Citation Nr: 21023505 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 10-29 885 DATE: April 20, 2021 ORDER An initial rating of 30 percent, but no higher, for headaches associated with traumatic brain injury and post - concussion syndrome is granted. FINDING OF FACT The preponderance of the evidence demonstrates the Veteran suffered characteristic prostrating attacks of headaches occurring on average once per month over a span of several months but not headaches that were very frequent and productive of completely prostrating and prolonged attacks causing severe economic inadaptability . CONCLUSION OF LAW Prior to June 18, 2020 the criteria for an initial 30 percent rating for headaches associated with traumatic brain injury and post - concussion syndrome have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400, 4.124a, DC 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1999 to December 2005. He was awarded the Combat Action Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veteran’s Affairs (VA) Regional Office (RO). In an October 2019 decision, the Board denied, in pertinent part, a rating in excess of 10 percent for headaches associated with traumatic brain injury and post - concussion syndrome. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”) and a Joint Motion for Partial Remand (JMPR) was filed. In November 2020, CAVC issued an order which vacated the Board’s October 2019 denial of the aforementioned claim and remanded the Veteran’s appeal for action consistent with the JMPR. Specifically, the JMPR found that the Board erred by denying the Veteran a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. The JMPR directed that the Board provide adequate reasons and bases to support its evaluation of the Veteran’s claim that does not consider the ameliorative effects of medication. In that regard, if any development was deemed necessary, it was to be undertaken. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings that are based on average impairment of earning capacity. See 38 U.S.C. § 1155; Part 4. Separate diagnostic codes identify the various disabilities, and disabilities must be reviewed in relation to their history. See 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, resolving any reasonable doubt regarding the degree of disability in favor of the claimant, evaluating functional impairment on the basis of lack of usefulness, and evaluating the effects of the disability upon the veteran’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Code 8100 provides disability ratings for migraines as follows: a 10 percent rating for characteristic prostrating attacks averaging one in two months over the last several months; a 30 percent rating for characteristic prostrating attacks occurring on an average of once per month over the last several months; and a 50 percent rating for very frequent, completely prostrating and prolonged attacks causing severe economic inadaptability. See 38 C.F.R. § 4.124a. Prostrating attacks are not the same as headaches, or even severe headaches. The rating criteria and the Court have not defined the term “prostrating.” According to Webster’s New World Dictionary of American English, Third College Edition 1080 (1986), “prostration” is defined as “utter physical exhaustion or helplessness.” 1. Entitlement to an initial rating in excess of 10 percent prior to June 18, 2020. In his August 2009 Notice of Disagreement, the Veteran contends that his headaches associated with traumatic brain injury and post – concussion syndrome, are more severe than the initial 10 percent rating assigned. He seeks an increase. As an initial matter, the Board notes that the while the Veteran is now in receipt of TDIU as a result of his service – connected PTSD, during the course of the this appeal he was employed as a licensed practical nurse and has the requisite skill and training of a health professional. Since filing his claim in October 2008, the Veteran was evaluated by VA on six occasions including February 2009, March 2011, November 2013, December 2018, September 2019, and October 2020. At a February 2009 Traumatic Brain Injury VA examination report, the examiner noted that the Veteran’s headaches were reduced after he began Depakote for concurrent seizures. At a March 2011 VA examination, the Veteran reported that headaches began in 2006. He described them as migraine in nature, lasting 30 minutes to one hour approximately 5 times per week. In addition to head pain, the Veteran experienced sensitivity to light and certain loud sounds, fatigue, and dizziness. In a November 2013 VA examination report, the examiner noted that the Veteran had been experiencing good control of his seizures and his headaches on Depakote. However, he stopped the medication and both his seizures and headaches worsened. The Veteran reported that he had frequent headaches, including migraine headaches, but was able to continue working as a nurse at a nursing home. In December 2018, the Veteran reported that his headaches were located in the frontal and bitemporal region of his head and occurred 3 to 4 times weekly usually lasting from 6 to 8 hours requiring over the counter medications. The December 2018 VA examiner stated that the Veteran did not have any characteristic attacks of migraine or nonmigraine headache pain. In September 2019, the Veteran stated that immediately after his traumatic brain injury he had light sensitivity in 2004 and 2005 but did not have headache pain until 2006 when he experienced throbbing and stabbing sensations in the back of his head and bifrontal region lasting hours to the entire day, occurring 5 to six days a week. The Veteran noted he used both over the counter medication as well as prescription medications. He indicated that he was still able to work, despite his headaches and denied characteristic prostrating attacks of migraine or nonmigraine headaches. The Veteran described pulsating and throbbing pain, pain on both sides of his head, worsening pain with physical activity, and sensitivity to light. In October 2020, the diagnosis assigned to the Veteran’s disability was headache status post - concussion syndrome. The Veteran described pulsating or throbbing head pain, pain on both sides of his head, sensitivity to light, and a sensation of pins poking into his head. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine and non-migraine headache pain once per month but did not have very prostrating prolonged attacks of migraine or non - migraine pain productive of severe economic inadaptability. Nevertheless, the examiner noted that the Veteran had difficulty accomplishing non sedentary tasks due to pain in is his head which affected his ability to focus. An October 2020 VA Traumatic Brain Injury Disability Questionnaire detailed that when he was working, his memory problems would cause him to forget charts and forget items at home. His headaches would cause him to have to complete his notes later in the day. As a result, he had difficulty finishing his work assignments on time. VA treatment notes documented that while the Veteran’s headaches were less severe while on Depakote, he still had breakthrough headaches. VA treatment notes also indicated that the Veteran’s headaches occurred several times per week since the beginning of the appeals period accompanied by both photophobia and loss of balance. In a September 2020 BAY Pines VA Medical Center group psychotherapy progress note, the Veteran reported that he had constant anxiety and headaches due to the traumatic brain injury. He also stated that he was in bed for a couple of hours every day because of his headaches. In light of a review of the evidence, including the foregoing VA examinations, the Board finds that the preponderance of the evidence reflects that the symptoms of the Veteran’s headaches were characteristic of prostrating attacks occurring on an average of once per month over the last several months throughout the appeals period and a rating of 30 percent is warranted. While the Board acknowledges that the Veteran was able to attend nursing school as well as obtain employment at a nursing home during the appeals period, the record also documents that the Veteran was able to achieve those goals because of special accommodations for his headaches. In that regard, the Board notes that the Veteran was unable to work while attending nursing school and obtained a job working with seniors who were less likely to be impacted by or notice the limitations caused by his traumatic brain injury including his headache pain. He nevertheless reported difficulty completing work assignments without assistance from his wife, making mistakes, required assistance from his employer and often being off task at least in part because of headache pain. However, at no point during the appeal period is it indicated that the Veteran has experienced very frequent, completely prostrating, and prolonged attacks causing severe economic inadaptability. The Board observes that the Veteran is now in receipt of a TDIU; however, the basis for that award was the Veteran’s PTSD and not the headache disorder. Thus, taking into account all of the evidence of record, the Board finds that a 30 percent rating for the headache disorder is warranted; however, no more as there is not an indication of very frequent, completely prostrating, and prolonged attacks causing severe economic inadaptability. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Janet Alexander 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.