Citation Nr: 21023275 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-42 024 DATE: April 20, 2021 ORDER Entitlement to an initial 30 percent rating, but no higher, for service-connected chronic headaches is granted. FINDING OF FACT Resolving all doubt in his favor, the Veteran’s chronic headache disability has manifested characteristic prostrating attacks occurring on average once a month over the last several months for the entire period on appeal. They did not manifest 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 service-connected chronic headaches have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1993 to July 1997 and from November 2003 to November 2004, with additional service in the Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in January 2019, where it was remanded for additional development. It has since returned for further appellate review. Increased Rating for Headaches The Veteran was granted service connection for chronic headaches in a January 2017 rating decision, as due to an in-service head injury, and was assigned an initial noncompressible (zero percent) disability rating. He asserts that the severity of his disability warrants a higher rating. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran’s disability is not and cannot be adequately rated under the Rating Schedule. Headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine. Under Diagnostic Code 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 maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria of 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. Id., at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 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 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 Diagnostic Code 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). Turning to the evidence, the Veteran was afforded VA examinations in January 2017 and November 2018 in connection with his initial service connection claim for headaches and his subsequent appeal for a higher disability rating. As the Board noted in its previous remand, the Veteran reported short, sharp headaches, and longer, dull headaches which last up to an hour at the January 2017 VA examination. In November 2018, he reported bifrontal, prolonged, dull headaches which last up to a day. He further reported needing to lay down in the dark for bad headaches. Despite the Veteran’s report of needing to lay down in the dark, the examiner noted that he did not have characteristic prostrating attacks of headache pain. As the Board determined that there was discrepancy in these examination reports regarding the nature, severity, and frequency of the Veteran’s headaches, the appeal was remanded for an additional VA examination, which was afforded in December 2019. The Board notes that the examiner was to specifically describe, in narrative form, the frequency of the Veteran’s headaches which result in him needing to lay in a dark room. However, despite noting the Veteran’s subjective reports, which included symptoms of constant pain, nausea, and vertigo, the examiner again noted that he did not have characteristic prostrating attacks of headache pain and provided no description of the frequency or duration of his headaches as ordered in the Board’s remand. As such, the RO ordered an additional examination, which was provided in March 2020. The Veteran reported that a typical headache starts with bifrontal pressure becoming holocephalic-like, with photophobia, phonophobia, dizziness and nausea, although he typically does not have vomiting. This will typically last approximately 24 hours, at least twice per month. He again reported that, when headaches are severe, he does miss work and will lay in a dark room without sound or light. The examiner described the Veteran’s headaches as manifesting characteristic prostrating attacks of migraine/non-migraine headache pain once every month. They did not, however, manifest as very prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran’s medical treatment records are not in significant conflict with the findings upon VA examination, with VA treatment records noting headaches with light sensitivity multiple times per month. Given the above, and due to the conflicting information in the earlier VA examinations, the Board resolves all doubt in the Veteran’s favor and finds that a higher, 30 percent rating is warranted for his headaches for the entire period on appeal. The Veteran has frequent headaches which include pain, dizziness, nausea, and sensitivity to light and sound, which vary in duration but can last the entire whole day. The Veteran has consistently reported that, as treatment, he will at times sit in a dark room, which occurs at least once per month. These episodes have been described by the examiner as characteristic prostrating attacks of migraine/non-migraine headache pain. However, while the headaches may be frequent, they are not frequently completely prostrating. Instead, the Veteran finds relief sitting in a dark room. The equivalent of extreme exhaustion or powerlessness is not shown frequently. Moreover, the headaches have not been described as capable of producing severe economic inadaptability and the evidence does not establish that the Veteran has suffered from severe economic inadaptability as a result of the headaches. While unemployability is certainly not required for a higher rating, the Board notes that the record establishes the Veteran works as an electrician, missing work only during the most severe headache attacks, and inadaptability is simply not shown during the period at issue. Thus, the maximum 50 percent rating is not warranted under Diagnostic Code 8100. 38 C.F.R. § 4.124a. To the extent he may assert that the severity of his headache disability warrants an even higher rating, the Board recognizes that the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.