Citation Nr: AXXXXXXXX Decision Date: 10/30/20 Archive Date: 10/30/20
DOCKET NO. 190911-32790 DATE: October 30, 2020
ORDER
Entitlement to an evaluation of 50 percent for service-connected migraine headaches is granted.
FINDING OF FACT
The Veteran’s migraine headaches more nearly approximate very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability.
CONCLUSION OF LAW
The criteria for entitlement to a 50 percent rating for service-connected migraine headaches have been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1996 to September 2017.
In April 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim. The rating decision on appeal was issued in August 2019.
In the September 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Evidence Submission option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his or her representative with the NOD or within 90 days of receipt of the NOD. 38 C.F.R. § 20.303.
1. Entitlement to a compensable evaluation for service-connected migraine headaches
The Veteran is seeking a compensable evaluation for his headaches. The Veteran has expressed that he has several migraines a month and therefore meets the criteria for a 30 percent disability rating.
Diagnostic Code 8100 provides ratings for migraine headaches. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensably (0 percent) disabling.
Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling.
Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling.
Migraine headaches with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a.
Although the rating criteria do not define “prostrating,” according to Dorland’s Illustrated Medical dictionary, 32nd Edition (2012), p. 1531, “prostration” is defined as “extreme exhaustion or powerlessness.”
Moreover, 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).
In Pierce v. Principi, the Court of Appeals for Veterans Claims (Court) held that nothing in DC 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating. 18 Vet. App. 440, 446 (2004). Further in Pierce, the Secretary acknowledged that the phrase "productive of severe economic inadaptability" in DC 8100 should be construed as either "producing" or "capable of producing" economic inadaptability. Id.
The Veteran was afforded a VA examination in August 2019. The examiner diagnosed the Veteran with migraines including migraine variants. The examiner noted that the Veteran’s treatment plan includes taking medication such as caffeine tablets, albuterol, and topamax.
The examiner reported that the Veteran experiences constant head pain, pulsating or throbbing head pain, and pain localized to one side of the head and left eye. The examiner noted that the Veteran’s experiences non-headache symptoms such as nausea, sensitivity to light and sound, and dizziness. The examiner noted that the Veteran did not have characteristic prostrating attacks of migraine headache pain.
The examiner stated that the Veteran’s headache condition impacts his ability to work. The examiner noted that the Veteran has to do extra work to catch up for the hours lost due to his headaches and the Veteran finds it difficult to follow conversations and look at the computer screen when he has a headache.
The Veteran submitted a migraine log that documented the Veteran’s migraine intensity and duration as indicated below.
On September 2, 2019, the Veteran reported having a dull ache, stabbing migraine with an intensity of 9 and duration for 8 hours. The Veteran reported having light and noise sensitivity and dizziness.
On September 8, 2019, the Veteran reported having a dull ache, stabbing migraine with an intensity of 6 and duration for 5 hours. The Veteran reported having light and noise sensitivity and dizziness with impaired vision.
On September 11, 2019, the Veteran reported having a dull ache, stabbing migraine with an intensity of 4 and duration for 4 hours. The Veteran noted light sensitivity and impaired vision.
On September 27, 2019, the Veteran reported a dull ache, stabbing migraine with an intensity of 8 and duration for 5 hours. The Veteran noted noise and light sensitivity, dizziness, and impaired vision.
On October 3, 2019, the Veteran reported a throbbing, dull ache, stabbing migraine with an intensity of 8 and duration for 3 hours. The Veteran reported noise and light sensitive and nausea.
On October 11, 2019 and October 12, 2019, the Veteran reported a throbbing, stabbing, migraine with an intensity level of 7 and 8 respectively.
On October 26, 2019, the Veteran reported a throbbing, stabbing, pounding migraine with an intensity of 8 and duration for 7 hours. The Veteran reported noise and light sensitive with dizziness and impaired vision.
On October 30, 2019, the Veteran reported a dull ache, pulsating, pounding migraine with an intensity of 3 and duration for 4 hours. The Veteran reported noise sensitivity.
On November 5, 2019, the Veteran reported a dull ache, stabbing, pounding migraine with an intensity of 7 and duration for 5 hours. The Veteran reported nausea and aura.
On November 9, 2019 and November 10, 2019, the Veteran reported a throbbing, dull ache, stabbing, pounding migraine with intensity levels of 10 and 5 respectively.
On November 14, 2019, the Veteran reported having a pounding dull ache migraine with an intensity of 8 and duration for 7 hours. The Veteran noted noise and light sensitivity with nausea and impaired vision.
On November 30, 2019, the Veteran reported having a dull ache, pulsating, pounding migraine with an intensity of 8, and duration for 6 hours. The Veteran reported having noise and light sensitivity with nausea, throwing up, and impaired vision.
On December 4, 2019, the Veteran reported having a throbbing, dull ache, and pulsating migraine with an intensity of 7 and duration for 5 hours. The Veteran reported having light and noise sensitivity.
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In light of the above, and resolving all doubt in the Veteran’s favor, the Board finds the record reflects headaches that more nearly approximate the criteria for a 50 percent rating throughout the appeal period. In this regard, the record demonstrates severe prostrating attacks occurring more frequently than once a month that last most of a day or longer, and interfere with work and the completion of tasks.
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Citation Nr: AXXXXXXXX Decision Date: 10/30/20 Archive Date: 10/30/20
DOCKET NO. 190911-32790 DATE: October 30, 2020
ORDER
Entitlement to an evaluation of 50 percent for service-connected migraine headaches is granted.
FINDING OF FACT
The Veteran’s migraine headaches more nearly approximate very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability.
