Citation Nr: 22015205 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-41 692 DATE: March 16, 2022 ORDER Entitlement to an initial rating of 30 percent, but no higher, for migraines prior to December 6, 2019, is granted. Entitlement to an initial evaluation in excess of 30 percent for migraines from December 6, 2019, to November 22, 2021, is denied. Entitlement to an initial evaluation in excess of 50 percent for migraines on or after November 22, 2021, is denied. FINDINGS OF FACT 1. Prior to November 22, 2021, the Veteran's migraine headaches more nearly approximated characteristic prostrating attacks occurring on an average once a month over the last several months. He did not have very frequent, completely prostrating, and prolonged attacks capable of being productive of severe economic inadaptability during this period. 2. For the period on or after November 22, 2021, Veteran has been in receipt of the maximum schedular rating of 50 percent for his migraine headaches characterized by frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. He does not assert, and the record does not otherwise indicate factors warranting extraschedular consideration. CONCLUSIONS OF LAW 1. Prior to November 22, 2021, the criteria for a 30 percent evaluation, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8100. 2. For the period on or after November 22, 2021, the criteria for a rating in excess of the maximum schedular rating of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from March 1994 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this claim in October 2019 and September 2021 for additional development. It has since been returned for appellate review. The Board notes that during the pendency of the appeal, in a July 2020 rating decision, the RO assigned the Veteran a 30 percent rating for his migraines, effective December 6, 2019. As this increase is a partial grant of the benefit sought, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). The Board also notes that, in a December 2021 rating decision, the RO increased the evaluation of the Veteran's migraine to 50 percent, effective November 22, 2021. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with respect to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Migraine Headaches In this case, the Veteran is currently assigned a noncompensable evaluation for migraine headaches prior to December 6, 2019, a 30 percent evaluation from December 6, 2019, to November 22, 2021, and a 50 percent evaluation from November 22, 2021, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent disability evaluation is assigned when there are characteristic prostrating attacks, averaging one in 2 months over the last several months. A 30 percent disability evaluation is contemplated for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. VA regulations, including the rating criteria, do not define "prostrating" as used in Diagnostic Code 8100. The Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, Third College Edition (1986), p.1080, "prostration" is defined as "utter physical exhaustion or helplessness." A similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th ed. 1994) in which "prostration" is defined as "extreme exhaustion or powerlessness." Additionally, the terms "productive of severe economic adaptability" have not been clearly defined by regulations or by case law. The Court has noted that "productive of" can either have the meaning of "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 the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at a minimum, capable of producing "severe" economic inadaptability. Entitlement to an initial rating of 30 percent, but no higher, for migraines prior to December 6, 2019, is granted. In considering the evidence of record, under the laws and regulations as set forth above, the Board finds that an initial 30 percent evaluation is warranted for the Veteran's service-connected migraines for the period prior to December 6, 2019. Prior to December 6, 2019, the evidence shows that the Veteran had characteristic prostrating attacks occurring on average once a month over the last several months for that period. During this period, VA treatment records show that the Veteran experienced migraines ranging from every day to two times per week. He indicated that his migraines were accompanied with a sensitivity to light and nauseous. Furthermore, he reported that his migraines would last from two to 24 hours. During one appointment, the physician noted the Veteran's headaches were a 10 out of 10 in severity, and that the Veteran had to lie down for relief and took two different medications to treat his migraines. See September 2017 VA treatment record. During a May 2017 appointment, the Veteran indicated that he experienced migraines that were accompanied with nausea and vomiting seven to ten times per month. Additionally, a May 2017 VA treatment record indicates the Veteran's headaches would, at times, last up to three days, disabling him. The Veteran was afforded a VA examination in July 2016. At that time, the examiner indicated the Veteran experienced migraines that included pulsating or throbbing head pain but no other symptoms. Moreover, he stated the Veteran's pain lasted less than a day and he had no prostrating attacks. The Board notes that, in his January 2017 notice of disagreement, the Veteran indicated the examiner did not ask him about his headache symptoms or frequency. Further, he described having prostrating headaches during the summer and winter months that required him to lie down in a dark room. He also indicated he experienced dizziness and vomiting along with his migraines. Additionally, two of the Veteran's co-workers stated that he had frequent migraines that made him unable to work and they saw him nauseous and dizzy because of his headaches. Moreover, they said his migraines affected the work environment as he would have to turn off the lights and lock the door of his office when he experienced them. The Board finds that a 30 percent rating