Citation Nr: 21024319 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 11-00 305 DATE: April 22, 2021 ORDER A 50 percent rating for migraine headaches on a schedular basis is granted. REMANDED The issue of an increased rating for migraine headaches on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b) is remanded. FINDING OF FACT The service-connected migraine headaches are shown to have been productive of a disability picture that more nearly approximated that of headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for assignment of a 50 percent rating for migraine headaches on a schedular basis have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § §§ 3.102, 4.1, 4.2, 4.6, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to August 1976. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision issued by RO. In December 2013, the Veteran testified at a video-conference hearing before the undersigned. A transcript of the hearing is included in the electronic case file. Most recently, in an August 2019 decision, the Board denied the Veteran’s claim for a rating in excess of 30 percent for migraine headaches. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted the parties Joint Motion for Remand (JMR) and vacated the Board’s August 2019 decision. The parties agreed that the Board erred by not providing an adequate statement of reasons or bases for its determination. Specifically, the parties explained that the Board erred because its analysis of the evidence focused on whether the Veteran’s headaches precluded physical or sedentary employment instead of whether the headaches were productive of severe economic inadaptability. 1. Entitlement to a rating in excess of 30 percent for migraine headaches on a schedular basis Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § § 4.7. The rating for the Veteran’s headache disability has been assigned pursuant to Diagnostic Code 8100. A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average once per month over the last several months. The maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § § 4.124a. The Rating Schedule does not define prostrating. However, “prostration” has been defined as “complete physical or mental exhaustion.” Merriam-Webster ‘s New Collegiate Dictionary 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). The term “productive of severe economic adaptability” has not been clearly defined by regulations or by case law. “Productive of” can either have the meaning of producing or capable of producing. Thus, migraines need not actually produce severe economic inadaptability to warrant a 50 percent rating. “Economic inadaptability” does not mean unemployability, as that would undermine the purpose of regulations pertaining to unemployability. Pierce v. Principi, 18 Vet. App. 440 (2004); 38 C.F.R. § 4.16. Migraine headaches in this instance must be, at a minimum, capable of producing severe economic inadaptability. The August 2009 report of VA examination reflects the Veteran’s complaint that she experienced weekly, mostly prostrating attacks of headaches that lasted longer than two days. She took Naproxen daily for her headaches. The Veteran reported that her migraine headaches were affecting her work and causing increased absenteeism. The examiner commented that it would be speculative to opine as to what percentage of her absenteeism was related to the migraine headaches. The August 2015 report of VA examination reflects the Veteran’s complaint of increasingly severe headaches that caused her to miss more time at work. There was no documentation of hospitalizations due to prostrating/intractable headaches. She described the headache pain as “something really tight around the head.” She reported the headache pain was a pounding pain that felt like something shaking in her head. She stated the headaches were worse with bright lights. She experienced some relief with cold compresses on the neck and head and rest in a dark room. She experienced occasional nauseous and watery, blurry eyes. She reported that her headaches lasted longer than two days. She stated that she only took Motrin (600 mg) for her headaches because the other medication was too strong and made her sleep. She reported that she had not been prescribed stronger medication in a few years because it affected her job performance. In the past 12 months, she indicated that she had lost approximately five to six weeks of work due to grief, medical appointments, migraines and medication side effects. She reported that she experienced migraine headaches approximately two to three times per week with each episode lasting approximately two to three days. The headaches were chronic and moderate to severe in terms of severity. The examiner indicated that symptoms of the Veteran’s headaches included tightness and pounding around and the head, nausea, sensitivity to light and sensitivity to sound. The Veteran’s typical headache pain lasted longer than two days. She did not experience characteristics prostrating attacks of headache pain. The examiner commented that there was no objective evidence of a functional impairment socially, occupationally, academically or in her activities of daily living (ADLs) based on the claimed headaches. Noting the Veteran’s report that she had missed time from work, the examiner indicated that the Veteran’s headaches impacted her ability to work. The examiner noted that the Veteran had reported her headaches were prostrating and that she had missed a substantial amount of work time. However, the examiner found that there was no objective evidence that the Veteran’s headaches were at all prostrating. Further, the examiner remarked that the evidence of record did not demonstrate that the Veteran was unable to maintain full-time employment due to the migraine headaches or that the headaches had produced marked interference with the Veteran’s employment. The examiner noted that the Veteran claimed the headaches had increased in severity; however, she had not sought treatment and was not taking headache specific medication. Her treatment regimen consisted of ibuprofen (600 mg), cold compresses on her neck and head and rest in a dark room. An October 2010 leave and earning statement (LES) reflects that the Veteran had used 3 hours of sick leave during the pay period. The Veteran’s headache log documents the number and intensity of headaches she experienced in December 2016, January 2017, February 2017 and March 2017. LES reflect that she used 57.5 hours of sick leave from December 2016 to March 