Citation Nr: 21031232 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 10-18 813 DATE: May 20, 2021 ORDER Entitlement to a rating in excess of 30 percent for headaches is denied. FINDING OF FACT The probative evidence of record demonstrates that the Veteran has headaches that occur on average once a month over the last several months, but do not manifest into headaches that are very frequent, completely prostrating and prolonged and are productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for headaches have not been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to October 1991. The Veteran was awarded two bronze stars for his service in Southwest Asia. By way of history, the issues on appeal come to the Board of Veterans' Appeals (Board) from a rating decision rendered in April 2008. In October 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the proceeding is associated with the record. The Veteran's claim was most recently before the Board in May 2020 wherein the Board denied the claim for a rating in excess of 30 percent. Thereafter, the Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). Through a joint motion for partial remand (JMPR), the Court vacated the Board's denial and remanded the claim for further action. As explained in the May 2020 Board decision, in a July 2018 rating decision, the agency of original jurisdiction (AOJ) granted the Veteran's claim for an increased rating for headaches with a 30 percent rating effective November 29, 2001. As the rating for headaches was not considered a full grant of benefits, it remained on appeal. Further, the Board notes that while the AOJ granted the 30 percent rating effective November 29, 2001, the Board is not clear under what legal basis it did so. From the Board's review of the record, the Veteran's initial claim for service connection for headaches was not on appeal prior to his application for an increased rating, which he submitted January 8, 2008. Therefore, the Board will limit its review to the period on appeal related to the January 8, 2008 application. Related to the Veteran's claim for an increased rating for headaches, the Board notes that in December 2008, the Veteran submitted a claim for "dementia due to head trauma," under Diagnostic Code 9304. The AOJ referred to this claim as a claim for a traumatic brain injury (TBI). This claim came after his January 2008 application for an increased rating for headaches. At the time of this application, the Veteran's service-connected headache disability was rated under Diagnostic Code 9304, as residuals of head trauma. On the September 2012 rating decision codesheet, the Veteran's claim for a TBI was noted to be "intertwined with the appeal for headaches and should be addressed with the appeal." In the January 2015 remand, the Board noted the interplay of the issues but found that Diagnostic Code 8100, providing for evaluation of migraine headaches, should be considered for evaluation purposes. In November 2019, the AOJ granted a separate 10 percent evaluation for cognitive impairment and other residuals of TBI not otherwise specified (claimed as memory loss and traumatic brain injury), effective December 8, 2008, the date of the Veteran's informal claim for a TBI. This rating decision further stated that the rating was based on evidence of record at the time and another examination would be scheduled to determine his current residuals. Therefore, the Board finds that the AOJ separated the rating for headaches (discussed below under Diagnostic Code 8100) and the rating for a TBI (under Diagnostic Code 9304). Further, the AOJ is still developing the claim for a TBI. Therefore, the Board declines to adjudicate the issue of an increased rating for a TBI in this decision. As noted in the January 2015 and September 2017, the Veteran was reminded of the need to submit private records in support of his claim. The Veteran has declined to submit any such records in response to these notices. Therefore, the Board will proceed to adjudicate the Veteran's claims. Increased Rating 1. Entitlement to a rating in excess of 30 percent for headaches The Veteran contends that his migraine headaches warrant a higher rating than 30 percent. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § § 1155; 38 C.F.R. § § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered the record and has not found that staged ratings are warranted because the degree of disability has remained approximately the same during the period on appeal given the probative evidence of record. Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's headaches are rated under Diagnostic Code 8100. Under this code, a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months, and a 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 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 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). The rating criteria of Diagnostic Code 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Evidence Throughout the record, the Veteran has submitted various statements describing his headaches and arguments for a higher rating. In January 2008, the Veteran reported experiencing nausea with headaches that occurred twice a week. In May 2014, the representative identified that the Veteran reported headaches three times a week that were treated with Excedrin and he had nausea, vomiting, visual spots, and noise sensitivity. In May 2016, the representative argued that the Veteran suffered from long standing and severe symptoms for which he has attempted to self-medicate with over the counter medications, with only temporary relief. Further, that the occurrence of having a daily headache "is in itself, prostrating" and the Veteran has a high tolerance for pain and can maintain a higher level of functioning, but headaches are disruptive to his daily life. At his October 2014 hearing, the Veteran testified that he has headaches at least once a week that cause him to "shut down" and that he has to find a dark room to wait for it to go away. The Veteran reported that he has other less severe headaches that occur daily that he tries to minimize by limiting activity. He reported being on a prescription for his headaches. Turning to the evidence of record, the Veteran has been afforded several VA examinations for his headaches. In March 2008, he reported headaches with a sharp pain on the right side of the head with occasional nausea and vomiting, he sees spots, and has sensitivity to light and sound. When the headaches occur, the Veteran reported he cannot do anything except stay in bed. The Veteran experienced headaches that average three times per week, last for five hours, and he treated them with Excedrin. In May 2012, the Veteran reported sharp pain on both sides of head that are moderate to severe in intensity and associated with nausea, dizziness, blurred vision, photophobia, and phonophobia. The average duration is two hours occurring three times per week. The frequency of more severe, prostrating headaches would occur once per week. He treats his headaches with Aleve and oxycodone. He reported that he was a part-time contract pilot and that he "cannot function while having a severe headache." The next VA examination was in March 2018. The examiner reviewed all records in the Veteran's file. The Veteran reported that his headaches have worsened over time. He takes Tylenol for his headaches. He has symptoms of constant head pain, pulsating or throbbing pain, and pain to both sides of his head. He also reported symptoms of nausea, vomiting, sensitivity to light and sound, and changes in vision. These symptoms typically last one to two days. The Veteran reported characteristic prostrating attacks of headache pain, that occur once every month. However, the examiner gave the opinion that these were not "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." The examiner did not explain the reasoning behind this finding. However, the examiner did find that the headaches impacted the Veteran's ability to work as he had lost two to four weeks of work in past twelve months because when his headaches come on, he has to discontinue his tasks. The Veteran's headaches are not well documented in his VA treatment records. In April 2008, the Veteran reported headaches since leaving service, but over the previous 8-9 months, they had increased in severity and frequency to every other day. He reported no known triggers, right sided pain with nausea, photophobia and phonophobia. His headache would break after one to three hours. In October 2009, he reported that he continued to have headaches, as frequently as once per week. Records from May 2010, December 2010, July 2011, and March 2014 report that his headaches were "stable", and he took a prescription. There are no further VA or private records related to headaches. Analysis Based on the evidence of record, the Board finds that the Veteran does not meet the requirements for a higher rating for this service-connected disability. The Board will consider the individual components of the criteria for a 50 percent rating: "very frequent", "completely prostrating", "prolonged", and "productive of severe economic inadaptability." Turning first to whether the headaches are "completely prostrating", meaning that the headache attacks must render the veteran entirely powerless, the evidence indicates that the Veteran does occasionally experience headaches that are completely prostrating. Next, turning to "productive of severe economic inadaptability", the Board finds that when these severe headaches occur, the Veteran needs to lay down and is incapable of working. Turning to whether these headaches were "prolonged", in 2008 his worst headaches lasted five hours, in 2012 they lasted two hours, and in 2018 they lasted days. The Board finds that the in order for the headaches to be prolonged ("to lengthen in time: extend duration: draw out: continue, protract."), they must last a significant portion of a day. By that standard, it appears that the headaches in 2018 were "prolonged." Lastly, the record establishes that the Veteran has "very frequent" headaches, but that these headaches are not all of the severity described above. However, at most, the Board finds that the more severe headaches occur on average once a week (May 2012 DBQ). As for the representative's argument that the occurrence of having a daily headache "is in itself, prostrating," the Diagnostic Code specifically finds