Citation Nr: 21015993 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-02 838 DATE: March 19, 2021 ORDER Entitlement to an initial rating of 30 percent, but no higher, for migraine headaches is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran experiences migraines with characteristic prostrating attacks occurring on average once a month over the last several months; the preponderance of the evidence is against finding that his migraines manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial 30 percent rating, but no higher, for migraines have 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 served on active duty from June 1986 to April 1996. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that additional VA treatment records were received following the last adjudication by the RO in the June 2020 supplemental statement of the case (SSOC). The Board has reviewed these records and finds that they are not pertinent to the issue of an increased rating for migraines addressed in the decision below. Therefore, waiver is not necessary, and the Board will proceed with adjudication of the issue on appeal. Additionally, after the RO’s last adjudication in June 2020, the Veteran submitted a medical opinion discussing the severity of his migraine headaches. However, as the Veteran’s substantive appeal was received in December 2014, which is after February 2, 2013, an automatic waiver of RO consideration of the evidence submitted by the Veteran is presumed, and the Board may proceed with adjudication. This matter was previously remanded for additional development in a March 2019 Board decision. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998)(holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to an initial rating in excess of 10 percent for migraine headaches Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, 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. The Veterans headaches are rated under Diagnostic Code 8100. Under this Diagnostic Code, a 10 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraines with 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. In nonmedical terms, prostrating is defined as lying flat or at full length, to reduce to physical weakness or exhaustion, or to reduce to helplessness. 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). This appeal arises from the original assignment of a disability evaluation following an award of service connection, thus the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Turning to the evidence of record, in an October 2009 statement the Veteran reported that he suffered from daily headaches behind his left eye which caused difficulty reading and impeded his employment because he was unable to read the mail at the post office. See October 2009 statement in support of claim. During a December 2009 VA eye examination, the Veteran reported headaches with pain behind his left eye which can last a couple of hours to all day. He reported that if he rests, the headache and pain is relieved. The Veteran did not correlate the headaches with any associated trigger factors but reported that his headache is worse after being at work due to prolonged time near bright lights. The Veteran reported that he was employed full time as a postal worker and had lost zero days from work during the last twelve-month period due to his headaches. The examiner noted that there were significant effects on his usual occupation as the headaches resulted in vision difficulty. In May 2011, the Veteran was afforded a VA examination. The examiner noted weekly migraine attacks that were not prostrating and noted that ordinary activity was possible. The usual duration of the Veteran’s headaches was hours, and the effect on his usual occupation and resulting work problems were pain and photophobia. The Veteran was currently employed as a full-time mail processing clerk at the post office and reported zero time lost from work during the past twelve months. Outpatient treatment records from the Traverse City VA clinic contain an October 2011 entry where the Veteran requested that the physician fill out FMLA paperwork because he claimed he gets migraines six to seven times per month that can last all day. In November 2011, the Veteran reported that since the medication, he is still getting three migraines per month but noted a slight improvement. In April 2012, the Veteran reported continued migraine headaches about three to five times per month with less severity. In July 2012, the Veteran reported an increase in migraines up to three times a week. In an August 2012 statement from the Veteran, he reported that when a migraine occurs while on the job, he immediately leaves work to return home to lie down in the dark until the pain subsides. He reported that he suffers from migraines three to four times per week, noting that he experiences light sensitivity and nausea. In an August 2012 statement from the Veteran’s wife, she stated that there are probably only a handful of days that go by when the Veteran does not complain of a headache. She reported that they keep blankets over the windows and basically live in dim light because the sunlight triggers a migraine. His wife reported that he has missed a lot of work because of the debilitating headaches. An August 2012 statement from the Veteran’s work supervisor noted that he has missed at least one day a month except for one month for FMLA. An August 2012 statement from the Veteran’s coworker, J.T., noted that he has worked with him continuously for the last two to three years and has seen him affected with migraines on many occasions. He estimated that the Veteran gets them two to four times a month and calls in sick because of his headaches. He noted that because of the sick policies that are in place, the Veteran should have called in on many occasions but was not able to do so. An August 2012 statement from the Veteran’s union steward, D.H., reported that she had worked with him for about eight years and noticed in the past few years that he had problems with severe headaches. She noted that