Citation Nr: 21026804 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-34 774 DATE: May 4, 2021 ORDER Entitlement to a compensable rating for migraine headaches ("migraine disorder"), prior to April 23, 2017, is denied. Entitlement to a rating in excess of 30 percent for migraine disorder, from April 23, 2017, is denied. FINDINGS OF FACT 1. Prior to April 23, 2017, the Veteran's migraine disorder did not manifest in characteristic prostrating attacks averaging one in two months over the previous several months. 2. From April 23, 2017, the Veteran's migraine disorder does not manifest as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Prior to April 23, 2017, the criteria for a compensable rating for migraine disorder have had not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. 2. From April 23, 2017, the criteria for a rating in excess of 30 percent for migraine disorder have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 2000 to March 2004. The Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's service-connected migraine disorder to 30 percent, effective from April 23, 2017, in a July 2020 rating decision. As this does not constitute a full grant of the benefit sought, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Ratings The Veteran asserts that the ratings assigned for service-connected migraine disorder prior to April 23, 2017 and from April 23, 2017 do not contemplate that severity of this disability. 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § § 4.1 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The AOJ has rated the Veteran's migraine disorder under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in two months over the previous several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the previous several months. A maximum 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See id.; see also Pierce v. Principi, 18 Vet. App. 440, 445 (2004) (finding rating criteria do not define "severe economic inadaptability," but nothing in Diagnostic Code 8100 requires that Veteran be completely unable to work to qualify for 50 percent rating; "productive of economic inadaptability" can be read as either "producing" or "capable of producing.") Although Diagnostic Code 8100 does not provide a definition for "prostrating," prostration is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary, 1531 (32nd ed., 2012). Prior to April 23, 2017 Upon a July 2015 Gulf War Registry examination, the Veteran reported that he sometimes awakens with headache which might last for several hours. The Veteran endorsed that his sensitivity to light might trigger headaches. As a precaution, the Veteran advanced that he wore sunglasses and used blackout curtains at his house. The Veteran indicated that he might take ibuprofen for his headaches. In February 2016, the Veteran underwent a VA headaches (migraine) examination. A clinician reviewed the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation (hereinafter "VA exam protocols"). The clinician indicated a current diagnosis of migraine including migraine variants. The Veteran conveyed that he has experienced chronic headaches since 2003. The clinician indicated that the Veteran's migraine treatment plan did not include taking medication. The Veteran endorsed headache pain on both sides of his head and associated symptoms of sensitivity to light, sensitivity to sound, changes in vision, and sensory changes. Typical duration of a headache was one-to-two days with pain at both sides of the head. The clinician indicated that the Veteran did not have any prostrating attacks of migraine or non-migraine headache pain. The Veteran conveyed that his migraine functionally impacted his ability to work, reporting that migraine disorder (along with other separate-evaluated disabilities) diminished his abilities to concentrate and to focus on task. The Veteran believes that his service-connected migraine disorder warranted a compensable rating prior to April 23, 2017. The Veteran is certainly competent to report discernable symptoms such as pain on both sides of the head and associated symptoms of sensitivity to light, sensitivity to sound, changes in vision, and sensory changes. The Board has considered this lay evidence carefully. 38 C.F.R. § 3.159(a)(2). Nevertheless, the evidence of record fails to show that this Veteran possesses the highly specialized knowledge in medicine to render a complex opinion as to the clinical severity of a headache/migraine disorder. 