Citation Nr: 18132316
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 13-10 552
DATE:	September 6, 2018
ORDER
An initial 10 percent rating for migraine headaches is granted, subject to the laws and regulations governing payment of monetary awards.  
FINDING OF FACT
Throughout the appeal the Veteran’s migraine headaches has been primarily manifested by characteristic prostrating attacks averaging one in two months, over the last several months.
CONCLUSION OF LAW
The criteria for an initial 10 percent rating, but no higher, for migraine headaches have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.124a, Diagnostic Code (Code) 8100.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran, who is the appellant, served on active duty from January 1988 to May 1988 and from October 2004 to December 2006.  
The Veteran testified at two separate hearings in support of his claim of increased rating for migraine headaches, initially in February 2014 and more recently in June 2018, before two of the undersigned Veterans Law Judges (VLJ).  Transcripts of the hearings are of record.  A VLJ who conducts a hearing must participate in making the final determination of the claim involved.  38 U.S.C. § 7107(c); 38 C.F.R. § 20.707.  By law, appeals may be assigned only to an individual VLJ or to a panel of not less than three members.  See 38 U.S.C. § 7102(a).  Thus, when a veteran has had a hearing before two separate VLJs covering one or more of the same claims on appeal, a third VLJ is assigned to participate in a panel decision with respect to those claims.  Accordingly, a third VLJ has been assigned to participate in a panel decision in this case.  During the June 2018 hearing, the Veteran was offered the opportunity to testify at another hearing before the third VLJ in accordance with Arneson v. Shinseki, 24 Vet. App. 379 (2011), which held that, under 38 C.F.R. § 20.707, a veteran has the right to a hearing before all three VLJs involved in the panel decision.  The Veteran, however, waived his right to a third hearing on the record.  Accordingly, the Board may proceed with appellate review of the claim. 
The issues regarding the proper ratings for a lumbosacral spine disability and a left shoulder disorder were addressed only in the February 2014 hearing.  Thus, they will be addressed in a separate decision by the Board.  The issue regarding the proper rating for the Veteran’s gastroesophageal reflux disease (GERD) was only addressed in the June 2018 hearing.  Thus, it will be addressed in a separate decision of the Board. 
Finally, the Board notes that the Veteran has filed a timely notice of disagreement (NOD) with the effective dates of awards for his dependent children and spouse.  See June 2018 NOD.  He has not yet been issued a statement of the case (SOC).  Ordinarily, the claim would be remanded for the issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  However, it appears the Veteran’s NOD has been acknowledged and additional action is pending.  See June 2018 notice letters to Veteran (acknowledging the receipt of his June 2018 NOD).  Therefore, this situation is distinguishable from Manlincon, where an NOD had not been recognized, and remand is not necessary at this time.   
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  
Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  
The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to these appeals.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.  
Entitlement to an initial compensable rating for migraine headaches.
Service connection for migraine headaches was granted by the Regional Office (RO) in a May 2010 rating decision.  The noncompensable (0 percent) initial disability rating was awarded under the provisions of Code 8100 from the date of claim in February 2009.  
Under 38 C.F.R. § 4.124a, Code 8100, migraine, with very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability will be rated as 50 percent disabling.  Migraine headaches, with characteristic prostrating attacks occurring on an average of once a month of the last several months is rated as 30 percent disabling.  With characteristic prostrating attacks averaging one in two months, over the last several months, a 10 percent rating is warranted.  With less frequent attacks, a noncompensable evaluation is warranted.  
Review of the record includes September 2009 and September 2013 statements from the Veteran’s mother, who remarked that she was aware the Veteran had frequent, debilitating headaches on a daily basis that intensified with his work load; an October 2009 statement from the Veteran’s private chiropractor, indicating that the Veteran was receiving treatment on a bi-weekly basis for headaches related to a service-connected cervical spine disorder; and a February 2010 VA outpatient treatment record showing that the Veteran had complaints of headache pain rated 5 on the pain scale.  Also of record is the report from an April 2010 VA examination, wherein the Veteran stated he had headaches three to four times per month that were relieved by NSAID medication.  The headaches were described as mild to moderate in severity and lasted one hour without medication; they were not associated with photophobia or functional loss.  In January 2014, the Veteran submitted a letter from another private chiropractor, dated in September 2013, who indicated that the Veteran was being treated every two to four weeks for headaches related to neck injuries received during service.  
At the February 2014 Board hearing, the Veteran testified that he had two types of headache symptoms, which were of lesser and greater severity.  The less severe type occurred six to eight times per month and was alleviated with Advil.  He stated that he tried to be careful so that these did not develop into the more severe type, which occurred one to three times per month.  He indicated these were extremely limiting in function, but not totally limited.  
An examination was conducted by VA in December 2014.  At that time the diagnosis was migraine, including migraine variant.  It was noted that the Veteran took NSAID medication as needed.  He experienced pain on one or both sides of the head as well as nausea.  This lasted less than one day in duration.  He described having prostrating attacks of headache pain less frequent than one over the last several months.  The prostrating attacks were not productive of severe economic inadaptability.  He stated that he had lost nine days of work due to his headaches over the past year.  
VA outpatient treatment records show that the Veteran had complaints of headache in May 2017, but additional records showed no complaints.  
During the June 2018 Board hearing, the Veteran testified that he had had approximately three or four episodes of prostrating headaches since his prior hearing in 2014.  He related that he had been able to keep these to a minimum by being very careful when he felt one coming on and by taking medication and having his spouse massage his head.  He estimated that he had lost between 8 and 12 days of work every year as a result of the headaches.  He commented that, as he was self-employed, he could do this as needed.  
The Veteran’s current noncompensable rating for headaches is based upon the two VA examinations, which did not indicate that he had characteristic prostrating attacks averaging one in two months.  While the December 2014 VA examiner specifically indicated that he had headaches of less frequency, at that time, it was noted that the Veteran had lost nine days of work over the past year.  In addition, the lay evidence provided by the Veteran’s mother, the statements of the Veteran’s chiropractors, and the credible testimony given during the two Board hearings, all indicate a frequency of prostrating headaches that more nearly approximates the criteria for a 10 percent rating.  The Veteran has not described a frequency of prostrating attacks averaging once per month over the past several months.  As such, a rating in excess of 10 percent is not warranted.  As the initial lay statement dates from the initial effective date of the award, the Board finds that this degree of disability has been met throughout the pendency of the appeal.  To this extent, the appeal is allowed.  

  
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
 
 
CAROLINE B. FLEMING
Veterans Law Judge
Board of Veterans’ Appeals
 
 
A. ISHIZAWAR
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Joseph P. Gervasio 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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