Citation Nr: 21015659 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-61 345 DATE: March 18, 2021 ORDER Entitlement to an increased rating of 50 percent for service-connected migraine headaches is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his migraine symptoms more nearly approximate very frequent, completely prostrating, and prolonged attacks that are productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for the maximum schedular 50 percent rating for service-connected migraines are met for the entire appeal period. 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 had active service from December 1991 to February 1996, and from January 2000 to June 2011. In a January 2018 rating decision, the evaluation for mild traumatic brain injury with migraine headaches was increased from 10 percent to 30 percent effective March 17, 2017. A claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher rating for mild traumatic brain injury with migraine headaches remains on appeal. In August 2019, the Board of Veterans’ Appeals (Board) denied a rating in excess of 30 percent for migraine headaches, assigned a separate 10 percent rating for traumatic brain injury, and granted an earlier effective date for the 30 percent rating. The Veteran appealed the August 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), vacating the Board’s August 2019 decision as it pertained to the issues of entitlement to a rating in excess of 30 percent for migraine headaches. The Court noted that the favorable part of the Board’s decision that granted the Veteran a separate rating of 10 percent for traumatic brain injury throughout the appeal period would not be disturbed. In addition, the Court confirmed that the Veteran did not challenge the Board’s denial of entitlement to an earlier effective date prior to May 6, 2016 for the assigned 30 percent rating for migraine headaches. Thus, the Court remanded the appeal to the Board for readjudication, concerning only the issue of a rating in excess of 30 percent for migraine headaches, consistent with the JMPR. Increased Ratings – Migraine Headaches Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Here, as explained below, the uniform 50 percent rating is proper. Pursuant to Diagnostic Code (DC) 8100, the Veteran is in receipt of a 30 percent rating for migraine headaches. He contends that a higher rating is warranted. Under DC 8100, a 30 percent evaluation is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation is warranted for very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 50 percent evaluation is the maximum available schedular evaluation for headaches. These criteria are successive; thus, each criterion for a higher rating must be met in order to warrant such a rating. Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). In Pierce v. Principi, 19 Vet. App. 400, 445 (2004), the Court noted that VA conceded that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or being “capable of producing” severe economic inadaptability. Neither the rating criteria nor the Court has defined the term “prostrating.” According to Webster’s New World Dictionary of American English, Third College Edition 1080 (1986), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1367 (28th ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” “Inadaptability” is not defined in DC 8100 either, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. See Pierce, 18 Vet. App. at 446 (2004). Further, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. The Veteran has constantly and continuously indicated that his migraine headaches have worsened and become more frequent. A VA neurology outpatient clinic note, dated in May 6, 2016, indicates that the Veteran has a history of mild TBI which is complicated by migraine headaches. The Veteran was noted as having migraines three to four times per month, which he treated with naproxen. On VA headaches examination in August 2016, the Veteran was noted as having migraines, including migraine variants since 2009. During the examination, the Veteran stated that he had constant pressure headaches of 5/10 pain. The Veteran explained that he also got more severe migraines at irregular intervals, which he rated at 10/10 for pain. He stated that he had four migraines in the last month that lasted three to four hours. He described the migraines as bilateral, with throbbing 10/10 pain, in the temporal regions. The Veteran denied nausea and vomiting with his migraines, but he reported feeling off balance and that he saw a blinking light on the left side. He also reported that he took sumatriptan for the migraines, which he felt worked within 30 minutes and took away half of the pain. The Veteran stated that he took a day off from work every six months due to migraines, and that he took five days off, in total, the previous year. The examiner noted that the Veteran experienced prostrating attacks of migraine and non-migraine headache pain, with less frequent attacks and a sensitivity to sound. The examiner concluded that the Veteran’s headache condition did impact his ability to work and was more likely than not due to analgesic overuse and excessive caffeine consumption. On a Family and Medical Leave Act, U.S. Department of Labor Form, dated in August 2016, the Veteran self-reported experiencing migraines two times per month, lasting eight hours, that may affect his ability to work. In a March 2017 neurology outpatient clinic note, the Veteran was noted as having migraines two to three times per month. The Veteran also reported experiencing increased migraine frequency when suffering from severe anxiety. He indicated that he took sumatriptan to treat the migraines but reported that it was not as effective as it was in the past. At the time of that evaluation, the Veteran indicated that he worked eight hours a day. During a December 2017 VA examination for headaches, the Veteran was noted as having pulsating or throbbing bilateral head pain that worsened with physical activity, lasting less than one day. As a result, he experienced nausea, vomiting, sensitivity to sound, and changes in vision. To treat the symptoms, he took sumatriptan succinate and ibuprofen. The examiner noted that the Veteran experienced prostrating attacks of migraine and non-migraine pain once a month and that the prostrating attacks did not result in severe economic inadaptability. The examiner concluded that the Veteran’s headaches impacted the ability to work. Specifically, the examiner noted that normal activities such as working are not possible when the Veteran has prostrating headaches. He further remarked that the Veteran’s prostrating headaches occur about two to three times a month. In an August 2018 neurology outpatient clinic note, it was indicated that the Veteran was last seen in February 2018 for worsening headaches. The Veteran reported that he had been under profound stress due to recent life events, which caused him to have migraine headaches 10 to 15 times in the previous month. He also reported that he was doing terribly, with daily headaches occurring about four to five times a week. In a February 2019 optometry outpatient note, it was noted that the Veteran experienced longstanding migraine headaches that resulted in mild light sensitivity. In an April 2019 neurology outpatient note, the Veteran was described as having a history of mild TBI that was complicated by migraine headaches. It was noted that the Veteran continued to have intermittent migraine headaches approximately four to five times a month, for which he used Cefaly to abort. In support of the claim, the Veteran has provided several self-written statements that describe his condition and the effects it has had on him. He also expressed his disagreements with previous rating decisions. Based on the evidence above, and in resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran suffers from very frequent, completely prostrating, and prolonged migraine headache attacks productive of severe economic inadaptability, to warrant a 50 percent disability rating. Throughout the Veteran’s VA treatment records, there are notes of his consistent and frequent reporting of severe headache pains that are completely prostrating, occurring on an average of two to three times per month. The Veteran has also given credible reports of taking time off from work due to the prostrating migraine attacks. In addition, the evidence suggests that the headache pains have continued to increase in severity over the years. This corroborates the Veteran’s reports of a worsening headache disability. Significantly, the December 2017 VA examiner remarked that the Veteran was unable to engage in normal activities, including working, whenever he experienced prostrating headaches, which occur about two to three times a month. As such, the Board finds that the maximum schedular rating of 50 percent is warranted for the Veteran’s migraine headaches. Although the December 2017 examiner stated that the Veteran’s headache attacks did not reach the level of severe economic inadaptability, the Board notes that determining whether the Veteran’s symptoms meet the criteria is a legal question and not a medical one. 38 C.F.R. § 3.100 (a) (delegating the Secretary’s authority “to make findings and decisions as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”). Thus, VA adjudicators, including the Board, are responsible for making this ultimate determination. In addition, VA examiners and medical professionals have noted that the Veteran is taking medication that helps, in part, to alleviate his migraines and related symptoms. The Board notes, however, that DC 8100 does not mention medication for migraines. Moreover, “the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Thus, the Board cannot consider the ameliorative effects of the Veteran’s headache medication in its decision. As previously stated, the Veteran has described very frequent, long-lasting, and severe migraine headaches. His headaches have resulted in nausea, vomiting, sensitivity to sound, and changes in vision. The Veteran has been prescribed various medications since service, but it appears that those medications do very little to prevent the headache pains. The record also shows the Veteran’s migraine episodes to be prolonged and productive of severe economic inadaptability as that term has been defined by the Court. As noted, the criteria for a 50 percent rating does not require migraine headaches that actually produce severe economic inadaptability, but rather migraine headaches that are capable of producing severe economic inadaptability. See Pierce, 18 Vet. App. at 446 (“severe economic inadaptability” is not equivalent to unemployability and can be shown if headaches are capable of producing severe economic inadaptability). Here, the Veteran’s migraine headaches have shown to be significant impediments to his employment, considering that he has reported missing days from work due to prostrating headaches. Further, the December 2017 examiner noted that the Veteran’s prostrating and prolonged attacks significantly impact the ability to work. Thus, the Board finds that the Veteran’s migraine headache symptoms are capable of producing severe economic inadaptability. For the foregoing reasons, the Board concludes that the Veteran’s disability picture and symptomatology, as shown by the medical and lay evidence, meet the criteria for a 50 percent disability rating during the appeal period. Therefore, a 50 percent rating is warranted for the Veteran’s migraine headaches. Other Considerations Extraschedular consideration is not warranted in this case. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran’s headaches are manifested by signs and symptoms of pain, nausea, and “prostrating attacks” which impair his day-to-day functioning. These signs and symptoms, and their resulting functional impairments, are contemplated by the rating schedule. DC 8100 provides disability ratings contemplated along a broad and non-exclusive continuum expressed with generalized terms, such as “prostrating attacks” and “severe economic inadaptability.” The impairments in day-to-day functioning experienced by the Veteran are manifestations of the symptoms listed in the rating criteria and not separate symptoms. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017). Finally, although the December 2017 VA examiner indicated that migraine headaches impact the Veteran’s ability to work, there is no evidence that the Veteran is either unemployed or unable to work, and the issue of entitlement to a total disability based on individual unemployability due to service-connected disability (TDIU) has therefore not been raised by the evidence of record. Significantly, on a December 2019 VA examination report for post-traumatic stress disorder (PTSD), the Veteran reported that he currently works full-time as a contract specialist for a government agency and that he has been in that job for three years. He did not indicate that he experienced significant problems on the job due to his migraine headaches. The Veteran also reported that he is currently pursuing an undergraduate degree. The VA clinical psychologist, who interviewed the Veteran, noted that, despite struggles with PTSD and headaches, he is able to remain employed on a full-time basis, is pursuing an undergraduate degree, and is hopeful about the future. Consequently, the Board concludes that the Veteran meets the criteria for a 50 percent rating for migraine headaches; extraschedular consideration is not warranted. Thus, the Veteran’s claim of entitlement to the maximum schedular 50 percent rating under DC 8100 for migraine headaches is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.