38 C.F.R. § 3.159(a)(1). Consequently, this lay evidence does not constitute competent medical evidence. The Board has discussed the pertinent evidence above. The February 2016 VA clinician did not indicate that that Veteran experienced any characteristic prostrating attacks of headaches/migraines. The Board assigns substantial probative weight to the findings of this competent and expert clinician. In sum, the Board finds that the preponderance of the evidence is against the claim for a compensable rating for the Veteran's migraine disorder prior to April 23, 2017. From April 23, 2017 On April 23, 2017, the Veteran underwent another VA headaches (migraine) examination. The clinician followed VA exam protocols. The clinician continued the diagnosis of migraine including migraine variants. The Veteran reported sensitivity to light and ringing in his ears, noting that over-the-counter (OTC) analgesics no longer alleviated migraine pain. The Veteran endorsed symptoms of frontal headaches and "hearing" popping in his brain. Treatment now included taking analgesic medication. The Veteran indicated chronic head pain in the temple regions bilaterally. The clinician noted that the Veteran did experience non-headache symptomssensitivity to light and difficulty concentrating. Typical duration of a headache was less-than-one day with pain at both sides of the head. The Veteran did have characteristic prostrating attacks of migraine/non-migraine headache pain once every month. However, the clinician opined that the Veteran did not experience very prostrating and prolonged attacks of migraine/non-migraine headache pain productive of severe economic inadaptability. The clinician indicated that the chronic migraines from which the Veteran suffers might have a negative impact in the Veteran's ability to "hold" a job. The Board notes that this clinician opined that the Veteran's migraine including migraine variants is at least as at least as likely as not due to the Veteran's traumatic brain injury (TBI). As a rationale, this clinician indicated that the Veteran suffered a TBI in April 2003 and shortly thereafter began having symptoms of migraine headaches that he had not had prior to the TBI. Upon review of the Veteran's latest rating decision of record (July 7, 2020), the Veteran is service connected for a separate disability of "an acquired psychiatric disorder of posttraumatic stress disorder and alcohol dependence; insomnia with TBI." The AOJ rated this "constellated" or bundled disability at 50 percent, effective from May 20, 2010; at 70 percent, effective from April 8, 2015; and a 100 percent, effective from March 22, 2017. Consequently, the TBI component of this "constellated" disability is not before the Board in the instant appeal as it is a wholly separate rated disability. Indeed, the AOJ assigned a 100 percent rating for "an acquired psychiatric disorder of posttraumatic stress disorder and alcohol dependence; insomnia with TBI" more than one month prior to the April 23, 2017 VA headaches (migraine) examination. A review of VA treatment records and progress notes reveals that "migraine variant with headache" remained a separate disability on the Veteran's problem list, distinct from TBI. In January 2018, VA received a parcel of private medical records from PMS. Upon review of these records, a December 2017 report shows that the Veteran denied any chronic pain, headache irritability, nausea, sweating, trembling, urinary frequency, and weight gain. However, a clinician indicated that a neurological system review included headache and shaking. A February 2018 PMS record disclosed that the Veteran reported that he took medication for headaches during that month. In an August 2018 addendum, a VA physician wrote that the Veteran reported having migraine headaches "classic type," which occur primarily on days when the Veteran has not used his continuous positive airway pressure (CPAP) device (for sleep apnea) during the precedent night. The Veteran believes that his service-connected migraine disorder warrants a rating in excess of 30 percent from April 23, 2017. The Veteran is certainly competent to report discernable symptoms. The Board has considered this lay evidence carefully. 38 C.F.R. § 3.159(a)(2). As noted above, the evidence does not disclose that the Veteran possess the medical expertise to render an opinion as to the severity of a migraine disorder. 38 C.F.R. § 3.159(a)(1). Hence, this lay evidence is not competent medical evidence. To receive a higher rating from April 23, 2017, there would need to be a showing that migraine disorder manifests as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Such is not disclosed in the evidence of record. The Board has discussed the pertinent evidence above. The April 23, 2017 clinician indicated that the Veteran's migraine disorder ("migraine including migraine variants") manifests as characteristic prostrating attacks of migraine/non-migraine headache pain once every month. The clinician did not indicate that this disability manifests as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board assigns substantial probative weight to the findings of this competent expert clinician. Moreover, the other VA and private clinical records from April 23, 2017 fail to disclose findings that suggest that the Veteran's migraine disorder manifests as such. The Board recognizes that the April 23, 2017 clinician indicated that the chronic migraines from which the Veteran suffers might have a negative impact in the Veteran's ability to "hold" a job. The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. In sum, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 30 percent for the Veteran's migraine disorder from April 23, 2017. K.R. Kardian Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.