many times he had to go home early or has not been able to come into work at all. A November 2014 progress note from C.R., M.D., noted that the Veteran continues to experience between one and five migraine headaches per week. The Veteran agreed that the erratic sleep schedule likely further contributed to his headache frequency. Dr. R. assessed the Veteran with migraines noting that the headaches continued to occur at a relatively high frequency. In an outpatient treatment note dated in June 2015, the Veteran reported three migraines per week, with minimal vision changes when they occur. In August 2015, the Veteran reported that his migraines continue about three to five times per month. A November 2016 progress note from Munson Healthcare Family Practice, assessed the Veteran’s migraines as being without aura (sensory disturbances such as sensitivity to light and sound) and without status migrainosus (migraines that last a long time—three days or longer). Outpatient treatment records dated in 2019 contain several entries related to the Veteran’s migraines. In a January 2019 entry, the Veteran reported that he has migraines three to five times weekly, noting that they hurt but he “does not let it take me down.” A March 2019 entry reflected headaches three to five times a week that are associated with sensitivity to light and sound and occasional nausea. In April 2019, the Veteran reported headaches three to five times per week that will last four to five hours. He noted that he may take an aspirin, otherwise “he just bolds through them.” He reports that he is not able to do things outside with the headaches and reported that he continues to work because his family depends on him. He noted that certain sounds bother him and reported that he gets nauseated with the headaches. In May 2019, the Veteran telephoned the triage nurse, noting that he had a mild headache and stated that it felt like his normal migraine headache that he gets. The nurse recommended he seek evaluation at a local ER because of his history of a cerebral vascular accident. In a July 2019 neurology note, the Veteran reported three to five headaches per week and stated that he felt like there was nothing he could do for them because of his previous stroke. He noted that he uses the Cefaly (an FDA approved over the counter device for treating migraines) but stated that when he uses it, he becomes tired and will fall asleep within a half hour. He stated that he does not use it during an acute headache because he knows it will make him tired and he does not want to miss work. He again reported that he usually just “bowls through the headaches.” In October 2019, the Veteran was afforded a VA examination. At this examination, the Veteran reported that he currently experiences headaches three to five times per week that last up to 24 hours. He reported that the headaches were not prostrating. The Veteran described the pain as sharp and throbbing and stated that his headaches worsen with loud noise and bright lights and are better if he can get some sleep. He noted that during his headaches he sometimes has eye twitching and rapid eye movements. On examination, the examiner reported that the symptoms of the Veteran’s headaches included pulsating or throbbing head pain with pain localized to one side of the head, sensitivity to light and sound, and changes in vision. The duration of the Veteran’s headache pain was less than one day. The examiner reported that the Veteran did not have characteristic prostrating attacks of migraine headache pain. He noted that the Veteran’s headaches impacted his ability to work, explaining that he may need workplace accommodation to void loud noises and bright lights when he is having a migraine. In March 2021, the Veteran submitted a telemedicine physical exam by S.V., a certified physician assistant. S.V. assessed the Veteran with migraine without aura. At this examination, the Veteran reported that he suffered from two to four headaches a month, with headaches lasting several hours per episode. He described his headaches as a pulsating pain and reported phonophobia and photophobia. The Veteran stated that he experiences prostrating migraine attacks that require him to lay down in a dark room approximately two to four times a month. The Veteran reported that the frequency and severity of his headaches make it difficult for him to perform his job duties. He explained that his headaches force him to take multiple breaks during the workday and stated that his symptoms force him to come into work late or leave early two to three times a month; and to call out of work sick one to two times a month which has led to the Veteran having to file for FMLA. This examiner also noted that she had never seen or treated the Veteran in a clinical or in-person setting and stated that she had no incentive to produce negative or positive results. Analysis The Veteran contends that he is entitled to a disability rating in excess of 10 percent for migraine headaches. The Board concludes that the evidence is at least in relative equipoise regarding whether the Veteran experiences migraines with characteristic “prostrating attacks” occurring on average once a month over the last several months throughout the appeal period, corresponding to the criteria for a 30 percent rating under DC 8100. In this case, the Veteran has reported experiencing migraine attacks that require him to lay down in a dark room approximately two to four times a month. See March 2021 telemedicine exam by S.V., PA-C. He has also stated that when he has a migraine at work, he immediately leaves to return home to lie down in the dark until the pain subsides. See Veteran’s August 2012 statement. As stated above, “prostrating” can be defined as “extreme exhaustion, powerlessness.” The Board finds that headaches that require the Veteran to lay down in a dark room and rest can reasonably be construed as “prostrating.” Moreover, according to the Veteran, these headaches occur two to four times a month, which is more frequent than what is contemplated under the rating criteria for a 