Citation Nr: 21028722 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-10 617 DATE: May 11, 2021 ORDER An initial rating in excess of 50 percent for migraine headaches, on an extraschedular basis, is denied. FINDING OF FACT The functional effects of the Veteran's migraine headaches are contemplated by the rating criteria, and, migraine headaches are not manifested by factors such as a marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for an extraschedular rating for migraine headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.124A, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the issues of entitlement to an initial extraschedular rating in excess of 50 percent for migraine headaches and entitlement to an extraschedular TDIU for additional development, including obtaining an additional VA examination. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Thereafter, in an August 2020 rating decision, the RO awarded a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), effective June 20, 2011, based on a determination from VA's Director of Compensation Service that the Veteran's service-connected migraines rendered him unable to secure or follow a substantially gainful occupation. In addition, basic eligibility to Dependents' Educational Assistance was established. The Veteran was notified in an award letter dated September 2020 that this decision constituted a full grant of the benefit sought on appeal. As the RO granted in full the benefit sought by the Veteran, there is no remaining allegation of error of fact or law for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). I. Schedular and Extraschedular Evaluations Disability evaluations are determined by the application of VA Schedule for Rating Disabilities (hereinafter Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. II. Rating Criteria for Migraine Headaches 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 38C.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." 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 contains 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). III. The claim for entitlement to an extraschedular rating in excess of 50 percent for migraine headaches is denied. The Veteran contends he is entitled to an extraschedular disability rating in excess of 50 percent for his migraine headaches. The Board concludes that the assignment of an extraschedular rating for service-connected migraine headaches is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.124A, Diagnostic Code 8100. As an initial matter, the Board observes the following procedural history. A June 2013 rating decision granted the Veteran's claim of entitlement to service connection for migraine headaches and assigned the maximum 50 percent rating under Diagnostic Code 8100 (Migraine). 38 C.F.R. § 4.124A. This appeal arises from the Veteran's disagreement with the initial 50 percent rating assigned. It is noted that the Veteran is not service connected for any additional disabilities. Pursuant to the Board's prior remand, the Veteran underwent a VA headaches examination in January 2020. Thereafter, in June 2020, the RO referred the matters of entitlement to an extraschedular TDIU and entitlement to an extraschedular rating for migraine headaches to the VA Director of Compensation Service. In an advisory opinion issued in August 2020, the Director granted entitlement to an extraschedular TDIU under 38 C.F.R. § 4.16(b) and denied entitlement to an initial extraschedular rating in excess of 50 percent for migraine headaches under 38 C.F.R. § 3.321(b). Although the Board does not have the authority to award an extraschedular rating in the first instance, the Board has jurisdiction to review and award extraschedular ratings in claims that have been referred to and denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). As the Director of Compensation Services has made its required initial determination, the Board has jurisdiction to adjudicate the matter of entitlement to an extraschedular rating for migraine headaches on the merits at this time. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). The Board is not bound by the findings of the Director. Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (the findings of the Director of Compensation Service on extraschedular consideration are not evidence, but rather a decision of the agency of original jurisdiction (AOJ) reviewed de novo by the Board). It is further noted that a referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b) does not mean the claim will succeed on the merits. The standard for referral is necessarily "based on a[n] evidentiary threshold that is lower than that for the decision to award an extraschedular rating." Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). The AOJ's referral was based on a review of the evidence suggesting that the Veteran's migraine headaches may adversely impact his ability to function effectively, which was sufficient to trigger the Veteran's procedural right to referral to the Director for extraschedular consideration. This finding did not involve a weighing of the favorable and unfavorable evidence to make a final determination on entitlement to an extraschedular rating. Therefore, the Board has not made its own determination on whether the evidence actually supports a finding that the Veteran is entitled to an extraschedular rating for his migraine headaches. See Smiddy v. Wilkie, 32 Vet. App. 350, 358 (2020) (in the extraschedular rating context, the Board's reasons-or-bases requirement obligates it to "explain[] its reasoning when a factual finding made at the referral stage comes out differently at the review stage") (quoting Ray v. Wilkie, 31 Vet. App. 58, 67 (2019)). The Board concludes that after a complete review of the record, the Veteran's migraine headaches symptoms are adequately contemplated by the Rating Schedule, and assignment of an extraschedular rating is not warranted, as explained below. With respect to the first Thun element, the Court recently stated