MIGRAINE

JACQUELINE E. MONROE · 2020 · Case ID: 20081268

MIXED

Summary

The veteran, who served from May 2006 to December 2008, appeals the denial of a higher disability rating for migraine headaches and the initial rating for Lyme disease. The Board granted an initial 50 percent disability rating for migraine headaches for the periods prior to July 22, 2019, finding that the veteran experienced very frequent, completely prostrating, and prolonged headache attacks productive of severe economic inadaptability. This rating was supported by the veteran's consistent reports of severe headaches, the need for constant medication, and significant functional limitations, as well as examination findings indicating prostrating attacks and economic inadaptability. The Board resolved all reasonable doubt in the veteran's favor for this period. However, a higher rating for migraine headaches from July 22, 2019, was denied as the evidence did not meet the criteria for such a rating. The claim for Lyme disease was remanded for further development. The Board noted conflicting evidence regarding the Lyme disease diagnosis, with a VA examiner finding insufficient clinical evidence while VA records indicated treatment for Lyme disease complications. Further examination is required to clarify the diagnosis and severity of symptoms, and to determine if other chronic conditions may explain the reported symptomatology.

Rationale

Veteran's statements and VA examination reports show very frequent and severe migraine headaches.; Headaches required constant medication and caused significant functional limitations.; Evidence supports 50 percent rating criteria for the entire appeal period, with benefit of doubt applied.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

12-13 609

Full Decision Text

Citation Nr: 20081268
Decision Date: 12/29/20 Archive Date: 12/29/20

DOCKET NO. 12-13 609
DATE: December 29, 2020

ORDER

An initial 50 percent disability rating for migraine headaches, for the periods prior to July 22, 2019, is granted, subject to the legal authority governing the payment of compensation.

A disability rating higher than 50 percent for migraine headaches is denied.

REMANDED

The claim of entitlement to an initial, compensable disability rating for Lyme disease is remanded.

FINDING OF FACT

Throughout the periods under consideration in this appeal, the Veteran’s service-connected migraine headaches have been manifested by very frequent and severe headaches which have required her to effectively shut down all activity and lie down as the only effective means to treat the pain, have required the ongoing use of multiple over-the-counter medications, and have resulted in significant limitations in her ability to work as licensed practical nurse (LPN); and thus, have constituted very frequent, completely prostrating and prolonged headache attacks, productive of severe economic inadaptability.

CONCLUSIONS OF LAW

1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for an initial 50 percent disability rating for service-connected migraine headaches, for the periods prior to July 22, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100.

2. The criteria for a disability rating higher than 50 percent for service-connected headache syndrome, from July 22, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8100.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty from May 2006 to December 2008.

This appeal before the Board of Veterans’ Appeals (Board) arose from a July 2009 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, granted service connection for migraine headaches and for Lyme disease and assigned a noncompensable disability rating for each disability, effective December 12, 2008. The Veteran timely disagreed with, and perfected an appeal as to, the assigned ratings.

In a February 2015 rating decision, the RO assigned a higher, 30 percent disability rating for migraine headaches, effective August 15, 2012.

In April 2018, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the claims file.

In July 2018, the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for further evidentiary development. On remand, in a March 2020 rating decision, the AOJ assigned a 50 percent disability rating for the Veteran’s migraine headaches, effective July 22, 2019.

At this juncture, the Board is now satisfied that all notification and development actions needed to fairly resolve the higher rating claim for migraine headaches on appeal have been accomplished, and will proceed to adjudicate that claim, on the merits.

Evaluation of Migraine Headaches

Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.

A veteran’s s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is sought, generally, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in evaluating a claim for a higher initial rating or increased rating, staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (for increased rating claims); