Citation Nr: 18160406
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 09-50 057
DATE:	December 26, 2018
ORDER
Entitlement to an initial rating of 50 percent for migraine headaches is granted.
FINDING OF FACT
Throughout the appeal period, the Veteran’s migraine headaches have caused frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.
CONCLUSION OF LAW
The criteria for an initial rating of 50 percent for migraine headaches have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.124a, Diagnostic Code (DC) 8100.
INTRODUCTION
The Veteran served on active duty in the Air Force from May 1985 to December 2007.
This case comes before the Board of Veterans Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, granting service connection and an initial 30 percent rating for migraine headaches.  The Veteran filed a notice of disagreement (NOD) in November 2008 and, in November 2009, was issued a statement of the case (SOC).  The Veteran filed her substantive appeal, via VA Form 9, in December 2009.  The issue was before the Board in July 2014 and the Board remanded the claim for additional development, including a VA examination.  
Following the Veteran’s September 2014 VA examination, she was issued a November 2014 supplemental SOC (SSOC).  The Board subsequently denied an initial rating in excess of 30 percent for migraine headaches.  The Veteran appealed to the Court of Appeals for Veterans Claims (the Court) and in May 2018, the claim returned to the Board following a Joint Motion for Remand (JMR) by counsel for the Veteran and VA that was granted by the Court.  
REASONS AND BASES FOR CONCLUSION
Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which 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.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 
In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
If the disability more nearly approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  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. 
In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999).
The Veteran was granted service connection for migraine headaches in a July 2008 rating decision and assigned an initial 30 percent disability rating.  The Veteran contends a higher rating is warranted.  Under DC 8100, a 30 percent evaluation is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. 
A 50 percent evaluation is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a.  A 50 percent evaluation is the maximum available schedular evaluation for headaches.  These criteria are successive; thus, each criterion for a higher rating must be met in order to warrant such a rating.  Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims Lexis 1253 (Sept. 19, 2018).  In Pierce v. Principi, 19 Vet. App. 400, 445 (2004), the Court noted that VA conceded that the phrase “productive of severe economic inadaptability” in DC 8100 should be construed as either “producing” or being “capable of producing” severe economic inadaptability.
Neither the rating criteria nor the Court has defined the term “prostrating.” According to Webster’s New World Dictionary of American English, Third College Edition 1080 (1986), “prostration” is defined as “utter physical exhaustion or helplessness.”  A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1367 (28th ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.”
“Inadaptability” is not defined in DC 8100 either, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations.  See Pierce, 18 Vet. App. at 446 (2004).  Further, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating.  Id.
In August 2007, prior to discharge from service, the Veteran filed several claims for service connection, including for migraine headaches.  On her claim for service connection, the Veteran noted that her migraines began in February 1987.  In September 2007, the Veteran complained of chronic/recurring headaches, not preceded by aura.  She reported having migraines 20 days out of each month.  An October 2007 treatment record noted the Veteran’s headaches were worse when she moved her head, were preceded by stress, but were not preceded by aura. 
During an October 2007 VA exam, the Veteran reported light sensitivity, nausea and vomiting associated with her headaches, which she described as frequent (21 days out of 30).  On average, the Veteran noted, her headaches would last anywhere from five to seven days where she would miss anywhere from eight to ten days of work.  In this examination, she was diagnosed with migraine headaches without mention of aura.  
Veteran statements throughout the fall of 2008 described worsening symptoms, including one migraine of 11 days which ebbed and peaked but had constant pain, another of over six weeks which resulted in an MRI finding a pituitary adenoma, and her November 2008 NOD where she described further work absences due to light sensitivity and nausea.  She kept a log of her headaches which revealed a migraine every week since March 2008 with an average episode of three days.  Contemporaneous medical evidence also noted intermittent migraine headaches almost once per week that can last several days or even several weeks that impacted her work, productivity, energy level, relationships and sleep.  
In December 2009, the Veteran described her migraine pain as “indescribable; throbbing, pounding, extreme light sensitivity, nausea and pain in my teeth.”  She stated that since December 2008 she had experienced “in excess of 100 peaks.” She also noted that as of that day she had a headache that had lasted seven weeks, having never completely gone away and sometimes becoming full blown causing her to lay down in a dark room until the massive pounding subsides.  The Veteran also noted that she worked for a private contractor that allowed her to work from home and would be unemployed if she did not have such a job due to her migraines.  In her December 2009 substantive appeal, she stated that a peak at that time resulted in pain in her teeth, the entire right side of her face, and when severe, an inability to see out of her right eye.  