that daily headaches that are not of sufficient severity do not warrant a 50 percent rating. Thus, in combination, the Veteran's severe headaches occurred most frequently in May 2012 and were of the longest individual duration in March 2018. The Veteran reports less severe (not-prostrating) headache pain that occurred several times per week, i.e. meeting the more frequent criteria. As for prostrating headaches, to the extent that they were frequent (May 2012), they were not of sufficient duration. When they were of sufficient duration (1-2 days in May 2018), they were not frequent (occurred once per month). However, at no time, were the headaches working in (dis)harmony such that they were "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." Further, the evidence as a whole does not indicate the headaches as being productive of severe economic inadaptability (productive can be read as having either the meaning of "producing" or "capable of producing"). There are two references in the record specifically related economic inadaptability (i.e. interference with employment): in May 2012 and March 2018. In May 2012, the Veteran reported he can only work part-time, but referenced symptoms other than headaches. In March 2018, the Veteran reported he had lost 2-4 weeks of work over the course of a year due to his headaches, but was still employed. Extrapolating "2-4 weeks" out over the course of a work-year (52 weeks multiplied by 5 days a week equals 260 days), equates to missing 10 to 20 workdays a year, which in turns equates to missing at most 7 percent of workdays per year (20 divided by 260). This is not "severe" as the Veteran would miss, at most, one day of work per pay-period. The May 2012 examination (referenced as a disability benefits questionnaire (DBQ) in the JMPR) was the main point of contention in the JMPR. The JMPR noted, in pertinent part: "The May 2012 DBQ states that, as to the functional impact of his symptomatology, [the Veteran] reported that he was a '[p]art time contract pilot. Cannot function while having... severe headaches. States unable to keep a steady job due to a combination of all the above[-]mentioned symptoms. Additionally, the symptoms cause reduce[d] work efficiency.' The DBQ states that [the Veteran] associated his part-time work limitation, at least in part, with his headache symptomatology. Id. This appears to be contrary to the Board's finding that, '[i]n May 2012, the Veteran reported he can only work part time, but referenced symptoms...other than headaches.'" Of note, the May 2012 DBQ was not a headache examination; it was a "residuals of traumatic brain injury (TBI)" DBQ. In addition to reporting symptoms related to his headaches, he also reported "tinnitus, difficulty with attention, concentration, and short-term memory, irritability, mood swings, and insomnia since service." While the Veteran reported he could not "function while having severe headaches", the overall functional impact and inability to keep a steady job was due to a "combination of all the above-mentioned symptoms." Thus, the headaches alone did not cause severe economic inadaptability. In this regard, the DBQ should have prompted a separate examination for the Veteran's headaches. Had this occurred, an examiner would have given a contemporaneous medical opinion on the level of disability related to the Veteran's headaches. Even so, the Board finds that a remand for a retrospective opinion would not yield useful results because the opinion would review the available medical record, which is significantly limited. Further, the Veteran stated at the March 2018 that his symptoms had worsened over time. Thus, any headache symptomology would necessarily be less severe than the March 2018 symptomology which is still not sufficient to warrant a higher rating. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include headache pain and the prostrating effects. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the Board recognizes that the Veteran has reported a high pain tolerance and that there may be frustration with a lack of effective treatment. However, even so, the Board does not find that the Veteran's statements equate with a higher level of disability. Significantly, the Board has not been presented with sufficient detail to determine that the Veteran's headaches warrant a higher level of disability. There is no additional medical or lay evidence that might document the severity of the disability, such as a headache log or letters from his employers. Given the lack of supporting documentation, the Board gives more probative weight to the overall record which does not support very frequent headaches, that are completely prostrating, prolonged, or productive of severe economic inadaptability. Thus, the Board finds the Veteran not credible to the extent that he has asserted his headaches meet the criteria for a higher rating. Given the evidence of record, the Board finds that the Veteran has prostrating headaches, but that they are not "very frequent" nor "cause severe economic inadaptability." Thus, a rating in excess of 30 percent is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. M. Hitchcock 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.