Citation Nr: 21016005 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-12 275 DATE: March 19, 2021 ORDER Prior to September 3, 2013, a higher initial 30 percent rating, but no greater, for chronic headaches is granted. From September 3, 2013 to the present, a higher initial 50 percent rating, but no greater, for chronic headaches is granted. FINDINGS OF FACT 1. From July 26, 2010 to September 3, 2013, the Veteran’s service-connected chronic headaches are manifested by characteristic prostrating attacks occurring on an average once a month over the last several months during that timeframe, with or without the Veteran taking daily medications to control his headaches. 2. From September 3, 2013 to the present, the Veteran’s service-connected chronic headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, with or without the Veteran taking daily medications to control his headaches. CONCLUSIONS OF LAW 1. From July 26, 2010 to September 3, 2013, the criteria have been met for a higher initial rating of 30 percent, but no greater, for chronic headaches. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.6, 4.10, 4.20, 4.27, 4.124a, Diagnostic Code 8199-8100 (2020). 2. From September 3, 2013 to the present, the criteria have been met for the maximum 50 percent rating for chronic headaches. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.6, 4.10, 4.20, 4.27, 4.124a, Diagnostic Code 8199-8100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1979 to March 1986 in the U.S. Marine Corps. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions dated in October 2011, April 2014, and November 2020, issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Multiple rating decisions are on appeal because the ratings for the Veteran’s chronic headaches disability have been staged by the AOJ for different periods of time. That is, the Veteran was assigned 10 percent and 30 percent ratings at different stages during the appeal for his chronic headaches. The AOJ determined that staged ratings are appropriate for different time periods during the pendency of the appeal. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007) (“staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings” under the applicable diagnostic codes); Fenderson v. West, 12 Vet. App. 119 (1999) (when an initial rating is on appeal, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings.). Presumably, the Veteran has continued to disagree with all ratings assigned. See Breniser v. Shinseki, 25 Vet. App. 64, 79 (2011) (citing AB v. Brown, 6 Vet. App. 35, 38 (1993) (a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). In January 2017, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In February 2018, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board’s February 2018 remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the same February 2018 Board decision, the Board also remanded the separate issue of service connection for PTSD. However, after performing the requested development on remand, the AOJ granted service connection for PTSD in a recent November 2020 rating decision. Since the Veteran has not appealed either the initial rating or effective date assigned for his PTSD disability, that issue is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (the Veteran must separately appeal these downstream issues). Finally, in an April 2014 statement, the Veteran explicitly indicated that he did not wish to pursue the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Thus, the Board will not address this issue. I. VA’s Duty to Notify and Assist VA’s duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by VA letters sent to Veteran, dated in December 2010, November 2013, September 2014, May 2018, September 2019, December 2019, and December 2020. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2020). These letters advised the Veteran of the information and evidence necessary to substantiate his increased rating claim. In any event, in the decision below, on and after September 3, 2013, the Board has granted the maximum 50 percent rating available for his headaches disability during the second staged rating period on appeal. Therefore, the benefits sought on appeal have been granted in full for the increased rating issue for headaches during this particular timeframe. Accordingly, regardless of whether the notice and assistance requirements have been met with regard to the increased rating issue, no harm or prejudice to the Veteran has resulted for this particular staged rating period. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. In any event, with regard to each of increased rating issue on appeal, subsequent to the most recent ameliorative February 2018 Board remand, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that the Board has an obligation to read filings in a liberal manner, but that obligation 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). Moreover, the Board in the present decision has granted favorable increased ratings for both issues on appeal, wherever possible based on a careful consideration of the clinical and lay evidence of record. II. Increased Rating (IR) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 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 for that rating. 