Citation Nr: 21042171 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-05 214 DATE: July 12, 2021 ORDER Entitlement to a rating in excess of 30 percent for migraine headaches is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's migraine headaches have been characterized by prostrating attacks occurring on average once a month over the last several months; very frequent prostrating and prolonged attacks characteristic of severe economic inadaptability have not been shown. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.124a. Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 2006 to November 2006 and from June 2008 to April 2009. The Board of Veterans' Appeals (Board) remanded this matter in September 2019 to obtain updated medical records and a medical opinion. The requested development has been completed, and the appeal has returned to the Board for further appellate consideration. The Board is now satisfied there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by applying a schedule of ratings, which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See. Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). 1. Entitlement to a rating in excess of 30 percent for migraine headaches The Veteran contends that she is entitled to a rating in excess of 30 percent for migraine headaches. She contends that her headaches have worsened, and she requires specialist treatment from a private massage therapist and chiropractor in addition to her treatment with medication, Botox injections, bilateral occipital nerve blocks, and acupuncture through the VA. Lastly, she reported that she experiences headaches twice a week on average. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, DC 8100, for migraine. Under DC 8100, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on 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 DC 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 30 percent ratings under DC 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. 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 Veteran has been rated 30 percent for migraine headaches under 38 C.F.R. § 4.124a, DC 8100 throughout the period at issue. After reviewing the evidence of record, the Board concludes that the Veteran's migraine headaches are more accurately contemplated by the 30 percent rating, and she is not entitled to an increased rating. First, the Veteran's medical records from January 2015 through February 2016 indicate that she complained of almost daily headaches with pain rating from 1 to 6 out of 10. She was treated with Topamax, chiropractic care, and massages. However, there is no mention during that period of photophobia, phonophobia, nausea, or prolonged prostrating attacks that would produce extreme exhaustion or powerlessness. Next, the Veteran underwent a VA examination in February 2016 where she reported symptoms that include pain localized to the right side of her head, nausea, and sensitivity to light and sound. She stated that her headaches last 1 to 2 days and that her headaches cause difficulty concentrating on work or working around bright lights. However, the examiner noted that the Veteran does not have prostrating attacks of migraine headache pain. As such, the examination does not support that the Veteran experiences prolonged prostrating attacks that would produce extreme exhaustion or powerlessness and cause severe economic inadaptability. Because the examiner interviewed the Veteran, considered her contentions, and reviewed the evidence of record, and the opinion is generally consistent with the medical evidence of record showing stable migraines that do not result in prolonged periods of the Veteran essentially being incapacitated by her migraines, the Board finds the opinion highly probative. Next, the medical records between February 2016 and July 2020 further demonstrate that the Veteran's migraines are more accurately contemplated by the 30 percent rating she is assigned. For example, the Veteran was discharged from regular chiropractic care in January 2017 and switched to treatment on an "as needed" basis because her condition had improved, and she rated her headache severity at the time as a 2 out of 10. The records also do not reveal massage therapy treatments after January 2017, and most of the massage therapy notes mention focusing on areas of pain the Veteran was experiencing that are unrelated to her headaches. During this period, the Veteran began receiving Botox injections, bilateral occipital nerve blocks, and acupuncture, and she generally reported receiving relief from her symptoms with treatment. She reported that she typically treats her headaches by "going to sleep." Although she reported in December 2017 that she is "still very tired all the time with headaches" and gets headaches "a lot" the record generally indicates that she was able to function without prolonged prostrating attacks. For example, although the Veteran reported in October 2019 that she experiences headaches 3 to 4 times per week and they can last for hours, she noted that she does not currently take medication other than Botox injections for her symptoms, and she reported experiencing reduced pain levels around that time while traveling to Italy. Additionally, the records indicate that she does not experience severe economic inadaptability as a result of her symptoms. Specifically, her college transcripts from 2017 demonstrated magna cum laude honors, and she has continued seeking education in the field of nutrition. She also worked multiple jobs prior to her most recent job in March 2020, which included work in retail and as a personal trainer. Although she reported during a July 2019 medical treatment appointment that she missed work 3 times in the past 6 months due to headache pain, this does not support that her symptoms were so severe as to lead to very frequent (at least once per month) completely prostrating attacks productive of severe economic inadaptability. Lastly, the Veteran underwent a VA examination for headaches in July 2020, and the evidence does not support that she meets the diagnostic criteria for a 50 percent rating under DC 8100. The Veteran reported symptoms that include constant, pulsating, or throbbing head pain on both sides of her head that causes nausea, sensitivity to light, sensitivity to sound, and vision changes. She indicated that the headaches last less than a day. Furthermore, she reported that she used to call out sick once every two weeks for headaches. After interviewing the Veteran and reviewing the medical evidence of record, the examiner noted that the Veteran has characteristic prostrating attacks of migraine headache pain once per month, but that these attacks are not very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. Because the examiner reviewed the evidence of record and interviewed the Veteran, and the examiner's opinion is consistent with the medical records indicating regular and severe headache pain that is generally stable and does not regularly interfere with her daily functioning, such as performing schoolwork, the Board finds the opinion highly probative. In arriving at these conclusions, the Board considered the Veteran's statements that her migraine headache symptoms have worsened. The Veteran is competent to report her readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran is not competent to identify a specific level of disability of her migraine headaches according to the appropriate DCs. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6. Vet. App. 465, 469 (1994). On the other hand, such competent evidence concerning the nature and extent of the Veteran's migraines has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with their evaluations. As such, the Board finds their assessments of greater probative weight. Accordingly, the Board concludes that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month over the last several months throughout the appeal period, corresponding to the criteria for a 30 percent rating under DC 8100. A higher 50 percent rating is not warranted under DC 8100. The appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel