Citation Nr: 21013808 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-18 072 DATE: March 10, 2021 ORDER Entitlement to an initial compensable rating for a headache disability prior to April 9, 2015, is denied. A rating of 30 percent for a headache disability from April 9, 2015, to March 24, 2019, is granted. A rating in excess of 50 percent for a headache disability since March 24, 2019 is denied. FINDINGS OF FACT 1. Prior to April 9, 2015, 2. From April 9, 2015 to March 24, 2019, the probative evidence of record demonstrates that the Veteran had characteristic prostrating attacks averaging once a month over the last several months for the period prior to March 24, 2019. 3. Since March 24, 2019, the Veteran’s disability has been characterized as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial rating for a headache disability prior to April 9, 2015 have not been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8100. 2. The criteria for a rating of 30 percent for a headache disability for the period from April 9, 2015 to March 24, 2019 have been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8100. 3. The criteria for a rating in excess of 50 percent for a headache disability since March 24, 2019 have not been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2007 to November 2007 and from March 2008 to March 2009. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in July 2018 and June 2019, at which it was remanded for further development. The development has been completed and the claim has returned to the Board for appellate review. Through a January 2021 rating decision, the Veteran was awarded a 50 percent rating for his service-connected headaches effective March 24, 2019. However, as an initial compensable rating since November 1, 2011 is on appeal, the claim has not been granted in full. Increased Ratings The Veteran contends that a higher rating is warranted for his service-connected headaches because he requires medication for his headaches and his headaches are more severe than the currently assigned ratings. The Veteran is in a receipt of an initial, noncompensable rating from November 1, 2011. Effective March 24, 2019, the Veteran is in a receipt of a 50 percent rating. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In this case, separate evaluations are warranted as explained below. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (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 averaging once a month over the last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 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. Diagnostic Code 8100 contemplates all migraine symptoms; Therefore, to evaluate migraines under Diagnostic Code 8100, VA must consider all symptoms experienced due to migraine attacks, and then rate the symptoms based on the frequency, duration, severity, and economic impact of those attacks. Holmes v. Wilkie, No. 19-2495 (Decided November 25, 2020). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). Evidence The Board finds the most probative evidence of record to be the VA examinations and the contemporaneous VA medical records. The private records submitted by the Veteran do not reference headaches. The Veteran’s first VA examination was in October 2012. He reported his headaches were not prostrating, but were nagging in nature, and that he took over-the-counter (OTC) medication for his pain. He reported pain at the top of his head and that when he had a headache, it lasted less than one day. Based on the description of symptoms, the examiner did not find the headaches to be prostrating. VA medical records dated through April 2013 note headaches almost every other day, with pain at 7/10. These records do not indicate how long the pain lasts or whether the headaches were prostrating. The Veteran had a second VA examination in March 2015. The claims file was not reviewed. The symptoms were largely the same as the October 2012 examination, except the pain had now migrated to both sides of his head. He stated that the headaches did not “really interfere” with job performance and the examiner did not find the headaches to be prostrating. A separate, private disability benefits questionnaire (DBQ) was also submitted March 2015, which was consistent with the findings of the March 2015 VA examiner. On April 9, 2015, the Veteran submitted a statement on his appeal to the Board (Form 9). He reported that his headaches “at times have caused [him] to miss work several times per month. There has “been times where the pain was so unbearable that he was not able to sleep and have felt extremely nauseous.” The headaches happened at least six times per week which resulted in “severe economic inadaptability and he had to miss work. Several times a week that the pain is so excruciating that he stays in bed for hours a time and is unable to be productive. These attacks happen very frequently and can last for several hours or days.” Given this, the Veteran was afforded another VA examination in October 2015. The clinician did not review the claims file. The Veteran’s reports were largely similar to his April 2015 lay statement, except he reported that the pain lasts less than a day. The Veteran reported that when he has a headache he sits in his office and rests which interfered with his work. Overall, the examiner did not find that the Veteran’s headaches were prostrating, let alone so prostrating that