Citation Nr: 21041833 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 09-37 753 DATE: July 10, 2021 ORDER Entitlement to a rating of 50 percent from February 20, 2007 for migraines is granted. Entitlement to a rating in excess of 50 percent from February 20, 2007 for migraines is denied. FINDINGS OF FACT 1. Resolving any doubt in the Veteran's favor, from February 20, 2007, the Veteran experienced migraines with very frequent completely prostrating and prolonged attacks capable of producing severe economic inadaptability. 2. The preponderance of the evidence is against finding that the Veteran's service-connected migraines alone preclude him from obtaining or securing substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 50 percent from February 20, 2007 for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a rating in excess of 50 percent from February 20, 2007 for migraines have not been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from December 1976 to May 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for an increased rating for his migraines has been remanded by the Board several times with the most recent remand in September 2018. The September 2018 Board remand directed the RO to obtain a medical opinion that addresses whether dizziness is a symptom of the Veteran's service-connected migraines. An updated medical examination was obtained in December 2019. Accordingly, the Board finds that the RO has substantially complied with the September 2018 Board remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that in an April 2021 Board remand, the claim of entitlement to a total disability based on individual unemployability (TDIU) prior to August 7, 2014 due to all of the Veteran's service-connected disabilities was remanded to the RO. Thus, the Board finds that the issue of a TDIU based on a combination of the Veteran's service-connected disabilities has been bifurcated and will not be addressed in this decision. 1. Entitlement to a rating of 50 percent from February 20, 2007 for migraines 2. Entitlement to a rating in excess of 50 percent from February 20, 2007 for migraines The Veteran contends that his service-connected migraines are more disabling than his current rating. Furthermore, the Veteran contends that his migraines should be rated as total because they preclude him from securing substantially gainful employment. Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's migraines are currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over 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. A 50 percent rating is the highest schedular rating under Diagnostic Code 8100. The rating criteria of DC 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. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to a 30 percent rating 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 contains 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 Diagnostic Code 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). Most recently, in Holmes v. Wilkie, 33 Vet. App. 67 (2020), the United States Court of Appeals for Veterans Claims held that Diagnostic Code 8100 encompasses all migraine symptoms. Therefore, to evaluate migraines under Diagnostic Code 8100, the VA must consider all the symptoms the Veteran experiences as a result of migraine attacks, and then rate those symptoms based on the frequency, duration, severity, and economic impact of the attacks. Id. at 73. The Board notes that the Veteran filed his claim for an increased evaluation on February 20, 2007; the Board has considered the evidence of record since February 20, 2006 in conjunction with this decision. See 38 C.F.R. § 3.400 (o). The evidence relevant to the severity of the Veteran's service-connected migraines includes VA treatment records, VA examinations, a private vocational examination, and statements from the Veteran and his spouse. The Veteran's VA treatment records include January and April 2009 internal medicine appointments where the Veteran denied severe and constant headaches. In May 2011, the Veteran reported headaches and dizziness. In March 2015 during a primary care appointment, the Veteran reported a headache rated as an 11 out of 10, which started that morning. The Veteran stated that he had no other symptoms at the time except light sensitivity. He required a Toradol shot to relieve his symptoms. In July 2015, the Veteran visited urgent care for a migraine headache. In September 2017, the Veteran reported a migraine headache beginning the day prior accompanied by dizziness and blurred vision. The Veteran has been afforded VA examinations for his migraines in October 2007, July 2014, October 2016, April 2018, and December 2019. In October 2007, the Veteran reported that his headaches occur three times a week and last all day. He said that they are located in either the front or back of his head with sharp or dull, steady, and also throbbing pain. His headaches are aggravated by getting upset and are relieved with Imitrex. The Veteran stated that he gets a shot one to two times a year at the VA. He also stated that his headaches worsened as they last longer and are sometimes associated with lightheadedness. The Veteran reported that he worked in sales and lost two months of work out of the year because of his headaches. He stated that his job requires driving and he drove sometimes even though he had headaches. The examiner opined that the Veteran's headaches would make work, either sedentary or active, difficult but would not, in and of themselves, preclude employment. During the July 2014 VA examination, the Veteran reported he takes hydrocodone as needed for headaches and other conditions. He stated he has migraine headaches six to 10 times per month, and when his headaches are impending, he feels dizziness, blurred vision, and pounding on the sides of his head. He also stated that he experiences nausea and vomiting with most of his headaches as well as photophobia and noise intolerance. His headaches last two to three days. The examiner noted that the Veteran experiences pain on both sides of his head and his non-headache symptoms include nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision lasting one to two days. The examiner opined that the Veteran has prostrating attacks once every month but does not have very frequent prostrating and prolonged attacks. The examiner also noted that the Veteran stated that when he has migraines, he is unable to work secondary to his level of discomfort. In October 2016, the Veteran reported that his migraine headaches primarily affect his forehead, and sometimes either side or the back of his head, occurring about weekly, and lasting two to three days. His headaches are accompanied by nausea, vomiting, and dizziness. He reported calling in sick to work about half the days he