38 C.F.R. § 4.7. The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). However, the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Staged ratings are appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant time period for consideration in a claim for an initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). That is to say, the Board must consider whether there have been times since the effective date of his award when his chronic headaches have been more severe than at others for the time period from July 26, 2010 (the day his initial rating claim was filed) to the present. Id. However, the Board is cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”). In Schafrath v. Derwinski, the CAVC explained, “These requirements for evaluation of the complete medical history of the claimant’s condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition.” 1 Vet. App. 589, 594 (1991). Therefore, the Board has also considered and reviewed the Veteran’s entire history for his chronic headaches, when assigning separate disability evaluations in the present case. 38 C.F.R. § 4.1. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A. Headaches at 10 Percent – BEFORE September 3, 2013 The Veteran’s chronic headaches associated with an in-service traumatic brain injury (TBI) is rated by analogy under Diagnostic Code 8199-8100 (migraine headaches). 38 C.F.R. § 4.124a (2020). When an unlisted condition is encountered, (such as headaches associated with a TBI), it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Federal Circuit has expressly adopted an earlier CAVC holding that unlisted conditions may be rated by analogy to diagnostic codes that may not describe the unlisted disability but address disabilities that may be productive of similar symptoms. Scott v. Wilkie, 920 F.3d 1375, 1379 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 337 (2015)). According to the policy in the Rating Schedule, when a disability is not specifically listed, the Diagnostic Code will be “built up,” meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be “99.” 38 C.F.R. § 4.27. For example, Diagnostic Code 8199 is used to identify unlisted “miscellaneous” neurological disabilities. The Veteran’s chronic headaches ratings have been staged by the AOJ for separate periods of time. From July 26, 2010 to September 3, 2013, the Veteran’s chronic headaches are rated as 10 percent disabling under Diagnostic Code 8199-8100. From September 3, 2013 to the present, the Veteran’s chronic headaches are rated as 30 percent disabling under Diagnostic Code 8199-8100. From July 26, 2010 to September 3, 2013, in denying an initial rating above 10 percent for chronic headaches, the AOJ found that the Veteran’s chronic headaches exhibited characteristic prostrating attacks averaging one in two months over the last several months. A higher evaluation of 30 percent was denied because the chronic headaches disability was not shown to cause characteristic prostrating attacks occurring on an average once a month over the last several months during that timeframe. See Diagnostic Code 8199-8100, 38 C.F.R. § 4.124a (2020). The Veteran filed his informal service connection claim for his chronic headaches on July 26, 2010. The Veteran believes that his chronic headaches are much worse than the 10 percent and 30 percent ratings assigned both prior to and after September 3, 2013. The Veteran asserts that he has chronic headaches as a residual of the in-service TBI during a motor vehicle accident (MVA). He has been given various prescription and non-prescription medications for his headaches. The Veteran testified at the January 2017 videoconference hearing that his headaches start out like a dull pain, then over time become so intense he has to lay down and his mobility is limited. These headaches occur three times per week or four times per week if he is sick. When they occur, his headaches can be “debilitating,” in that he cannot do anything for the rest of the day. His headaches can last anywhere from 45 minutes up to a whole day. He takes a prescription painkiller (Vicodin) as needed for his headaches - usually once every six hours, every day. During his headaches, he is also sensitive to light and noise. He can experience dizziness, equilibrium problems, and balance issues. During some, but not all of his headaches, he also reports nausea and seeing spots. The nausea happens more frequently than the spots. The Veteran added that his headaches restrict his functional ability and are thus disabling. See July 26, 2010 informal claim for service connection; December 2010 Veteran statement; December 2011 informal NOD; and January 2017 videoconference hearing. 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 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 Diagnostic Code 8100. See 38 C.F.R. § 4.124a (2020). The rating criteria for Diagnostic Code 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 Federal Circuit Court has held that if disability rating criteria are written in the conjunctive, as they are here, “a Veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation” and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). 