Citation Nr: 21014372 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-28 737 DATE: March 12, 2021 ORDER Entitlement to an initial rating higher than 30 percent for migraines is denied. REMANDED Entitlement to an initial rating higher than 10 percent for tendonitis of the right knee, prior to December 18, 2019, and to a rating higher than 30 percent, thereafter, is remanded. FINDING OF FACT During the appeal period, the Veteran’s migraines did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for migraines have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1986 to August 1987 and August 1994 to August 2014. The Veteran had service in Southwest Asia from September 2006 to September 2007. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in April 2019 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In an October 2019 decision, among other issues, the Board granted entitlement to an initial rating of 30 percent for migraines and remanded entitlement to service connection for a bilateral hand disorder and entitlement to an increased rating for the right knee. The Veteran appealed the October 2019 Board decision to the Court of Appeals for Veterans Claims (CAVC). In an August 2020 Order, the Court granted a Joint Motion for Partial Remand (JMR), which addressed only the issue of entitlement to an initial rating higher than 30 percent for migraines and did not disturb the remaining issues adjudicated in the October 2019 Board decision. In an August 2020 rating decision, the RO granted entitlement to service connection for a bilateral hand disability. As such, this issue is no longer before the Board. In the August 2020 rating decision, the RO also granted an increased initial evaluation of 10 percent for the Veteran’s right knee disability, prior to December 2019, and a 30 percent rating, thereafter. Despite the grant of this initial increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, she is presumed to be seeking the maximum possible evaluation. The issue remains on appeal. A.B. v. Brown, 6 Vet. App. 35 (1993). The Board notes that in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) may be considered part and parcel of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran has not submitted any evidence of unemployability and as recently as April 2019, evidence indicates she is currently employed. See April 2019 BVA Hearing Transcript. Accordingly, the Board finds that Rice is not applicable. Additionally, the Veteran is in receipt of a combined 100 percent rating for her service-connected disabilities. 1. Entitlement to an initial rating higher than 30 percent for migraines. Service connection for migraines was established by a March 2015 rating decision, at which time a noncompensable rating was assigned, effective September 1, 2014. In the October 2019 decision, the Board granted entitlement to an increased initial rating of 30 percent, but no higher. The August 2020 JMR states the Board failed to adequately consider whether the Veteran’s migraines are producing or are capable of producing severe economic inadaptability. Disability evaluations are determined by the application of 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. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. §4.1; Schafrath v. Derwinski,1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered the entire record, including the Veteran’s VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, 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 contains 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 migraines 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). In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Veteran was afforded a VA examination in May 2014. The Veteran reported having migraines approximately seven times a month, which lasted all day. She reported pain on both sides of the head, nausea, sensitivity to light and sound, and changes to vision; however, although the migraines slowed her down, it was noted that the headaches were not prostrating. The Veteran was afforded a VA examination in February 2017. She reported having approximately 8-10 migraines a year. During migraines, the Veteran reported experiencing nausea, vomiting, sensitivity to light and sound, and changes in vision. She indicated that the headaches last approximately more than 2 days. The examiner indicated that the Veteran had less frequent characteristic prostrating attacks. It was noted that the Veteran’s ability to concentrate during headaches is limited, however, she is able to perform instrumental activities of daily living. During the April 2019 Board hearing, the Veteran reported approximately four to six prostrating attacks every month. She testified that during headaches she becomes nauseous, vomits, loses vision in her left eye and becomes sensitive to lights and sounds, requiring her to take medication and lie down. She indicated that the prostrating attacks last approximately 12 to 24 hours. A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board acknowledges that “productive of severe economic inadaptability” means either producing or capable of producing. Also, it is not required that the prostrating attacks render the Veteran unemployable. Here, a rating higher than 30 percent is not warranted as the Veteran has not submitted evidence indicating her migraines are very frequent completely prostrating and prolonged attacks that are capable of producing or are producing severe economic inadaptability. The Veteran is competent to report readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran did not report prostrating attacks during the May 2014 VA examination. Furthermore, during the February 2017 VA examination, the examiner specifically noted that the Veteran’s migraines did not cause severe economic inadaptability and the Veteran reported 8-10 migraines a year, which is approximately once a month, or less. Similarly, during the April 2019 Board hearing, although the Veteran reported that she must take medication and lie down during migraine attacks, which occur approximately four to six times a month, she did not offer any testimony asserting that her migraines have a severe impact on her employment. The Veteran has not provided any statements regarding missing work, needing to use sick or annual leave, or leave without pay during a migraine. The Veteran has not asserted that her migraines have produced or are capable of producing severe economic inadaptability. In concluding that the Veteran’s headaches are not very frequent completely prostrating and prolonged attacks and have not or are not capable of producing severe economic inadaptability, the Board does not discount the pain, discomfort, and effect on her employment the Veteran experiences related to her headaches; rather the evidence indicates she is appropriately compensated for this impairment at the 30 percent disability level. The purpose of the rating schedule is to compensate veterans for the average impairment in earning capacity caused by a service-connected disability. The currently assigned 30 percent rating reflects that the Veteran’s migraines affect her employment to this degree. As such, the preponderance of the evidence weighs against a finding that the Veteran’s migraines result in the degree of impairment contemplated for a 50 percent evaluation under Diagnostic Code 8100. In particular, the evidence fails to demonstrate that the Veteran’s migraines result in very frequent completely prostrating and prolonged attacks that cause or are capable of producing severe economic inadaptability. As the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See Gilbert, 1 Vet. App. 49, 54. REASONS FOR REMAND 2. Entitlement to an initial rating higher than 10 percent for tendonitis of the right knee, prior to December 18, 2019, and to a rating higher than 30 percent, thereafter. The Veteran seeks entitlement to an initial increased rating for her right knee disability. This claim was remanded by the Board in October 2019 to afford the Veteran a VA examination that complied with Correia v. McDonald, 28 Vet. App.158 (2016) and determined the current severity of her right knee disability. The Veteran was afforded a VA examination in January 2020. The examiner stated that pain was noted on examination and caused functional loss on flexion and extension which impacted her range of motion, however, the degree at which pain occurred was not noted in the examination report. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, on remand, the Veteran should be afforded an examination for her right knee that includes the degree at which pain occurs during range of motion tests. These findings are necessary to adequately rate the Veteran’s disability according to DeLuca. Id. Additionally, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). On remand, the examiner should ensure that all signs and symptoms necessary to rate the Veteran’s disability under the revised rating criteria are included in the examination report. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran a VA examination for her right knee disability. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran’s current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran’s disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the right knee and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) pursuant to DeLuca. *Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain in BOTH knees on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the knees cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. *In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding her flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Andersen, 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.