Citation Nr: 21046750 Decision Date: 07/30/21 Archive Date: 07/30/21 DOCKET NO. 17-00 018 DATE: July 30, 2021 ORDER A higher 50 percent rating is granted for headaches for the entirety of the review period so effectively since June 5, 2014. FINDING OF FACT For the entirety of the review period, so effectively since June 5, 2014, the Veteran has had what amounts to very frequent, completely prostrating, and prolonged attacks of headaches migraines especially, productive of severe economic inadaptability; his symptoms and consequent impairment are contemplated by the applicable diagnostic code; there is not such an exceptional or unusual disability picture as to, in turn, render impractical application of the regular rating schedular standards. CONCLUSION OF LAW For the entirety of the review period, so effectively since June 5, 2014, the criteria have been met for entitlement to a higher 50 percent rating for the headaches, though no greater rating, including on an extra-schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code (DC/Code) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2003 to May 2004 and had additional service in the Army National Guard. He was awarded the Purple Heart Medal for injuries sustained in combat in Iraq including for a head injury resulting in the headaches that he is now requesting a higher rating for. This appeal to the Board of Veterans' Appeals (Board) is from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ). That decision, in relevant part, increased the rating for the Veteran's headaches from 10 to 30 percent retroactively effective from June 5, 2014, the date of receipt of his claim for a higher rating for this service-connected disability. In response, he appealed for an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate an appeal). In support of this claim, the Veteran testified at a "virtual" hearing in April 2021 before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. After the hearing, the record was held open for an additional 90 days, so until July 7, 2021, to allow the Veteran time to obtain and submit additional supporting evidence and/or argument, which he later did within the time specified. However, at the end of the 90 days, he also requested another 60 days to submit still more evidence supporting his claim. No additional evidence is needed, however, since, in this decision, the Board is granting an even higher 50 percent rating for his headaches which is the maximum permissible schedular rating for this disability. Thus, he is not prejudiced by the Board going ahead and preemptively doing this. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). He also clarified during his hearing that he is not claiming derivative entitlement to a total disability rating based on individual unemployability (TDIU), so the Board need not address this additional issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A higher 50 percent rating is granted for the migraines for the entirety of the review period so effectively since June 5, 2014 Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 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. When evaluating a disability's severity, it is essential to consider it in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation is established and a rating increase is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings, then separate ratings may be assigned for separate periods based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates criteria for a higher rating than a lower one, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the criteria specified; however, expected findings will be sufficiently characteristic to identify the disease, the disability therefrom, and coordination of rating with impairment of function in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Although the Veteran's disability is characterized simply as "headaches", as a residual of his head injury in service, they are rated under 38 C.F.R. § 4.124a, DC 8100, so as migraines. Moreover, during his rather recent April 2021 hearing before this Board, he explained that, when he has a migraine, it is different than a regular headache because with a migraine he is "completely down." As already alluded to, the Veteran has had a higher 30 percent rating for his headaches (migraines) effectively since June 5, 2014, so since filing his claim for a higher rating for this service-connected disability. According to 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, and a 50 percent rating is warranted for very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. The Rating Schedule does not define "prostrating." "Prostration" is defined as "complete physical or mental exhaustion," or "extreme exhaustion or powerlessness." See Merriam-Webster's New Collegiate Dictionary 999 (11th ed. 2007) and Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). According to Stedman's Medical Dictionary, 27th Edition (2000), p.1461, "prostration" is also "a marked loss of strength, as in exhaustion." The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has found "characteristic prostrating attacks" as describing migraine attacks typically producing powerlessness or a lack of vitality. See Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). Additionally, "productive of severe economic adaptability" is not defined by regulations or by case law. "Productive of" can mean either "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 a 50 percent rating. Id., at 445-46. Further, "economic inadaptability" is not unemployability, as that would undermine the purpose of regulations regarding a TDIU. Id., at 446; see also 38 C.F.R. § 4.16. As such, at minimum, the migraines must be capable of producing "severe" economic inadaptability. Furthermore, because the ameliorative effects of medication do not appear contemplated by the rating criteria under DC 8100, they should not be considered. See Jones v. Shinseki, 26 Vet. App. 56 (2012). When determining the proper rating for a headache disability, the evidence must show that all the criteria listed for a particular rating are met, as well as all the requirements of the lower ratings. Johnson, 30 Vet. App. 245. As the determining factor between 10- and 30-percent disability ratings is frequency one