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 the maximum 50 percent rating contains several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” in the 50 percent rating criteria generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks in the 50 percent rating criteria must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). The Court in Johnson suggested that headaches “lasting for hours” are the equivalent of the term “prolonged.” Id. at 248. The term “severe” in the 50 percent rating criteria generally means “of a great degree” or “serious.” See Merriam-Webster’s Collegiate Dictionary, 1140 (11th ed. 2003). However, the Board is cognizant of the Court’s holding that what is classified as “severe” can be dependent on the diagnostic code used. See Breniser v. Shinseki, 25 Vet. App. 64, 76-77 (2011). 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 Diagnostic Code 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). With regard to lay evidence, the Court has held that lay evidence may be probative of the frequency, prolongation, and severity of headaches. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Frequency of migraine headache attacks or episodes is a factual determination. The VA must analyze all medical, lay, and other evidence in the record bearing on that question. And the absence of medical treatment is not necessarily probative on the question of headache frequency as a claimant may not seek treatment for headaches during every episode. Initially, the Board sees the Court recently held that Diagnostic Code 8100 for migraine headaches contemplates “all symptoms” experienced due to migraine headache attacks, such as various non-headache symptoms – dizziness, nausea, vertigo, mood swings, sleep impairment, anxiety, isolation, and depression. In short, symptoms other than headaches are adequately contemplated by the migraine headache rating criteria under Diagnostic Code 8100. VA must then rate these symptoms based on the frequency, duration, severity, and economic impact of the attacks under Diagnostic Code 8100. Holmes v. Wilkie, 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131 (Nov. 25, 2020). However, the Court in Holmes emphasized that nothing in its analysis of Diagnostic Code 8100 forecloses the possibility that a veteran’s migraines could require additional compensation through mechanisms such as secondary service connection, a TDIU, or even an extraschedular rating under 38 C.F.R. § 3.321(b), if there was an exceptional case with symptoms more severe, frequent, or long-lasting than what is contemplated by the rating criteria. Id. See also 38 C.F.R. §§ 3.310(a), 3.321, 4.16. In the instant case, the Veteran is already separately service-connected (at 0 percent) for non-headache residuals of his TBI under Diagnostic Code 8045 (residuals of a TBI). See 38 C.F.R. § 4.124a (2020). This was service-connected as dizziness / balance problems / vertigo / equilibrium problems. However, this separate 0 percent rating was not appealed to the Board. In any event, in determining the ratings below, the Board will consider the effects of other non-headache symptoms associated with his chronic headache attacks such as dizziness, nausea, seeing spots, and sensitivity to light and noise. Upon review, from July 26, 2010 to September 3, 2013, the evidence of record supports a higher initial 30 percent rating for service-connected chronic headaches under Diagnostic Code 8100. Specifically, when adjusting for the fact that in 2011 the Veteran began to take various medications (Fioricet with Naproxen) on a repeated basis to control his chronic headache attacks, the medical and lay evidence of record establishes headaches with “characteristic prostrating attacks” occurring on an average once a month over the last several months, thereby meeting the criteria for a higher 30 percent rating. See 38 C.F.R. § 4.124a. In making this determination that the Veteran is entitled to a higher 30 percent rating from July 26, 2010 to September 3, 2013 for his chronic headaches under Diagnostic Code 8100, the Board has considered the following evidence of record: In a May 1, 2010 VA emergency department note and addendum, the Veteran was treated for headaches and dizziness. This was “recurrent” with pain described in his left ear too. At that time, he took no medications for the pain. A May 7, 2010 VA primary care nurse practitioner outpatient note documented dizziness, left ear pain, and headaches. The pain was described as sharp and 8/10. The Veteran requested an off-work slip for his symptoms. The Veteran filed a July 26, 2010 informal claim for service connection for headaches, as chronic residuals of an in-service TBI that was incurred during a car accident. An October 2010 VA social work admission evaluation note mentioned headaches. In a December 2010 statement from the Veteran, he indicated he receives VA treatment for headaches with equilibrium and balance