Citation Nr: 21028550 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-34 722 DATE: May 11, 2021 ORDER For the entire appeal period, a rating of 50 percent for the Veteran's posttraumatic headache disability is granted. REMANDED Entitlement to an initial compensable rating for traumatic brain injury (TBI) is remanded. FINDING OF FACT For the entire appeal period, the competent and probative evidence supports a finding that the Veteran experiences headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW For the entire appeal period, the criteria for a disability rating of 50 percent for the Veteran's posttraumatic headache disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2005 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision, which granted service connection for traumatic brain injury (TBI) and post-traumatic headaches, effective January 14, 2016. The Veteran is appealing the initial rating assigned for these disabilities. 06/12/2015, NOD. In March 2020, the Board denied entitlement to (1) a compensable rating for TBI and (2) a compensable rating before April 18, 2016, and a rating in excess of 30 percent from April 18, 2016, for post-traumatic headaches. Nevertheless, in December 2020, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR), thereby vacating the March 2020 decisions and remanding these matters back to the Board for readjudication. The Veteran testified at a Board hearing in December 2019. The Veterans Law Judge (VLJ) who presided over that hearing is no longer employed by the Board. In view of this, the Board, in January 2021, informed the Veteran that he had the right to request another Board hearing. The Veteran was advised that if he did not respond within 30 days, the Board would assume that he did not want another hearing and proceed accordingly. A response from the Veteran has not been received. Accordingly, the Board assumes that he does not want another hearing. Entitlement to an initial compensable rating before April 18, 2016, and a rating in excess of 30 percent from April 18, 2016, for post-traumatic headaches. The Veteran seeks higher ratings for his post-traumatic headache disability. He is currently in receipt of staged ratings. For the period on appeal prior to April 18, 2016, his disability is rated as noncompensable (zero percent). For the period since April 18, 2016, it is rated as 30 percent disabling. *** Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. 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. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 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 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." Additionally, "Characteristic" is "a trait, quality, or property or a group of them distinguishing an individual, group, or type." Webster's Third New International Dictionary of the English Language Unabridged 376 (1966). "Prostrating" means "lacking in vitality or will: powerless to rise: laid low." Id. at 1822. "Completely" is defined as "to complete degree: entirely." Id. at 465. In other words, the headaches must render the veteran entirely powerless. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). *** The Veteran underwent a VA examination for his post-traumatic headache disability in March 2015. He reported that he had recurrent headaches 4 or 5 times a week. The headaches generally lasted about 45 minutes to an hour. He described the headaches as bilateral pulsating or throbbing pain accompanied by nausea, blurred vision, and sensitivity to light and sound. The headaches did not impact his ability to work. The March 2015 VA examiner found that the Veteran did not experience characteristic prostrating attacks of migraine / non-migraine headache pain. The Board appreciates the input from the March 2015 VA examiner but finds that the examiner's finding that the Veteran did not experience characteristic prostrating attacks is inconsistent with the symptoms reported by the Veteran. As mentioned above, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The Veteran has described his headaches as bilateral pulsating or throbbing pain accompanied by nausea, blurred vision, and sensitivity to light and sound. Resolving doubt in favor of the Veteran, the Board finds that the severity of his headaches approximate the definition of a characteristic prostrating attack, that is, a migraine attack that typically produce extreme exhaustion or powerlessness. 38 C.F.R. § 4.3. Based on the frequency and severity of the Veteran's headaches, the Board finds that he is entitle to a rating of 30 percent for the period prior to April 18, 2016. *** The Board now turns to the question of whether a rating higher than 30 percent under DC 8100 is warranted for any portion of the appeal period. As mentioned, a 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. 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. 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). Turning to the evidence, the March 2015 VA examination indicates that the Veteran had recurrent headaches 4 or 5 times a week. The headaches generally lasted about 45 minutes to an hour. He described the headaches as bilateral pulsating or throbbing pain accompanied by nausea, blurred vision, and sensitivity to light and sound. It was noted that the headaches did not impact his ability to work. In a VA Neurology Consult from April 18, 2016, the examiner found that the Veteran had migrainous headaches. The headaches occurred daily with pulsating or throbbing, as well as tightness or squeezing. The Veteran reported that the headaches were bilateral; they began as frontal, then covered the whole head. The headaches were accompanied by nausea, photophobia, and phonophobia. The Veteran rated the severity as 10 out of 10. The Veteran also reported that vomit and dizziness occurred only when