that "exceptionality remains the touchstone in determining whether extraschedular consideration is warranted under 38 C.F.R. § 3.321(b)(1)" and a broad analysis is required based on a "totality of the factors inquiry" as to whether the veteran's disability picture as a whole presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance. See Long v. Wilkie, No. 16-1537 (Vet. App. December 30, 2020). The Board notes that the Veteran has not identified, nor do VA examination reports and VA treatment records document, any other symptoms that are exceptional or unusual enough that they are not contemplated under Diagnostic Code 8100 or other applicable diagnostic codes. In addition, the May 2013, March 2014 and January 2020 VA examination reports reflect there are no other physical findings, complications, conditions, signs or symptoms related to the Veteran's diagnosis of migraine headaches. The Board finds the symptoms reported by the Veteran are not exceptional within the meaning of 38 C.F.R. § 3.321(b). In this regard, the schedular rating criteria for migraines adequately contemplate the level of disability and symptomatology shown. Recently, the Court of Appeals for Veterans Claims (Court) affirmed that Diagnostic Code 8100 contemplates all migraine symptoms. See Holmes v. Wilkie, No. 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131 (Nov. 25, 2020). When evaluating migraines under Diagnostic Code 8100, VA must first consider the symptoms experienced due to migraine attacks, and then rate the symptoms based on the frequency, duration, severity, and economic impact of those attacks. Id. Here, the evidence reflects that the Veteran's migraine headaches are manifested by symptoms of pain, auras, nausea, sensitivity to light and sound, and changed vision, resulting in "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." While these signs and symptoms, and their resulting functional impairments, are not specifically listed in the rating criteria, they are included in the disability rating analysis as to whether the migraines are prostrating and cause economic inadaptability. To the extent that during a January 2020 VA examination, the Veteran reported that his migraines were sometimes associated with the loss of feeling in his left arm as if he were paralyzed, a November 2019 VA chiropractic note shows he was diagnosed as having comorbid left-sided shoulder girdle muscle imbalance, upper cervical hypertonicity, and associated joint dysfunction attributable to underlying multiple left rotator cuff/labrum/capsule tears. During the visit, he reported headaches that generate from the left side of his neck that radiated up into his left eye orbit. He was diagnosed as having cervicalgia, myalgia, and abnormal posture. The Court has instructed the Board to consider all schedular alternatives to maximize benefits, including secondary service connection, before extraschedular consideration is warranted. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). However, the Board finds that the holding of Morgan does not lead to additional benefits in this case as the competent evidence of record does not demonstrate that the Veteran's neck and left shoulder symptoms are secondary to his migraine headaches as they have been attributed to specific orthopedic diagnoses. The Court noted in Holmes that the veteran's symptoms may raise extraschedular considerations if they present an exceptional case with symptoms more severe, frequent, or long-lasting than what is contemplated in the rating criteria, further noting that if a veteran's migraines go beyond economic inadaptability and preclude substantially gainful employment, then a TDIU is an option. Here, the initial schedular 50 percent rating is assigned based on the severity, frequency, and duration of the symptoms demonstrated by the competent lay and medical evidence throughout the appeal period. For instance, during the January 2020 VA headaches examination, the Veteran reported that until approximately 2012, his headaches were constant but now he averages 3 migraine attacks per month. He stated that although the migraine attack can occasionally last for weeks with varying levels of intensity, they are always debilitating and impair his ability to work and function. In this regard, the Veteran's primary assertion is that his migraines are consistent, debilitating and have precluded him from maintaining any employment. See NOD (November 2015). As noted above, the Veteran was recently awarded an extraschedular TDIU solely based on the occupational impairment caused by his migraine headache symptoms in addition to the side-effects, such as "brain fog" associated with his migraine medication. In sum, as the symptoms related to the Veteran's migraines are adequately contemplated by the schedular rating criteria, the threshold first prong under Thun has not been met. As such, the Board need not consider the second element of whether there are related factors such as marked interference with employment or frequent periods of hospitalization. The Court has clarified that Thun's first step deals exclusively with whether the veteran's symptoms and functional impairments are exceptional, while Thun's second step considers the functional effects of those symptoms. See Long, No. 16-1537. It is noted that "extraschedular consideration is appropriate only after the [AOJ] has exhausted all other schedular tools for a disability rating." Greenfield v. Tran, No. 18-1907, 2021 U.S. App. Vet. Claims LEXIS 107, at *2 (Jan. 29, 2021) (citing Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Dec. 30, 2020) (en banc). Based on the foregoing discussion, the Board finds that the Rating Schedule, specifically the schedular rating criteria for a 50 percent evaluation under Diagnostic Code 8100, is adequate to evaluate the Veteran's reported symptomatology for his migraine headaches. The disability is not exceptional under the framework of 38 C.F.R. § 3.321(b). (Continued on the next page) On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.