Citation Nr: 21024656 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-41 519A DATE: April 23, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to November 8, 2019 for migraine headaches is denied. Entitlement to a rating of 30 percent, but no higher, from November 8, 2019, for migraine headaches is granted. FINDINGS OF FACT 1. For the period prior to November 8, 2019, the record reflects that the Veteran’s migraine headaches were manifested by characteristic prostrating attacks averaging no more than one in two months over the last several months. 3. For the period from November 8, 2019, the record reflects that the Veteran’s migraine headaches were manifested by characteristic prostrating attacks occurring no more than once a month over the last several months; at no time during the period on appeal were the Veteran’s migraine headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent prior to November 8, 2019 for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100. 2. The criteria for an evaluation of 30 percent, but no higher, from November 8, 2019 for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1979 to June 1986. This matter is before the Board of Veterans’ Appeals (Board) on appeal from March 2013 and November 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St Petersburg, Florida. In August 2018, the Veteran testified during a Board hearing before the undersigned. A transcript is of record. In a March 2019 decision, the Board remanded the issue of entitlement to service connection for fatty liver for further development. That development has been accomplished, and the appeal has been returned to the Board. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes the March 2019 Board decision also remanded the issues of entitlement to service connection for heart disease and diabetes mellitus type II; however, these issues are currently pending under the Appeals Modernization Act (AMA). Under the law, the AMA appellate stream cannot be merged with the legacy claims. Therefore, the AMA appeal will be addressed in a separate decision. Additionally, the Veteran has another legacy appeal stream, which includes a claim related to sleep apnea. That separate appeal stream has been certified to the Board but is currently awaiting the requested Board hearing, and as such, it will also not be addressed here. A January 2020 rating decision by the RO increased the Veteran’s disability rating for migraine headaches from 10 percent to 30 percent effective January 24, 2020, indicating that the assignment of this rating was a “substantial grant” of the benefits sought on appeal. However, there has been no indication from the Veteran that this has satisfied his appeal. Accordingly, as higher ratings are available, this issue remains in appellate status. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). The issue of service connection for fatty liver was developed for appellate review. However, prior to certification of the matter, service connection for the disorder was granted in an April 2020 rating action. Consequently, that matter is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Entitlement to increased ratings for migraine headaches. The Veteran is currently in receipt of a 10 percent disability rating prior to January 24, 2020 and a 30 percent disability rating thereafter for his migraine headaches, pursuant to Diagnostic Code (DC) 8100. The Veteran contends that he is entitled to higher disability ratings. Specifically, the Veteran has indicated that the 30 percent disability rating should be awarded back to the original date of the claim because he experienced more frequent headaches than that which is considered under his currently assigned 10 percent rating. He additionally indicates that his use of medications to treat his migraines demonstrates that he experienced migraines more frequently than once per month. Diagnostic Code 8100 provides that a 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 10 percent rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable rating is warranted for headaches with less frequent attacks. 38 C.F.R. § 4.124a. The rating criteria under Diagnostic Code 8100 are successive, meaning that to satisfy the criteria for a higher level, a claimant must satisfy all the requirements of the lower levels, and 38 C.F.R. §§ 4.7 and 4.21 do not apply to circumvent these requirements. Johnson v. Wilkie, 30 Vet. App. 245 (2018). In determining whether the Veteran experiences the type and frequency of prostrating attacks of headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define “prostrating,” nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson v. West, 12 Vet. App. 119 (1999). By way of reference, the Board notes that, according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” The terms “productive of severe economic adaptability” have not been clearly defined by regulations or case law. The Court has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Headaches need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. “Economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability. Id. at 446; 38 C.F.R. § 4.16. At a minimum, however, headaches must be capable of producing “severe” economic inadaptability. An October 2017 VA examination notes that the Veteran reported that his headaches began in 1972 with visual aura (a loose hair in visual field, smell of burning plastic) with severe headache either on the left or right side of his head from the aura. He indicated that he experienced nausea and has vomited if he did not take his medication on time. He currently took Carvedilol daily for prevention and Tramadol when the headache began. He reported that he had migraine headaches every two weeks. The examination notes that the Veteran had constant, pulsating or throbbing head pain on both sides of the head, which worsened with physical activity. He additionally experienced symptoms of nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision (such as scotoma, flashes of light, tunnel vision). The examination indicates that the Veteran experienced head pain that lasted more than two days on both sides of his head. He also experienced prostrating attacks of migraine or non-migraine headache pain once every two months; he did not have very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner indicated that severe headaches caused him to leave work early or call in due to needing quiet and dark room conditions. A December 2017 VA treatment record, related to treatment for his heart, notes that the Veteran suffered from a history of migraine headaches. A May 2018 correspondence from the Veteran, which is associated with his medical treatment records, notes that the Veteran indicated that he had not had a migraine attack since he started medications for his congestive heart failure at the end of 2017. Subsequent medical treatment records are silent for any complaints related to headaches until a November 8, 2019 VA treatment record, which notes that the Veteran reported experiencing headaches once per month described as “clusters”, occurring in the spring and fall associated with barometric pressure changes. He indicated that the location of the head pain varied but notes that it was temporal, with the left side greater than the right, which was moderate to severe in intensity. He additional noted that he noticed associated symptoms of light sensitivity, sound sensitivity, nausea, vomiting, and a “squiggly line that travels across visual field”. He reported that his visual symptoms could last up to an hour but averaged 20 minutes, and 30 minutes after visual symptoms occur, his headache comes. As soon as he noticed the visual symptoms, he took strong coffee and Tylenol. He indicated the following alleviating factors: a dark