problems. At a March 2011 VA neurological examination, the Veteran reported sensory complaints in the form of localized headaches due to trauma, with “occasional” dizziness. The diagnosis was headaches of a focal nature, secondary to trauma during an active duty. However, the VA examiner surmised the Veteran’s headaches were “per se” non-disabling. At an April 2011 VA ear disease examination, the Veteran described a headache radiating from his left ear occurring two to three times per week. The assessment of the VA examiner was that the left ear issue is really a headache issue as his ears looked completely healthy without abnormality. At a July 2011 VA audiology consult, the Veteran reported dizziness “from time to time.” A July 2011 VA domiciliary note stated that ear pain was causing a headache. He was sent to the emergency room for his headache. An August 2011 VA primary care nurse practitioner outpatient note documented a “moderately severe” headache for the past couple of days. The diagnosis was a simple headache. The Veteran was prescribed Fioricet (a combination of acetaminophen, caffeine, and butalbital) 1-2 po TID prn for his headaches. VA prescription notes dated from August 2011 to March 2012 confirm he was prescribed Fioricet as needed for his headaches. In a December 2011 informal NOD, the Veteran reported headaches with a related dizziness and balance problem. The Veteran asserted his headaches restrict his functional ability and are thus disabling. In a January 2012 VA mental health nursing medication management note, the Veteran advised he had “worsened” migraine headaches and dizziness with a recent fall three days earlier. He was restarted on Fioricet for “worsening” migraine headaches. A February 2012 VA H&P note revealed complaints of chronic headaches that occur 1-2 times a week and seem to be more severe after watching TV for prolonged periods of time. He takes Fioricet 1-2 po TID prn which does succeed in relieving the headaches. A March 2012 VA primary care nurse practitioner outpatient note indicated that the Fioricet medication was no longer relieving his headaches. He asked for a different medication. His headaches occur on his forehead above the eyes “from time to time.” The assessment was “Headache-Fioricet not effective.” The plan was to replace Fioricet with Naproxen 500mg po BID prn for headaches. A June 2013 VA primary care nurse practitioner outpatient note reflected that the Veteran continues to experience headaches. But he refused any treatment for his headaches. In summary, although the evidence of record is at times inconsistent, the probative lay and medical evidence of evidence of record discussed above reflects headaches with characteristic prostrating attacks occurring on an average of at least once a month over the last several months for the time period from July 26, 2010 to September 3, 2013, meeting the criteria for a higher 30 percent rating during same. See 38 C.F.R. § 4.124a. However, from July 26, 2010 to September 3, 2013, the evidence of record does not warrant the maximum 50 percent rating under Diagnostic Code 8100. During this timeframe, the Veteran’s headaches are not characterized by very frequent “completely prostrating” and prolonged attacks productive of “severe” economic inadaptability, which is required for a 50 percent rating under Diagnostic Code 8100. See 38 C.F.R. § 4.124a. In this respect, from July 26, 2010 to September 3, 2013, although the Veteran’s reported headaches are “very frequent” in nature during various stretches, occurring more than once a month, the Board finds that the level of occupational impairment due to the Veteran’s headaches does not constitute “severe” economic inadaptability, which is required for a 50 percent rating under Diagnostic Code 8100. See 38 C.F.R. § 4.124a. In addition, it is not clear from the record that the Veteran’s reported headaches are “completely prostrating” or rendering the Veteran entirely powerless when they occurred from July 26, 2010 to September 3, 2013. Although the Veteran’s headaches do cause a degree of functional impairment (see, e.g., December 2011 informal NOD and May 7, 2010 VA primary care nurse practitioner outpatient note), there is no persuasive evidence of “severe” economic adaptability due to headaches from July 26, 2010 to September 3, 2013. Specifically, as to economic adaptability from July 26, 2010 to September 3, 2013, a July 2011 Social Security Administration (SSA) Disability Determination and Transmittal determined that the Veteran was disabled beginning March 2010 due to low back disc disease, psychiatric problems, and substance abuse. He stopped working in March 2010. He had worked from 1992 to 2010 as a forklift operator at an envelope company and as a general laborer at Federal Express. On his claim for SSA disability benefits he listed depression, insomnia, his back, leg problems, and dizziness as causes of his inability to work. The SSA did not conclude that headaches were a disabling condition for the Veteran. A May 2011 VA mental health domiciliary note apprised that the Veteran’s job ended in March 2010 due to substance