Citation Nr: 22017953 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 18-26 773 DATE: March 27, 2022 ORDER A higher 50 percent rating, the maximum permissible schedular rating, is granted for tension headaches. FINDING OF FACT The Veteran's tension headaches manifest in very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria are met for entitlement to a higher 50 percent initial rating for the tension headaches. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8199-8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1987 to December 2013. This appeal to the Board of Veterans' Appeals (Board) is from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). The Veteran testified in support of this claim during a hearing at the RO in November 2021 before the undersigned Veterans Law Judge of the Board. This type of hearing is often and more commonly referred to as a Travel Board hearing. A transcript of the hearing is of record. Increased Rating A higher 50 percent initial rating is granted for the tension headaches The Veteran contends that his tensions headaches have been far more severe than is contemplated by his existing 0 percent (so noncompensable) rating for the entire review period on appeal. The Veteran's tension headaches are rated under DC 8199-8100. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned. See 38 C.F.R. § 4.27. Here, the hyphenated DC represents tension headaches rated analogous to migraine headaches. Migraine headaches are rated under DC 8100. According to this DC, 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 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. 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. In 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 descriptive 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 migraine attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Importantly, the 50 percent rating criteria require 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," and, regarding severe economic inadaptability, nothing in DC 8100 requires the claimant be completely unable to work to qualify for a 50 percent rating as that would render meaningless the requirement of inability to obtain and maintain substantially gainful employment in the context of a claim instead for a total disability rating based on individual unemployability (TDIU). Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Here, after considering the relevant medical and lay evidence, the Board concludes that, for the entire period on appeal, the Veteran has had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, corresponding with a maximum 50 percent rating under DC 8100. The Veteran first underwent a VA headache examination in April 2014. During that examination, he stated that his typical headaches include symptoms such as nausea, vomiting, loss of appetite, blurry vision, aura, inability to focus, feelings of pressure, and light sensitivity. He explained that his headaches last around two hours and that, to help alleviate his symptoms, he takes over the counter medicine, drinks a caffeinated drink, and goes to a cool, dark room until the headache passes. Further, he stated that he has severe headaches eight to ten times per month. The examiner indicated the Veteran does not have prostrating headaches and that his headaches have no functional impact on his work, however, the examiner did not reconcile these findings with the Veteran's reported symptoms. A May 2014 VA treatment record shows the Veteran was having optic migraines a "couple times a week." The VA treatment records generally show continuous treatment for severe migraine headaches throughout the period on appeal. The Veteran next underwent a VA headache examination in November 2014, when he again explained that his headache symptoms include blurry vision, nausea, sensitivity to light, extreme pressure, and pain, and that they last from one to two hours and occur four to six times per month. He also stated that his headaches cause him to leave work once or twice per month. The examiner described the Veteran's headaches as non-prostrating, but once more did not reconcile this with the Veteran's reported symptoms and functional impact, including having to leave work on occasion. Most recently, the Veteran had VA headache examination in February 2018. He reported migraines eight to ten times per month, lasting a couple of hours each time. He reiterated that his headache symptoms include blurry vision with sensitivity to light and that he continues to treat using over the counter medication and caffeine. As well, he reported sensitivity to sound, pulsating or throbbing head pain, and pain on both sides of his head that worsens with physical activity. The examiner found that the Veteran's headaches were non-prostrating and did not have any functional impact on his work although, again, these findings were not reconciled with the Veteran's reports of symptom severity and frequency. On his April 2018 VA Form 9, Substantive Appeal to this Board, the Veteran included a written statement attesting that his headaches are severe enough that he cannot safely operate a car during a migraine including especially because of his blurry vision. He detailed that, to help alleviate his migraines, he continues to treat them with over-the-counter medication, caffeine, and by laying down in a cool dark room for about two hours until his symptoms subside. Concerning functional impact on his work, he explained that his migraines continue to impact his work but that he tries to manage his symptoms and work through his pain to mitigate the negative impact. During his November 2021 hearing before this Board, the Veteran testified that, during his VA examinations, the examiners did not explain what "prostrating" meant and did not discuss whether his headaches were prostrating at all. Further, he did not recall any VA examiner discussing prostrating headaches with him. He reiterated that, if a migraine starts while driving, he must pull over and stop, and that if he is "trying to do anything" such as reading, writing, or signing a form, they prevent him from completing even these menial tasks. He clarified that currently he has migraines occurring as often as three to four times per month that require him to lie in a cool, dark room to help alleviate his symptoms. However, he further explained that, when his migraines onset at work, he must search for a dark and quiet room, taking him away from his work. Finally, he testified that he feels the biggest impact his migraines have on his life is that he is unable to drive during a migraine, and between this and being unable to complete desk work during a migraine, he feels it impacts his job as the Director of Transportation for a school district. The Veteran is competent to report his readily observable symptoms, including the frequency of his migraines, severity of his symptoms, and how he attempts to alleviate them. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has consistently described his migraines as very frequent, occurring at minimum three to four times per month. Moreover, his description of his migraine symptoms has constantly shown them to be completely prostrating, meaning he is completely powerless when they occur. Throughout the entire period on appeal, he has helped alleviate his migraine symptoms to the extent he can by laying down in a cool, dark, quiet room. His migraines have additionally shown to be prolonged, lasting typically two hours, during which he cannot perform even basic functions or tasks. These migraines cause what amounts to severe economic inadaptability. Although the Veteran works, despite his migraines, his description of symptoms supports they are capable of causing severe economic inadaptability. Specifically, he works as Director of Transportation for a school district. When he has a migraine, it is unsafe for him to drive and, further, he is unable to use a computer, read, or write, mostly owing to blurry vision and light sensitivity symptoms of his migraines. He testified that, if a migraine begins while he is at work, he must try to find a cool, dark room to lie down and wait for it to pass. This means that his headaches take him away from his desk and work and, further, prevent him from any driving that may be part of his job as Director of Transportation, including his commute. While his migraines do not appear to have caused severe economic inadaptability, in a strict sense, considering his competent and credible testimony and lay statements throughout the pendency of this appeal, his headache symptoms certainly appear capable of producing severe economic inadaptability. See Pierce, 18 Vet. App. at 445-46. Thus, the Board concludes the Veteran has had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the appeal period. A higher 50 percent initial rating resultantly is warranted under DC 8199-8100 for the entire period at issue. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.