Citation Nr: 21026657 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-27 880 DATE: May 3, 2021 ORDER Entitlement to a compensable rating for tension headaches prior to September 25, 2019 is denied. Entitlement to an increased rating of 50 percent, but no higher, for tension headaches is granted, effective September 25, 2019, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to September 25, 2019, the Veteran's headaches did not manifest in characteristic prostrating attacks averaging one in 2 months over the requisite several month period. 2. From September 25, 2019, symptoms of the Veteran's tension headaches disability have more nearly approximated very frequent completely prostrating and prolonged attacks that are capable of producing severe economic inadaptability. CONCLUSIONS OF LAW 1. Prior to September 25, 2019, the criteria for an initial compensable rating for tension headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100. 2. From September 25, 2019, the criteria for a disability rating of 50 percent, but no higher, for tension headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2007 to January 2013. The Veteran presented testimony at a Board of Veterans' Appeals (Board) hearing in September 2019. A transcript of that hearing is of record and has been considered by the Board. In November 2019, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). On remand and in a September 2020 rating decision, the AOJ granted an increased rating of 30 percent for the Veteran's service-connected tension headaches, effective August 24, 2020. Increased Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a higher rating for tension headaches Tension headaches are rated pursuant to 38C.F.R. §4.124a, Diagnostic Code (DC) 8100, for migraine headaches. Under DC 8100, the Board must consider all the symptoms the Veteran experiences during a headache attack and then rate those symptoms based on the frequency, duration, severity, and economic impact of the attacks. See 38 C.F.R. § 4.124a, DC 8100; Holmes v. Wilkie, No. 19-2495, 2020 U.S. App. Vet. Claims (Nov. 25, 2020). The rating criteria of DC 8100 are successive, meaning that the Veteran 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). Because of this, 38 C.F.R. §§ 4.7 and 4.21 do not apply. Id. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks than the next higher rating. 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. The schedular maximum 50 percent rating is warranted for very frequent completely prostrating attacks and prolonged attacks productive of severe economic adaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. 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. Thus, these will be defined for the purposes of this decision in accordance with Porter v. Wilkie, No. 19-1521, 2020 U.S. Vet. App. Claims (June 3, 2020). The descriptive phrase "very frequent" connotes a frequency of 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). A July 2012 VA general medical examination noted that the Veteran had two to three headaches per month that lasted two hours per episode. The headaches were not prostrating. Severity was mild. During a headache, the Veteran did not have decreased attention, difficulty concentrating, difficulty functioning, speech difficulties, or mobility difficulties. He was diagnosed with tension headaches. The examiner noted that the Veteran's tension headaches did not require medical management as reporting was infrequent and the Veteran's head pain was reported as mild. In June 2014, the Veteran underwent a VA examination for headaches. He was diagnosed with migraines and tension headaches. He reported nearly daily headaches that seemed to be triggered by loud noises and/or bright light. He reported non-throbbing pressure on both sides of his head during a headache. He preferred to lay in a dark room during a headache. Headaches usually lasted less than a day. He treated his headaches with over-the-counter drugs with no effect; however, Amitriptyline helped. The Veteran did not have characteristics prostrating attacks of migraine/non-migraine pain. The examiner stated that the Veteran's headache condition would cause decreased productivity at work. In May 2015, the Veteran reported having headaches that caused greater head pain. At the time of the appointment, he was experiencing a headache with pain at 7/10. Upon examination, he was alert, oriented, speech was coherent, and he was able to obey commands. During a December 2016 VA neurology appointment, the Veteran stated that his headaches had improved. He attributed it to his new medication, Zonisamide, and not having the stress of college courses. He did not complain of headaches, dizziness, or visual symptoms. The Veteran was afforded another VA examination in June 2016. The Veteran was diagnosed with migraine headaches. He reported having four to five headaches a week that progressed in severity throughout the day. The pain varied but consisted of mostly a throbbing sensation. Also, he reported sensitivity to light. He treated his symptoms with Zonisamide daily. He reported characteristic prostrating attacks with frequency, on average, with less frequent attacks over the past several months. The examiner found that the Veteran's headache condition did not impact his ability to work. In January 2017, the Veteran reported having a severe headache after having a seizure. He noted that his headache was currently mild and that he did not want to follow-up with a VA neurology appointment. During an August 2017 VA neurology appointment, the Veteran stated that he no longer had headaches. The physician noted that the migraine headaches were in remission. During a January 2018 VA optometry note, the Veteran endorsed acute headaches every three days. A June 2018 VA treatment note indicated that the Veteran had headaches three times per week. Onset would be in the evening and last until the next day. He reported that this was an improvement as he previously had headaches daily when he was enrolled in college courses. An August 2018 VA treatment record noted that the