use and psychiatric issues, with no mention of headaches. A March 2011 VA neurological examiner concluded that at that time the Veteran’s headaches were “per se non disabling.” This description of his headaches would not constitute “severe” economic inadaptability, which is required for a 50 percent rating under Diagnostic Code 8100. See 38 C.F.R. § 4.124a. There was also only one instance of the need for emergency room treatment for his headaches in May 2010 with a request for a sick slip for his job. And on various occasions the Veteran also denied current headaches when treated by VA doctors. See e.g., September 2010 VA primary care nurse practitioner outpatient note; January 2011 VA anesthesiology consult; March 2011 VA surgery outpatient H&P note; and September 2012 VA primary care nurse practitioner outpatient note. Once again, the rating criteria for Diagnostic Code 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 Federal Circuit Court has held that if disability rating criteria are written in the conjunctive, as they are here, “a Veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation” and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). In the present case, although there is some evidence of “very frequent” prostrating headaches, each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). In essence, absent a credible showing of “severe” economic inadaptability and headaches that are all also “completely prostrating” and prolonged, there is no basis to assign a rating higher than 30 percent under Diagnostic Code 8100 for the time period from July 26, 2010 to September 3, 2013. Accordingly, from July 26, 2010 to September 3, 2013, an initial 30 percent rating, but no greater, for the Veteran’s service-connected chronic headaches is granted. 38 C.F.R. § 4.3. For the chronic headaches appeal prior to September 3, 2013, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Moreover, the Veteran did not explain how the totality of his migraine symptoms would exceed the 30 percent schedular rating criteria contained in Diagnostic Code 8100. See Holmes v. Wilkie, 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131 (Nov. 25, 2020). B. Headaches at 30 Percent – AFTER September 3, 2013 From September 3, 2013 to the present, the Veteran’s chronic headaches are rated as 30 percent disabling by analogy under Diagnostic Code 8199-8100 (migraine headaches). 38 C.F.R. § 4.124a (2020). The Veteran believes his migraine headaches disability is worse than the 30 percent rating currently assigned from September 3, 2013 to the present. In January 2017, he testified that when they occur, his headaches can be “debilitating,” in that he cannot do anything for the rest of the day. His headaches can last anywhere from 45 minutes up to a whole day. He experiences nausea and has sensitivity to noise and light during these attacks. The headache pain is throbbing or pulsating or pounding in nature. The record confirms he has taken various medications to control his headaches. From September 3, 2013 to the present, in denying an initial rating above 30 percent for chronic headaches, the AOJ found that the Veteran’s chronic headaches exhibited characteristic prostrating attacks occurring on an average once a month over the last several months during that timeframe. A higher evaluation of 50 percent was denied because the chronic headaches disability was not shown to cause very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See Diagnostic Code 8199-8100, 38 C.F.R. § 4.124a (2020). Upon review, from September 3, 2013 to the present, the evidence of record supports an increased 50 percent rating for service-connected migraine headaches under Diagnostic Code 8100. The claim is granted. The is the maximum rating available for headaches under the applicable diagnostic code. Specifically, when adjusting for the fact that for most of the time period in question, the Veteran took various medications on a daily basis to control his migraine headache attacks, the medical and lay evidence of record establishes chronic headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, thereby meeting the criteria for a 50 percent rating. See 38 C.F.R. § 4.124a. His headaches disability worsened after September 2013. Moreover, in making this favorable determination, under Diagnostic Code 8100, the Board has considered the functional impact of “all symptoms” experienced due to migraine headache attacks, such as various non-headache symptoms the Veteran has consistently reported – dizziness, nausea, seeing spots, and sensitivity to light and noise. See again Holmes v. Wilkie, 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131 (Nov. 25, 2020). That is, even with medication use, the Veteran’s migraine headache attacks are very frequent (twice a month or more), completely prostrating, prolonged, and productive of severe economic inadaptability. Therefore, even with medication use, the Veteran still meets some, if not all of the criteria listed for the 50 percent rating under Diagnostic Code 8100. It is acknowledged that when his medication was effective it can be argued that his headache