is scheduled to work as a result. The examiner then prefaced his findings by noting that no migraine specific abortive medications are prescribed to the Veteran, which makes the severity he describes unlikely. The examiner further stated that his answers to the questions are based on available records, and not the Veteran's statements. The examiner found that the Veteran experiences headache pain localized to one side of the head or on both sides of the head. Non-headache symptoms include nausea, vomiting, sensitivity to light, and dizziness. His headaches last one to two days on both sides of the head. The examiner also found that the Veteran does not experience prostrating attacks of headache pain. As to the headaches functional impact, the examiner opined that the Veteran has had one emergency room visit for migraines in the past three years, indicating that he likely suffers occasional severe migraine which interfere with his ability to work. The Board finds that the October 2016 VA examination is inadequate as the examiner explicitly stated that the examination was not also based on the Veteran's lay statements and was solely based on the medical records of evidence. An adequate VA examination requires analysis of both medical evidence and lay evidence. Accordingly, the October 2016 VA examination is afforded minimal probative value. The Veteran was afforded another VA examination in April 2018. The Veteran reported that he takes pain medication for his migraines. He also stated that when his migraines are severe, he reports having to go to urgent care or the emergency room for shots to control the pain. The examiner noted that the Veteran takes hydrocodone for headaches. His headache pain is described as constant head pain, with pain on both sides of head worsened with physical activity. His non-headache symptoms include nausea, sensitivity to light, sensitivity to sound, changes in vision, and dizziness. The examiner checked that the Veteran's headaches last less than one day, one to days, and more than two days. The examiner opined that the Veteran has characteristic prostrating attacks that occur once every month, but he does not have very prostrating and prolonged attacks of pain productive of severe economic inadaptability. As for their functional impact, the examiner noted that the Veteran reports headaches averaging three to four a week. His mild headaches occur approximately two to three times per week where he takes Motrin and hydrocodone. The headaches with medication make him fatigued with loss of concentration, irritability, and overall decreased productivity. He reports more moderate to severe headaches at least once per week where he takes pain medication and is unable to do anything but lie in a dark room away from light and sound for one to two days. The Veteran reports severe headaches every three to four months where he must go to the emergency room for shots. These headaches can last one to four days and cause significant physical and emotional distress. The Veteran reports he also experiences dizziness with headaches and feels off balance. He has had more than once incident while driving where he ran off the road and hit a tree. He reports because of his multiple medical issues including headaches with dizziness, he is unable to work. An addendum opinion was provided by the examiner in May 2018 noting that the Veteran's headaches are burdensome, but do not preclude employment. The examiner also noted that the Veteran continues to have a significant number of headaches that require narcotics making him sleepy and driving would not be advised. However, the examiner noted that the Veteran reported being able to push through many of these headaches and only requiring significant intervention for his headaches occasionally. Thus, the examiner opined that this is not indicative of severe economic loss from the headaches by themselves. Most recently in December 2019, during a VA examination, the Veteran reported intermittent headaches lasting three to four days, and describes his pain as a sharp, pounding sensation that is sometimes alleviated with rest and medication. The Veteran reported taking hydrocodone, acetaminophen, and Imitrex injections for headaches. The Veteran's headache pain was described as pulsating or throbbing head pain on both sides of the head, with pain worsened with physical activity. His non-headache symptoms include nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, and dizziness, which is currently denied by the Veteran during the present examination. The duration of headaches is more than two days on both sides of the head. The examiner opined that the Veteran has characteristic prostrating attacks once every month and has very prostrating and prolonged attacks of migraines pain productive of severe economic inadaptability. The examiner noted that the Veteran worked as store manager and reported losing two to four weeks in last 12 months due to his migraines. The Veteran reported that he is unable to concentrate and focus to complete work-related tasks such as ordering supplies, making schedules, and interacting with employees secondary to his migraine headaches. The Veteran provided a July 2017 vocational assessment completed by K.P., a vocational consultant. During the assessment, the Veteran stated that he suffers from migraine headache pain at least two to three times per week. He noted severe sensitivity to light and said that he stays in a dark, quiet room until the pain passes. He explained that he has not had success with medications to alleviate the pain, and when it gets too bad, he goes to the hospital for a shot. The Veteran reported consistently missing approximately five to six days of work per month due to his headache pain. He is unable to drive when his migraines are present. After reviewing the Veteran's medical evidence and lay statements, K.P. opined that the Veteran's migraines would likely cause him to be absent from work more than one day per month. The Veteran has provided several statements throughout his appeal. In May 2007, the Veteran reported having daily migraines with dizziness. He also stated that he falls asleep at any given time and he cannot drive because he is afraid of falling asleep while driving. In September 2007, the Veteran stated that his headaches cause him to stop on the road when he is driving, and he has to get someone to drive for him. In an April 2017 statement, the Veteran reported experiencing severe migraines two to three times per week and they were completely incapacitating. He further stated that if he heard a loud noise or if his computer screen was too bright, he would develop a migraine. He said his migraines were often so severe that he had to have a co-worker drive him home. At the time, he worked in sales and was paid by commission, thus