Citation Nr: 22015137 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-53 334A DATE: March 16, 2022 ORDER Entitlement to an initial 10 percent evaluation for service-connected migraine variant with aura is granted. REMANDED Entitlement to an evaluation higher than 10 percent for service-connected migraine variant with aura is remanded. FINDING OF FACT The service-connected migraine variant with aura causes symptoms that approximate characteristic prostrating attacks that occur every 2 months. CONCLUSION OF LAW The criteria for an initial disability rating of 10 percent for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Army from November 1965 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was remanded by the Board in November 2019 to obtain a current VA examination. VA obtained a current examination in December 2020, and the matter was returned to the Board. 1. Entitlement to an initial compensable evaluation for service-connected migraine variant with aura. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. 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 10 percent and 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 Board concludes that the Veteran's migraines have occurred with characteristic prostrating attacks averaging at least one in 2 months over the last several months throughout the appeal period, corresponding to the criteria for a 10 percent rating under DC 8100. In his April 2013 notice of disagreement, the Veteran wrote that he experienced migraine headaches at least once a month, and the blurred vision prevented driving and reading. He explained that when those symptoms occurred, he had to lay down for around an hour. He also described residual head pain for the next few days. In November 2016, the Veteran wrote that he experienced aura and headache attacks 1 to 3 times per month. He reported the attacks were prostrating because he had to lay down and he was unable to continue his normal activities. After the aura ended, he would have residual head pain for up to a few days. Available VA treatment records show complaints of headaches every few months and at least 4 times per year, but do not document symptoms occurring monthly. In March 2013, the Veteran complained of intermittent headaches. August 2016 VA treatment notes document the Veteran had an attack of aura and headache symptoms while driving and he was advised to go the emergency room. The assessment was moderate to severe aura and photophobia. At a September 2016 VA appointment, the Veteran reported 1 episode of aura associated with head soreness every few months. At a September 2017 appointment, the Veteran reported aura and head pain that occurred at least 4 times per year. VA treatment records dated October 2010, March 2012, and June 2013 document the Veteran denied headache symptoms. The Veteran first underwent a VA examination in February 2011. At the exam, the Veteran reported he had episodes of blurred vision with wave progression across his eyes, followed later that day by mild, nonpenetrating throbbing bilateral frontal temporal lobe headaches that lasted a day. The headaches did not interfere with his work and were not debilitating. At that exam, the Veteran reported that symptoms occurred every 2 to 3 months. The examiner diagnosed mild tension headaches preceded by ocular aura, and reported they did not interfere with usual activities. The Veteran underwent another VA examination in April 2012. That examiner documented ongoing symptoms of wavy lines in vision followed by headache and soreness. These episodes occurred 1 to 2 times a month, and were not associated with nausea, vomiting, sensitivity to light or sound, or other neurological deficits. The Veteran reported that if he laid down and closed his eyes, the episode did not last as long. The Veteran most recently underwent a VA examination in December 2020. That examiner documented that the migraines had stayed the same since onset in 1968 and were characterized by wavy light that interfered with vision and was followed by headache. The Veteran had additional non-headache symptoms of sensitivity to light and sound. The pain typically lasted less than 1 day. The examiner found that the Veteran did not have characteristic, prostrating attacks of migraine or non-migraine headache pain, or very prostrating and prolonged attacks productive of severe economic inadaptability. The evidence demonstrates that the frequency of the Veteran's headache condition has varied throughout the appeal period. The February 2011 VA examination noted symptoms occurring every 2 to 3 months, and available VA treatment records document symptoms occurring every few months. The Veteran is competent to report that he has to lay down and cease activity during an aura. These symptoms approximate migraine headaches with characteristic prostrating attacks averaging once in 2 months over the last several months throughout the appeal period, corresponding to the criteria for a 10 percent rating under DC 8100. Thus, the criteria for an initial 10 percent rating are met. REASONS FOR REMAND 1. Entitlement to an evaluation higher than 10 percent for service-connected migraine variant with aura is remanded. This issue is remanded for clarification on the frequency of the Veteran's migraine variant with aura symptoms so that the Board may make a fully informed decision on the claim. The April 2012 VA examiner noted that symptoms occurred 1 to 2 times per month based on the Veteran's testimony. Available VA treatment records do not reflect symptoms that occurred at least once per month. At a September 2016 VA appointment, the Veteran reported that headache episodes occurred every few months, however in his NOD the following month he reported that symptoms occurred 1 to 3 times per month. At a September 2017 VA appointment, he only reported symptoms at least 4 times per year. The most recent December 2020 VA examination report does not discuss the frequency of the Veteran's headache symptoms, and rather finds the Veteran did not have any characteristic prostrating attacks. That examiner does not appear to have considered the lay testimony of needing to lay down and cease activity during the aura phase of the headache. On remand, a VA examiner should document the frequency of the Veteran's headache symptoms in light of the inconsistencies in the record and discuss the lay reports that indicate characteristic prostrating attacks. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected migraine variant with aura. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (Continued on the next page) (a.) After interview of the Veteran and review of the VA treatment records and prior examination reports, the examiner must document the frequency of symptoms associated with the service-connected migraine variant with aura. (b.) The examiner must clarify whether the Veteran has characteristic prostrating attacks in light of the Veteran's testimony that he has to lay down and cease activity during the aura portion of the migraine. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.