain located to one side of the head with nausea, sensitivity to light, changes in vision that last less than one day. The examiner found that the Veteran does not have characteristic prostrating attacks of migraine headache pain. The examiner also stated that the Veteran’s headaches are intermittent and unpredictable, so he may have difficulty working as a Postal employee, as he may need to stay at home or leave work due to a migraine headache. In the December 2017 Appeal to Board of Veterans’ Appeals, VA Form 9, the Veteran reported that his migraine headaches are completely prostrating, specifically that his migraine headaches require him to isolate himself and lie down in a dark and silent room for 6 to 8 hours per episode, leaving him physically exhausted and incapacitated. The Veteran also stated that had to change jobs and accept a position making less money due to his service-connected migraine headaches, as they make it difficult to focus on work and to complete assigned tasks in a timely manner. He stated that the reduction in pay makes it difficult to manage his finances. Considering the foregoing, and resolving any doubt in favor of the Veteran, the Board finds that the competent lay and medical evidence shows that the Veteran has very frequent completely prostrating and prolonged migraine headache attacks capable of being productive of severe economic inadaptability. Thus, a 50 percent rating, but no higher, for the entire period on appeal is granted. A 50 percent rating is the highest schedular rating under DC 8100 and a higher schedular rating is not available. No other diagnostic code is applicable, and there is no other applicable diagnostic code which would afford a rating higher than a 50 percent rating for the migraine headache disability. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Susan Leary, Associate 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.