Citation Nr: 23044490 Decision Date: 08/10/23 Archive Date: 08/10/23 DOCKET NO. 20-01 054 DATE: August 10, 2023 ORDER For the entire period on appeal, a 50 percent rating, but not higher, is granted for migraine headaches, subject to regulations governing the payment of monetary benefits. FINDING OF FACT The evidence demonstrates that for the entire appeal period the Veteran's migraine headaches have more nearly approximated completely prostrating and prolonged attacks productive of severe economic inadaptability, especially when considered without regard to the ameliorative effects of medication. CONCLUSION OF LAW For the entire period on appeal, the criteria for a 50 percent rating for a migraine headache disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1999 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted entitlement to service connection for migraine headaches and assigned a noncompensable rating. The Veteran timely perfected an appeal. See November 2019 Notice of Disagreement; December 2019 Statement of the Case; January 2020 VA Form 9. In a December 2019 rating decision, the RO increased the rating for the Veteran's service-connected migraines to 30 percent, effective from the date of service connection, i.e., October 23, 2018. In a March 2022 rating decision, the RO increased the rating for the Veteran's migraines to 50 percent, effective from September 23, 2021. As these rating decisions did not represent a total grant of benefits sought on appeal the claim for increases remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating for Migraine Headaches The Veteran contends that he is entitled to a higher disability rating for his migraine headache disability, which is currently assigned a 30 percent rating under C.F.R. § 4.124a, Diagnostic Code 8100, prior to September 23, 2021, and a 50 percent rating thereafter. A. Legal Criteria Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6?Vet. App.?465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24?Vet. App.?428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Diagnostic Code 8100 provides that migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are rated as 10 percent disabling. Migraine headaches occurring on an average once a month over the last several months are rated as 30 percent disabling. Migraine headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a maximum, 50 percent disability rating. The rating criteria do not define "prostrating," nor has the Court. By way of reference, the Board notes that DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), defines "prostration" as "extreme exhaustion or powerlessness." In assigning a disability rating, "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As the rating criteria under 38 C.F.R. § 4.124a, DC 8100, do not explicitly contemplate the ameliorative effects of medication, the assigned rating for migraine headaches should contemplate the frequency of characteristic prostrating attacks that would occur without medication. Turning to the evidence of record, a May 2007 VA treatment record shows that the Veteran reported headaches about twice per week. The Veteran was afforded a VA examination in January 2019. He reported intermittent severe headaches. He also reported that he took medication daily for headache pain. The Veteran reported the following headache symptoms: headache pain, constant head pain, pulsating or throbbing head pain, pain on both sides of the head, sensitivity to light, and changes in vision. The examiner indicated that the Veteran had characteristic prostrating attacks of headache pain with less frequent attacks. The examiner also indicated that the Veteran's headache condition impacted his ability to work because "when the Veteran develops a migraine he needs to go into a dark, quiet environment." The Veteran was afforded a VA examination in January 2019. He reported headaches on most days, with some days worse than others. He also reported that he took three medications daily for headache pain. The Veteran reported the following headache symptoms: constant head pain, pulsating or throbbing head pain, pain localized to one side of the head, sensitivity to light, sensitivity to sound, and changes in vision. The examiner indicated that the Veteran had characteristic prostrating attacks of headache pain once every month. The examiner also indicated that the Veteran's headache condition impacted his ability to work because "during a migraine headache the Veteran would benefit from employment that allows him to go into a dark, quiet place to rest." In his January 2020 substantive appeal, the Veteran, through his representative, reported that his headaches affect his ability to work and that his co-workers assist him by taking up some of his work duties and allowing him to rest when he has headache attacks at work. The Veteran submitted statements from co-workers regarding his headache symptoms. L.N. reported that "at various points" while working with the Veteran, he "allowed him to rest in company vehicles to combat severe migraines." A.P., who indicated that he worked with the Veteran for three years, indicated that the Veteran gets severe headaches at work and that their supervisor allows him to rest in a truck. He also reported that he and other co-workers will help the Veteran with his work when he has headaches. S.J., who reported that he worked with the Veteran for the past eight years and that he had been the Veteran's foreman many times, indicated that "many times [he] had to allow him to sit in a vehicle due to migraines." He also indicated that he witnessed the Veteran vomit during migraines. M.J. reported that the Veteran complained of panful headaches two to three times per week and that the headaches "more often than not require him to take expanded periods of time away from the job to just finish out the day." The Veteran also submitted an October 2021 private examination report authored by Dr. R.D. Dr. R.D. indicated that the Veteran described pulsating headaches with associated photophobia, nausea, scotoma, blurred vision, and numbness of both hands. He also noted that the Veteran had tried several medications to control his headaches without success. Dr. R.D. also indicated that the Veteran "currently suffers from migraine headaches every day with prostrating attacks twice a week that last between two hours and two days." Finally, Dr. R.D. opined that "[d]uring these prostrating episodes, [the Veteran] is unable to work or participate in activities of daily living" and noted that "this has caused economic inadaptability for him." In a December 2021 statement, the Veteran reported migraines two to four times per week. The Veteran was afforded a VA examination in January 2022. The Veteran reported the following headache symptoms: pulsating or throbbing head pain, pain on both sides of the head, nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The examiner opined that the Veteran had very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. The examiner also indicated that the Veteran's headache condition impacted his ability to work because he is unable to function in a working role during headaches due to pain inhibiting his ability to focus and function at work and because "his headaches [are] triggered/worsened [by] bright lights/loud noises." After reviewing the foregoing evidence, the Board finds that the Veteran's headache disability more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for the entire appeal period. The Veteran is competent to report the frequency of his headaches and accompanying symptoms such as photophobia and phonophobia. See Layno, 6 Vet. App. at 469. The Board also finds him credible in this regard as there has nothing in the record that impugns his statements as to the nature, severity, and frequency of her headaches. To the contrary, the Veteran submitted numerous statements from his co-workers corroborating his testimony. The Board further finds that the Veteran's headache symptoms have remained fairly stable over the appeal period. The Board finds that the Veteran's headaches are prostrating because the Veteran is unable to perform other activities during his headaches and because they affect his concentration and focus. In other words, they result in extreme exhaustion or powerlessness, and prevent him from performing work or activities of daily living. The Board also finds that the Veteran's headaches occur "very frequently." In reaching this conclusion, the Board references the criteria for a 30 percent rating under Diagnostic Code 8100. As noted above, a 30 percent rating is assigned when a Veteran has characteristic prostrating attacks an average of once a month over several months. In this case the Veteran has had an average of two to three attacks per month throughout the rating period. This is significantly more frequent than the average of one per month required for a 30 percent rating. Given the significant difference between what the Veteran experiences and what is required for a 30 percent rating, the Board finds that the 50 percent rating criteria are more closely met in terms of frequency. See 38 C.F.R. § 4.7. As such, his headaches occur "very frequently." The Board further finds that the Veteran's headaches are capable of producing severe economic inadaptability. In this regard, the evidence shows that the Veteran experiences numerous migraine headaches per month, lasting at least two to three hours at a time, which completely incapacitate him. The Veteran has indicated that, when he has a headache, he must stop performing activities and take his medications. In essence, he cannot perform any activities, much less work activities, when he has a headache without the use of medications. As noted above, the Board may not consider the ameliorative effect of medications on headaches in rating a disability under Diagnostic Code 8100. See Jones, 26 Vet. App. at 63. In this case, when the Board disregards the ameliorative effects of the Veteran's headache medications, it must conclude that the Veteran's headaches would necessitate a complete stoppage of work for hours at a time up to five times per month, resulting in at least some economic inadaptability. The Board acknowledges the findings of the January 2019 VA examiner, who opined that the Veteran characteristic prostrating attacks of headache pain with less frequent attacks. However, the Board notes that the examiner provided no rationale to support this finding, which is at odds with the other VA examination reports and the medical and lay evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that most of the probative value of a medical opinion comes from its reasoning). Furthermore, the opinion does not consider the Veteran's lay statements. In Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that lay testimony can be competent to identify certain pathology. As noted above, the Veteran is competent to describe that her headaches require her to take medication and sleep. Additionally, the Board finds his reports credible, and therefore probative. The Board also acknowledges the findings of the December 2019 VA examiner, who opined that the Veteran had characteristic prostrating attacks of headache pain with an average frequency of once every month and that he did not have very prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. However, the report is internally inconsistent in that the free text describing the Veteran's subjective symptoms and frequency of symptoms is inconsistent with the examiner's conclusions. In this regard, the Veteran reported daily severe headaches. Moreover, the examiner indicated that the Veteran's headaches impacted his ability to work. VA regulations provide that 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 required for the rating. 38 C.F.R. § 4.7. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's disability picture more closely approximated a 50 percent disability rating for the entire appeal period. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. By way of this decision, the Veteran is currently in receipt of the maximum schedular evaluation available for his disability. A rating in excess of 50 percent is not available under any other provision of the rating schedule that is relevant. The Board has carefully reviewed the rating schedule and finds no other Diagnostic Code that would provide a basis to grant a higher evaluation for this disorder. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.