Citation Nr: 22011303 Decision Date: 02/28/22 Archive Date: 02/28/22 DOCKET NO. 17-15 608 DATE: February 28, 2022 ORDER Entitlement to an increased rating of 50 percent, but no higher, for migraines is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's migraines have resulted in very frequent completely prostrating attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an increased rating of 50 percent, but no higher, for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1989 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Board remanded this matter for additional development. As the actions specified in the remand have been substantially completed, the case has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran's previously appointed Veterans Service Organization, Military Order of the Purple Heart, is no longer accredited to represent Veteran's before VA. The Veteran was informed of this in August 2021 correspondence, and further notified that if she wished to be represented in the current appeal she needed to submit a new power of attorney form appointing a representative. To date, the Veteran has not done so. As such, she will be treated as pro se in this appeal. Increased Ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in increased rating claims, when the factual findings show distinct time periods during which the Veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons and bases supporting its decision. See 38 U.S.C. § 7104; Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence, and it should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Id.; see also Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake, 14 Vet. App at 122. Therefore, the Board will summarize the relevant evidence as appropriate, with the below analysis focusing on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the Veteran's claim. Entitlement to an increased rating of 50 percent for migraines The Veteran's service-connected migraines are rated as 10 percent disabling prior to August 22, 2017, and 30 percent thereafter. The Veteran's headaches are rated under Diagnostic Code (DC) 8100 for migraine headaches. Under Diagnostic Code 8100, a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The terms "very frequent" and "completely prostrating" contained in the diagnostic criteria for a 50 percent rating are not defined by VA regulations. However, the United States Court of Appeals for Veterans Claims (Court) has provided some clarity in understanding the rating criteria. The Court has held that the phrase "very frequent" contained in the 50 percent criterion, while inexact, connotes a frequency greater than the "once a month" requirement for a 30 percent rating. Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). The Court further concluded that to be completely prostrating, the headaches "must render the veteran entirely powerless." Id. Finally, the use of the conjunctive "and" makes clear that all criteria must be met to warrant a 50 percent rating. Id. Similarly, the rating criteria also do not define "severe economic inadaptability." However, the Court has indicated that this term is not synonymous with being completely unable to work and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" severe economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). Therefore, the Board notes that the migraines must be, at a minimum, capable of producing severe economic inadaptability. The Veteran stated in her November 2015 Notice of Disagreement that the frequency of her migraines and the loss of work she experiences from her migraines meet the criteria for a 30 percent rating or higher. Further, in her March 2017 Form 9 she stated that she had a list of calendar dates where she has had numerous prostrating headaches and wanted to present it to an examiner. The Veteran's statements are competent and there is no evidence they are not credible. Jandreau, 492 F.3d 1372. As such, they are entitled to probative weight as to the severity of her migraines during the period at issue. A July 2012 VA migraine examination indicated that the Veteran has one to two bad headaches per month that last one to two hours, and she uses medication to treat them. The Veteran stated that she usually must lay down and rest during these headaches, and her vision becomes blurred and "a little off." She also related that she experiences nausea and the amplification of lights and sounds during these migraines. The July 2012 VA examiner indicated that the Veteran experienced pain on both sides of her head and sensitivity to light during her migraines. He indicated that the Veteran's typical head pain lasted less than a day, and that she experienced characteristic prostrating attacks of migraine headache pain more frequently than once a month. The July 2012 VA examiner stated that the Veteran's headache condition impacts her ability to work, and he indicated that the Veteran reported that at work she pulls down the shades and tries to find quiet until she finds relief from her migraine pain. A September 2015 VA examiner indicated that he reviewed the Veteran's claims file and conducted an in-person examination. He stated that the Veteran claimed she had a major increase in migraines, and they occur seven to fifteen times a month. He related that the Veteran took medication for her migraines. The September 2015 VA examiner listed the Veteran's symptoms as constant head pain, pain on both sides of her head, pain worsened with physical activity, nausea, vomiting, sensitivity to light and sound, changes in vision, and sensory changes. He indicated that the duration of the Veteran's typical head pain was less than one day. The September 2015 VA examiner opined that the Veteran did not have characteristic prostrating attacks of migraine pain. He also opined that the Veteran's migraines impacted her ability to work, stating that that the Veteran misses four days a month from work, experiences a decline in productivity, spends time in the bathroom, uses sunglasses at work, and leaves work early if her headaches worsen. An August 2017 VA examination indicated that the examiner reviewed the Veteran's claims file and conducted an in-person examination. She indicated that the Veteran took medication for her migraines and experienced pulsating or throbbing headache pain which felt like getting smashed in the head, and the pain varied based on side. The August 2017 VA examiner noted that the Veteran also experienced the symptoms of nausea, vomiting, sensitivity to light and sound, changes in vision, sensory changes, pins and needles, and that bariatric pressure and certain types of smell worsened the Veteran's symptoms. She related that the location of the typical head pain was on the left side of the Veteran's head and lasted from four to eight hours normally and occasionally up to two days. The August 2017 VA examiner opined that the Veteran had characteristic prostrating attacks of migraine pain once every month but did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. She related that the Veteran also experienced dizziness, watery eyes from pressure, sweating, and saw stars and floaters. The August 2017 VA examiner opined that the Veteran's migraines impact her ability to work. She stated that the Veteran lost two to four weeks of work time in the last year, and she explained that her migraines affect her ability to stand, walk, and lift. The August 2017 VA