Citation Nr: 21025779 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 06-37 128A DATE: April 29, 2021 ORDER Entitlement to an initial rating of 50 percent disabled for migraine headaches prior to December 1, 2016, is granted. FINDING OF FACT Prior to December 1, 2016, it is at least as likely as not that the Veteran manifested frequent completely prostrating and prolonged migraine attacks that were productive of severe economic inadaptability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to an initial rating of 50 percent disabled for migraine headaches prior to December 1, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1980 to March 2005. In a March 2020 decision, the Board granted entitlement to an initial rating of 30 percent disabled for migraine headaches prior to December 1, 2016, and a rating of 50 percent disabled thereafter. The Board declined to grant an extraschedular rating for migraine headaches. A November 2020 Court of Appeals for Veterans Claims (CAVC) order vacated the Board’s decision regarding the issue of entitlement to a 30 percent rating for migraine headaches prior to December 1, 2016, and adopted a Joint Motion for Remand (JMR) for reconsideration of the Veteran’s claim. The JMR noted that the Veteran was not challenging the grant of 50 percent disabled for migraine headaches since December 1, 2016, or the denial of an extraschedular rating for migraine headaches. This issue is once again before the Board. 1. Entitlement to an initial rating of 50 percent disabled for migraine headaches prior to December 1, 2016 Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Under DC 8100, a rating of 30 percent disabled is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A rating of 50 percent disabled is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “characteristic,” “prostrating,” or “prolonged.” The term characteristic prostrating attacks means migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). Completely prostrating attacks must render a veteran to be entirely powerless. Id. at 253. During a February 2005 pre-discharge VA examination, the Veteran reported migraines with dizziness that occur once every three days and last for two hours, with an accompanying inability to focus on work. In a May 2006 lay statement, the Veteran’s coworker indicated that symptoms of migraines, among other things, were occasionally severe enough to require time off of work for treatment or recuperation. In a June 2006 lay statement, the Veteran’s supervisor noted that migraines occurred three-to-four times per week and required the Veteran to leave work, take medication, and rest in a dark room. During a July 2009 VA examination, the examiner noted that the Veteran experienced weekly migraine headaches lasting for hours, but also indicated that the attacks were not prostrating, and ordinary activity remained possible. A May 2012 VA examiner indicated that the Veteran’s headaches were a symptom of TMJ dysfunction and were not migraines. During that examination, the Veteran reported headache pain so severe he was unable to work. During a March 2016 VA examination, the examiner diagnosed the Veteran with migraine headaches. The Veteran reported experiencing throbbing headaches three or four times per week lasting less than one day each. The examiner determined that the Veteran did not have prostrating attacks and opined that “there is no evidence in the claim (sic) file that show any functional impairment from his service connected [m]igraine.” In an April 2018 statement, the Veteran noted that he “currently” had more frequent and prostrating migraines occurring three or four times per month, as opposed to one or two times per month in 2004. He also noted that migraines caused him to leave work two or three times per month as early as 2004. As a result of these migraines, the Veteran would sit in a recliner for three-to-six hours with a wet washcloth on his forehead and minimum light and noise. The Veteran also noted that migraine headaches caused emotional exhaustion with zero energy. See also April 2018 Spouse Statement (noting the Veteran experiences prostrating migraines that have become more severe and frequent since 2004). In this case, the Veteran is competent to report his symptomology over the course of the appeal, and his spouse and coworkers are competent to report observing his symptomology associated with migraine headaches. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). These lay statements are credible and probative of the issue on appeal. The Board notes that there is some conflicting evidence in this case. The July 2009 VA examiner noted that weekly migraine headaches lasting for hours were not prostrating and ordinary activity remained possible. A May 2012 VA examiner indicated that the Veteran’s headaches were a symptom of TMJ dysfunction and were not migraines. The claims file contains ample evidence, however, that the Veteran does have a migraine headache disorder, and the Board finds the May 2012 VA examiner’s opinion to be less probative of the issue. By contrast, the February 2005 VA examination results and the Veteran’s statements, both during VA examinations and submitted separately, indicate that he likely experienced severe prostrating and prolonged headaches occurring several times per month during the relevant time period. In April 2018 statements, the Veteran and his spouse described migraine headaches symptoms since 2004 that occurred from one-to-three times per month, resulting in three-to-six hours of confinement to a recliner. The Board determines that this symptomology can be characterized as frequent completely prostrating and prolonged attacks. See DC 8100; see also March 2020 Board Decision. As noted in the JMR associated with the November 2020 CAVC order, “productive” as used in DC 8100 for “productive of severe economic inadaptability” means “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). In this case, as the Veteran’s migraines were frequently severe enough to cause him to leave work and required him to sit in a recliner with minimal lighting and sound for several hours. The Veteran described during these attacks as having zero energy, which is descriptive of being entirely powerless. The Board finds that the symptomology involved very frequent prostrating attacks capable of producing severe economic inadaptability. (continued on the next page) Entitlement to a rating of 50 percent disabled for migraine headaches prior to December 1, 2016, is warranted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.