2017. The August 2017 report of VA examination reflects the Veteran’s complaint of an aching sensation that built to a more severe pulsating headache pain that occurred four to nine times per month. Her headaches would start in the left, front, temporal side and progressed over her whole head. She reported that her typical headache pain was an 8.5 but would range from 6.5 to 10. She reported that she experienced at least one prostrating headache attack every month, sometimes two per month. During a prostrating attack of her headaches, she was in the bed for approximately 24 hours. Her headaches were precipitated by sleep deprivation and aggravating factors of her headaches included bright/loud noise, head movement and physical activity. Rest in a quiet, dimmed place without head movement offered relief of her headaches. Naproxen also provided some relief of her headaches. Prescribed preventative medication for her headaches was Topamax. There were no documented emergency room visits or hospital treatment for her headaches; however, she reported that she did report to the emergency room on one occasion for her headaches in January 2016. The Veteran reported that when she experienced severe migraine headaches, her thought process, vision, and focus was not clear. She would make critical mistakes at work which had a negative impact on her career. Further, the headaches had negatively impacted her personal life, specifically her marriage. In addition, her communication skills at work were affected as she would become emotional and cry unnecessarily. The examiner indicated that symptoms of the Veteran’s headaches included pulsating or throbbing head pain, nausea, vomiting, sensitivity to light, sensitivity to sound and a change in vision. The typical duration of the head pain was approximately three days. She experienced characteristics prostrating attacks of headache pain once every month. However, she did not experience prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. The examiner indicated that the Veteran’s headaches impacted her ability to work, reiterating the Veteran’s report that when she experienced severe migraine headaches, her thought process, vision, and focus was not clear. She would make critical mistakes at work which had a negative impact on her career. Further, the headaches had negatively impacted her personal life, specifically her marriage. In addition, her communication skills at work were affected as she would become emotional and cry unnecessarily. The October 2018 report of VA examination documents the Veteran’s report that she had no emergency room visits or hospital treatment for her headaches since the last VA examination. She reported that she last experienced her typical migraine headache approximately six months earlier. The examiner indicated that symptoms of the Veteran’s headaches included pulsating or throbbing head pain, pain on both sides of the head and a change in vision. The Veteran reported that her current headaches were manifested by a dull ache with some throbbing that onset around 2 to 3 am and resolved by 2 pm. The pain initially begins in her forehead and then would become diffuse over her whole head. She did not experience characteristics prostrating attacks of headache pain. The examiner noted that the Veteran was on preventative and abortive therapy for his migraine headaches. The examiner indicated that the Veteran’s current headaches would not impact her ability to work, explaining that the Veteran’s migraine headaches alone should not preclude physical or sedentary employment. The examiner explained that acute migraines are known to resolve with appropriate treatment and do not preclude employment duties. A November 2018 private treatment record documents that the Veteran received treatment for her headaches in September, October, and November 2018. In September 2018, she complained of worsening headaches. She experienced photophobia, sonophobia, osmophobia and photopsias. She felt drained but she was not nauseous. In October 2018, she complained that she continued to experience headaches. In November 2018, she complained that she experienced frequent (3 to 4 times per week), persistent headaches. She reported that when she experienced severe headaches, she was impaired and unable to work or leave her home because she needed to rest and lie down in a quiet, dark room. Considering the evidence documented above; the November 2020 JMR; the Veteran’s consistent report that she experiences persistent, frequent, prostrating and prolonged attacks of migraine headaches; and, the documented leave she has taken from work because of her headaches, the Board concludes that the Veteran’s chronic migraine headache disability was productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability and finds that the service-connected disability picture more closely resembled the criteria for a 50 percent rating. The overall severity of the service-connected migraine headache disability is not shown to have significantly changed during the course of her appeal. It is consistently documented that she experiences frequent, persistent, prostrating attacks of migraine headaches that interfered with employment. The 50 percent rating is the maximum schedular rating for migraine headaches. REASONS FOR REMAND 1. Entitlement to an increased rating for migraine headaches on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b) is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends that the schedular rating for her migraine headaches does not adequately contemplate the symptomatology and level of disability of her migraine headaches. She asserts that her migraine headache disability has markedly interfered with her employment. Extraschedular consideration is warranted when the record presents such “an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards.” If the schedular evaluation does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). When the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director of Compensation Service. The Board cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the RO for referral to the Director of Compensation Service. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 2. Refer the claim to the Director of Compensation Service to determine whether assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) is warranted for the Veteran’s service-connected migraine headaches. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Jackson 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.