whenever he had a migraine, he missed work and lost income. The Veteran stated that he subsequently worked as a janitor at a school but was unable to drive whenever he had a headache. He found another job as a janitor where he was provided an assistant who would drive the bus at the school for him whenever he was unable to drive due to his headaches. Most recently, in January 2021, the Veteran provided a statement contending that he experiences migraine headaches three to four times per week that hinder his ability to function. He stated that at least twice a week, his migraines last all day and he is unable to get out of bed. He takes prescribed pain medication, lies down in a dark room, and puts a cloth over his eyes. His migraines became so severe that it causes intense nausea, and sudden movements, noises, and bright lights also trigger his migraines. The Veteran also noted that he is unable to stare at a computer screen for more than 30 minutes at a time due to brightness. The Veteran's spouse also provided a statement in May 2007 where she reported that the Veteran needs to lie down when he has headaches and have peace and quiet. The Board finds that the Veteran and his spouse are competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the Board finds that the Veteran's statements are credible as they have been consistent throughout the duration of the appeal. Accordingly, the Board finds that the Veteran's and his spouse's statements regarding his migraine symptoms are probative. Considering all relevant evidence of record, the Board finds the evidence is in equipoise. Where there is an approximate balance between the positive and negative evidence, the benefit of the doubt is given to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, the Board concludes that throughout the duration of the appeal, the Veteran has had migraines with very frequent completely prostrating and prolonged attacks capable of producing severe economic inadaptability warranting a 50 percent rating under Diagnostic Code 8100. The probative medical and lay evidence shows that the Veteran has very frequent headaches. The evidence shows that he has headaches ranging from daily, two to three days per week, three to four days per week, and six to 10 days per month. The duration of his headaches is anywhere between lasting all day at minimum to lasting three to four days at maximum. The Veteran's headaches are accompanied by pain on both side of his head, nausea, vomiting, lightheadedness, dizziness, light sensitivity, and sound sensitivity. The evidence shows that his headaches are alleviated by pain medication and resting in a quiet and dark room. This evidence suggests that the Veteran experiences very frequent completely prostrating and prolonged attacks. Furthermore, the VA examiners in July 2014, April 2018, and December 2019 opined that the Veteran experiences characteristic prostrating attacks occurring at least once per month. In the May 2018 addendum opinion, the examiner noted the Veteran's headaches are burdensome and driving would not be advised. The vocational assessment completed by K.P. in July 2017 also noted that the Veteran would potentially be absent from work more than one day a month due to his headaches. The evidence also indicates that the Veteran's headaches are capable of producing severe economic inadaptability. The evidence shows that the Veteran has worked in both sales and as a janitor. The Veteran has frequently stated that he is unable to drive when he experiences headaches, which resulted in him losing sales or being unable to complete the necessary tasks of his job as a janitor. The October 2007 and April 2014 examiners both opined that the Veteran's headaches would make employment difficult but would not preclude employment. After resolving reasonable doubt in favor of the Veteran, the Board finds that the severity, frequency, and duration of the symptoms related to the Veteran's service-connected migraines are capable of producing severe economic inadaptability to warrant a 50 percent rating from February 20, 2007. However, the Board notes that a rating of 50 percent prior to February 20, 2007 is not warranted as there is no medical or lay evidence to show that the Veteran's migraines were productive of or capable of producing severe economic inadaptability. The Board notes a 50 percent rating is the highest schedular rating available under Diagnostic Code 8100. 38 C.F.R. § 4.124. Nevertheless, the Board has considered whether the Veteran's migraine symptoms go beyond economic inadaptability and lead to the Veteran being unable to secure substantially gainful employment to warrant a total disability under 38 C.F.R. § 4.16. A TDIU is warranted if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Id. Here, the preponderance of the evidence does not suggest that the Veteran's migraine symptoms preclude him from obtaining or securing substantially gainful employment due to solely to his service-connected migraines. As previously noted, the October 2007, July 2014, April 2018 and May 2018 VA examinations noted that the Veteran's migraines would not preclude employment. The October 2007 examiner opined that the Veteran's headaches would make work, either sedentary or active, difficult but would not, in and of themselves, preclude employment. Additionally, the May 2018 addendum specifically noted that the Veteran's headaches are burdensome, but do not preclude employment. Furthermore, during the April 2018 examination, the Veteran himself stated that because of his multiple medical issues including headaches with dizziness, he is unable to work. (emphasis added). The Board also finds it significant that in the July 2017 vocational assessment provided by the Veteran, the vocational consultant noted that the Veteran's headaches would result in him missing at least one day per month of work. The consultant did not opine that the Veteran's migraine symptoms alone would preclude employment but did opine the totality of the Veteran's service-connected disabilities make it more likely than not the Veteran is unable to secure or follow substantially gainful employment. The Board notes that the "severe economic inadaptability" required under Diagnostic Code 8100 is a lower burden than for a TDIU. Although the frequency, duration, and severity of the Veteran's migraines are capable of producing severe economic inadaptability, they do not preclude securing or following substantially gainful employment. In sum, the Board finds that evidence is in equipoise as to whether the Veteran's migraines are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As the benefit of the doubt is given to the Veteran, a rating of 50 percent is warranted from February 20, 2007 for the Veteran's migraines. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.