Citation Nr: 23051148 Decision Date: 09/15/23 Archive Date: 09/15/23 DOCKET NO. 20-06 437 DATE: September 15, 2023 ORDER Entitlement to an initial 10 percent rating for service-connected migraine headaches from July 21, 2016, to July 26, 2019, is granted. Entitlement to a rating in excess of 50 percent for service-connected migraines from July 26, 2019, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, from July 16, 2016, to July 26, 2019, his migraines were manifested by symptoms commensurate to prostrating attacks averaging one in two months. 2. The Veteran has the maximum compensable rating allowable by law for his service-connected migraines. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for service-connected migraine headaches from July 21, 2016, to July 26, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.124(a), Diagnostic Code (DC) 8100. 2. The criteria for entitlement to a rating in excess of 50 percent for service-connected migraines from July 26, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.124(a), DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) from a November 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an initial 10 percent rating from July 21, 2016 until July 26, 2019, is granted. The Veteran contends that he is entitled to a compensable rating prior to July 26, 2019, for migraines. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38?U.S.C. §?1155. 38 C.F.R. Part 4. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's tension headaches are rated pursuant to 38?C.F.R. §?4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 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 rating of 50 percent is warranted for migraines with very frequent complexly prostrating and prolonged attacks productive of severe economic inadaptability. 38?C.F.R. §?4.124a, 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 v. Wilkie, 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. Pursuant 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. In rating headaches or migraines under DC 8100, the Board may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In September 2017 the Veteran was afforded a VA examination for his migraine headaches. The examiner reported the Veteran's migraines were characterized by pain on both sides of his head lasting less than one day. See September 2017 VA Examination. The examiner also reported that the Veteran experiences sensitivity to light as a result of his headaches. Id. It is noted that the Veteran does not have prostrating attacks of migraine pain. Id. However, private medical records indicate that the Veteran has suffered from different types of headaches five to seven times a week throughout the appellate period. See Private Treatment Records. According, to private treatment records the Veteran's migraines begin with blurry vision and are characterized by throbbing pains. Id. Lay evidence submitted by the Veteran reflects that he has suffered from migraines five to seven times a week. See March 2020 lay statement. He reported that at least one to two times a month he suffers from migraines that are a nine out of ten on the pain scale. Id. These migraines cause blurry vision sensitivity to light and nausea. Id. The Veteran reports that when these migraines begin, he is only able to lie in a dark quiet room. See March 2020 Lay Statement. Additionally, if the Veteran is at work when these migraines begin, he must turn the lights off and rest his head on his desk. The Veteran reports that resting provides minimal relief. Id. He is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on private treatment records and the Veteran's lay statements, the Veteran has been suffering from chronic migraines for the entire appellate period. While the Veteran has not specifically demonstrated characteristic prostrating attacks averaging one in two months over the last several months, the totality of the findings demonstrates symptoms commensurate to the degree of disability contemplated by a 10 percent evaluation prior to July 25, 2019. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's migraine headaches warrant a 10 percent rating, but not more, under DC 8100 from July 21, 2016, to July 25, 2019. 2. Entitlement to a rating in excess of 50 percent for service-connected migraines from July 26, 2019, is denied. As previously stated, a maximum rating of 50 percent is warranted for migraines with very frequent complexly prostrating and prolonged attacks productive of severe economic inadaptability. 38?C.F.R. §?4.124a, DC 8100. A July 26, 2019, VA examination shows the Veteran experiences migraines with frequent very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. As a result, from July 26, 2019, the Veteran has been rated at 50 percent for his service-connected migraine condition. The Veteran is rated at the maximum compensable rating unde DC 8100. Accordingly, the claim for entitlement to a rating in excess of 50 percent from July 26, 2019, is denied on a schedular basis, with no entitlement under the law. Regarding extraschedular consideration, under 38 C.F.R. § 3.321(b)(1), the Board finds that it is not warranted in this case. The Veteran's headaches are manifested by signs and symptoms of pain, nausea, sensitivity to light, and "prostrating attacks" which impair his day-to-day functioning. These signs and symptoms, and their resulting functional impairments, are contemplated by the rating schedule. Diagnostic Code 8100 provides disability ratings contemplated along a broad and non-exclusive continuum expressed with generalized terms, such as "prostrating attacks" and "severe economic inadaptability." Therefore, the rating schedule was purposely designed to compensate for all symptoms of the disability, and the complete and comprehensive signs and symptoms of the Veteran's headaches. Although the Veteran continued the increased rating appeal after the 50 percent rating was assigned, neither he nor his attorney have argued that he has any signs or symptoms not contemplated by the rating schedule. Accordingly, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. In summary, there is nothing exceptional or unusual about the Veteran's headaches because the rating criteria reasonably describe his disability level and symptomatology. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, neither the evidentiary record nor the Veteran's lay assertions reflect that his migraine headaches, alone or in tandem with other service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. Accordingly, the Board finds that a total disability rating claim based upon individual unemployability is not part and parcel of the Veteran's claim for a higher rating. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Osborne, 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.