Citation Nr: 21025959 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-31 632 DATE: April 29, 2021 ORDER Entitlement to an initial disability rating higher than 0 percent for cluster headaches is denied. Entitlement to a 10 percent disability rating for cluster headaches from August 5, 2013, is granted. Entitlement to a 30 percent disability rating for cluster headaches from September 4, 2019, is granted. FINDINGS OF FACT 1. From December 1, 2011, the Veteran’s cluster headache attacks did not necessitate lying down, remaining inactive, or missing work and were not comparable to prostrating attacks or otherwise make him unable to work. 2. From August 5, 2013, the Veteran’s cluster headache attacks occasionally, but on average less than once a month, made him miss work in a manner comparable to prostrating attacks. 3. From September 4, 2019, the Veteran’s cluster headaches, on an average of one to three days per month, but less than very frequently, made him miss work in a manner comparable to prostrating attacks, without producing severe economic inadaptability. CONCLUSIONS OF LAW 1. From December 1, 2011, cluster headaches did not meet the criteria for a disability rating higher than 0 percent. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.124A, Diagnostic Code 8100 (2020). 2. From August 5, 2013, cluster headaches met the criteria for a disability rating of 10 percent, but no higher. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.124A, Diagnostic Code 8100. 3. From September 4, 2019, cluster headaches have met the criteria for a disability rating of 30 percent, but no higher. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.124A, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1991 to November 2011. In May 2012, he sought service connection for cluster headaches. In a September 2013 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for cluster headaches and assigned a disability rating of 0 percent. The Veteran appealed that rating to the Board of Veterans’ Appeals (Board). In September 2019 the Veteran had a Board hearing before the undersigned Veterans Law Judge. In a December 2019 decision, the Board denied a rating higher than 0 percent for the Veteran’s cluster headaches. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020 the Veteran and VA (the parties) submitted a Joint Motion for Partial Remand (JMPR), asking the Court to vacate and Board’s decision and remand the issue to the Board for further proceedings. In a September 2020 Order, the Court granted the JMPR. Ratings for cluster headaches The Veteran contends that his cluster headaches have effects comparable to the criteria for a rating higher than 0 percent. He states that the headache attacks are frequent. He asserts that some of the attacks are prostrating or comparable to prostrating, in that they cause him to miss time from work. VA assigns disability ratings by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The RO has evaluated the Veteran’s cluster headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100, as comparable to migraine. That code provides for rating migraine at 50 percent with very frequent completely prostrating attacks productive of severe economic inadaptability. A 30 percent rating is assigned with characteristic prostrating attacks on an average once a month over last several months. A 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months. A 0 percent rating is assigned with less frequent attacks. In treatment during service the Veteran reported a persistent headache in 1995. In August 1997 he reported a five-year history of intermittent headaches. A clinician found that his headaches had features of cluster headache. From 1999 through 2011 a diagnosis of cluster headaches was listed. In November 2008 the Veteran reported that each headache was severe and lasted 30 to 120 minutes. In 2010 and 2011 he had private neurology treatment for his cluster headaches. In February 2010 he stated that about every 18 months he had clusters of headaches that lasted about eight weeks. He stated that during each cluster he had headaches of 9 out of 10 severity that occurred multiple times per day and that each lasted 45 to 120 minutes. In service treatment in June 2011, the Veteran reported that cluster headache cycles usually lasted 30 to 90 days. In June 2011 the Veteran reported that his cluster headaches made him unable to exercise. His service facility and private treatment records from his years in service do not contain any indication that during headaches he had to lie down or had to stop working. After service, in private treatment in May 2012, the Veteran reported a history of cluster headaches, with a present cluster beginning two weeks earlier. He stated that he woke up with headaches that lasted up to 180 minutes. He related that the most recent previous cycle was in February 2011. On VA examination in August 2013, the Veteran reported that he had headaches cycles that occurred every nine months and lasted for three months. During the cycles, he stated, he had headaches that lasted 60 to 90 minutes and occurred three to five times per day. He reported that the headaches were accompanied by nausea and sensitivity to sound. He stated that during a headache he usually had to go to a quiet area, and occasionally had to take leave. The examiner found that the described attacks were not characteristic prostrating migraine attacks. In private treatment in November and December 2014, the Veteran’s cluster headaches were treated with