attacks were not completely prostrating and were not productive of severe economic inadaptability. However, a higher rating may not be denied 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). The rating criteria for headaches listed under Diagnostic Code 8100 fail to consider the ameliorative effects of medication on the Veteran’s headaches. Therefore, the Board is obligated to contemplate the severity of his migraine headaches absent the use of his various medications (ibuprofen, Naproxen, Vicodin, or Topiramate) to control the condition. In making this determination that the Veteran is entitled to the maximum 50 percent rating for migraine headaches under Diagnostic Code 8100, the Board has considered the following evidence of record: At a September 3, 2013 VA headaches examination, the veteran credibly stated he has headaches somedays with a terrible pounding, pulsating, and throbbing. He experiences nausea. They can last for hours, but less than one day. They occur more frequently than once a month. He has to stay in bed when they occur sometimes. He has been given ibuprofen that eats up his stomach. The VA examiner indicated the headaches are “very frequent prostrating and prolonged attacks of migraine headache pain.” This corresponds to the criteria for a maximum 50 percent rating under Diagnostic Code 8100. See 38 C.F.R. § 4.124a. The VA examiner then added he can find no evidence in the record of treatment for headaches in the past two years. (However, this unfavorable assessment is unsupported by the VA clinical evidence of record dated from 2011 to 2013, discussed above, which confirms frequent headache complaints). At a January 2014 VA TBI examination, it was noted the Veteran experiences both headaches and dizziness / vertigo as a residual of an in-service TBI. At a January 2014 VA headaches examination, the Veteran reported that he takes Naproxen to control his headaches. He described his headache pain as pulsating and throbbing. He also experiences nausea simultaneously. His headaches last for hours but less than one day. They occur more frequently than once a month. He takes Naproxen for his headaches. The VA examiner concluded the Veteran has “very frequent prostrating and prolonged attacks of migraine headache pain.” This corresponds to the criteria for a maximum 50 percent rating under Diagnostic Code 8100. See 38 C.F.R. § 4.124a. The impact of the Veteran’s headache condition on work was that he stopped working three years earlier – (although this statement was rather vague). The VA examiner added that the Veteran has headaches but there is “little evidence in the record” of treatment for this condition. (However, this unfavorable assessment is unsupported by the VA clinical evidence of record dated from 2011 to 2014, discussed above, which confirms frequent headache complaints). In a March 2014 VA addendum opinion for headaches, the January 2014 VA headaches examiner advised that he had reviewed the conflicting medical evidence and admitted that he misinterpreted the Veteran’s medical records he reviewed last time he examined him. The VA examiner now realized that the Veteran has been service connected for chronic headaches due to a head injury during active duty. The VA examiner clarified the Veteran has been complaining of “persistent headaches, increasing in frequency.” He also complains of “persistent dizziness.” He is currently taking medications to control his headaches. An August 2014 VA CWT consult stated that the Veteran stopped working as a loader in 2010 at Federal Express due to health issue from headaches and backaches. (This assertion as to headaches preventing work in 2010 is unsupported by contemporary SSA and VA clinical evidence at that time). In any event, at present, the Veteran indicated that his back pain and headaches would affect his ability to work if he were to try. His barriers to employment included sciatic nerve pain, depression, headaches, and gout. His relevant clinical diagnoses include PTSD, depression, tinnitus, migraine headaches, and low back pain. The Veteran reported that he receives SSDI benefits and does not have a desire to get off of his benefits. A May 2015 VA primary care risk assessment screening note recorded a fall due to dizziness. VA treatment records dated in 2015 and 2016 document the Veteran’s headaches as being a continuing, active problem. At the January 2017 videoconference hearing, the Veteran competently and credibly testified that his headaches start out like a dull pain, then over time become so intense he has to lay down and his mobility is limited. These headaches occur three times per week or four times per week if he is sick. When they occur, his headaches can be “debilitating,” in that he cannot do anything for the rest of the day. His headaches can last anywhere from 45 minutes up to a whole day. He takes a prescription painkiller (Vicodin) as needed for his headaches - usually once every six hours, every day. During his headaches, he is also sensitive to light and noise. He can experience dizziness, equilibrium problems, and balance issues. During some, but not all of his