Citation Nr: 21025104 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-34 925 DATE: April 27, 2021 ORDER A 50 percent initial rating for migraine headaches is granted. FINDING OF FACT Throughout the appeal period, the Veteran has had very frequent and completely prostrating prolonged attacks of migraine headaches productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial 50 percent rating for migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was awarded service connection for migraine headaches by way of a February 2015 rating decision and awarded an initial 30 percent rating. He perfected an appeal of the initial rating assigned. In December 2019, the Board of Veterans’ Appeals (Board) issued a decision denying a rating in excess of 30 percent. The Board also dismissed several withdrawn issues, granted an initial 30 percent rating for irritable bowel syndrome (IBS), and remanded the matters of whether service connection is warranted for a sciatic nerve disorder or erectile dysfunction, as well as the matter of whether special monthly compensation is warranted based upon loss of use of a creative organ. The Veteran appealed the denial of a rating in excess of 30 percent for the Veteran’s migraine headaches to the Court of Appeals for Veterans Claims (Court). In November 2020, the Court signed an Order granting a Joint Motion for Partial Remand (joint motion). The Board’s December 2019 decision related to the migraine headache claim was vacated and remanded for action in accordance with the joint motion. The dismissed issues and the IBS decision were not appealed. As for the matters that were remanded by the Board in December 2019, following the remand development, a June 2020 rating decision was issued and service connection was established for left lower extremity radiculopathy and erectile dysfunction, and special monthly compensation was awarded for loss of use of a creative organ. These issues, therefore, were granted in full and are no longer on appeal before the Board. The only matter remaining for consideration is whether a rating in excess of 30 percent is warranted for migraine headaches. The currently assigned 30 percent rating is awarded for migraine headaches with characteristic prostrating attacks on an average once a month over the last several months. For the maximum schedular disability rating of 50 percent for migraine headaches, the evidence must show very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The question in this case is whether such frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability have occurred. The rating criteria do not define “prostrating,” nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (Diagnostic Code 8100 is quoted verbatim, but the Court does not specifically address the matter of what is a prostrating attack). According to DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), “prostration” is defined as “extreme exhaustion or powerlessness.” In January 2015, the Veteran submitted a headache log covering the period from September 2, 2014 to January 5, 2015. This log showed eleven headaches having occurred, seven of which noted the need to lay in bed until the headache subsided. The Veteran was afforded a VA examination in January 2015. The Veteran reported having migraine headaches approximately two to three times per month and the examiner noted that these were prostrating attacks approximately once per month. The examiner opined that these attacks were not productive of severe economic inadaptability; however, the examiner did not explain the reason for this characterization of the Veteran’s headaches. At his November 2015 RO hearing, the Veteran, by way of his representative, reported the ongoing prostrating attacks of migraine and also noted 58 days lost from work due to headache since February 2014, which would average to approximately three days each month. The Veteran was again afforded a VA examination in July 2017. He again reported having a headache every three to four days. He reported these headaches to involve throbbing, stabbing pain in the bi-temporal area. The examiner recognized the symptoms during the headache as including nausea, vomiting, and sensitivity to light and sound. The headaches were reported to last one to two days. The Board observes that headaches such as this, lasting one to two days and occurring every three to four days indicates very frequent severe headaches. The Veteran reported using Imitrex to alleviate the pain. This examiner also indicated that prostrating attacks of migraine were again noted to occur monthly, but gave no explanation as to why some of the Veteran’s frequent headaches would be deemed prostrating and some would not. The examiner found that the Veteran’s frequent headache episodes would indeed cause him to miss work regularly and would cause him to need a work environment that allows him to retreat to a cool, dark room during a headache episode. Despite such frequency and severity of the headaches, the examiner nonetheless found them not to be productive of severe economic inadaptability. In June 2018, the Veteran’s representative submitted a copy of a May 2017 letter from the Veteran’s VA treating neurologist, who recommended the Veteran telework more often to limit triggers for his headaches. At his August 2019 Board hearing, the Veteran confirmed that his employer had accommodated him with his telework request. He reported that he has a headache about once per week that requires him to lay down until it subsides. The Veteran reported the economic impact of this as relating to his inability to be promoted to higher level positions within his current job, which is within the Federal Government, and essentially eliminating his ability to go seek a new job in the private sector. Most recently, in February 2021, the Veteran submitted a statement summarizing the impact of his migraine headaches. At this time he reported averaging four to six migraines per month, which can range anywhere from four hours to two days in duration. He confirmed that if one occurs while he is working, he has to log off and lay down on his bed with the blinds closed in a quiet room until the headache subsides. The Veteran reported that when a headache occurs while he is not working, the mother of his children will have to take them somewhere away from him until the headache subsides. The Veteran again confirmed that his workplace has allowed him to telework a portion of his week, but he also confirmed that he misses many hours of work due to the migraines, which has also led to him losing production. When examined as a whole, the evidence shows that the Veteran’s headaches were essentially consistent throughout the entire period of appeal. The Veteran reported frequent headaches that require him to lay down until they subside. He has consistently reported missing many hours from work and also the record shows he has begun teleworking in order to manage the headaches. While the VA examiners suggested the Veteran’s headaches are prostrating just one time per month and are not productive of severe economic inadaptability, the examiners drew these conclusions without any explanation. Further, the Board notes that these conclusions are inconsistent with the indications throughout the record showing the Veteran having serious headaches several times per month that require him to stop everything, including work, and lay down until the headaches subside. The Board finds that the Veteran’s symptoms can be likened to very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board finds the description of the Veteran’s headaches most closely approximates the rating criteria for a 50 percent rating under Diagnostic Code 8100 throughout this appeal period. The Veteran’s appeal is granted. Again, the 50 percent rating being assigned is the maximum rating allowable under Diagnostic Code 8100. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.