Citation Nr: 21041117 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-63 933 DATE: July 8, 2021 ORDER Entitlement to a 50 percent disability rating for migraine headaches is granted effective May 10, 2017. FINDING OF FACT During the appeal period, the Veteran's migraine headaches manifested with very frequent, completely prostrating, and prolonged attacks that were productive of severe economic inadaptability. CONCLUSION OF LAW Effective May 10, 2017, the criteria for entitlement to a 50 percent disability rating for migraine headaches have been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 3.102, 4.3, 4.7, 4.124(a), Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2006 to March 2007 and from October 2007 to November 2008, including deployment to Southwest Asia in an imminent danger pay area. She has additional National Guard service. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2017 rating decision of the Department of Veterans' Affairs (VA) regional office (RO). The Veteran testified at a hearing with the undersigned in April 2021. Increased Rating A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Entitlement to an increased evaluation in excess of 30 percent disabling for migraine headaches The appeal period begins May 10, 2017, the receipt date of the claim for increased rating. The Veteran's migraine headaches are currently rated under 38 C.F.R. § 4.124a, DC 8100, at 30 percent disabling, effective May 10, 2017, based on characteristics of prostrating attacks occurring on an average once a month over the last several months. "DC 8100's rating criteria are successive." Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). DC 8100 provides a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum schedular rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran contends throughout the appeal period her disability has been more severe than the assigned 30 percent rating and she is entitled to the higher rating of 50 percent. The Board agrees that a higher rating is warranted. The Veteran testified at a hearing with the undersigned in April 2021. During the hearing the Veteran stated she experiences daily headaches, explaining they can last anywhere from a few hours to days at a time. The headaches are completely prostrating and if they occur while she is working, she must leave work. At times her mother and stepfather must pick her up from work because the migraines are so disabling that she cannot drive herself home. She testified that she consistently loses at least 25 percent of her workweek for this reason. She also stated she "cannot keep sick leave" because as soon as she accrues it, she has to use it. She testified that she has been "written up" at work for trying to mitigate her symptoms. She is forced to use advanced leave which creates a deficit. A letter from her private treating physician, received in April 2021, confirms that the Veteran must leave work when migraines occur. It states that the Veteran has "chronic migraines worsened by light and sound, and accompanied by nausea and vomiting. "For this reason, during a migraine episode, patient should remove herself to a dark/quiet room in hopes to deter further worsening. If she shows no improvement within 30 minutes-1 hour she should leave the work premises." The Veteran submitted logs of her leave use going back years, reflecting the use of paid time off in the manner described by her hearing testimony. She submitted evidence of a reasonable accommodation in place for her migraines and the reason for request is "frequent migraine attacks which affect working ability." Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). The Veteran herself is competent to report her personal observable symptoms of her migraines. Her reports are supported by the medical evidence of record and the Board finds the Veteran's very specific account of her migraines to be credible and probative. The Board finds no reason to doubt the credibility or competency of the Veteran's reports. The Board finds the probative evidence of record demonstrates the Veteran has experienced very frequent completely prostrating and prolonged attacks. The evidence is at least in equipoise as to whether these attacks produce of severe economic inadaptability and the Board resolves doubt in her favor to find that they do. A 50 percent disability rating is granted for migraine headaches, effective May 10, 2017. This is the maximum rating that can be assigned under DC 8100. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.