examiner related that the Veteran must frequently lay down during her migraine attacks and must frequently switch workdays and work on the weekends and during evenings to catch up on missed hours. She stated that the Veteran fears losing her job because of management concerns of the amount of time she misses from work and her poor performance due to her migraines. She opined that the Veteran's migraines had worsened. February 2012 VA medical records indicate that the Veteran stated her migraines were getting worse and not responding to her prescription medication. She stated that she was recently prescribed additional medication by her private physician. An April 2012 VA mental disorder examination indicated that the Veteran has migraines three times a week. November 2016 VA treatment records indicate that the Veteran reported worsening and an increase in frequency of her migraines. She stated that she had the same headache for nine days and was experiencing nausea, vomiting, and blurry vision. August 2018 VA medical treatment notes indicated that the Veteran experienced three to four headaches per week. April 2019 VA medical treatment notes indicate that the Veteran stated she was experiencing migraines very often, and her migraine medication was increased. November 2019 VA medical treatment records indicate that the Veteran stated she gets fifteen headaches per month, each lasting two to eight hours. After careful review of the medical and lay evidence of record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that throughout the period on appeal the Veteran's migraine headaches have more nearly approximated the very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability required for the assignment of a higher, 50 percent rating under the applicable diagnostic code. In making this finding, the Board acknowledges that while the July 2012 VA examiner found that the Veteran experienced characteristic prostrating attacks of migraine headache pain more frequently than once a month, the September 2015 VA examiner opined that the Veteran did not have characteristic prostrating attacks of migraine pain and the August 2017 VA examiner opined that the Veteran had characteristic prostrating attacks of migraine pain once every month. However, the Board finds that the September 2015 and August 2017 VA examiners' conclusions do not comport with the Veteran's lay statements on examination or the contemporaneous VA treatment records. In this regard, the Veteran has consistently reported to her VA examiners and treating physicians that she experiences multiple headaches per month, often 3 to 4 per week, lasting multiple hours, where she cannot function and must lie down until they are resolved. Therefore, it does not appear that the September 2015 and August 2017 VA examiners gave adequate consideration to the Veteran's competent and credible lay statements when they concluded that the Veteran does not have characteristic prostrating attacks of headache pain or that the Veteran has characteristic prostrating attacks of headache pain only once every month, respectively. Moreover, lay evidence may be probative as to the frequency, prolongation, and severity of headaches as long as it is credible and consistent with the medical evidence of record. See Pierce, 18 Vet. App. at 445. Given the Veteran's competent and credible statements attesting to the frequency, duration, and severity of her headaches, coupled with the contemporaneous clinical findings supporting those reports, the Board finds that the overall evidence tends to weigh in favor of finding that the Veteran's headache disability is manifested by very frequent completely prostrating and prolonged attacks of headache pain. Furthermore, the Board also finds the evidence demonstrates that the Veteran's headache disability is capable of producing severe economic inadaptability. In this regard, The July 2012 VA examiner asserted the Veteran's headache condition impacts her ability to work and indicated that the Veteran pulls down the shades and tries to find quiet until she finds relief, the September 2015 VA examiner opined that the Veteran's migraines impacted her ability to work and stated that that the Veteran misses four days a month from work, experiences a decline in productivity, spends time in the bathroom, uses sunglasses at work, and leaves work early if her headaches worsen, and the August 2017 VA examiner opined that the Veteran's migraines impact her ability to work and stated that the Veteran lost two and four weeks of work time in the last year, and explained that her migraines affect her ability to stand, walk, and lift, and related that the Veteran has to frequently lay down during her migraine attacks and has to frequently switch work days and work on the weekends on evenings to catch up on missed hours. She also stated that the Veteran fears losing her job because of management concerns of the amount of time she misses from work and her poor performance due to her migraines. The Board finds that the details of how the Veteran's prostrating headaches affect her work show that they are capable of producing severe economic inadaptability. See Pierce, 18 Vet. App. at 445-46 (holding that headaches need not actually produce severe economic inadaptability to warrant a 50 percent rating under DC 8100). In summary, the Board finds that the persuasive of the evidence demonstrates that the Veteran's headaches most closely approximate very frequent completely prostrating attacks productive of severe economic inadaptability. Therefore, the Veteran's headache disability warrants the maximum allowable schedular rating of 50 percent under DC 8100. However, an increased rating in excess of 50 percent is not warranted. As noted, 50 percent is the maximum allowable schedular rating for migraines, and therefore a higher rating under Diagnostic Code 8100 is not possible. Further, the Veteran has only been diagnosed with migraines, which is specifically covered by Diagnostic Code 8100. As such, it would be inappropriate to rate this disability by analogy to any other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333, 33637 (2015) ("the Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy"). Thus, consideration of any alternative Diagnostic Codes is not warranted in this case. Finally, the Board notes that during the period at issue the evidence of record has reflected a wide-variety of symptoms. However, these symptoms are contemplated by the currently assigned rating of 50 percent, as the rating criteria for migraine headaches are based on the frequency of the headaches and whether the headache, and its associated symptoms, results in prostration. Holmes v. Wilkie, 33 Vet. App. 67 (2020). Thus, Diagnostic Code 8100 inherently considers all symptoms associated with a headache disability, in that it focuses only on the frequency of any and all symptoms and whether those symptoms result in prostration. Id. As all of the Veteran's symptoms are contemplated by the assigned ratings, referral for extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008); Chudy v. O'Rourke, 30 Vet. App. 34 (2018). Accordingly, an increased rating for 50 percent, but no higher, for the Veteran's headaches is granted, subject to the rules and regulations governing the payment of VA monetary awards. In reaching this conclusion, the Board has resolved all reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.