Citation Nr: 21024729 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 18-22 950 DATE: April 26, 2021 ORDER Entitlement to an initial rating of 30 percent, and no higher, for migraines is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s migraines have produced characteristic prostrating attacks occurring on an average of once a month over the last several months. His migraines have not produced very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial disability rating of 30 percent, but no higher, for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from April 1989 to January 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2017 and September 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2017 rating decision, the RO, in pertinent part, denied service connection for sleep apnea. The Veteran’s timely Notice of Disagreement (NOD) was received by VA in November 2017. In the September 2017 rating decision, the RO granted service connection for migraines and assigned an initial noncompensable percent rating effective December 14, 2016. The Veteran’s timely NOD with the initial rating assigned was received by VA in October 2017. In April 2018, the RO issued Statements of the Case (SOC) which addressed both issues. In April 2018, the Veteran perfected a timely appeal via his submission of a VA Form 9. In February 2021, the Veteran testified at a Board telehearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is a part of the record. 1. Entitlement to an initial compensable rating for service-connected migraines. The Veteran seeks a 30 percent rating for his service-connected migraines. See October 2017 VA Form 21-0958, Notice of Disagreement. He reports that he experiences migraine episodes on average 2-3 times a month and that these episodes generally last one day. See e.g. February 2021 Hearing Transcript, pages 2-3. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 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 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 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. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 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 contain 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 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). Applying the facts in this case to the legal criteria described above, the Board concludes that the Veteran’s migraines more nearly approximate the criteria for an initial 30 percent rating under DC 8100. The Veteran was afforded a VA examination in September 2017 at which time the examiner confirmed a diagnosis of migraines including migraine variants. The Veteran reported that his migraines began in 1992 while he was on active duty and the migraines have gotten worse. The Veteran’s reported symptoms included pain on both sides of the head. It was not constant. Pulsating or throbbing head pain was not present. Non headache migraine symptoms included nausea and sensitivity to light and sound. There were no reported changes in vision or sensory changes. The examiner noted that there were no other pertinent physical findings, complications, conditions, signs or symptoms related to the service-connected migraines. The Veteran indicated that the typical duration of his headaches is one to two days. The examiner noted that the Veteran had described characteristic prostrating attacks which were less frequent than once in two months. The examiner further indicated that the Veteran does not have very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The examiner explained that the Veteran’s migraine disability does impact his ability to work, because the Veteran has difficulty with concentration during a headache. Based on these examination findings, the RO assigned an initial noncompensable rating. The Veteran appealed the RO’s determination. In his November 2017 NOD, the Veteran indicated that he believed that a 30 percent disability rating was warranted. He indicated that his migraines were causing him to miss work. At his February 2021 Board hearing, the Veteran testified that he experienced migraine episodes which generally required him to go to a separate room and turn off the lights. He estimated that these episodes occurred two to three times monthly and lasted a day or so. He testified that he had experienced more severe episodes during which he had to lay on the floor with the lights off, vomited, and use a wet towel to keep his temperature down. He indicated that he was not under any treatment for migraines nor was he on any prescription medication. He indicated that in his experience, if he secluded himself and took over the counter medications, his migraines improved within a day or so and this was a more effective treatment than the prescription medications he had received from treatment providers. In support of the Veteran’s claim, his son and former spouse provided statements regarding his migraines. In a February 2021 statement, the Veteran’s attested that the Veteran generally experienced one or two migraines weekly and these episodes varied in severity. In a February 2021 statement, the Veteran’s former spouse indicated that the Veteran had had a history of migraines for at least 20 years. She indicated that during some episodes, he would get sick and vomit and have to be in a dark room, which caused him to miss family functions often. After weighing the clinical and lay evidence of record, the Board finds that the Veteran’s migraines more nearly approximate the criteria for an initial 30 percent rating. Although the description of his headache episodes the Veteran provided to the September 2017 VA examiner resulted in an opinion that the disability was manifested by characteristic prostrating attacks which occurred less frequently than once in two months, the Board finds that the Veteran’s competent and credible hearing testimony is sufficient