for the Veteran's service-connected migraine disability is warranted. The Veteran's report of symptoms, frequency, and severity of his migraines have been consistent during the period under consideration. Although the examiner found that the Veteran did not have migraines with characteristics of prostrating attacks, the Board finds the reported symptomatology contradicts that finding. The Veteran was often required to lie down, sit in a dark room, and take two medications to deal with his symptoms. Thus, in resolving all doubt in favor of the Veteran, the Board finds that his migraine headache disability approximates a prostrating attack occurring once a month over several months for the period prior to December 6, 2019. Although a 30 percent disability rating is warranted for the Veteran's migraine headaches, a higher, 50 percent disability rating is not warranted, as the probative evidence of record does not demonstrate that the Veteran's headaches have been characterized by very frequent "completely prostrating" and prolonged attacks productive of "severe" economic inadaptability, which are required for a 50 percent rating under Diagnostic Code 8100. There is evidence that the Veteran has very frequent migraines, and that at times they are prostrating. However, the evidence is insufficient to show, and the Veteran has not set forth explicit and objective examples, that his migraines are productive of severe economic inadaptability. See 38 C.F.R. § 4.124a. Accordingly, a 30 percent rating, but not higher for the period on appeal for the Veteran's service-connected migraines is granted. 38 C.F.R. § 4.3. Entitlement to an initial evaluation in excess of 30 percent for migraines from December 6, 2019, to November 22, 2021, is denied. In considering the evidence of record, under the laws and regulations as set forth above, the Board finds that an initial evaluation in excess of 30 percent is not warranted for the Veteran's service-connected migraines for the period from December 6, 2019, to November 22, 2021. For the stated period, the evidence does not show very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability in order to warrant a 50 percent evaluation. VA treatment records during this period show that the Veteran's symptoms did not get worse but improved. Indeed, during a January 2020 appointment, the Veteran indicated that, while he still had migraines and wore sunglasses at work, he did not experienced nausea and vomiting. He also stated that he found his symptoms improved when he exercised. Moreover, his sleep had improved. During a March 2020 appointment, the Veteran reported that he was working at home and his migraine condition had gotten much better. See also November 2020 record in which he reported his headaches had improved. During a December 2019 VA examination, the Veteran reported that he sometimes vomited or had numbness of his face when he had a migraine. He stated that he would take medication and lie down when he experienced symptoms and would feel better when he woke up. The Veteran reported that within the 12-month period he only took six days of sick leave due to migraines. While he endorsed having prostrating attacks of migraine or non-migraine headache pain, he stated that it occurred once every month. Thus, the examiner found that his migraine condition yielded a mild functional limitation. The remainder of the Veteran's records do not contain any reports or indications that the Veteran suffers from very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability during the period between December 6, 2019, and November 22, 2021. After a review of all the evidence, lay and medical, the Board finds that during the mentioned period the criteria for a disability rating in excess of 30 percent for the service-connected migraines have not been met or more nearly approximated because the migraine disability has caused characteristic prostrating attacks, but has not caused severe economic inadaptability. While the Board acknowledges the Veteran's report that he took six days of sick leave out of a year due to his migraines, the evidence of record does not suggest that the Veteran has missed work resulting in severe economic inadaptability. The Board's findings do not, in any way, suggests the Veteran does not have problems with his migraines. However, they do not rise to the level of creating severe economic inadaptability. Accordingly, the Board finds that the previously assigned 30 percent rating for the period of December 6, 2019, to November 22, 2021, adequately compensates the Veteran for his migraines. Entitlement to an initial evaluation in excess of 50 percent for migraines on or after November 22, 2021, is denied. The Veteran's migraines have been assigned a 50 percent evaluation from November 22, 2021, pursuant to 38 C.F.R. § 4.124a under Diagnostic Code 8100. The Board acknowledges that the Veteran has stated his condition has worsened and interferes with his work. It is also acknowledged that he now experiences sensitivity to light and sound, mild memory loss, fatigue, weakness, and changes in vision in conjunction with his migraine condition. However, in this case, the Veteran is in receipt of the maximum schedular rating for his migraine headaches. The Board need not address whether a higher rating is available under another applicable diagnostic code, as migraine headaches is specifically listed in the Schedule. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy")). Finally, the Veteran does not assert that referral for extraschedular consideration is warranted, and the record does not otherwise reasonably raise the matter. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Indeed, in his July 2017 VA Form, he specifically requested a 50 percent evaluation. As the Veteran has been assigned the maximum schedular rating for migraines for the period on and after November 2021, and an extraschedular rating is not warranted, an increased rating in excess of 50 must be denied. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.