Verapamil daily, Pamelor at bedtime, Imitrex nasal spray as needed, and home oxygen therapy. In VA treatment in June 2015, the Veteran reported that his cluster headaches episodes lasted 10 to 30 days. In June 2017 the Veteran wrote that the frequency of his cluster headaches had increased to once a week and then two to three times a week. He stated that the severity of each attack was diminished with medication. He reported that attacks lasted from hours to days. He stated that headache pain awakened him from sleep. He indicated that prolonged attacks consisted of subtle pain over long periods interspersed with flare-ups two or three times a day. On VA examination in July 2018, the Veteran reported that about four years earlier his cluster headaches diminished in intensity but increased in frequency. He stated that headaches of 7 out of 10 in intensity occurred once or twice a week and lasted about an hour. He related that morning attacks required starting work later. He reported that with headaches at work he took medication, got away from his computer for at least 30 minutes, and avoided movement. The examiner found that the described attacks were not characteristic prostrating migraine attacks. In the September 2019 Board hearing, the Veteran stated that his headaches occurred frequently. He reported that attacks lasted between 30 minutes and two hours and sometimes came back after resolving. He stated that attacks occurred from twice a month to once a week and lasted one or two days. He related that about 25 percent of the attacks were so severe that he could not work. He related that, about once a month, headaches that started overnight made him unable to start work on time. He reported that from onset of each attack he remained in a prone position for many hours. In private primary care in March 2020, the physician changed the Veteran’s treatment plan from taking Verapamil with onset of headaches to taking it daily, for better control of his blood pressure and his headaches. In November 2020 the Veteran wrote that during each headache he had to stay still, in a fetal position, and he could not function. He stated that such attacks occurred at least once a week. He indicated that the attacks continued to occur over prolonged periods. He related that some attacks occurred during the workday and required him to take leave. In the September 2020 JMPR, the parties emphasized that VA must explain whether and why the Veteran’s headaches are or are not prostrating or comparable to prostrating. The parties stated that VA must explain how the Veteran’s headaches are evaluated, and why do or do not warrant a higher rating. Diagnostic Code 8100 evaluates migraines largely based on the frequency of attacks that are prostrating. The Board considers the Veteran’s cluster headache attacks to be prostrating, or at least comparable to prostrating, when they necessitate lying down, remaining inactive, or missing work. The assembled evidence depicts changes over time in the frequency of prostrating effects from the Veteran’s cluster headaches. Medical records reflect cycles of cluster headaches during his service, with trials of different medications, but did not indicate that during headaches he had to lie down or otherwise stop working. Treatment notes from May 2012 similarly failed to indicate any interruptions of work or activity associated with the headaches. In the initial period following his November 2011 separation from service, his headaches did not have effects comparable to prostrating, so a rating higher than 0 percent was not warranted. In the examination on August 5, 2013, the Veteran reported that during headaches he usually had to go to a quiet area and he occasionally had to take leave from work. Having to take leave from work is at least comparable to prostrating. From that examination, the criteria for a compensable rating were met. Occasional use of leave during three-month cycles that occur every nine months is imprecise information as to frequency. It does not, however, describe a frequency as great as an average of once a month. The Board therefore grants a rating of 10 percent, but not higher, from August 5, 2013. Information from 2014 through 2018 did not indicate that that the Veteran’s cluster headaches made him miss work as often as averaging once a month. In the Board hearing on September 4, 2019, he described missing part or all of a work day because of a headache attack one to three days a month. Based on that frequency of attacks with effects comparable to prostrating attacks, the Board grants a 30 percent rating from September 4, 2019. Attacks causing missed work up to three days of month are not very frequent compared to the number of days in a month. Up to three missed workdays out of the workdays in a month would not produce severe economic inadaptability. The Board denies a rating higher than 30 percent from that September 4, 2019. In his November 2020 statement, the Veteran described a level of forced inactivity during headaches consistent with prostrating and possibly even completely prostrating. The frequency he described, at least once a week, does not rise to the level of very frequent, and the effects of that amount of missed work would not be expected to produce severe economic inadaptability. The effects of his cluster headaches have not at any time met or approximated the criteria for a rating higher than 30 percent. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. J. Kunz, 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.