Citation Nr: 21021210 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-20 244 DATE: April 12, 2021 ORDER Entitlement to an initial increased rating to 30 percent, but no greater, for migraine headaches prior to October 26, 2019, is granted. Entitlement to a rating higher than 30 percent for migraine headaches from October 26, 2019, is denied. FINDINGS OF FACT 1. For the entire period on appeal, the manifestations of Veteran’s migraines are more closely approximated by characteristic prostrating attacks occurring on average once a month. 2. The Veteran’s migraines have not been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent disabling, but no greater, for migraine headaches prior to October 26, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. The criteria for a disability rating higher than 30 percent for migraine headaches since October 26, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 2011 to February 2014. This matter stems from an appeal of Department of Veteran’s Affairs (VA) July 2014 rating decision granting service-connection for migraines. The matter was previous before the Board of Veterans’ Appeals (Board) in June 2019. The June 2019 Board decision granted an earlier effective date of 10 percent disabling prior to March 26, 2016. In that same decision, the Board remanded the issue of an initial increased rating greater than 10 percent disabling for further development. The ordered development has been completed and the matter returns to the Board for a decision on the merits under the legacy appeal framework. While the increased rating claim was pending on appeal, in a July 2020 rating decision, the Regional Office increased the disability rating for the Veteran’s migraine headaches from 10 to 30 percent disabling, effective October 26, 2019. Although an increased rating was granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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). After careful consideration of all procurable and assembled date, 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran’s migraine headaches are currently rated under Diagnostic Code (DC) 8100, which provides ratings for migraine headaches. He is currently in receipt of a 10 percent rating for the period prior to October 26, 2019, and a 30 percent rating onward. Under this DC, migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensable (zero percent) disabling. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a. The Veteran has been afforded three VA examinations, in June 2014, March 2016, and October 2019. All three examinations show that the Veteran’s migraines require the use of medication that provides minimal relief. The Veteran consistently reported pain on both sides of the head, pulsating or throbbing pain, and sensitivity to light and sound at each of the examinations. All three examinations diagnosed the Veteran with migraines. The pertinent evidence of record shows that these migraines started in 2012, during service. The Veteran has continuously reported having migraines lasting from three hours to two days and having such migraines three or four days a week. He reported some of these, at a minimum of eight a year, were so painful that he had to stop whatever he was doing and either lay down and/or wear sunglasses and earplugs due to the light and sound sensitivity. See April 2016 VA Form 9; August 2014 Notice of Disagreement. The pertinent difference between the three examinations is the number of prostrating attacks. The June 2014 examination reported no prostrating attacks. The March 2016 VA examiner indicated that the Veteran had characteristic prostrating attacks of migraine pain once every two months. The March 2016 examiner noted that the average length of an attack was less than one day. The October 2019 VA examiner identified that the Veteran had characteristic prostrating attacks of migraine pain once a month. Both the March 2016 and October 2019 VA examiners gave these ratings for the entire period on appeal. The June 2014 examination appears to not have given any weight to the Veteran’s statements of how often he had migraine attacks and therefore is given little probative weight in this regard. The probative evidence of record, including Veteran’s consistent testimony of the number of prostrating migraines attacks have been consistent at approximately 1.5 debilitating attacks a year. See e.g. April 2016 VA Form 9; August 2014 Notice of Disagreement. The Board finds this testimony credible as it matches the results of the most recent examinations. Granting the Veteran the benefit of the doubt, the Board finds that the Veteran’s disability picture more approximates the 30 percent disability rating of one characteristic prostrating attack a month for the entirety of the period on appeal. Based on the evidence presented, the Board finds, however, that the criteria for a 50 percent rating are not met at any time since the effective date of service connection. The evidence of record fails to show that the Veteran has had headaches of such frequency or severity (manifested by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability) to warrant the maximum rating of 50 percent during the period on appeal. Indeed, none of the VA examiners have opined that the Veteran’s headaches are manifested by very prostrating and prolonged attacks and or that his symptomatology is productive of severe economic inadaptability. The October 2019 VA examination report shows that at worst, the Veteran experienced migraines once a month, which lasts for one to two days. While the Veteran reported experiencing three to four headaches a week, the evidence of record, to include his own statements do not indicate that such are prostrating, prolonged, or productive of severe economic inadaptability. Nothing of record, to include the Veteran’s lay statements, have alleged a more severe disability. As the evidence of record fails to show that the Veteran’s migraine headaches cause very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, the criteria for a higher, 50 percent rating, is not warranted at any time during the appeal period. Based on the foregoing, and giving the Veteran the benefit of the doubt, the Board grants an increased rating of 30 percent disabling, but no greater, prior to October 26, 2019, and finds that a rating higher than 30 percent is not warranted from that date forward. In denying an even higher rating for the disability, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.