Citation Nr: 18154164
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-56 068
DATE:	November 29, 2018
ISSUE
Entitlement to an increased initial rating in excess of 30 percent for service-connected migraine headaches for the period prior to July 29, 2011.
ORDER
Entitlement to an increased initial rating in excess of 30 percent for service-connected migraine headaches for the period prior to July 29, 2011 is denied.
FINDING OF FACT
1. For the period prior to July 29, 2011, the Veteran had migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. The Veteran’s migraine headaches during the period prior to July 29, 2011 were not frequent, completely prostrating, and prolonged and were not productive of severe economic inadaptability.
CONCLUSION OF LAW
1. For the period prior to July 29, 2011, the criteria for a rating in excess of 30 percent for migraine headaches has not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.14, 4.97, Diagnostic Code 8100 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 2002 to June 2005.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 
In this case, the Veteran filed a claim for entitlement to service connection for migraine headaches on September 22, 2008, and in an November 2009 rating decision the RO granted service connection evaluated as 30 percent disabling, effective July 10, 2009. In September 2010 the Veteran filed an informal claim for an increased rating and an earlier effective date prior to July 2009, and in a March 2011 rating decision the RO continued the 30 percent rating for the Veteran’s service-connected migraine headaches. In July 2011 the Veteran filed another claim for increased rating of his service-connected migraine headaches, and in an April 2013 rating decision the RO granted an increased rating of 50 percent effective July 29, 2011. In a November 2016 rating decision, the RO found clear and unmistakable error in the assigned effective date for the 30 percent evaluation for migraine headaches, and an evaluation of 30 percent was established from September 22, 2008, with a 50 percent rating effective July 29, 2011. 
Given the procedural history in this case, the November 2009 rating decision granting service connection for migraine headaches rated as 30 percent disabling was never final. Therefore, the relevant period on appeal before the Board is from the original date of claim on September 22, 2008, forward. The Board notes that the Veteran does not assert entitlement to an increased rating in excess of 50 percent for the period from July 29, 2011, forward, and the Board further notes that a rating of 50 percent is the maximum rating available under the relevant Diagnostic Code, DC 8100. For this reason, the Board must analyze and determine whether the Veteran’s service-connected migraine headaches is entitled to an increased rating in excess of 30 percent for the entire period prior to July 29, 2011. Thus, the Board rephrases the Veteran’s original claim of entitlement to an earlier effective date for the increased rating of 50 percent, to entitlement to an increased rating in excess of 30 percent for the period prior to July 29, 2011, as reflected above.
The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board).
The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).
Entitlement to an increased rating in excess of 30 percent for service-connected migraine headaches for the period prior to July 29, 2011 is denied.
The Veteran asserts that he is entitled to an earlier effective date for his 50 percent rating for his service-connected migraine headaches, effective from July 29, 2011. Specifically, the Veteran asserts that his 50 percent rating for his migraine headaches should be effective May 31, 2011, as the Veteran states that he spoke to customer service on that day, and that an informal claim was made during this call. See June 2018 Appellant’s Brief.
In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(o)(1) (2017). However, for an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date; otherwise, the effective date will be the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. §3.400 (o)(2) (2018).
As explained in the introduction above, the November 2009 rating decision granting service connection for migraine headaches rated as 30 percent disabling was never final. Therefore, the relevant period on appeal before the Board includes from the original date of claim on September 22, 2008, and the Board must determine whether the Veteran’s service-connected migraine headaches is entitled to an increased rating in excess of 30 percent for the entire period prior to July 29, 2011. 
The Veteran’s headaches have been assigned a 30 percent rating for the period prior to July 29, 2011, under DC 8100. See 38 C.F.R. § 4.124a. Under DC 8100, a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. Id. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. 
Notably, the regulation does not specifically define a “characteristic prostrating migraine;” however, “prostration” is defined as extreme exhaustion or powerlessness. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012) [hereinafter DORLAND’S].
As will be discussed further below, the Board finds that for the period prior to July 29, 2011, the Veteran’s migraine headaches symptoms more nearly approximate the symptomatology under the 30 percent rating criteria. 
A September 2008 VA treatment record reports headaches on and off since last week, which the Veteran described as pounding. The Veteran denied acute vision changes. An October 2008 VA treatment record reports treatment of headaches with Motrin, pain measuring a 7 on a scale of 1 to 10 (10 being the worst). The Veteran also reported frequent headaches 3 to 4 times a week. A November VA treatment record indicates headaches 2 to 3 times a week, which are relieved by use of Motrin.
A December 2008 VA treatment record notes complaints of a headache beginning 3 days prior. Similarly, a February 2009 VA treatment record reports a headache since the day before, and a January 2009 VA treatment record indicates a headache for a week or so. 
An August 2009 VA treatment record indicates headache, nausea, 2 to 3 times a week, lasting 5 to 72 hours, requiring medication and sometimes a visit to the emergency room for treatment in the form of an injection. However, the Veteran reported that he has not missed more than 2 to 3 days of work, with no loss from work in the past 12 months, and no doctor ordered periods of incapacitation in the past 12 months.
The Veteran was afforded a VA examination in October 2010. The Veteran described his headaches as dull aches and throbbing with a pain level of 8 on a scale from 1 to 10 (10 being the worst), but noted that “when headaches occur, he is able to go to work but requires medication.” The Veteran reported experiencing headaches on the average of 3 times a week, which last for 3 days. The Veteran’s symptoms were noted to be loss of concentration, pain, and drowsiness. During what the Veteran describes as a “flare up,” the Veteran reported that he slows down with his function for 4 hours. 
Having considered the medical evidence of record, the Board finds that the evidence for the period prior to July 29, 2011, more nearly approximates a 30 percent disability rating. The Veteran reported frequent headaches with pain occurring several times a week and lasting for prolonged periods of time. While the headaches reported were very frequent, the Board does not find that the Veteran’s migraine headaches were frequent, completely prostrating, and the Board does not find that the Veteran suffered from prolonged attacks that were productive of severe economic inadaptability, as required for a 50 percent disability rating under DC 8100. 
Instead, the Veteran consistently reported treatment by use of Motrin, with very few days of work missed as a result of his migraine headaches. In fact, although the Veteran reported needing to go to the emergency room on occasion to receive injections as treatment, the Veteran also reported that he has not missed more than 2 to 3 days of work, with no loss from work in the past 12 months, and no doctor ordered periods of incapacitation in the past 12 months. See August 2009 VA treatment record. Similarly, although the Veteran reported flare ups during his October 2010 VA examination, the Veteran also reported that during such flare ups he slows down for 4 hours, but that he is able to go to work with use medication. Such evidence is not found to demonstrate migraine headaches that are frequent and completely prostrating, and does not demonstrate prolonged attacks that are productive of severe economic inadaptability. 
Again, the Board acknowledges the Veteran’s assertion of entitlement to an earlier effective date for the grant of a 50 percent disability rating due to an informal claim in May 2011. However, as explained above, the Board has considered whether the Veteran is entitled to an increased rating of 50 percent for the entire period prior to July 29, 2011, and determined that an increased rating in excess of 30 percent for the entire period prior to July 29, 2011 is not warranted.
(Continued on the next page)
 
As the Board finds that the preponderance of the evidence is against an initial rating in excess of 30 percent for the period prior to July 29, 2011, the claim is denied.
 
Michael Pappas
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Tunis, Associate Counsel 

 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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