prostrating headache in 2 months versus one a month greater frequency is associated with a higher rating. Id., at 252-53. When determining between a 30 or 50 percent rating, 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. Also, the headache attacks must occur "very" frequently, without an articulated amount. However, the phrase "very frequent" connotes more than once a month, as that is enumerated in the 30 percent rating. Since, as already mentioned, this increased rating claim was filed on June 5, 2014, if it is "factually ascertainable" the Veteran's headaches met the requirements for a higher rating (meaning even higher than 30 percent, i.e., 50 percent) at some point during the immediately preceding year so dating back to June 5, 2013, he may receive a higher rating as of that earlier date, even though preceding receipt of his claim for a higher rating for this disability on June 5, 2014. See Harper v. Brown, 10 Vet. App. 125 (1997), citing 38 C.F.R. § 3.400(o)(2). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability). Here, however, there are no medical records or lay statements on file addressing the severity of the Veteran's headaches during the year immediately preceding receipt of his increased rating claim for this disability on June 5, 2014, rendering it impossible to factually ascertain whether he had symptoms and consequent impairment at any time during that immediately preceding year as to, in turn, warrant granting a higher 50 percent rating as of any earlier effective date. Thus, if determined entitled to this even higher rating, the earliest possible effective date is June 5, 2014, when he filed his increased rating claim for this disability. The report of the September 2014 VA headache examination reflects that the Veteran recounted experiencing headaches two to three times weekly requiring him to find a dark room, take pain medication, and sleep. He further reported sensitivity to light and sound with rare nausea. This report is grossly consistent with his more recent December 2018 traumatic brain injury (TBI) assessment noting severe headaches with severe photophobia and phonophobia; also November 2019 treatment notes citing frequent migraines with the same symptoms, requiring rest; his April 2021 hearing testimony before this Board, under oath, citing migraines twice weekly, resulting in exhaustion and requiring bed rest in a dark room; and his wife's July 2021 written testimony attesting to regular migraines requiring rest, causing him to leave work, limiting vacation, and sometimes causing vomiting. The Veteran's statements generally also mention that he attempts to push through is migraines or finish a workday, whenever possible. But these reports also make clear that his migraines render him unable to continue functioning and that he must rest to recover. Indeed, during his hearing he related that a migraine requires that he lay down in a dark room and sleep for about 2-3 hours, if not longer, and that it affects his life at work the next day since he sometimes awakens during the preceding night at 2-3am (very early morning) in turn making him prematurely tired at work the next day at his job with the Arkansas Department of Agriculture. He added that, fortunately, he works from home so has flexibility, but he then explained that he pretty much was fired from his prior job because of his migraines and associated short-term memory loss, as an example, which affected his product ordering responsibility or caused him to have to go home early. This is precisely the type of severe economic inadaptability contemplated by a higher 50 percent rating under DC 8100, also the frequent and debilitating nature of the headaches required for this higher rating. The Veteran and his wife are competent to comment on factual matters concerning which they have first-hand knowledge, such as migraine frequency, severity, and duration whether they render him entirely powerless. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Their statements are internally consistent, and consistent with statements made to providers during treatment, rendering them credible. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). Moreover, since their competent lay testimony and statements concerning this also are credible, they are ultimately probative. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted, and their statements are both. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Additionally, the Veteran's October 2016 VA headache examination found his reported weekly migraines limited his ability to operate machinery and caused him to miss work twice a month. At the time, he was working at a lumber yard, but the record reflects several statements and credible testimony that he lost that job due, in part, to his migraines. He further testified that his current job allows him to work from home, when he is able, allowing him to rest due to migraines as needed. He believes that, without that flexibility, he would also have been fired from his current job. So, in sum, the record reflects multiple migraines weekly with characteristic prostrating attacks that are sufficiently debilitating to be capable of producing severe economic inadaptability. Accordingly, the Board finds that a higher 50 percent rating is warranted for the Veteran's migraines since June 5, 2014, the date of receipt of his claim for a higher rating for this service-connected disability. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. It is not argued or shown that the Veteran has any additional symptoms or impairment not contemplated by this even higher 50 percent rating under DC 8100. Thus, the Board does not have to refer this claim to the Director of the Compensation Service for consideration in the first instance, of entitlement to a still higher rating on an extra-schedular basis under the special provisions of 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet App 111, 114 (2008), aff'd sub. nom. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009) (wherein the Court provided a three-pronged test for determining whether extra-schedular consideration is warranted). In short, there is no exception or unusual disability picture such that this special consideration is warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.