Citation Nr: 21026628 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-43 690 DATE: May 3, 2021 ORDER Entitlement to an evaluation of 50 percent, but no higher, prior to January 25, 2020 for migraine headaches is granted. Entitlement to an evaluation in excess of 50 percent from January 25, 2020 is denied. FINDINGS OF FACT 1. Prior to January 25, 2020, the Veteran's migraine headaches manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran has been assigned the maximum rating allowed for migraine headaches. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 50 percent, but no higher, prior to January 25, 2020 for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code (Code) 8100 (2020). 2. The criteria for entitlement to an evaluation in excess of 50 percent from January 25, 2020 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.124a, Code 8100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA). This case was remanded in January 2020 and July 2020 for further development. In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Since the last Board remand, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 50 percent for migraine headaches, effective January 25, 2020. See July 2020 rating decision. The issue has been recharacterized accordingly. The Board notes that the AOJ granted the issues of service connection for plantar fasciitis, a right ankle disability, a left ankle disability, a right knee disability, and a left knee disability. See April 2020 rating decision. Because that decision represents a full grant of the benefits sought, those issues are no longer on appeal. Entitlement to an evaluation in excess of 30 percent prior to January 25, 2020 and in excess of 50 percent thereafter for migraine headaches. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Code 8100, for migraines. Under Code 8100, 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 maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria of Code 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 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. Id. 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 Code 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). A March 2012 VA examiner opined that the Veteran had prostrating headaches only once every two months, but the Veteran has consistently reported completely prostrating headaches at least two to three times a month during which he would have to stay in bed for two to 12 hours. See, e.g., November 2016 statement. Indeed, he testified that he did not know why the examiner mis-reported the number of prostrating headaches he had and that the March 2012 examiner was incorrect. He also testified that his migraines have remained consistent throughout the entire appeal period and had not increased in severity. See August 2019 Board hearing. The undersigned had the opportunity to observe the Veteran during his testimony at the hearing and finds him to be credible. Upon new examination in January 2020, a VA examiner opined that the Veteran had characteristic prostrating attacks of migraine pain more frequently than once a month and that such attacked were productive of severe economic inadaptability. The examiner's opinion is consistent with the Veteran's report that he would have to take extended breaks, call sick into work, and leave work early due to his migraines. See, e.g., August 2019 statement. Several family members also reported that the Veteran would miss work due to his headaches. See, e.g., December 2015 statement. After considering the Veteran's testimony that his migraine headache symptoms have remained consistent throughout the entire appeal period and that the March 2012 VA examiner mis-reported his migraine frequency, the Board finds that the preponderance of the evidence reflects that his migraine headaches manifested in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability prior to January 25, 2020. As a result, an evaluation of 50 percent prior to January 25, 2020 is warranted. Now that the Veteran has been assigned a 50 percent rating throughout the entire appeal period, the Board must determine if he is warranted a rating in excess of 50 percent. A 50 percent rating is the maximum rating allowed pursuant to Code 8100. 38 C.F.R. § 4.124a. As a result, the Veteran is not entitled to an evaluation in excess of 50 percent, and the matter must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.