Citation Nr: 21021690 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-19 398A DATE: April 13, 2021 ORDER 1. Entitlement to an initial compensable disability rating for cluster headaches prior to October 8, 2019 is denied. 2. Entitlement to an initial disability rating in excess of 30 percent for cluster headaches from October 8, 2019 is denied. FINDINGS OF FACT 1. Prior to October 8, 2019, the Veteran experienced cluster headaches with less frequent attacks. His cluster headaches did not manifest in characteristic prostrating attacks averaging one in 2 months over the last several months. 2. From October 8, 2019, the Veteran experienced cluster headaches with characteristic prostrating attacks occurring on average once a month over the last several months. His cluster headaches did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability CONCLUSIONS OF LAW 1. Prior to October 8, 2019, the criteria for a compensable rating for cluster headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8100. 2. From October 8, 2019, the criteria for a disability rating in excess of 30 percent for cluster headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to August 1990 and from August 1990 to August 1996. In September 2005, the Veteran filed a claim seeking entitlement to service connection for headaches. His claim was denied by a Department of Veterans Affairs (VA) Regional Office (RO) in June 2006. The Veteran perfected an appeal of this decision to the Board of Veterans’ Appeals (Board) where his claim was granted in a March 2012 decision. In a May 2012 rating decision implementing the Board’s grant of service connection, the RO assigned a noncompensable (zero percent) disability rating for the Veteran’s headaches, effective September 1, 2005. The Veteran perfected an appeal of this disability rating. The Board remanded the Veteran’s claim for additional development in September 2018 and an increased rating of 30 percent was subsequently awarded by the RO, effective October 8, 2019. The Veteran has continued to express dissatisfaction with the rating. Entitlement to an initial compensable disability rating for cluster headaches, presently rated as noncompensable prior to October 8, 2019, and 30 percent disabling thereafter 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 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 assigned for characteristic prostrating attacks occurring on an average once a month over the last several months. Finally, a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. 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. Analysis The Veteran seeks a higher rating for his service-connected cluster headaches. The Veteran’s cluster headaches are presently rated as noncompensable prior to October 8, 2019 and 30 percent disabling thereafter. The Veteran submitted a new claim for service connection for cluster headaches in September 2005. In support of his claim, he submitted several statements noting an onset of cluster headaches while in service and as a result of an incident during decompression training. The statements do not describe the frequency or severity of his headaches at that time. The RO attempted to afford the Veteran a VA examination; however, the Veteran could not report for examination as he was incarcerated and had been incarcerated since 1994. The Veteran’s representative appeared at an October 2011 Board Hearing and read into the record a statement written by the Veteran. The Veteran was incarcerated at the time and unable to appear in person. In his statement, the Veteran reported that he was in the decompression chamber and ended up with headaches on the left side and was diagnosed with cluster headaches posttraumatic. The statement did not describe the frequency or impact of these headaches. The Veteran filed a timely Notice of Disagreement (NOD) in May 2012. The NOD noted cluster headaches are cyclical, debilitating and extremely fatiguing. It further noted that due to current status, prostration is not recognizable/treated/tolerated. He requested a 10 percent disability evaluation but did not describe the frequency that he experiences these events. In a February 2016 correspondence, the Veteran reported that he could not attend VA evaluations due to incarceration and requested a review of his prison medical records in order to receive a disability rating of 10 percent or greater. The Veteran’s prison medical records were associated with his VA claims file in February 2016, which covered the period from February 2015 to January 2016. The records reflect that the Veteran has been diagnosed with cluster headaches but do not reflect any symptoms or complaints related to such diagnosis. The records document the treatment, and refusal of treatment, for other conditions. The Veteran was provided a VA examination in May 2016. The VA examiner noted a diagnosis of cluster headaches and indicated there were no other diagnosis related to the Veteran’s headaches. The examiner noted symptoms of weakness, fatigue and hip pain but marked “N/A” on the remainder of the questions which related specifically to the Veteran’s headache symptoms, severity, duration, location, and type of headache pain. In an argument submitted in May 2018, the Veteran’s representative asserted that the May 2016 VA examination was inadequate because the Veteran was not properly evaluated. The Board agrees that the examination report is inadequate. The Board remanded the claim in September 2018 because it was unclear as to why those questions on the April 2016 VA examination were marked “N/A.” The Board found that the Veteran was not properly evaluated and directed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a new examination. On October 8, 2019, the Veteran was afforded a new VA examination in connection with his claim. At that time, he was found to have constant, pulsating or throbbing head pain, pain on both sides of the head and pain that worsens with physical activity. Symptoms included nausea, vomiting, sensitivity to light and sound, changes in vision and sensory changes. The examiner found the headaches to be prostrating in nature, occurring once every month. He indicated that they were not productive of severe economic inadaptability. The Veteran treated his headaches by going into a dark quiet place to relive the pain. He “was on psychiatric medications to prevent headaches that require a designation consistent with mental health disorders in the prison system. Because of this, the Veteran refuses to take any of the permitted medications that the prison system has to offer for cluster headaches.” Prior to October 8, 2019, the Board finds that the criteria for a compensable rating have not been met. Although the Veteran has asserted that his headaches are cyclical and debilitating, and medical records reflect diagnosis of cluster headaches, there is no medical evidence which indicates his headaches were found to be characteristic prostrating attacks which is required for a 10 percent rating. There was no indication that they resulted in extreme exhaustion or required laying down at full length due to weakness or exhaustion. The Board recognizes that the Veteran has asserted that prostration is not allowed in prison and that the only medication to treat his headaches was for psychiatric disabilities, but finds such statements to be not credible. The treatment records from the correctional institution document that restrictions, passes, or profiles were available for physical or mental limitations. The records also show that the Veteran was prescribed ibuprofen for another condition while incarcerated and he has not explained why this would not be effective in treating his headaches. The treatment records document the existence of headaches, but do not indicate that they result in prostrating attacks. In sum, there is no probative evidence that the Veteran experienced prostrating headache attacks at any time during the rating period prior to the October 2019 VA examination. As such, the Board finds that a compensable rating prior to October 8, 2019 is not warranted. The Board recognizes that the claims file contains a September 1993 VA examination assessing the Veteran’s headaches. However, this report was prepared 12 years before the current claim and, in light of the above, the Board finds that it is not an accurate assessment of the Veteran’s disability during the appeal period. C.F. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). From October 9, 2018, the Board concludes that the Veteran is not entitled to a rating in excess of 30 percent. In this regard, while the VA examination on that date did find evidence of prostrating attacks, which can occur monthly, for up to one week, three to eight times a day, the Board does not find evidence that these attacks are prolonged in nature. While he may require use of a dark room while such an attack is occurring, the attacks are generally short in nature lasting 15-30 minutes. Ultimately, the Board finds that such prostrating attacks, when they occur are not prolonged, as is anticipated by a 50 percent rating under the diagnostic criteria. The Board also finds that severe economic inadaptability as a result of the Veteran’s headaches occur one week per month and while they may occur several times per day during that week, they do not last for more than 15-30 minutes. The Board has carefully considered the Veteran’s reports with respect to the nature and severity of his service-connected cluster headaches and notes that his lay testimony is qualified to describe his headache symptoms. The Veteran’s history and symptom reports have been considered, including as presented in the medical evidence discussed above, and are noted to be contemplated by the criteria for the disability rating for which the Veteran has been found entitled by the Board. Accordingly, the Board finds that the criteria for a compensable rating, prior to October 8, 2019, and a rating in excess of 30 percent thereafter, for the Veteran’s service-connected cluster headaches have not been met at any time during the rating period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Aston, 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.