Citation Nr: A25035571 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210810-177536 DATE: April 17, 2025 ORDER A disability rating in excess of 30 percent for vestibular migraines is denied. Entitlement to an effective date prior to May 28, 2020 for the assignment of a 50 percent rating for vestibular migraines is denied. FINDINGS OF FACT 1. For the appeal period from February 9, 2010 to May 28, 2020, the Veteran's vestibular migraines symptoms most approximately manifested as characteristic prostrating attacks occurring on an average of once a month over the last several months. 2. The earliest factually ascertainable characteristic of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability to substantiate the 50 percent rating for vestibular migraines is May 28, 2020. CONCLUSIONS OF LAW 1. For the appeal period from February 9, 2010, to May 28, 2020, the criteria for entitlement to a rating in excess of 30 percent for vestibular migraines have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to an earlier effective date, prior to May 28, 2020, for the 50 percent rating of vestibular migraines have not been met. 38 U.S.C. §§ 5101 (a), 5107(b), 5110(a); 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1981 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the August 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the August 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that 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. 38 C.F.R. §§ 4.1, 4.2 (2016); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are 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 evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107 (b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). 1. Entitlement to a disability rating in excess of 30 percent for vestibular migraines The Veteran is currently in receipt of a 30 percent rating for his vestibular migraines effective February 9, 2010, and a 50 percent rating effective May 28, 2020, under DC 8100. The Veteran contends that prior to May 28, 2020, his vestibular migraines are more severe that what is contemplated by the currently assigned 30 percent rating. See August 2021 VA Form 10182 NOD. By way of procedural background, the Veteran initially submitted a claim for service connection February 2010, which include claims for vertigo and dizziness. The AOJ initially denied service connection for vertigo/dizziness in the May 2010 rating decision. After development, in January 2018, the Board denied service connection for vertigo/dizziness. In December 2018, the United States Court of Appeals for Veterans Claims (CAVC) vacated the January 2018 Board decision. In a May 2020 Appellant's Post CAVC Remand Brief, the Veteran submitted additional evidence in the form of a May 2020 private medical opinion from Dr. M.R., which found that the Veteran's dizziness and vertigo are symptoms of his now diagnosed vestibular migraines. Thus, in August 2020 the Board granted service connection for vestibular migraines which the AOJ implemented in the August 2020 rating decision. Specifically, the AOJ granted service connection for vestibular migraines and staged the ratings with a 30 percent rating effective February 9, 2010 and a 50 percent rating effective May 28, 2020. Therefore, the relevant appeal period before the Board is from February 9, 2010 to May 28, 2020. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, 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 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 Diagnostic Code 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 rating criteria contain several undefined phrases. The descriptive phrase "very frequent" for a 50 percent rating 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 migraines attack must render the veteran entirely powerless. Id. Dorland's Illustrated Medical Dictionary 1531 (32nd Ed. 2012), defines "prostration" as "extreme exhaustion or powerlessness." The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Johnson (internal citation omitted). Lastly, the 50 percent rating criteria requires that 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, with regard to severe economic inadaptability, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Importantly, to evaluate migraines under Diagnostic Code 8100, "VA must look at everything the Veteran experiences as a result of migraine attacks and then consider the frequency, duration, severity, and economic impact of those symptoms." See Holmes v. Wilkie, 33 Vet. App. 67, 72-73 (2020). Therefore, when the Board discusses migraines, the term encompasses not only headache pain, but also the other symptoms including dizziness, nausea, vomiting, photophobia, phonophobia, visual auras, and the like that the Veteran could experience. The Board concludes that for the appeal period from February 9, 2010 to May 28, 2020, the Veteran has not had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability under DC 8100. Turning to the evidence of record, in February 2010, the Veteran submitted private treatment records K.C., MPT which discusses the symptoms he experienced from his vestibular migraines, to include dizziness and vertigo. He reported having dizziness and vertigo episodes at least one per year. These episodes can be severe where he is unable to drive. He currently takes 25 mg of Meclizine for relief. In a June 2010 statement, the Veteran reported he has dizziness in conjunction with tonsilitis and inflame eustachian tube. He reported being diagnosed with vestibular neuritis. A review of his March 2013 private treatment records show that he was seen by J.W., CRNP for dizziness. There were no reports of headaches or migraines attacks. During his August 2013 Board hearing, the Veteran testified that he continues to have dizziness. He reports doing home exercises for relief. A review of his May 2014 private treatments record show that he was seen by Dr. R.D. who confirmed that his symptoms paroxysmal dizziness is consistent with vestibular dysfunction. He reported symptoms of dizziness, being off balance and visual blurring. Despite these symptoms, he was able to work. The Veteran was afforded a VA examination in April 2015 where he was diagnosed with dizziness. He currently does not take medication for his dizziness. The VA examiner marked that the Veteran's dizziness does not impact his ability to work. In a July 2015 correspondence, the Veteran stated his vertigo and other symptoms of dizziness is caused by migraine headaches. In support his contentions, he include private treatment records dated May 2015. However, these records stated that he never was seen for a migraine headaches with Dr. J.M. A review of his June 2019 private treatment record show that he was seen by Dr. C.Y. The Veteran