to conclude that the criteria for an initial 30 percent rating have been met. He described experiencing episodes of headache pain which generally required him to go to a separate room and turn off the lights. He estimated that these episodes occurred two to three times monthly and lasted a day or so. He testified that he had experienced more severe episodes during which he had to lay on the floor with the lights off, vomited, and use a wet towel to keep his temperature down, episodes which the Board finds meet the definition of prostrating. The Board finds that the Veteran’s hearing testimony provides a sufficient basis upon which to conclude that the Veteran’s migraines have produced characteristic prostrating attacks occurring on an average of once a month over the last several months. For the following reasons, however, the Board finds that the criteria for an initial rating in excess of 30 percent have not been met. A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran has not specifically contended that his migraines meet these criteria. Although he reports missing work and having difficulty concentrating during to migraines, the record does not show that he that the frequency, length and severity of the attacks have produced or are capable of producing severe economic inadaptability. Neither the Veteran nor his representative argued that the frequency with which he missed work had caused or was in danger of causing severe economic inadaptability. Thus, the Board concludes that the Veteran did not have migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during the appeal period. For the foregoing reasons, the criteria for an initial rating of 30 percent and no higher for migraines have been met for the period on appeal. As the preponderance of the evidence is against an initial rating in excess of 30 percent, to that extent, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his current sleep apnea had its inception during service because he developed symptoms of restless sleep and trouble sleeping while on active duty. Alternatively, he contends that this current sleep apnea is related to two head injuries he sustained while on active duty. The Veteran’s service treatment medical records show in October 1990, he sought treatment with a complaint of a headache. He indicated that four hours earlier, he had wrecked his bicycle and jarred his head. The assessment was “no evidence of head injury at this time.” On follow-up the next day, neurological examination was normal. The assessment was “no evidence of head injury.” The Veteran was instructed to return to the clinic if he experienced any blurred vision, ringing in the ears or worsening headache but there is no indication that he did so. Subsequent service treatment records show that in July 1991, the Veteran sought treatment for a laceration on his chin which he sustained after he fell down a flight at stairs at a nightclub. The assessment was laceration to chin and alcohol inebriation. The laceration was sutured. The remaining service treatment records are negative for complaints or findings of a head injury and contain no notations of sleep apnea. At his February 2020 Board hearing, the Veteran testified that he began to experience sleep difficulties during service which left him feeling “dead tired.” He indicated that sometime in 2017 or 2018, he underwent a sleep study and was diagnosed as having sleep apnea. He indicated that the clinician who performed the sleep study told him there was a good possibility that the in-service blows to his head may have caused his sleep apnea. The Board notes that the record on appeal currently contains no clinical evidence of a diagnosis of sleep apnea, nor a nexus to service. The Veteran, however, is competent to relay a diagnosis and opinion he received from a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that a lay person is competent to report a contemporaneous medical diagnosis). Given the service treatment records described above and the Veteran’s competent and credible hearing testimony, the record on appeal now contains competent lay evidence of a current disability, establishes that the Veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the in-service event, injury, or disease. Under these circumstances, an examination is necessary. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran is advised that it would be to his benefit to submit a statement from his clinician memorializing his or her opinion that there is a good possibility that the in-service blows to the head may have caused his current sleep apnea. The matter is REMANDED for the following action: 1. After obtaining any necessary information and authorization from the Veteran, undertake the necessary efforts to obtain private medical records of the Veteran’s reported treatment for sleep apnea, to include the sleep study reportedly performed in 2017 or 2018. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his reported sleep apnea. After examining the Veteran and reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not that any current sleep apnea had its inception during the Veteran’s period of active duty or is otherwise causally related to an in-service disease or injury, to include the injuries sustained by the Veteran in October 1990 and July 1991? (Continued on the next page)   In providing the requested opinion, the examiner should consider the relevant evidence of record, to include October 1990 and July 1991 treatment records, as well as the Veteran’s description of his in-service and post-service sleep symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current sleep apnea disability, this should be noted. Stated another way, do the Veteran’s reports about his injury and symptoms align with how sleep apnea is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Penn, 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.