they result in severe economic inadaptability. The Veteran attended another VA examination in March 2019. It is from the date of this examination that the Veteran is in receipt of a 50 percent rating. The Veteran reported daily headaches, with pain on both sides of the head that was constant. His head pain lasted less than one day. The VA examiner confirmed the presence of constant, recurrent, daily headaches with constant bilateral head pain and sensitivity to light. It was noted under functional impact that you were unable to work with severe headaches. However, the examiner indicated that your headaches were not prostrating. In compliance with the Board’s June 2019 remand, the RO obtained an addendum opinion dated in October 2020. The VA examiner specifically found the Veteran suffered from prostrating attacks of migraines productive of severe economic inadaptability. The remainder of the medical record does not contain meaningful reports of the frequency, severity, and duration of the Veteran’s headaches except for two notations. In September 2018, the Veteran reported he had a headache “all the time” and a November 2018 report where he said he had a headache four times per week. Analysis In considering whether the evidence of record supports a higher rating for headaches, the Board reiterates that the frequency, severity, and duration of “characteristic prostrating attacks” is the critical question and the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The Board also notes that while the record is clear that the prescription treatment the Veteran attempted interfered with his treatment for depression, if there was a definite increase in the frequency, severity, and duration of the Veteran’s headaches, the Board would expect the medical records to address this and/or the impact that such attacks have had on the Veteran’s employment. The Board finds that, for the period prior to April 9, 2015, the Veteran specifically denied suffering from prostrating headaches. Further, the VA examinations dated in October 2012 and March 2015 both determined the Veteran’s headaches were not considered prostrating. Also during his March 2015 VA examination, the Veteran reported “nagging” headaches that didn’t interfere with his job and the examiner did not find them to be prostrating. Moreover, the Board notes that the Veteran did not seek regular treatment for his headaches after October 2012 where he was provided with “alpha stim treatment.” While the Board recognizes that the Veteran treated his pain with OTC medication, certainly if attacks were “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability” the Veteran would have sought a change in treatment. Therefore, he is not entitled to an initial compensable rating for the period prior to April 9, 2015. However, effective April 9, 2015, resolving all reasonable doubt in the Veteran’s favor and based largely on the reported severity and frequency of his headaches, the Board finds that the Veteran’s headaches manifested in symptomology consistent with characteristic prostrating attacks averaging once a month over the last several months, which warrants a 30 percent rating. This finding is based primarily on the April 9, 2015 statement from the Veteran marking an increase in his symptomatology, which is the first indication in the claims file to this effect. However, the Board does not find that the headaches were very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability such that a 50 percent rating is warranted prior to March 24, 2019. Regarding this, for the period from April 9, 2015 to March 24, 2019, the Veteran was not specifically diagnosed with prostrating attacks. See again October 2015 VA Examination. Effective from March 24, 2019, the Veteran is in receipt of the highest rating available under Diagnostic Code 8100 and there are no alternative diagnostic codes under which the Veteran’s headaches may be analogously rated. See e.g., Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Further, the Board finds that all headache symptoms identified by the Veteran have been specifically contemplated by the criteria for the 50 percent rating for the entire period on appeal. Hence, as the Veteran has been awarded the maximum schedular rating for headaches, there is no legal basis upon which to award a higher schedular rating. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). While the Veteran asserts that he has to take medication for his headaches, under Diagnostic Code 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board finds that the Veteran only asserted a greater degree of disability in April 2015. Prior to that date, the Board gives more probative weight to the VA records indicating that the Veteran did not complain of or seek treatment for increased symptomology. Despite the Veteran’s contention of a greater degree of limitation from his headaches, the disability rating assigned herein indicates a significant impact on his functional ability. Such disability evaluations assigned by VA recognizes his prostrating episodes. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For the foregoing reasons, the preponderance of the evidence is a against a compensable rating prior to April 9, 2015, but supports a 30 percent rating effective April 9, 2015, but no earlier and no higher. Further, a rating in excess of 50 percent is not available. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.