reported having bouts of dizziness 3 to 5 times per year. He usually experiences the dizziness in the morning. As noted above, the rating criteria specify migraines which includes symptoms other than headache pain (such as nausea, vomiting, and sensory disturbances). Holmes, 33 Vet. App. at 72. Here, the Veteran reported having symptoms of his vestibular migraines, to include vertigo and dizziness, occurring on average at least 3 to 5 times in a year. Although some dizziness and vertigo episodes were severe where he was unable drive, the evidence of record shows that this appears to be an isolated incident. Moreover, during his April 2015 VA examination, the VA examiner marked that this symptom does not affect the Veteran's ability to work. The evidence of record are not indicative of a rating higher than 30 percent; in fact, the reports and assertions are more indicative of a noncompensable rating; however, the Board will not disturb the AOJ's previous findings. As such, a rating in excess of 30 percent is not warranted because there is not sufficient evidence to demonstrate that the Veteran's headache pain caused very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability.. A higher 50 percent rating under DC 8100 is not warranted unless there are migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. There is no medical or lay evidence that the Veteran's migraines are productive of severe economic inadaptability. His medical records do not reflect that he has had any episodes of very prostrating and prolonged attacks of migraines or non-migraine pain productive of severe economic inadaptability. For these reasons, the Board finds that the evidence weighs persuasively against the claim for a rating in excess of 30 percent service connection for vestibular migraines and the claim must be denied. Because the evidence weighs substantially against the claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Earlier Effective Date 2. Entitlement to an effective date prior to May 28, 2020 for the assignment of a 50 percent rating for vestibular migraines The Veteran contends he is entitled to an earlier effective date prior to May 28, 2020 for the award of 50 percent rating for his vestibular migraines. See August 2021 VA Form 10182 NOD. Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110 (a). The provisions governing the assignment of the effective date for an increased rating are set forth in 38 C.F.R. § 5110 (a) and (b)(2), and 38 C.F.R. § 3.400 (o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." See 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually-ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. See 38 U.S.C. § 5110 (b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). The Veteran has not provided any additional evidence or contentions as to why he believes he is entitled to an effective date earlier than May 28, 2020 for the award of 50 percent rating for his vestibular migraines. As previously mentioned, the Veteran initially submitted a claim for service connection for vestibular migraines (previously claimed as vertigo and dizziness) in February 8, 2010. The AOJ initially denied service connection for vertigo/dizziness in the May 2010 rating decision. The Veteran appealed the May 2010 rating decision within one year in August 2010, therefore this decision did not become final. Thus, the issue before the Board to consider is when entitlement to a 50 percent rating for vestibular migraines was established. In other words, what is the earliest date that the Veteran met the basic eligibility criteria for the claim of 50 percent rating for vestibular migraines. Here, it was noted until the May 28, 2020 statement from Dr. M.R. that the Veteran symptoms of dizziness and vertigo was characteristic of his vestibular migraines symptoms. It was not noted until the May 2020 private medical opinion from Dr. M.R that the Veteran would experience migraines that occur 1 to 3 times per month that could last an entire day which would be productive of severe economic inadaptability. As noted in detail above, prior to May 28, 2020 the Veteran's dizziness were not characterized with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Again, for VA rating purposes, "very frequent" for a 50 percent rating 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 migraines attack must render the veteran entirely powerless. Id. Dorland's Illustrated Medical Dictionary 1531 (32nd Ed. 2012), defines "prostration" as "extreme exhaustion or powerlessness." The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Johnson (internal citation omitted). Lastly, the 50 percent rating criteria requires that 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, with regard to severe economic inadaptability, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. As previously mentioned, the Veteran's symptoms of vertigo and dizziness did not occur greater than once a month. At most, his vertigo and dizziness were characterized by less frequent attacks corresponding to a noncompensable rating based on the Veteran's reports and private treatment records occurring on average 3 to 5 times a year. Indeed, while his dizziness and symptoms rendered him powerless where he is unable to drive, the record reflects that this was an isolated incident. As outlined above, it was not until May 28, 2020 after receipt of the private medical opinion from Dr. M.R. that the Veteran met the criteria for a 50 percent rating. Prior to the private medical examination, the record did not show frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board will not disturb the currently assigned date of May 28, 2020 because it would be detrimental to the Veteran. There is no effective date for an increased rating which would be proper because a noncompensable rating for less frequent attacks of vestibular migraines should have been assigned from February 8, 2010. The Board will not disturb the currently-assigned 50 percent rating, but will not compound the error by assigning an earlier effective date. The Board finds that an earlier effective date is not warranted. A review of the evidence of record does not show that entitlement to a 50 percent rating arose prior to May 28, 2020. Because the date of the entitlement arose was after the February 9, 2010 initial claim, the date the entitlement arose, May 28, 2020, is the earliest possible effective date. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. (Continued on the next page) ? For these reasons, the claim for an earlier effective date prior to May 28, 2020 is denied as VA has granted the earliest date allowed under the facts and law of this case. M. MILLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Mendoza, 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.