Citation Nr: 21024194 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-05 410 DATE: April 22, 2021 ORDER Entitlement to an initial rating of 30 percent, but no higher, for posttraumatic headaches, effective June 4, 2013, is granted. FINDING OF FACT The evidence of record indicates that the Veteran’s posttraumatic headaches are manifested by characteristic prostrating attacks occurring on average once a month over the last several months; the preponderance of the evidence is against finding that these attacks are productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 30 percent rating, but no higher, for service-connected posttraumatic headaches have been met throughout the entire appellate period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to September 1995. In February 2020, the Board denied entitlement to an initial compensable rating for posttraumatic headaches. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In December 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated, in part, the Board’s February 2020 decision and remanded the matter to the Board for compliance with the instructions included in the parties’ JMPR. Additional issues remain in appellate status and will be addressed by a future Board decision. Increased Rating Entitlement to an initial rating of 30 percent for posttraumatic headaches A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as ‘staged ratings.’ Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s posttraumatic headaches are rated under Diagnostic Code (DC) 8100 for migraines. 38 C.F.R. § 4.124a, DC 8100. In the December 2020 JMPR, the Court found that the Board erred in providing an adequate statement of the reasons or bases when it failed to consider specific standards for the subjective terms of degree in DC 8100 in Johnson v. Wilkie, 30 Vet. App. 245 (2018). Under DC 8100, migraine headaches with less frequent attacks warrant a noncompensable rating. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months warrant a 10 percent rating. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months warrant a 30 percent rating. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant the maximum 50 percent rating. The regulations do not define “prostrating.” The term has been defined as “lacking in vitality or will: powerless to rise: laid low.” See Johnson, 30 Vet. App. at 252 (citing to Webster’s Third New International Dictionary of The English Language Unabridged 1822 (1966)). The term “characteristic” refers to “a trait, quality, or property or a group of them distinguishing an individual, group, or type.” Johnson, 30 Vet. App. at 252 (citing to Webster’s Third New International Dictionary of The English Language Unabridged 376 (1966)). The Johnson Court found that “the phrase ‘characteristic prostrating attacks’ plainly describes migraine attacks that typically produce powerlessness or a lack of vitality.” Id. 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. Id. 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. 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 DC 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). After review of the record, and in resolving all doubt in the Veteran’s favor, the Board finds that he meets the criteria for a 30 percent rating, but no higher, starting from June 4, 2013. See 38 C.F.R. § 3.400(o). As noted by the AOJ in the April 2021 rating decision regarding other claims stemming from the same application for benefits, the June 4, 2013 date is based on this claim stemming from a fully developed original claim. The Veteran underwent a VA examination in September 2015. The Veteran reported significant improvement in the past five years. Previously, he had 4 to 5 headaches per week. Presently, he has two per week. He also reported taking medication for his condition. The Veteran experienced symptoms to include pain on both sides of his head and nausea. The examiner noted that the Veteran’s headaches typically last less than one day. The examiner noted no characteristic prostrating attacks of headache pain. No other pertinent findings were noted. The examiner noted that the functional impact on his ability to work was a minor impact on stamina and concentration leading to reduced speed and efficiency. The Veteran stated in his December 2015 notice of disagreement (NOD) that he has recurring headaches with a frequency of about 1 to 3 per month. These last from an hour to several hours and require him to sit or lie down and close his eyes to limit external stimuli, namely, light and noise. These have occurred to greater and lesser degrees throughout service and thereafter. The condition has not improved. See also January 2018 VA Form 9. The Board notes that the VA examination did not find the Veteran to have prostrating headaches. The Veteran, however, is competent to report his symptoms and their effect. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the record shows that the Veteran’s disability manifests by characteristic prostrating attacks, as it causes him to sit or lie down with his eyes closed for one to several hours at a time. The frequency of these attacks is approximately from one to three times per month. The Board notes that this exceeds the frequency of one average monthly attack set out in the criteria required for the 30 percent rating. However, the Veteran’s disability picture more nearly approximates the criteria required for the 30 percent rating. 38 C.F.R. § 4.124a, DC 8100. The Board does not find that a higher disability rating is warranted. There is no indication that the attacks leave the Veteran completely powerless or are productive of severe economic inadaptability. The September 2015 VA examiner made no such findings. Neither the Veteran nor his representative has presented or identified any contrary medical treatments or medical opinion evidence that supports the symptomatology contemplated by the maximum rating under DC 8100 when present. Moreover, the criteria for a 50 percent rating require a showing of “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” These provisions are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (holding that the use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision had to be met). Accordingly, all the conditions listed in Diagnostic Code 8100 must be met to warrant a 50 percent rating. As indicated above, that is not the case here.   In sum, the Board finds that a disability rating of 30 percent, but no higher, is warranted for the Veteran’s posttraumatic headaches. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, 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.