Veteran's headaches were more frequent and that they would "come and go." There was no associated nausea, vomiting, or sensitivity to light or noise. During his September 2019 Board hearing, the Veteran asserted that his headaches were more frequent and that they are occasionally debilitating for the past two years. The Veteran stated that he had at least one prostrating headache per week, but usually he had three prostrating headaches per week. His prostrating headaches usually begin as mild headaches and progressed to include light sensitivity which require laying down. The Veteran stated that his headaches began worsening about two years prior. Notably, the Veteran stated that his recollection of time was impaired during his headaches. The Veteran's wife also noted that he would forget the duration of his headache: however, as the headache passed, his memory would improve. The Veteran noted that he stopped keeping a headache log. He treated his headaches with over-the-counter medications. Usually within hours of taking medication, the Veteran was able to function normally. The Veteran did not believe he would be able to work due to his headaches as he was unaware of an occupation he could perform with headaches. In August 2020, the Veteran was afforded a VA examination for headaches. His claims file was reviewed. To avoid harm to the Veteran during the COVID-19 pandemic, the examiner attempted to reach the Veteran by phone twice; however, these attempts were unsuccessful. The examiner noted the existing medical evidence provided sufficient information on which to prepare the disability benefits questionnaire and an examination would likely provide no additional relevant evidence. The Veteran was diagnosed with tension headaches. The Veteran noted that his headaches were worse the last two years. His headaches were manifested by throbbing head pain, sensitivity to light, and sensitivity to sound. The typical duration of head pain was less than one day. He treated his headaches with over the counter Naprosyn. He reported characteristic prostrating attacks with frequency, on average, once every month. He did not have very prostrating and prolonged attacks of migraine/non-migraine headache pain. The VA examiner found that the Veteran would lose up to one week of work in 12 months due to issues with lights (i.e. computer), attention to detail, and loud noises when having a headache. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the disability picture for headaches prior to September 25, 2019 more closely approximated the criteria for a compensable rating under DC 8100. Throughout this period, headaches were manifested by headache pain lasting less than one day with no prostrating attacks of headache pain. A compensable rating under DC 8100 is not warranted unless there are migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. The July 2012, June 2014, and June 2016 VA examinations did not show any prostrating attacks, and there are no complaints of prostrating attacks in the VA treatment records prior to September 25, 2019. In consideration thereof, the Board finds that the disability picture is consistent with a 0 percent schedular rating under DC 8100, so a higher (compensable) rating under DC 8100 is not warranted for any period. As the preponderance of the evidence is against a compensable rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. However, upon review of the evidence, the Board finds that effective September 25, 2019, the Veteran's migraine headache symptoms (continuing complaints of very frequent prostrating attacks occurring about one to three times per week with constant head pain, pulsating or throbbing head pain, and sensitivity to light) have more nearly approximated very frequent completely prostrating and prolonged attacks that are capable of producing severe economic inadaptability. While the August 2020 VA examiner found that the Veteran had one prostrating headache per month and that he did not have very prostrating and prolonged attacks of migraine/non-migraine headache pain, during his September 2019 Board hearing, the Veteran stated that his headaches required laying down as a method of treatment for his weekly severe headache. Further, the Veteran believed he would be unable to perform in a work setting due to the debilitating nature of his headaches. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no reason shown to doubt the Veteran's credibility, in this regard. Although the Veteran stated that his headaches symptoms worsened 2 years prior to his September 2019 Board hearing, the medical evidence of record does not show that the Veteran's headaches were manifested by characteristic prostrating attacks. Notably, VA treatment records form August 2017 noted that the Veteran no longer had headache symptoms. In 2018, the Veteran reported headaches occurring 2-3 times weekly, but there was no associated nausea, vomiting, or sensitivity to light or noise. Therefore, the Board finds a 50 percent rating is warranted for the Veteran's tension headaches, effective September 25, 2019, the date the Veteran first endorsed weekly prostrating headaches which were capable of producing severe economic inadaptability. While the Veteran notes his symptoms worsened two years prior and treatment records note more frequent headaches, there is insufficient information in the treatment records to support a 50 percent rating. Specifically, there is no indication as to whether these headaches resulted in prostrating attacks of the requisite frequency. Therefore, the 50 percent rating assigned from September 25, 2019 is the highest schedular evaluation available for headaches. In summation, the Board finds that from September 25, 2019, a 50 percent disability rating for the Veteran's service-connected headache disability is warranted. Also, the Board finds that prior to September 25, 2019, the Veteran's disability picture is consistent with a 0 percent schedular rating under DC 8100, so a higher (compensable) rating under DC 8100 is not warranted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.