headaches, he also reports nausea and sees spots. The nausea happens more frequently than the spots. This corresponds to the criteria for a maximum 50 percent rating under Diagnostic Code 8100, in that he describes his headaches as prolonged (lasting for hours / drawn out) and completely prostrating (he is so powerless he cannot do anything for the rest of the day, he has to lay down, and his mobility is limited). See 38 C.F.R. § 4.124a. VA prescription notes dated from February 2017 to June 2018 confirm that the Veteran takes Topiramate twice a day to control headaches. VA treatment records dated from 2018 to 2020 documented complaints of dizziness multiple times. VA primary care nurse practitioner outpatient notes dated in December 2018 and March 2019 remarked that the Veteran’s migraine headaches are controlled with Topiramate, which he takes twice a day. An August 2018 VA sleep medicine consult commented that the Veteran wakes up “with daily headaches.” A March 2019 VA primary care note indicated that his migraine headaches are controlled on Topiramate, when he uses it. He requested a refill. An April 2019 VA neurosurgery consult note in the review of systems described headaches 3-4 times per week. He takes Topiramate for these. At a May 2019 VA physical therapy outpatient initial evaluation for cervical spine pain, the Veteran reported headaches “quite often,” on the top of head, left-sided, and sometimes along the forehead. His present pain rating from headaches was 6/10. At best it is 3/10. He takes medications to control his headaches. At a September 2019 VA primary care risk assessment screening note, the Veteran reported current headaches. In a September 2019 VA primary care nurse practitioner outpatient note, the Veteran expressed that he is getting “more severe” headaches that radiate from the neck. His migraine headaches were now “uncontrolled.” He is not taking the Topiramate, as there is a possibility that he was having an allergic reaction to it. VA eye notes dated in January 2020 and September 2020 reflected complaints of migraine headaches. An April 24, 2020 VA prescription note explained that the Veteran’s Topiramate for his headaches has been discontinued because the medication was “ineffective” in controlling his headaches. According to an April 2020 VA primary care telephone encounter note, the Veteran complained he was still experiencing headaches - this has been unchanged. He also exhibits dizziness when the migraine headaches occur. He no longer takes Topiramate. He is not taking any medication for his headaches. An October 2020 VA medical opinion by a VA pain management physician discussed the evidence of record. This VA physician observed that VA treatment notes show evidence of a current chronic headache condition, migraine. He takes no current medication for treatment of his headaches. He has an associated symptom of dizziness. His headaches last for hours, but less than a day based on a review of his earlier January 2017 hearing testimony. The headaches are prostrating and occur with frequency more than once a month. In summary, from September 3, 2013 to the present, the Board concludes that if the Veteran did not constantly take medications, his chronic headaches would nearly always be classified as very frequent “completely prostrating” and prolonged attacks productive of “severe” economic inadaptability. In fact, his medications were becoming ineffective according to the Veteran. This corresponds to the criteria for a maximum 50 percent rating under Diagnostic Code 8100. See 38 C.F.R. § 4.124a. His headaches occur on a “very frequent” basis, connoting a frequency at least greater than once a month. Johnson, 30 Vet. App. at 253. Absent his medications, the headaches are “completely prostrating” meaning they would render the Veteran entirely powerless. Id. His headaches are almost always “prolonged” in that they can last “for hours” for up to a whole day. Johnson, 30 Vet. App. at 248. And absent his medications, his headaches are almost always “productive” of severe economic inadaptability, meaning “producing” or “capable of producing,” severe economic inadaptability. Pierce, 18 Vet. App. at 445-46. However, nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for the maximum 50 percent rating. Id. Finally, in awarding the maximum 50 percent rating, the Board has considered the effect of other symptoms frequently associated with his headaches - dizziness, nausea, seeing spots, and sensitivity to light and noise. Accordingly, a maximum 50 percent rating is warranted for the Veteran’s service-connected chronic headaches. 38 C.F.R. § 4.3. No higher schedular rating is available for this disability. The claim is granted. For the chronic headaches appeal after September 3, 2013, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Moreover, the Veteran did not explain how the totality of his migraine symptoms would exceed the 50 percent schedular rating criteria contained in Diagnostic Code 8100. See Holmes v. Wilkie, 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131 (Nov. 25, 2020). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.