the headaches were bad, which was approximately 4 times a week. The headaches were triggered with bright light, reading, working, and stress. In a February 2017 VA examination, the Veteran reported experiencing daily headaches with pulsating or throbbing head pain. The headaches lasted 1 to 2 days and were accompanied by nausea, vomiting, loss of balance, and sensitivity to light and sound. The Veteran mentioned that his eyes hurt all the time, and he felt pressure in his eyes and in the back of his head. The VA examiner found that the Veteran had characteristic prostrating attacks of migraine / non-migraine headache pain once every month. The Veteran did not have very prostrating and prolonged attacks of migraine / non-migraine pain productive of severe economic inadaptability. The Veteran's headache condition impacted his ability to work in that he had limited concentration and focus during episodes of headaches. However, he could perform general activities without significant restrictions. In a September 2016 buddy statement, the Veteran's friend and fellow service-member stated that the Veteran has migraines and avoids rooms with lights. The Veteran was also observed wearing sunglasses indoors; and he would sometimes go onto a quiet, dark room, lay down, and then cover his face with a pillow. He has put in for sick leave at work because of his headaches. In an October 2019 statement, the Veteran reported that, with his headaches, he experiences nausea and dizziness. He has requested sick leave from work due to his migraines, and he sometimes leaves work early. He stated that he sometimes lies face down in a dark quiet room. Based on the evidence of record, and resolving doubt in favor of the Veteran, the Board finds that the severity of the Veteran's headaches approximates the criteria for the maximum rating of 50 percent during the entire appeal period. More specifically, the Board finds that the Veteran's headaches are severe enough to be capable of resulting in severe economic inadaptability. In this regard, the evidence establishes that the Veteran experiences characteristic prostrating attacks in an almost daily basis, affecting his productivity at work and requiring him to take frequent sick leave. While the evidence suggests that Veteran's employer provides some accomodation regarding the Veteran's headache disability, any such accomodation is not evidence against a finding of severe economic inadaptability. Rather, it lends support to such a finding, as the Veteran would not need accomodation if the severity of his symptoms was not severe. To summarize, the Board finds that the Veteran is entitled to a rating of 50 percent under DC 8100 for the entire appeal period, as the evidence shows that he experiences migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. This is the maximum rating under DC 8100. A higher rating is not available as a matter of law. REASONS FOR REMAND Entitlement to an initial compensable rating for TBI is remanded. The Veteran contends he is entitled to a compensable evaluation for his service-connected traumatic brain injury (TBI) disability. The Veteran filed his claim of service connection for a TBI in January 2015. In the April 2015 rating decision currently on appeal, the RO granted the Veteran service connection for a TBI disability with a noncompensable (0 percent) evaluation under Diagnostic Code (DC) 8045, effective January 14, 2015. See 38 C.F.R. § 4.124a. The Veteran underwent a VA examination for his TBI disability in March 2015. The VA examiner diagnosed the Veteran with TBI with the only diagnosed residual being post-traumatic headaches, which is service connected and discussed above in this decision. The Veteran was noted to have no complaints of impairment of memory, attention, concentration, or executive functions. Regarding neurobehavioral effects, the March 2015 VA examiner noted that the Veteran had a history of post-traumatic stress disorder (PTSD) with depression, anxiety, insomnia, and nightmares; but the VA examiner determined that these were all unrelated to the TBI. (The Veteran is also service connected for PTSD.) The Veteran underwent another VA examination for his TBI in February 2017. At the February 2017 VA examination, the VA examiner again found that the only residual attributable to the TBI was headaches. Per the examiner, the Veteran had no complaints of impairment of memory, attention, concentration, or executive functions, and no neurobehavioral effects related to the TBI. Nevertheless, at his December 2019 Board hearing, the Veteran reported that he had difficulties with memory, focus, and coordination, related to his TBI disability. This testimony suggests the Veteran's disability has worsened or progressed. To the extent that the prior VA examinations do not capture the current severity of his disability, the appropriate course of action is to remand for a new VA examination. The Board also finds that clarification is needed as to whether the Veteran has neurobehavioral symptoms associated with his TBI disability. In this regard, an April 2016 VA neurology consult notes describes the Veteran's anxiety attacks and sleep difficulties as TBI-related. 06/26/2018, CAPRI, at 204. This treatment note contradicts the findings of the March 2015 and September 2017 VA examination. This matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TBI disability. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must consider all relevant evidence, to include the Veteran's December 2019 Board hearing testimony (reporting difficulties with memory, focus, and coordination, related to his TBI disability) and the April 2016 VA neurology note (describing the Veteran's anxiety attacks and sleep difficulties as TBI-related). See 06/26/2018, CAPRI, at 204. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.