Citation Nr: 21022285 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-46 380 DATE: April 15, 2021 ORDER A rating in excess of 30 percent for cervico-genic headaches is denied. THE VETERAN’S CONTENTIONS The Veteran seeks a rating in excess of 30 percent for his cervico-genic headaches. See March 2021 Appellate Brief; April 2016 notice of disagreement (NOD); March 2015 claim. In August 2016, the Veteran stated he had increasing difficulty keeping up with his job as he had more frequent and debilitating headaches and increased pain despite treatments attempted by VA, and that his headaches caused him to miss work and affected his family life. See September 2016 VA Form 9. The Veteran testified that he had to take time off of work two to three days per month due to headaches. See Board Hearing Transcript, pp. 13-14. He stated that he could not take sumatriptan as often because it made him drowsy, and he drove for a living. Id., p. 15. He testified that he had prostrating attacks at least twice per month. Id., p. 15. He also stated that the headaches impacted his ability to sleep. Id., p. 17. FINDING OF FACT The Veteran has experienced characteristic prostrating attacks of cervico-genic headaches no more than two times per month. The preponderance of the evidence does not demonstrate that the Veteran’s headaches are productive (or capable of being productive) of severe economic inadaptability. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for cervico-genic headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2007 to November 2007, September 2008 to September 2013, and October 2013 to June 2014. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In June 2019, the Veteran and his spouse testified at a Board hearing before the undersigned. A transcript of the hearing is of record In a December 2019 decision, the Board increased the Veteran’s rating for his cervico-genic headaches to 30 percent for the entire period on appeal, but it denied a rating in excess of 30 percent. The Veteran appealed the Board’s December 2019 decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a November 2020 Joint Motion for Patrial Remand (JMPR). In a November 2020 order, CAVC granted the parties’ JMPR. The Veteran’s headaches are evaluated pursuant to 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a 50 percent rating is assigned for headaches with very frequent prostrating and prolonged attacks productive of severe economic inadaptability. In the November 2020 JMPR, the parties determined that the Board erred in its December 2019 decision by limiting its consideration as to whether the Veteran’s headaches produced severe economic inadaptability instead of whether his symptomatology was capable of producing severe economic inadaptability. The JMPR cites to Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004), in which the Court noted that in the phrase, “productive of severe economic inadaptability,” the word “productive” is equally susceptible to mean either “producing” or “capable of producing” economic inadaptability. See id. The parties determined that the Board applied the rating criteria in DC 8100 too narrowly in its December 2019 decision. Accordingly, the Board will consider whether the Veteran’s headache symptoms produce severe economic inadaptability and whether they are capable of producing severe economic inadaptability. The Board acknowledges that, at the June 2019 Board hearing, the Veteran testified he could not always use the medication prescribed for his headaches because “it does make me drowsy and I drive for a living.” See Board Hearing Transcript, p. 15. He further reported that the headaches affected his ability to sleep and that he had headaches “four times a month, two of them are bad but I can still--I just have to take some time off. Then two are so bad, there’s just--I can’t do anything. I have to be gone, disappear.” Id., pp. 17, 18. However, the Veteran testified that he worked full-time in 24-hour shifts, and he only took off two to three days per month because of his headaches. See Board Hearing Transcript, pp. 5, 14. When asked how often he has a “prostrating attack”, the Veteran replied “at least twice a month”. Id., p. 15. The Veteran was afforded two VA examinations regarding his headaches during the claim period, and at each, the examiners determined that the Veteran’s headaches were not best classified as very frequent completely prostrating attacks productive of (or capable of producing) severe economic inadaptability. At the October 2015 VA examination, the Veteran reported constant, aching pressure in the upper neck and base of the skull ever since a TBI in June 2012. He reported intermittent severe headaches about once a week which emanated from the right frontal or supraorbital area. The Veteran stated that these more severe headaches caused nausea, photophobia, and phonophobia. The examiner recorded that, while the severe headaches were not completely prostrating, they did make the Veteran work more slowly and feel more irritable. The Veteran reported that he missed work no more than one day per month due to severe headaches. The examiner specifically noted that the Veteran’s headaches did not preclude work as a metro driver. On examination in May 2017, the Veteran reported that his symptoms had stayed the same. His symptoms included constant head pain with sensitivity to sound and light. The Veteran stated that he took Motrin to ameliorate his symptoms. After examining the Veteran, the examiner indicated that the Veteran experienced characteristic prostrating attacks of headache pain with a frequency of one attack per every 2 months. When specifically asked whether the Veteran had very prostrating and prolonged attacks of migraines/ non-migraine pain “productive of severe economic adaptability”, the examiner answered “no”. He noted the functional impact was difficulty concentrating with headaches. The Veteran has maintained employment throughout the period on appeal. See August 2020 VA treatment record (working and going to school training to become a paramedic); Board Hearing Transcript, p. 5 (working full time 24 hour shifts); June 2017 VA Neurology Procedure Note (noting that while the Veteran experienced over 15 headaches per month, he still drove transportation vehicles for a paramedic company). In sum, the Board finds that the Veteran does not have “very frequent completely prostrating and prolonged attacks” as he has prostrating attacks only approximately two times per month. The Board thus emphasizes that the question of whether the Veteran’s headaches are “capable” of producing severe economic inadaptability is inapt. To the extent that the Veteran’s headaches do impact his ability to work, as discussed above, the record reflects that although the Veteran has had to miss work one to two times per month, the Veteran has continued to work throughout the appeal period. VA treatment records also show that, more recently, the Veteran was capable of attending school in addition to working. Although this evidence is supportive of a finding that the Veteran’s headaches affect his ability to work, the extent to which they affect his ability to work does not rise to the level of severe economic inadaptability. Accordingly, as the Veteran does not experience headaches that may be classified as “very frequent completely prostrating and prolonged attacks,” and the evidence does not support a finding that his headaches are “capable of” producing severe economic inadaptability, the Board concludes that a rating in excess of 30 percent for cervico-genic headaches is not warranted. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, 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.