Citation Nr: 21039976 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-06 936 DATE: July 2, 2021 ORDER Entitlement to a higher initial rating of 50 percent for migraine headaches from June 23, 2011 to December 26, 2013 is granted, subject to the laws and regulations controlling the award of monetary benefits. REMANDED Entitlement to an increased rating for degenerative arthritis of the spine with intervertebral disc syndrome (IVDS) (lumbar spine disability), rated 20 percent disabling prior to June 27, 2013, is remanded. FINDING OF FACT From June 23, 2011 to December 26, 2013, the Veteran's migraine headache symptoms more nearly approximated very frequent prostrating and prolonged attacks that are productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for the maximum schedular 50 percent rating for service-connected migraine headaches from June 23, 2011 to December 26, 2013 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to March 1977, April 1977 to June 1980, and June 1980 to April 1984. These matters come before the Board of Veterans' Appeals (Board) from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for migraine headaches rated 0 percent, effective June 23, 2011. The RO also increased the Veteran's rating for his service-connected lumbosacral strain to 20 percent, effective April 20, 2011. In October 2012 the Veteran filed a notice of disagreement (NOD) and in January 2014 the RO issued a statement of the case (SOC). In February 2014 the Veteran filed a substantive appeal (via VA Form 9). In a January 2014 rating decision, the RO increased the rating for the Veteran's migraine headaches to 10 percent, effective June 23, 2011. In a June 2014 rating decision, the RO decreased the rating for the Veteran's migraine headaches to 0 percent, effective January 1, 2014. The RO also recharacterized the Veteran's service-connected lumbosacral strain as degenerative arthritis of the spine with intervertebral disc syndrome (IVDS) and increased the rating to 40 percent, effective June 27, 2013. In a December 2015 rating decision, the RO found clear and unmistakable error (CUE) and increased the rating for the Veteran's migraine headaches to 10 percent, effective June 23, 2011. In November 2017, the Board increased the rating for the Veteran's migraine headaches to 50 percent, effective December 23, 2013. The Veteran appealed the November 2017 Board decision to the U.S. Court of Appeals for Veterans' Claims (Court). Following a Court remand, in July 2019 the Board denied a rating greater than 20 percent for lumbar spine disability prior to June 27, 2013 and 40 percent thereafter. The Board also denied a rating greater than 10 percent for migraine headaches from June 23, 2011 to December 25, 2013 and a rating greater than 50 percent thereafter. The Veteran appealed the July 2019 Board decision to the Court. In January 2021, while the matter was pending before the Court, the Veteran's then-attorney and VA's General Counsel filed a joint motion for partial remand (JMPR). In February 2021, the Court granted the parties' motion, vacated a portion of the Board's July 2019 decision pertaining to the Veteran's migraine headaches and lumbar spine disability and remanded the matter for action consistent with the JMPR. Higher initial rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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 entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Migraine headaches from June 23, 2011 to December 26, 2013 In accordance with the February 2021 JMPR, the Board must consider whether a higher initial rating is warranted for the Veteran's service-connected migraine headaches from June 23, 2011 to December 26, 2013. The Veteran's migraine headaches are currently rated 10 percent from June 23, 2011 to December 26, 2013, and 50 percent thereafter under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a noncompensable rating is warranted for less frequent attacks; a 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average of once a month over the last several months; a 50 percent rating is assigned when migraines with very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. These criteria are successive; thus, each criterion for a higher rating must be met in order to warrant such a rating. Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). In Pierce v. Principi, 18 Vet. App. 440 (2004), the Court held that, where the Board declined to award a 50 percent disability rating for a headache disorder without discussing the "interplay" among the regulations found at 38 C.F.R. § 4.3 (reasonable doubt resolved in favor of claimant), 38 C.F.R. § 4.7 (higher possible evaluation applies "if disability picture more nearly approximates the criteria for that rating[;] otherwise, the lower rating will be assigned"), and 38 C.F.R. § 4.21 (all the elements specified in a disability grade need not necessarily be found although "coordination of rating with impairment of function will, however, be expected in all instances"), the Board committed reasons or bases error. See Pierce, 18 Vet. App. at 445. In addition, the Court in Pierce acknowledged the Secretary's concession that the phrase "productive of severe economic inadaptability" in DC 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Id. at 445. In a June 2011 Statement in Support of Claim (VA Form 21-4138), the Veteran submitted a list of medications he had been taking that were related to headaches and dizziness. In the October 2012 NOD, the Veteran stated that he had problems with severe headaches due to hypertension. At a November 2011 VA examination the Veteran reported he experienced daily headaches, which were frontal in location and lasted about an hour. He denied any nausea, vomiting, or phonophobia. He was diagnosed with non-prostrating migraine headaches. At a December 2013 VA examination the Veteran reported he experiences headaches 3 times per week which lasts 2 to 3 hours at a time. The Veteran reported that his headaches caused him the "need to lie down and go to sleep for these to go away." Also, the Veteran reported that he missed work approximately four days a month due to his headaches. For the following reasons, a higher initial rating of 50 percent for migraine headaches is warranted. Neither the November 2011 VA examiner nor the December 2013 VA examiner noted that the Veteran experienced headaches with very frequent completely prostrating and prolonged attacks, which is required for a 50 percent disability rating under DC 8100. The term "prostrating attack" is not defined in regulation or case law, however, can be defined as extreme exhaustion or powerlessness. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack); DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed. 2012). Given that the Veteran needed to lie down so that his headaches would go away, it can be said that the Veteran's headaches cause him powerlessness and are considered "prostrating" for VA purposes. Under DC 8100, a 50 percent rating also requires that headaches cause the Veteran severe economic inadaptability. The Veteran reported that he missed 4 days of work a month due to the severity of his headaches. Considering that this constitutes a missed day of work every week, it can be reasonably concluded that the Veteran's headaches caused him severe economic inadaptability. Furthermore, there nothing in the evidence of record showing that the Veteran's migraine headaches suddenly became worse on December 26, 2013, the date the RO increased the Veteran's rating to 50 percent. In this regard, "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested." Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The Veteran has provided competent and credible reports of migraine headaches that cause prostrating attacks approximately four times per month. The Board finds that the Veteran's symptoms more closely approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for the entirety of the appeal period. Therefore, a higher initial rating of 50 percent for migraine headaches is warranted from June 23, 2011 to December 26, 2013. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to an increased rating for lumbar spine disability, rated 20 percent disabling prior to June 27, 2013, is remanded. The Veteran contends that his lumbar spine disability warrants a rating greater than 20 percent prior to June 27, 2013. In accordance with the February 2021 JMPR, the parties' agreed that the November 2011 and December 2013 VA examinations were inadequate as the VA examiners did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the VA examiners only included one set of range of motion results without identifying whether they were in active or passive motion, or in weightbearing and non-weightbearing mode. There is currently limited evidence that can be used to adequately assess the severity of the service-connected lumbar spine disability prior to June 27, 2013. Therefore, the Board finds that a retrospective medical opinion addressing the severity of the Veteran's service-connected lumbar spine disability is necessary in the Veteran's appeal for an increased rating. See Chotta v. Peake, 22 Vet. App. 80 (2008); Vigil v. Peake, 22 Vet. App. 63 (2008) The matters are REMANDED for the following action: Obtain a retrospective medical opinion from an appropriate clinician regarding the severity of the Veteran's lumbar spine disability prior to June 27, 2013. Based on any examination findings and the Veteran's documented medical history and lay assertions, the clinician should identify the nature and severity of any symptoms associated with the service-connected lumber spine disability prior to June 27, 2013. To the extent possible, the clinician should specifically comment on the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing of the thoracolumbar spine. The clinician must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare up. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, Associate 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.