During a March 2010 VA examination, the Veteran noted migraine headaches so frequent that she would have had more than 200 days in the prior year with a headache.  She reported that her headaches start behind her right eye and she has both photo and phonophobia.  On average, the Veteran described her headaches as a 4 or 5 out of 10 on the pain scale; flare-ups can be up to a level 10, during which she is too incapacitated to work.  As a result, she has lost “considerable time from work” and has had to take days off when she would throw up.  The Veteran worked as a program manager on a contract basis, noting that she had to work harder on the days she did not have migraines to make up for the time she lost when she did, overworking herself.  The examiner noted that the Veteran appeared to be in pain during the examination, rendering the diagnosis of debilitating migraine headaches with associating disabling symptoms. The symptoms had worsened since the previous examinations, per history provided by the Veteran and review of the record. 
During a May 2011 VA examination, the Veteran noted that her physical fitness was limited due to her migraine headaches and could only exercise when there was no threat of throbbing pain, light and motion sensitivity or nausea.  She also noted that she had to make up time at work and re-arrange her schedule due to her pain, always feeling under pressure due to playing catch-up.  The VA examiner described her migraines as “chronic and severe.”  Her distress in response to migraines included fatigue, difficulty getting comfortable so she could sleep, nervousness and worrying about “peaking” of symptoms, vigilant watch for environmental stimuli that might increase symptoms, preoccupation with monitoring pain, perceptions of judgment by others related to symptoms and coping mechanisms for pain, and an increase in psychologic anxiety in response to stressful situations, failure to engage in expected occupational networking/socializing, frequent rescheduling of job-related tasks and appointments, endurance of emotional pain, tearfulness, and possibly psychosomatic exacerbation of migraine symptoms.  
Additionally, in September 2014, the Veteran was afforded another VA neurological examination where the examiner noted that the Veteran has a constant daily headache with migraines about 20 days a month, and at times lasting a week or more.  She also has two to four prostrating headaches in a three-month period and misses work with bad headaches.
Finally, in a November 2014 statement, the Veteran noted that the only reason she doesn’t go to the emergency room every time she has a migraine is because she would be there 21 days a month, describing her headaches has progressively more severe and frequent since service.  
As noted in the records above, the Veteran has described very frequent, near constant migraine headaches since service.  Her headaches are predominantly right-sided and have resulted in nausea, vomiting, teeth pain, right jaw pain, light sensitivity and incapacitation.  She has been prescribed numerous medications since service, but it appears that none of them help to prevent the headaches.  The record also shows the Veteran’s migraine episodes to be prolonged and productive of severe economic inadaptability.
Based on the evidence, the Veteran suffers from very frequent headaches of up to 21 days out of a month and that they can last for weeks at a time.  Many of these headaches would require her to lay down in a dark room, which the Board considers to be prostrating.  This describes a disability picture more severe than the criteria necessary for a 30 percent disability rating.
Similarly, the criteria for a 50 percent rating does not require migraine headaches that actually produce severe economic inadaptability, but rather migraine headaches that are capable of producing severe economic inadaptability.  See Pierce, 18 Vet. App. at 446 (2004) (“severe economic inadaptability” is not equivalent to unemployability and can be shown if headaches are capable of producing severe economic inadaptability).  Here, the Veteran’s migraine headaches have shown to be significant impediments to the Veteran’s employment, despite the fact that she had a flexible contract job that allows her to work from home.  She misses a number of day of work every year due to the prostrating headaches and suffers from nausea, teeth pain, jaw pain, light sensitivity and incapacitation if the migraines are prostrating.  Notably, as described above, when she can attend work she is over-stressed as a result of needing to make up for work she missed when she was out.  While the nature of the Veteran’s contract employment allowing her to occasionally work from home, the evidence shows that her migraine headache symptoms are capable of causing severe economic inadaptability.
For the foregoing reasons, the Board finds that the Veteran’s disability picture and symptomatology, as shown by the medical and lay evidence, meet each of the criteria for a 50 percent disability rating during the appeal period.  Therefore, a 50 percent rating is warranted for her migraine headaches.
Extraschedular consideration is not warranted in this case.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The Veteran’s headaches are manifested by signs and symptoms of pain, nausea, and “prostrating attacks” which impair her day-to-day functioning.  These signs and symptoms, and their resulting functional impairments, are contemplated by the rating schedule. DC 8100 provides disability ratings contemplated along a broad and non-exclusive continuum expressed with generalized terms, such as “prostrating attacks” and “severe economic inadaptability.”  The impairments in day-to-day functioning experienced by the Veteran are manifestations of the symptoms listed in the criteria and not separate symptoms.  Cf. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss).
The Board notes that the Veteran has suffered “psychological distress” as the result of her headaches.  However, the Veteran has been granted service connection for an adjustment disorder with mixed anxiety and depressed mood related to her migraines.  Thus, she is being separately compensated for the psychological impact of her migraines.
The Board has considered the Veteran’s claim and decided entitlement based on the evidence.  The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claim.  See Doucette, 28 Vet. App. at 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).  As noted in the introduction to the Board’s March 2017 decision, which was not addressed by the parties to the JMR, the September 2014 VA examination report indicated that she was gainfully employed, and there is no evidence that the Veteran’s employment status has changed since that time.
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	JR Cummings, Associate Counsel 

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