30 percent rating. Further, the Veteran, his wife, coworker and supervisor have reported that he was forced to miss work on certain days or come in late or leave early because of debilitating headaches, which shows that the Veteran does experience “prostrating” attacks in certain instances. See August 2012 lay statements. The Board finds that the Veteran is competent to report events and his readily observable symptoms such as the frequency, duration and severity of his headaches and the Board finds his account credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges that the Veteran denied experiencing prostrating attacks during May 2011 and October 2019 VA examinations; however, as just noted, the Veteran has also described occasions where his headaches force him to lay down in a dark room, which the Board finds can reasonably be equated with a “prostrating” attack. Consequently, the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. Thus, the Board finds that a 30 percent rating for migraines is warranted. However, 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. After examining the relevant evidence throughout the appeal period, the Board finds that the severity of the Veteran’s migraines cannot be described as “completely prostrating” which is required to obtain a 50 percent rating. As noted above, the phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Johnson, 30 Vet. App. at 253. Here, the record reflects that the severity of the Veteran’s migraines has waxed and waned, with some occasions of prostrating attacks and other instances when the Veteran is not rendered powerless by his migraines and is able to continue working. The Veteran himself has described varying degrees of severity for his migraines. In August 2012, the Veteran reported that when he has a migraine he has to leave work immediately to return home to lie down in the dark until the pain subsides; and in March 2021, he also stated that his headaches required him to lay down in a dark room two to four times per month. However, the Veteran has also described occasions where he keeps working despite his migraines. For example, in January 2019, the Veteran reported that although he has migraines three to five times weekly and they hurt, he stated that he “does not let it take me down.” In April 2019, the Veteran reported headaches three to five times per week, noting that he may take an aspirin, otherwise “he just bolds through them.” In May 2019, the Veteran telephoned a triage nurse, noting that he had a mild headache and stated that it felt like his normal migraine headache that he gets. Finally, in a July 2019 neurology consult, the Veteran stated that he used a nonprescription device for treating migraines but noted that using it makes him tired and he will fall asleep within a half hour of using it. Because of this, the Veteran reported that he has not used it during an acute headache as he does not want to miss work. At this 2019 consult, he again reported that he usually just “bowls through the headaches.” See Outpatient treatment records from the Aleda Lutz VA medical center (VAMC) Saginaw division, and Grand Traverse VA Clinic dated in 2019. The Board finds that the Veteran’s statements show that his migraine headaches vary in intensity, sometimes rendering him completely powerless, whereas, other times, despite having an acute headache, he can work through it. On one occasion, the Veteran has even described the severity of his migraine as “mild.” See May 2019 entry in the outpatient treatment records. Further, in May 2011 and October 2019 VA examinations, the Veteran and the examiner did not report prostrating attacks, with the May 2011 examiner noting that ordinary activity was possible. In sum, the Board concludes that the Veteran’s migraines cannot reasonably be construed as “completely prostrating.” Although the Veteran has described different frequencies for his headaches ranging from two to four times per month to three to five times per week; the salient point to make is that the preponderance of the evidence is against finding that the intensity of his headaches are very frequently “completely prostrating.” Finally, the medical evidence and lay statements considered together do not reflect that the Veteran’s migraines are productive of “severe economic inadaptability.” In this case, the May 2011 VA examiner opined that the effects on his occupation were problems with pain and photophobia and the October 2019 VA examiner explained that the Veteran may need workplace accommodation to void loud noises and bright lights when he is having a migraine. As such, although the Veteran’s migraines impact his work and require accomodation, neither examiner reported that the Veteran’s migraines were capable of producing or productive of “severe economic inadaptability.” Further, in 2009 and 2011, the Veteran reported that he was employed full time as a postal worker and had lost zero days from work during the last twelve-month period due to his headaches. See December 2009 and May 2011 VA examinations. The Board has also considered the Veteran’s competent, credible and probative statement that his headaches force him to take multiple breaks during the work day and that he needs to call out of work sick one to two days per month due to his headaches; nevertheless, the Board finds that after conducting a longitudinal analysis of the probative medical and lay evidence, the preponderance of the evidence of record does not reflect migraines capable of producing or productive of “severe economic inadaptability.” Thus, the Board concludes that the preponderance of the evidence is against finding that the Veteran experiences migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. After considering all the relevant evidence of record, the Board finds that the evidence is at least evenly balanced as to whether the Veteran is entitled to a 30 percent disability rating for migraine headaches, but that a higher 50 percent rating is not warranted at any point during the appeal period. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.