Citation Nr: 22040162 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 16-53 334A DATE: July 13, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for migraine variant with aura (migraines) prior to March 29, 2022 and in excess of 50 percent thereafter is denied. FINDING OF FACT Prior to March 29, 2022, the evidence is persuasively against a finding that the Veteran's service-connected migraines manifested as or more closely approximated characteristic prostrating attacks occurring on an average once per month over the last several months; and from March 29, 2022, he is in receipt of a 50 percent rating, the highest schedular rating available. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent prior to March 29, 2022 and in excess of 50 percent thereafter for migraines have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1965 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Preliminary Matters This appeal has a long procedural history and has been before the Board previously. Most recently, in March 2022, the Board granted entitlement to a higher initial rating of 10 percent. The Board also remanded the issue of entitlement to an initial rating higher than 10 percent for development. The RO substantially complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In an April 2022 rating decision, the RO awarded an increased rating of 50 percent for the Veteran's service-connected migraines from March 29, 2022. The Board has rephrased the appellate issue accordingly. Neither the Veteran nor his representative has raised any duty to notify or duty to assist issues since the March 2022 Board remand. 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). The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board's reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The appellant must not assume the Board has overlooked evidence not explicitly discussed herein. Increased Rating The Veteran is currently in receipt of a 10 percent initial rating prior to March 29, 2022 and 50 percent thereafter for his service-connected migraines under 38 C.F.R. § 4.124a, DC 8100. He seeks higher ratings. DC 8100 addresses migraine headaches. A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average once per month over the last several months. A maximum 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, DC 8100. The rating criteria do not define "prostrating," nor has the United States Court of Appeals for Veterans Claims. See Fenderson v. West, 12 Vet. App. 119 (1999) (quoting DC 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). 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 very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." Initially, from March 29, 2022, the Veteran is in receipt of the maximum schedular rating of 50 percent under 38 C.F.R. § 4.124a, DC 8100. Neither he nor his representative has raised any other issues; nor have any other issues been reasonably raised by the record regarding this portion of the appeal period. Doucette v. Shulkin, 28 Vet. App. 366, 370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Thus, a higher initial rating is unwarranted from March 29, 2022. The Board has carefully reviewed the evidence of record and finds that the evidence is persuasively against the award of an initial rating in excess of 10 percent for migraines prior to March 29, 2022. Specifically, the weight of the most probative evidence summarized below is against a finding that the Veteran's migraines manifested as or more closely approximated characteristic prostrating attacks occurring on an average once per month over the last several months. An October 2010 VA treatment record shows that the Veteran denied headaches. During the February 2011 VA examination, the Veteran reported episodes of blurred vision with waves progressing across his eyes, followed later that day by mild, non-penetrating, throbbing bilateral frontal temporal lobe headaches that lasted a day. Headaches did not interfere with his work and were not debilitating. They occurred every two or three months. Headaches were described as mild headaches that don't interfere with usual activities. He was diagnosed with mild tension headaches preceded by ocular aura. A March 2012 VA treatment record notes the Veteran denied headaches. During an April 2012 VA eye examination, the Veteran reported intermittent headaches one or two times a month accompanied by wavy lines in his eyes. He denied any nausea, vomiting, photophobia, phonophobia, or any other neurological symptoms. He stated that he lays down at first onset headaches, which do not last as long. The examination report noted his headaches / eye condition do not have any impact on his ability to work. A March 2013 VA treatment record shows the Veteran reported intermittent headaches. However, he later denied headaches during June 2013 and March 2016 VA treatment. An August 2016 VA treatment record notes the Veteran reported headaches on the side or back of the head when he has vision problems, but he denied nausea or vomiting. He was seen for a migraine with moderate to severe aura and visual changes. During September 2016 VA treatment, the Veteran reported blurred vision / aura associated with head soreness every few months. During September 2017 VA treatment, he reported vision changes and head pain at least four times a year. During the December 2020 VA examination, the Veteran reported migraines have stayed the same since their onset in 1968. The examiner noted the Veteran experiences sensitivity to light, sensitivity to sound, and vision changes with headache pain lasting less than one day. The examiner found the Veteran did not have characteristic prostrating attacks or very prostrating and prolonged attacks of pain productive of severe economic inadaptability. However, the examination report does not discuss the frequency of the Veteran's headache symptoms. The Veteran's reports during treatment differ from what the Veteran reported during interactions and in communications submitted in support of the present disability compensation claim. For example, during an April 2012 VA eye examination, the Veteran reported intermittent headaches one or two times a month. Similarly, on the April 2013 Notice of Disagreement, the Veteran reported migraines at least once a month which causes his vision to blur. He stated he is unable to drive or read when his vision is blurred. He said has to lay down for about an hour until the migraine passes. Then for the next few days, he has soreness in his head which is worsened by sneezing or coughing. On the November 2016 VA Form 9, the Veteran stated he has migraines one to three times a month, and they are prostrating. He has to close his eyes and lay down, and he is unable to continue with his normal daily activities. Once they subside, he has pain in different parts of his head for a few days which also impacts his daily activities. On a February 2017 VA Form 646, the Veteran, through his representative, stated he has debilitating headaches frequently. In contrast, during medical treatment, the Veteran reported headaches every two or three months, at worst. He did not report frequent headaches during treatment, nor did he describe headaches as debilitating. Statements made during medical treatment are considered reliable because the patient is incentivized to honestly describe symptoms to ensure that proper treatment is rendered. See Fed. R. Evid. 803 (4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.") In contrast, statements made in support of a disability compensation claim are more likely to be biased by the motivation for secondary gain. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (when assessing the credibility and weight given to evidence, the Board may consider factors such as internal inconsistency, consistency with other evidence submitted, bias, self-interest, and desire for monetary gain). Thus, the Board affords more probative value to the more credible statements made during medical treatment. The weight of the most probative evidence of record does not show the Veteran experienced migraine headaches with characteristic prostrating attacks occurring on an average once per month over the last several months. During treatment, the Veteran reported headaches occurring every two or three months, at worst. During VA examinations, the Veteran reported headaches occurring at different frequencies, ranging from every two or three months to once or twice a month. The Board notes his report that he lays down to lessen the duration of his headaches; however, he notably did not report that he was unable to attend to daily activities, loses time from work, or has any other symptoms more closely approximating characteristic prostrating attacks occurring an average of once a month during medical treatment. As explained above, his reports of such severe and frequent symptoms in communications regarding the present compensation claim are not credible because they are inconsistent with his more reliable reports during medical treatment. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an increased rating for migraines is warranted. Rather, the evidence of record persuasively weighs against the award of an increased rating. The benefit of the doubt doctrine is therefore not for application. Accordingly, the appeal is denied. Finally, regarding the period on appeal prior to March 29, 2022, neither the Veteran nor his representative has raised any other issues; nor have any other issues been reasonably raised by the record. Doucette, 28 Vet. App. at 370. R. JANOFSKY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. McDaniels, 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.