Citation Nr: 21027364 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 20-16 076 DATE: May 5, 2021 ORDER An initial 50 percent maximum schedular rating for migraine headaches is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, his migraine headache disability have been productive of very frequent, completely prostrating and prolonged attacks, productive of severe economic inadaptability for the entire initial rating period on appeal. CONCLUSION OF LAW For the entire initial rating period on appeal, the criteria for a 50 percent disability rating, but not higher, for migraine headaches are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1984 to November 1988. In a May 2020 decision, the Board denied the claim for an initial compensable rating for migraine headaches. The Veteran timely appealed this portion of the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and by a January 2020 Order, the Court granted a December 2020 Joint Motion for Remand (JMR) that found that the Board failed to provide adequate reasons and bases for its denial of entitlement to initial compensable rating for migraine headaches. The case has since returned to the Board for further appellate consideration. Initial Rating for Migraine Headaches Rating Criteria Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon 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 applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pursuant to DC 8100, migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as non-compensable. Migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. The term "prostrating attack" is not defined in regulation or case law but can be defined as extreme exhaustion or powerlessness. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack); DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012). Further, "severe economic inadaptability" is also not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the Court has held that nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. It was explained by the Court that if "economic inadaptability" were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating. Id. citing 38 C.F.R. § 4.16. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words "productive of" could be read to mean either "producing" or "capable of producing." Id. at 446-447. The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Rating Analysis For the reasons expressed below, the Board finds that for the entire initial rating period on appeal, the Veteran's headache disability more nearly approximated the criteria for a 50 percent rating. According to January 2011 private treatment records, during a spine examination, it was noted that the Veteran was unable to sit and read for any length of time due to headaches. According to October 2014 VA treatment records, the Veteran had headaches that felt like an ice pick in the back of the head. These headaches sometimes lasted a whole day and were associated with nausea, vertigo, pressure in eyes, and visual scotomata. In October 2017, the Veteran underwent a VA headaches examination, at which time the examiner diagnosed chronic headaches. It was noted that the Veteran took Tramadol for treatment of the headaches. The pain was in the posterior aspect of the head and could throb or be a steady pressure. Symptoms associated with the headaches included nausea, sensitivity to light, and some halos around lights. The duration of a typical headache was less than one day. The examiner indicated that the Veteran had characteristic prostrating attacks of migraine/non-migraine headaches with less frequent attacks and not very prostrating and prolonged attacks. During an October 2017 cranial nerve VA examination, it was noted that the Veteran had severe headaches that varies in severity and occurred at least once or twice per month and could last 20 minutes or two hours. He rarely called in sick or left work due to headaches. According to April 2018 private treatment records, the Veteran had severe headaches. In June 2018, he reported that he had constant headaches. According to November 2018 VA treatment records, the Veteran had headaches four to five times per week. In July 2019, the Veteran reported that he had headaches a few times or more per week. In April 2020 correspondence, the Veteran reported that he had headaches almost every day, which sometimes lasted for hours and he could not get rid of them. He was only able to take Tylenol due to his work with air traffic. On weekends, he took Gabapentin, but had only little success with this medication. Six or seven times a month he had headaches that felt like someone was sticking an icepick in his head. Those headaches were debilitating and were associated with nausea and sensitivity to light and sound. This could last anywhere from ten minutes to an hour and prevented him from functioning at work. He had to close the doors in his office, shut the lights off, and take Tylenol until the headaches subside. In the April 2020 substantive appeal, the Veteran noted that he had daily, severe headaches that were debilitating up to seven times a month. In April 2021 correspondence, the Veteran reiterated the statements made in April 2020 and added that more recently he had to take sick leave due to his headaches and change his work schedule around his headaches. On review, the Board resolves any reasonable doubt in the Veteran's favor and finds that the migraine headache disability more nearly approximate the criteria for a 50 percent disability rating. In this regard, the Board notes that the 30 percent criteria require headaches with characteristic prostrating attacks occurring on average once a month. Here, the Veteran experienced more than that which is required for the 30 percent rating in that he reported having at least two headaches per month that lasted from a few hours to a whole day. Those headaches required the Veteran to take medication and lay down in a dark room. As such, at the very least, he had severe headaches that occurred two times a month, which is more frequent than required by the 30 percent rating criteria. Notably, the medical and lay evidence showed severe, completely prostrating headaches. Moreover, the Veteran competently reported that the headaches interfered with his work. In any event, the fact that the Veteran was working during this rating period on appeal does not indicate that his headaches were not productive of severe economic inadaptability. Indeed, the Board's analysis is focused on whether the disability is capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. Pierce, 18 Vet. App. at 440. Based on this body of evidence, the Board finds that the Veteran's headaches more nearly approximate the criteria for a 50 percent disability rating, the highest available schedular rating for this disability under DC 8100. (Continued on the next page) Finally, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.