CONCLUSION OF LAW
The criteria for entitlement to a 50 percent rating for service-connected migraine headaches have been met. 38 U.S.C. §§ 1155, 5103; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1996 to September 2017.
In April 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim. The rating decision on appeal was issued in August 2019.
In the September 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Evidence Submission option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his or her representative with the NOD or within 90 days of receipt of the NOD. 38 C.F.R. § 20.303.
1. Entitlement to a compensable evaluation for service-connected migraine headaches
The Veteran is seeking a compensable evaluation for his headaches. The Veteran has expressed that he has several migraines a month and therefore meets the criteria for a 30 percent disability rating.
Diagnostic Code 8100 provides ratings for migraine headaches. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensably (0 percent) disabling.
Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling.
Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling.
Migraine headaches with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a.
Although the rating criteria do not define “prostrating,” according to Dorland’s Illustrated Medical dictionary, 32nd Edition (2012), p. 1531, “prostration” is defined as “extreme exhaustion or powerlessness.”
Moreover, 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).
In Pierce v. Principi, the Court of Appeals for Veterans Claims (Court) held that nothing in DC 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating. 18 Vet. App. 440, 446 (2004). Further in Pierce, the Secretary acknowledged that the phrase "productive of severe economic inadaptability" in DC 8100 should be construed as either "producing" or "capable of producing" economic inadaptability. Id.
The Veteran was afforded a VA examination in August 2019. The examiner diagnosed the Veteran with migraines including migraine variants. The examiner noted that the Veteran’s treatment plan includes taking medication such as caffeine tablets, albuterol, and topamax.
The examiner reported that the Veteran experiences constant head pain, pulsating or throbbing head pain, and pain localized to one side of the head and left eye. The examiner noted that the Veteran’s experiences non-headache symptoms such as nausea, sensitivity to light and sound, and dizziness. The examiner noted that the Veteran did not have characteristic prostrating attacks of migraine headache pain.
The examiner stated that the Veteran’s headache condition impacts his ability to work. The examiner noted that the Veteran has to do extra work to catch up for the hours lost due to his headaches and the Veteran finds it difficult to follow conversations and look at the computer screen when he has a headache.
The Veteran submitted a migraine log that documented the Veteran’s migraine intensity and duration as indicated below.
On September 2, 2019, the Veteran reported having a dull ache, stabbing migraine with an intensity of 9 and duration for 8 hours. The Veteran reported having light and noise sensitivity and dizziness.
On September 8, 2019, the Veteran reported having a dull ache, stabbing migraine with an intensity of 6 and duration for 5 hours. The Veteran reported having light and noise sensitivity and dizziness with impaired vision.
On September 11, 2019, the Veteran reported having a dull ache, stabbing migraine with an intensity of 4 and duration for 4 hours. The Veteran noted light sensitivity and impaired vision.
On September 27, 2019, the Veteran reported a dull ache, stabbing migraine with an intensity of 8 and duration for 5 hours. The Veteran noted noise and light sensitivity, dizziness, and impaired vision.
On October 3, 2019, the Veteran reported a throbbing, dull ache, stabbing migraine with an intensity of 8 and duration for 3 hours. The Veteran reported noise and light sensitive and nausea.
On October 11, 2019 and October 12, 2019, the Veteran reported a throbbing, stabbing, migraine with an intensity level of 7 and 8 respectively.
On October 26, 2019, the Veteran reported a throbbing, stabbing, pounding migraine with an intensity of 8 and duration for 7 hours. The Veteran reported noise and light sensitive with dizziness and impaired vision.
On October 30, 2019, the Veteran reported a dull ache, pulsating, pounding migraine with an intensity of 3 and duration for 4 hours. The Veteran reported noise sensitivity.
On November 5, 2019, the Veteran reported a dull ache, stabbing, pounding migraine with an intensity of 7 and duration for 5 hours. The Veteran reported nausea and aura.
On November 9, 2019 and November 10, 2019, the Veteran reported a throbbing, dull ache, stabbing, pounding migraine with intensity levels of 10 and 5 respectively.
On November 14, 2019, the Veteran reported having a pounding dull ache migraine with an intensity of 8 and duration for 7 hours. The Veteran noted noise and light sensitivity with nausea and impaired vision.
On November 30, 2019, the Veteran reported having a dull ache, pulsating, pounding migraine with an intensity of 8, and duration for 6 hours. The Veteran reported having noise and light sensitivity with nausea, throwing up, and impaired vision.
On December 4, 2019, the Veteran reported having a throbbing, dull ache, and pulsating migraine with an intensity of 7 and duration for 5 hours. The Veteran reported having light and noise sensitivity.
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In light of the above, and resolving all doubt in the Veteran’s favor, the Board finds the record reflects headaches that more nearly approximate the criteria for a 50 percent rating throughout the appeal period. In this regard, the record demonstrates severe prostrating attacks occurring more frequently than once a month that last most of a day or longer, and interfere with work and the completion of tasks. The migraine headaches are accompanied by symptoms of pain, nausea, vomiting, throbbing, sensitivity to sound and light, and changes in vision. The Board gives probative weight to the Veteran's lay statements as to the severity of his migraine headaches, to include the documentation he provided to his treating physicians in his migraine log. Rucker v. Brown, 10 Vet. App. 67 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board finds no reason to doubt the credibility of the Veteran's lay statements regarding the frequency and severity of his headaches. As such, the Board concludes that the Veteran’s overall disability picture more nearly approximates very frequent, completely prostrating, and prolonged attacks capable of producing severe economic inadaptability. See 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100; Pierce v. Principi,18 Vet. App. 440 (2004).
Thus, resolving all reasonable doubt in favor of the Veteran, a 50 percent rating, the maximum schedular rating, is warranted.
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
Attorney for the Board M.D.
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.