Citation Nr: 21032383 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 13-06 232A DATE: May 26, 2021 ORDER A higher 30 percent rating, though no greater, is granted for migraines from June 26, 2012 to September 30, 2019 (so not just, instead, as of October 1, 2019). FINDING OF FACT From June 26, 2012 to September 30, 2019 the Veteran's migraines involved characteristic prostrating attacks averaging once a month during the preceding several months but not productive of severe economic inadaptability. CONCLUSION OF LAW The criteria are met for entitlement to a higher 30 percent rating, though no greater, for the migraines from June 26, 2012 to September 30, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC/Code) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1983 to July 1987 and from June1991 to November 1991. This appeal to the Board of Veterans' Appeals (Board) is from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A March 2020 Board decision, in pertinent part, granted a higher 10 percent rating for the Veteran's migraines from June 26, 2012 to September 30, 2019. However, the Board denied a rating higher than 10 percent for the migraines during this initial period or a rating higher than 30 percent since October 1, 2019. The Veteran appealed the Board's decision to the higher United States Court of Appeals for Veterans Claims (Court/CAVC), but only to the extent it had denied a rating higher than 10 percent for the migraines from June 26, 2012 to September 30, 2019. In a December 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the contesting parties, vacating the portion of the Board's decision that had denied a rating higher than 10 percent for the migraines from June 26, 2012 to September 30, 2019 and remanding this claim back to the Board for action consistent with the terms of the JMPR. A higher 30 percent rating, though no greater, is granted for the migraines from June 26, 2012 to September 30, 2019. Migraines are awarded a noncompensable rating for less frequent prostrating attacks, a 10 percent rating for migraines with characteristic prostrating attacks averaging one in two months over the last several months, a 30 percent rating for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months, and a 50 percent rating for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Code 8100. The Rating Schedule does not define "prostrating." However, "prostration" has been defined as "complete physical or mental exhaustion." Merriam-Webster's New Collegiate Dictionary 999 (11th ed. 2007). "Prostration" also has been defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). According to Stedman's Medical Dictionary, 27th Edition (2000), p.1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." Additionally, the term "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. The Veterans Court (CAVC) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id., at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating based on individual unemployability (TDIU). Id., at 446; see also 38 C.F.R. § 4.16. But that said, at minimum, the migraines must be capable of producing "severe" economic inadaptability. Furthermore, because the ameliorative effects of medication do not appear to be contemplated by the rating criteria under Code 8100, they should not be considered. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Consider also that, pursuant to the Court's holding in Johnson v. Wilkie, 30 Vet. App. 245 (2018), when determining the proper rating for a Veteran's service-connected headache disability, the evidence must show that all the criteria listed for that particular rating are met, as well as all the requirements of the lower ratings. Johnson held that 38 C.F.R. §§ 4.7 and 4.21 do not apply in evaluating a Veteran's disability due to his service-connected headaches. The Court in Johnson adopted the Webster's dictionary definitions of the terms characteristic ("a trait, quality, or property or a group of them distinguishing an individual, group, or type") and prostrating ("lacking in vitality or will: powerless to rise: laid low") as those terms are used in Code 8100. Id., at 252. The Johnson Court then found, because Code 8100 specifically governs migraine headaches, the phrase "characteristic prostrating attacks" plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. The distinction between the 10 and 30 percent disability levels is the frequency of the headaches. A 10 percent disability rating is warranted when the prostrating headaches occur once every 2 months and 30 percent is warranted when the prostrating headaches occur once a month. Therefore, under Code 8100, headaches that are more frequent are associated with the higher rating. Id., at 252-53. In determining whether a 30 or 50 percent rating for service-connected headaches is more appropriate under Code 8100, the Court noted that the salient feature of the 50 percent rating is that the headache attacks must be "completely prostrating." In other words, the headaches must render the Veteran entirely powerless. The 50 percent rating level also includes additional distinct criteria that are not found elsewhere in the Code. To satisfy the 50 percent rating criteria, the headache attacks must occur "very" frequently. Though the 10 percent and 30 percent ratings specify the number of headaches that must occur within a specific period, the 50 percent rating does not provide this level of detail. Yet, the phrase "very frequent" connotes a frequency greater than once a month, which is enumerated in the 30 percent rating level, and once every 2 months, which is enumerated for the 10 percent. Additionally, because the 50 percent rating requires "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability," the use of the conjunctive "and" makes clear that the headaches must be long in duration. Finally, the 50 percent rating criteria require the headaches to produce or be capable of producing "severe economic inadaptability." Id., at 253 (citations omitted). In response to his claim of entitlement to service connection for his migraines, the Veteran was afforded a VA examination in October 2012. At this examination, he reported that, at the onset of his migraine disability, he suffered 2 to 3 migraines per month, each lasting between 2 and 3 days. He reported that his migraines caused sensitivity to light and noise, nausea, vomiting, and would require him to lie down in a cool dark room. He further reported that he since had been prescribed medication for his migraines and that, at the time of the October 2012 examination, his migraines were less frequent. The VA examiner found that, while the Veteran did have characteristics of prostrating attacks of migraine headache pain, it was at that time manifesting as less than one prostrating attack every two months. In December 2012, the Veteran submitted a headache log covering the months of October, November, and December 2012. In October 2012, he recorded three headaches, each between 5 and 7 hours in duration. In November 2012, he recorded six headaches, typically between 3 and 8 hours in duration. However, he reported that one of those headaches lasted for 72 hours. Two of his November 2012 headaches caused him to leave work early. In December 2012, he reported one headache lasting 10 hours. During the September 2013 Board hearing, the Veteran testified that he suffered from prostrating headaches about once a month, and typically 2 to 3 times per month. He testified that an August 2013 migraine had required him to go lie in bed for nearly eight hours before the pain eased. Resolving all reasonable doubt in his favor, the Board finds that a higher 30 percent rating is warranted for the Veteran's migraine headaches from June 26, 2012 to September 30, 2019 (so not just, instead, as of October 1, 2019). After again reviewing the relevant evidence in his file, so including his competent and credible (therefore probative) lay statements concerning the frequency, severity and duration of his headaches, there are legitimate grounds for increasing his rating for them to his higher level during this period at issue. Resultantly, the Board finds that a higher 30 percent rating is warranted in light of the totality of the evidence showing he has what amounts to prostrating headache attacks more than once per month and causing a decline in his productivity at work. But, while he has the required frequency of migraines, i.e., at least one a month on average, if not even more often, it cannot be said they produce "severe economic inadaptability" to, in turn, warrant assigning an even greater 50 percent rating rather than a 30 percent rating. See 38 C.F.R. §§ 4.3, 4.7. The Veteran does not assert, and the record does not otherwise reflect, that his migraines cause an inadaptability in his employment including economically, much less to a severe extent. At most, he has claimed a decline in his work productivity, so a reduction, but that is not tantamount to concluding it has the consequent effect contemplated by a 50 percent rating versus a 30 percent rating. So, at most, the Board finds a higher 30 percent rating warranted for the migraines from June 26, 2012 to September 30, 2019 (so not just, instead, as of October 1, 2019). See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.