place, quiet room, cold compresses over eyes, and sleep; aggravating factors were described as noises and light; and triggers were barometric pressure changes and MSG. A January 2020 VA examination, provided based on a review of the Veteran’s medical treatment records only, notes that the Veteran experienced headaches once a month lasting about 30 minutes each time and requiring him to lie down and stop all activities at those times. His headache treatment plan included taking medication. The Veteran’s symptoms included pulsating or throbbing head pain localized to one side of the head, with the left greater than or more common than right side pain. The Veteran also experienced symptoms of nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision (such as scotoma, flashes of light, tunnel vision). The Veteran’s head pain generally lasted less than one day. The examination notes that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain once every month, but he did not have very prostrating and prolonged attacks productive of severe economic inadaptability. Finally, the examination notes that although the Veteran’s headaches occurred once a month, lasting about 30 minutes each time, and required him to lie down and stop all activities at those times, this did not preclude limited duty or sedentary employment. A March 2020 VA treatment record notes that the Veteran reported that he was still experiencing migraines once a month, which could be debilitating but were responsive to Tylenol most of the time. Another March 2020 VA treatment record notes that the Veteran denied any change in the character of his headaches. After a review of the evidence, the Board finds that for the period prior to November 8, 2019, the evidence reflects that the severity of the Veteran’s headache symptoms and resulting disability picture does not warrant a rating in excess of 10 percent. In this regard, the Board notes that there is no evidence to indicate that the Veteran experienced headaches with characteristic prostrating attacks occurring on average once a month over the last several months. Indeed, the October 2017 VA examiner indicated that the Veteran had prostrating attacks of headache pain that occurred once every two months, which is consistent with a 10 percent disability rating. Furthermore, the Veteran’s medical treatment records are largely silent for any complaints of headaches during this period, other than to note that he had a history of headaches in a December 2017 record. Therefore, the Board finds that the evidence does not reflect a migraine headache disability picture that more closely approximates a disability rating in excess of 10 percent for the period prior to November 8, 2019. Although the Board acknowledges that the Veteran reported that he experienced migraines more frequently, including as often as every two weeks, the rating criteria for DC 8100 link the ratings for migraine headaches to two elements: severity and frequency. It is not sufficient to demonstrate the existence of a particular frequency of headaches; the headaches must be of a specific prostrating character. Thus, even considering the fact that the Veteran took medication to treat his headaches, there is nothing to suggest that each time he experienced a migraine, it was of such severity as to render him essentially powerless, or with marked loss of strength/exhaustion, which is defined by the word “prostration.” Furthermore, although the October 2017 VA examination notes that severe headaches caused him to leave work early or call in due to needing quiet and dark room conditions, which could be considered prostrating, there is no indication as to how often he missed work due to his headaches or otherwise experienced these “severe” headaches. Moreover, the October 2017 VA examiner considered the Veteran’s reported frequency and severity of his migraine headaches and nevertheless found that the Veteran experienced headaches with characteristic prostrating attacks occurring on average once a month over the last several months. Thus, to the extent that the Veteran asserts that he is entitled to an increased evaluation for his migraine headaches prior to November 8, 2019 because he experienced more frequent migraine headaches for which he took medication, the Board finds that the clinical evidence of record outweighs such assertion. As the rating criteria under Diagnostic Code 8100 are successive and given that the Veteran does not meet the criteria for a 30 percent rating for the period prior to November 8, 2019, it follows that he does not meet the criteria for a higher rating of 50 percent under Diagnostic Code 8100 for this period. See Johnson, 30 Vet. App. 245. The Board notes that there are no alternative diagnostic codes under which the Veteran’s headaches may be analogously rated. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). However, the Board finds that the evidence supports an earlier effective date for the award of the 30 percent rating for his migraine headaches. Specifically, the Veteran was awarded a 30 percent disability based on the January 2020 VA examination, which indicates that the Veteran experienced characteristic prostrating attacks of migraine/non-migraine headache pain once every month; notably, however, the examination was based solely on a review of the Veteran’s medical treatment records, which document the presence of these symptoms as early as November 8, 2019. Thus, the Board finds that a 30 percent rating is warranted for the Veteran’s migraine headaches from November 8, 2019. The Board has considered whether a higher rating is warranted for the Veteran’ migraine headaches and finds that a rating in excess of 30 percent is not warranted at any time from November 8, 2019. In this regard, the Board is cognizant that the Veteran experienced headaches manifested by pulsating or throbbing head pain, nausea, vomiting, sensitivity to light and sound, and changes in vision. However, the Board finds that the weight of the evidence does not establish that the Veteran experienced very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, which is required for a 50 percent disability rating. As discussed above, the January 2020 VA examiner indicated that the Veteran's migraine headaches manifested by prostrating attacks once every month but were not productive of severe economic inadaptability. No clinician, to include his treatment providers, has characterized the Veteran’s migraine headaches as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Indeed, there is minimal documentation regarding migraines, or the associated symptoms, noted within the Veteran’s medical treatment records during the period on appeal. Thus, to the extent that the Veteran alleges greater severity, the Board finds that the probative value of his assertions is outweighed by the medical evidence of record. Accordingly, the Board finds that his headaches do not meet or more nearly approximate the criteria corresponding to a 50 percent rating at any time during the appeal period. Based on foregoing, the criteria for rating in excess of 30 percent for the Veteran’s service-connected migraine headaches have not been met for the period from November 8, 2019. 38 C.F.R. § 4.124a, DC 8100. Further, as noted above, there are no alternative diagnostic codes under which the Veteran’s headaches may be analogously rated. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). (Continued on the next page)   In summary, the Board finds that an initial rating in excess of 10 percent prior to November 8, 2019 is not warranted, and a rating of 30 percent, but no higher, is warranted for the period from November 8, 2019 for the Veteran’s service-connected migraine headaches. 38 U.S.C. § 5107. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.