Citation Nr: 21028878 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-31 832 DATE: May 12, 2021 ORDER An initial rating of 50 percent for migraines is granted. FINDING OF FACT During the entire appeal period, the evidence is in relative equipoise as to whether the Veteran's tension headache disability has been manifested by very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Resolving all reasonable doubts in favor of the Veteran, for the entire appeal period, the criteria for a 50 percent rating, but no higher, for migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1990 to April 2010. This appeal is before the Board of Veterans' Appeals (Board) from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. The transcript is not yet available. However, this appeal meets the criteria for VA's one-touch initiative program. To provide an immediate and favorable response to the Veteran after his hearing, a transcript of the hearing will be added to the Veteran's file at a later date. 1. An initial rating of 50 percent for migraines The Veteran contends that an initial compensable rating is warranted for his service-connected migraine headaches. The Veteran's migraine headaches disability is assigned a 0 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, 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 average once a month of 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. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating;" nor has the Court. Cf. Fenderson, supra (quoting Diagnostic Code 8100 verbatim but not specifically addressing the matter of what is a prostrating attack). By way of reference, the Board notes that according to Webster's New World Dictionary of American English, Third College Edition (1986), p.1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." While the term "productive of severe economic adaptability" has not been clearly defined by regulations, the Court has explained that that term, for purposes of applying Diagnostic Code 8100, can either mean producing, or capable of producing. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually produce severe economic inadaptability to warrant a 50 percent rating under Diagnostic Code 8100. Id. at 445-46. Likewise, "economic inadaptability" does not equate to unemployability, as such would undermine the purpose of regulations pertaining to a TDIU. Id. at 446. The Board resolves all reasonable doubts in the Veteran's favor and finds that an initial rating of 50 percent is warranted during the entire appeal period. The totality of the evidence of record suggests that the Veteran's headaches are completely prostrating and incapacitating and that they occurred on the average of at least two to three times a month during the entire appeal period, indicative of a 50 percent rating under Diagnostic Code 8100. In this regard, a January 2017 treatment record noted the Veteran's headaches were moderate and pounding, aggravated by bright light, and accompanied by nausea, vertigo, and vomiting two to three times a month. He would leave work, take medication, and rest. An August 2017 treatment record noted the Veteran nausea, vomiting, and aura associated with his headaches three to four times a week. An October 2017 treatment record showed no change in the quality of frequency of his headaches. The Veteran was afforded a VA examination in November 2017. The examiner diagnosed generalized headaches. The examiner indicated that the Veteran did not experience non-headache symptoms associated with his headaches, but later indicated the Veteran had blurred vision, nausea, and vomiting. The headaches lasted one to two days and were located on the right side of his head. The examiner indicated that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain, nor did he have very prostrating and prolonged attacks of migraine or non-migraine pain productive of severe economic inadaptability. The examiner opined that the Veteran's headache condition did not impact his ability to work. In January 2018, it was noted the Veteran needed to be in a dark room, lying down and often felt nauseous when a migraine occurred. The migraine could last several hours to a couple of days. In 2017 the Veteran had to be picked up from work at least six times because his migraine was so severe he could not drive himself home. In April 2021, the Veteran submitted a migraine log that spanned from February 2019 through March 2021. The log showed an average of usually at least two migraines per month. When still reporting to the office, the Veteran noted he had rested at work for hours until he was able to go home. Most migraines resulted in the Veteran taking leave from work. The Veteran noted that he worked at night to make up hours missed during the day due to a migraine. During the April 2021 hearing, the Veteran testified that his supervisors were very understanding of his absences due to his migraines. They made accommodations for him and allowed him to complete his work outside of normal work hours. However, the Veteran still has taken considerable time off from work due to his migraines that is not made up by working later in the evening. While the November 2017 VA examiner noted that the Veteran did not have non-headache symptoms associated with his headaches, the Veteran contradicted this finding within the same examination noting that the Veteran had blurred vision, nausea, and vomiting. Further, treatment records throughout the appeal period show non-headache symptoms associated with the Veteran's headaches. Additionally, while the examiner opined the Veteran's headaches did not impact his ability to work this is not supported by the record as the Veteran has consistently reported taking time off work due to his migraines. Further, the examiner indicated that the Veteran did not have headaches with characteristic prostrating attacks of headache pain. However, considering the definitions of prostration as shown above, the Board finds the Veteran has frequently shown complete physical exhaustion, helplessness, or powerlessness due to his migraines as shown by the Veteran's need to stop what he is doing and lay down in his office or his need to be picked up at work by his wife because he is unable to drive home. Given the Veteran's statements to both the Board and medical professionals, it is clear the Veteran's headache symptoms have led to excessive absence and frequent prolonged unscheduled breaks reflecting the prostrating nature of his headache symptoms. Further, without the accommodations made to him by his supervisors the prostrating nature of his headache symptoms would to severe economic inadaptability. Under these circumstances, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran experiences very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, warranting a 50 percent rating, during the entire appeal period. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelly A. Gastoukian 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.