Citation Nr: 21014446 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-03 363 DATE: March 12, 2021 ORDER Entitlement to a compensable rating for service-connected migraine headaches is denied. FINDING OF FACT The Veteran’s migraines have been manifested by characteristic prostrating attacks that average less than one in 2 months over the last several months and by nonprostrating headaches. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for service-connected migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 2002 to October 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Entitlement to a compensable rating for service-connected migraine headaches The Veteran seeks a compensable rating for his migraines. The Veteran contends that his migraines have made him call out of work or leave early about two to three times a month. The Veteran contends that his family life has suffered because he has missed his children’s birthday parties because the pain was debilitating. He states that people cannot rely on him. The applicable rating period is from August 16, 2013, one year prior to the receipt of the claim, through the present. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (discussing the one-year “look-back” period for non-initial increased rating claims). 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. 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 Board concludes that the Veteran’s migraines have occurred with less frequent attacks, less than 2 a month on average, during the appeal period, corresponding to the criteria for a noncompensable rating under DC 8100. In December 2014, the Veteran was afforded a VA examination for his migraines. The Veteran reported that he began having headaches around 2004, and that a flight surgeon suggested aspirin and coca cola for the caffeine. The Veteran has not seen a neurologist for headaches and has had no imaging studies. The Veteran reported that the pain is always on the right side, from the eye to the back of the head. It is sometimes sharp and sometimes pulsating. The Veteran reports taking a nap for an hour to an hour and a half and awakes without headaches. The examiner noted that the Veteran’s current symptoms manifest as pulsating or throbbing head pain, pain localized to one side of the head, pain on both sides of the head, pain worsening with physical activity, nausea, vomiting, and sensitivity to light. The typical head pain is located on both sides of the head and lasts less than a day. The examiner noted that the Veteran had characteristics prostrating attacks of migraine/non-migraine headache pain, but not prolonged attacks of pain productive of severe economic inadaptability. The Veteran estimates that he loses three days a year from work because of headaches. The examiner states that the Veteran’s history is consistent with migraines and that the headaches are prostrating but are relatively brief. In addition, the examiner states that there is a good chance that the migraines would respond to migraine specific medication if taken at the first sign of a headache. In April 2017, the Veteran submitted a statement in support of his claim indicating that his migraines have made him call out of work or leave early about two to three times a month, and he has missed birthdays with his children, and people cannot depend on him. In July 2020, the Veteran was afforded a VA examination for his migraines. The examiner reviewed the Veteran’s medical history including the Veteran’s 2014 headache diary, and noted that if the Veteran stated, “have to sleep” that the examiner interpreted the Veteran’s statement as the Veteran reporting that meant he had a “prostrating headache episode.” The examiner noted that the Veteran’s current symptoms manifest as pulsating or throbbing head pain, pain localized to one side of the head, pain on both sides of the head, pain worsening with physical activity, nausea, vomiting, and sensitivity to light. The typical head pain is located on both sides of the head and lasts less than a day. The examiner noted that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner indicated that while the Veteran has reported calling out or leaving work early 2-3 times per month there is no evidence in the Veteran’s current medical records. The examiner also noted that there is no evidence in the Veteran’s medical records that he has ever been evaluated by a neurologist for his migraines. There is no evidence in the Veteran’s medical records that he has “sought a medical evaluation for his migraine headache condition nor has he ever been prescribed prophylaxis therapy (for the prevention of onset of migraine headache) or abortive therapy (for immediate cessation of the symptoms of migraine headache).” The examiner acknowledged that the Veteran is competent to report factual matters, that the Veteran has first-hand knowledge about, including any observable symptomatology. However, the examiner states that, Based on the available medical evidence and specifically, the lack of evidence attesting to the failure of either prophylactic and/or abortive therapy for migraine headaches, this examiner cannot conclude that the veteran's description of episodes "prostrating headaches" described in the nine month headache diary of 2014, are still present today, are evident today or can be classified as "prostrating headaches." Without evidence of a demonstrated failure to the aforementioned prophylactic and/or abortive therapy for migraine headaches, this examiner cannot conclude on the frequency or characteristics of any prostrating attacks of migraine. The Board also acknowledges that the Veteran is competent to report symptoms such as headache pain, he has not described migraines or headaches of sufficient severity and frequency to warrant an increased evaluation in this matter. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). There is no evidence in the record that the Veteran received any treatment for his migraine or headaches. Moreover, the VA examination reports do not indicate or otherwise suggest that the Veteran's migraine and/or headaches result in extreme exhaustion or powerlessness, or otherwise more nearly approximate characteristic prostrating attacks, as required for a compensable rating under Diagnostic Code 8100. Considering all relevant evidence of record, the Board finds that the December 2014 and July 2020 VA examinations are the most probative evidence. Both examiners noted that the Veteran has not received an evaluation from a neurologist and that the Veteran has not received treatment for his migraines of any kind during the appeal period. Both examiners also stated that the Veteran’s migraines would likely respond to a migraine specific medication taken at the first sign of a headache. The Board acknowledges that in Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that the Board may not consider the ameliorative effect of medication where the diagnostic code (DC) does not specifically outline use of medication in the criteria. In other words, if the DC under which the Veteran is evaluated “does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication” when assigning an evaluation. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Diagnostic Code 8100 does not specifically outline the use of medication in the criteria. However, in this case the Veteran is not taking migraine specific medication, so the Board does not need to discount it. Instead, the December 2014 and July 2020 examiners are suggesting that the fact that the Veteran does not require migraine specific medication suggests that the Veteran’s migraines are not as severe as the Veteran contends. The Board finds the December 2014 and July 2020 VA examiner’s opinions to be highly probative, because they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board concludes that the Veteran’s migraine headaches occurred with less frequent attacks than an average of 2 a month, and less severity throughout the appeal period, corresponding to the criteria for a noncompensable rating under DC 8100. A compensable rating under DC 8100 is not warranted unless there are migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. As stated by the July 2020 examiner, the Veteran did not need migraine specific medication to prevent the migraines, and he did not need migraine specific medication to treat a headache. The examiner determined that the Veteran’s headaches were not as severe as the Veteran reported. The Board also notes that, the Veteran’s April 2017 statement was also considered when he stated that he called out of work or left early 2 to 3 times per month. The July 2020 examiner stated that there is no evidence in the Veteran’s current medical records that indicated that he called out due to migraines or a headache condition. In addition, there is no evidence that the Veteran has received any treatment at all during the appeal period for his migraine or headache condition. (Continued on the next page)   Thus, the Board concludes that the Veteran’s migraines did not occur with characteristic prostrating attacks averaging one in 2 months over the last several months at any time during the appeal period. A compensable rating under DC 8100 is not warranted. In reaching this conclusion, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claim, the doctrine does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.