Citation Nr: 22017124 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 12-31 227A DATE: March 24, 2022 ORDER An initial 50 percent rating for migraine headaches is granted. REMANDED An initial rating higher than 10 percent for right knee patellofemoral syndrome is remanded. FINDING OF FACT The Veteran experienced migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the entire period on appeal. CONCLUSION OF LAW The criteria for an initial 50 percent rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to March 1996. In a February 2021 decision, the Board of Veterans' Appeals (Board) denied an initial compensable rating for her service-connected migraine headaches, and denied an initial rating higher than 10 percent for her service-connected right knee patellofemoral syndrome. She then appealed to the Court of Appeals for Veterans Claims, which granted a joint motion for partial remand (JMPR) to the Board in January 2022. Initial Rating for Migraine Headaches The parties to the JMPR agreed that the Board failed to provide an adequate statement of reasons and bases in denying the Veteran's increased rating claim for migraine headaches. Specifically, the parties agreed that the Board "did not explain what it understood 'prostrating' attacks to mean" in applying Diagnostic Code 8100. JMPR at 4. The parties also suggested that the Board improperly "considered the ameliorative effects of the [Veteran's] medication" where the diagnostic code did not contemplate medication. Id. at 5. The agency of original jurisdiction (AOJ) has associated additional evidence with the claims file since the Board's February 2021 decision. In October 2021, the AOJ granted a 50 percent rating for migraines, effective November 4, 2020. After carefully reexamining all of the evidence of record, the Board finds that an initial 50 percent rating, prior to November 4, 2020, is warranted as well. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. VA must evaluate all of the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under Diagnostic Code 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. A maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Because Diagnostic Code 8100 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under the diagnostic code to describe the nature and severity of migraines, but the phrase is not defined in the regulation. According 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 contain several undefined phrases. The 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. "Prolong" 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"; nothing in Diagnostic Code 8100 requires that the Veteran be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). In this case, the most probative evidence of record demonstrates that the Veteran had migraines more than once a month that rendered her completely powerless for extended periods, and that were capable of producing severe economic inadaptability. In the February 2021 decision, the Board discussed VA examinations from November 2010 and March 2020, as well as private treatment records from March 2020 and June 2020. At the 2010 VA examination, the Veteran reported a 20-year history of headaches, occurring weekly, lasting a few hours. She complained of nausea, photophobia, and phonophobia with her headaches, which the 2010 examiner characterized as "moderate." At the 2020 VA examination, the Veteran stated that her headaches had remained the same since their onset in 1988. She reported constant, pulsating or throbbing head pain that worsens with physical activity, as well as nausea, sensitivity to sound and light, neck pain and stiffness, changes in vision, and sensory changes. She reported that her typical head pain lasts more than 2 days, and that she had lost 1-2 weeks of work time in the last 12 months due to migraines. The 2020 examiner indicated that the Veteran did not have prostrating attacks of migraine headache pain, and that she did not have very prolonged and prostrating attacks of migraine pain productive of severe economic inadaptability. However, the examiner did not cite any evidence or explain the reasoning for these particular findings. Consequently, the findings have limited probative value. As noted in the 2021 decision, the March 2020 private treatment record indicated that that Veteran complained of headaches so severe that she would have to lie down in a dark room 2-3 times per month. On the other hand, the June 2020 private treatment record noted improvement in her symptoms with a different medication three months later. The AOJ obtained additional private treatment records from the Veteran's neurologist after the Board's 2021 decision. These records are relevant to the period on appeal here. Notably, they include monthly "headache diaries" from 2019 and 2020, in which the Veteran recorded the severity, specific triggers, relief measures, and functional effects of her headaches. The headaches reportedly occurred most days of the month, ranging from "mild" to "severe." During this period, there were several instances where she "stayed in bed," "kept the curtains closed"/"kept the lights off" and "did not work"/"missed work" due to severe headaches. On average, the more severe attacks involving bedrest or missed work occurred about twice a month. A private neurologist ("Dr. N.B.R.") evaluated the Veteran in November 2020. At that time, she reported mostly left-sided headaches with some nausea and vomiting, photo and phono sensitivities, occasional left hand pain, and dizziness. She reported that her headaches "interfere with her functions and she has taken days off [from work]" because of them. She explained that her employer had provided certain accommodations in the workplace. For example, when she worked in the office prior to the COVID-19 pandemic, she used to sleep in a designated room at work, or work from home. The detailed reports above are consistent with other evidence of record, including the Veteran's July 2018 statement in support of claim and her March 2019 Board hearing testimony. According to the 2018 statement, the Veteran's migraines caused "extreme weakness" and were "debilitating." Her migraines occurred 20-30 days a month and could last over 12 hours; the pain level ranged "from 8-10 [out of 10] at least 5 days out of the week and 10/10 when severe." The Veteran reported that she sometimes stayed in bed all day and she kept her room dark all the time because of her headaches. She described symptoms like blurred vision, seeing streaks of light, throbbing pain, dizziness, nausea, and fatigue, and stated that she was unable to look at the computer very long while working. She also stated that her employer approved an ad-hoc agreement that allowed her to work from home and "switch days around to accommodate [her] inability to work." Additionally, she noted that neighbors or friends would take turns bringing her food, shopping for her, picking up medication, and driving her to appointments. She reported she was unable to spend time with her children and grandchildren and she spent the majority of her time alone due to the severity of her symptoms. The Veteran provided similar testimony at the 2019 hearing. She testified that she had to take time off from work due to her symptoms, including two days in February 2019. She stated that has to lie down and stay in her darkened bedroom during migraines, which could last 2-4 days at a time. The Veteran is competent to report her subjective symptoms, like pain, nausea, sensitivity to light and sound, dizziness, and fatigue. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Her statements regarding the severity, frequency, and duration of those symptoms are credible and highly probative. On the whole, the evidence shows that her symptoms were "very frequent," "prolonged," and "completely prostrating" as contemplated by Diagnostic Code 8100. Johnson, 30 Vet. App. at 253. Furthermore, the Veteran frequently missed work and her employer made accommodations for her inability to work. This reasonably supports the conclusion that her migraines were capable of producing severe economic inadaptability during the period on appeal. Pierce, 18 Vet. App. at 445-46. Accordingly, resolving all reasonable doubt in her favor, the Board finds that the Veteran experienced migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the entire period on appeal. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. An initial 50 percent rating is granted. REASONS FOR REMAND Initial Rating for Right Knee Patellofemoral Syndrome The parties to the JMPR agreed that the Board erred when it failed to ensure that the duty to assist was satisfied with respect to the Veteran's right knee claim. Namely, the parties explained that the Board relied on a March 2020 VA examination that did not specify at which point she began to experience pain during range of motion testing. JMPR at 2-4 (citing Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) and Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016)). Remand to the AOJ for a new examination that complies with the requirements of Mitchell and Correia is warranted. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right knee disability. 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. In doing so, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must specify the degree at which the Veteran begins to experience pain during range of motion testing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over a period of time. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Review the examination report to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 3. Readjudicate the Veteran's claim in a supplemental statement of the case, and allow the Veteran and her representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.