Citation Nr: 23044571 Decision Date: 08/10/23 Archive Date: 08/10/23 DOCKET NO. 15-34 089 DATE: August 10, 2023 ORDER Entitlement to a rating in excess of 50 percent for migraine headaches, to include on an extraschedular basis, is denied. FINDING OF FACT The Veteran's migraine headaches have been manifested by frequent, prolonged, prostrating attacks capable of producing severe economic inadaptability, which does not create an unusual disability picture that falls outside of the rating schedule. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for migraine headaches, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to June 1970, August 1980 to August 1984, and January 1985 to January 1996. This case has been before the Board on two previous occasions. In a January 2020 decision, the Board denied the Veteran's claim regarding entitlement to a rating in excess of 50 percent for migraine headaches. See January 2020 Board decision. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Partial Remand (JMPR), remanding to the Board to address whether referral for an extraschedular evaluation was warranted. See May 2021 JMPR. In a July 2022 decision, the Board denied entitlement to a rating in excess of 50 percent for migraine headaches, to include on an extraschedular basis. See July 2022 Board decision. The Veteran again appealed to the Court, and the Court again granted a JMPR. See May 2023 JMPR. The present JMPR addresses a request made by the Veteran's representative prior to the issuance of the July 2022 Board decision. The Veteran's representative had requested copies of all medical examinations in the Veteran's claims file for the past 12 months. See June 11, 2021 request. The Board acknowledged the request, assigned a file number to the request, and responded by sending the Veteran's representative a compact disc containing the Veteran's compensation and pension examinations. See June 2021 acknowledgment letter; November 2021 response. Several months later, the Board provided another response, noting that the Veteran's representative has been granted access to the electronic version of the Veteran's claims file (VBMS). See June 2022 response. The JMPR found the Board's July 2022 decision inadequate because "the Board did not consider or discuss whether its June 2022 letter comported with the requirements of fair process when it determined that Appellant's representative's alleged access to VBMS complied with his request for VA records under the Privacy Act." See May 2023 JMPR. However, as noted in the JMPR, any error has been effectively cured by the representative's receipt of the Record Before the Agency (RBA) as part of the litigation before the Court. See May 2023 JMPR. The Board will therefore turn to the merits of the appeal. As one additional preliminary matter, the Board notes that a total disability rating based on unemployability (TDIU) has arguably been raised in the context of the instant appeal. However, the JMPR did not address TDIU, and such will therefore not be discussed herein by the Board. In any event, before the Board is a separate appeal stream regarding TDIU. As such, entitlement to TDIU will be the subject of a separate Board decision. Entitlement to a rating in excess of 50 percent for migraine headaches, to include on an extraschedular basis The Veteran contends that he is entitled to a rating in excess of 50 percent for his service-connected migraine headaches. Migraine headaches are rated under 38 C.F.R. § 4.124, Diagnostic Code (DC) 8100. A maximum 50 percent rating is warranted when there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. VA regulations do not define "prostrating." The Board takes note of Webster's definition of "prostration" as "utter physical exhaustion or helplessness" and Dorland's definition as "extreme exhaustion or powerlessness." See July 2022 Board decision. The Board also notes that the term "productive of severe economic inadaptability" has not been clearly defined by regulations or 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, headaches 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 a definition would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The headaches, at a minimum, must be capable of producing "severe" economic inadaptability. At a May 2023 VA examination, the Veteran reported experiencing intense migraines three times a week. See May 2023 VA examination. The examiner found that the Veteran experiences headache pain, nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. Id.; see also December 2014 VA examination. The examiner observed that the Veteran experiences prostrating attacks approximately once a month and found that such attacks are productive of severe economic inadaptability. Id. The Veteran asserts that he is unable to work in part due to his headaches. See April 2013 Veteran letter. He states that his headaches require him to use dark shade glasses during the day, cause him to be unable to drive at night due to headlights, and require him to go to the emergency room for narcotic injections when his medications fail. See August 2021 brief; see also May 2023 VA examination (Veteran reports migraines limit his ability to drive professionally). Extraschedular consideration involve a three-step analysis. See Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321. The first step requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." Thun, 22 Vet. App. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for the disability." Id. Here, the Board finds that this first step has not been met, as the rating schedule adequately contemplates the Veteran's disability picture. The Veteran's symptoms, including monthly prostrating attacks, trips to the emergency room for narcotic injections, nausea, vomiting, sensitivity to light-requiring the use of dark shade glasses-and sensitivity to sound, can be described as very frequent, prostrating, and prolonged. Thus, they are contemplated under the rating criteria for his present 50 percent rating. His present rating also specifically addresses severe economic inadaptability, thereby encompassing the Veteran's difficulty with work in part due to his headaches. The Rating Schedule is intended to compensate for average impairment in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, a comparison of the Veteran's symptoms and functional impairments resulting from his disability with the pertinent schedular criteria does not show that his service-connected migraine headaches present "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). The functional limitations imposed by the Veteran's migraine headaches are specifically contemplated by the criteria discussed above, including the effect of the Veteran's migraine headaches on his occupation and daily life. Therefore, the threshold factor for extraschedular consideration has not been met and the Board need not reach the second step of the Thun analysis. See Doucette v. Shulkin, 28 Vet. App. 366 (2017); see also Yancy v. McDonald, 27 Vet. App. 484 (2016) ("Although the first and second Thun elements are interrelated, they 'involve separate and distinct analysis,' and '[i]f either element is not met, then referral for extraschedular consideration is not appropriate.'"). Referral of the Veteran's migraine headaches for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Accordingly, the Board finds that the criteria for a disability rating in excess of 50 percent for migraine headaches, to include on an extraschedular basis, have not been met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38C.F.R. §3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Thomas J. 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.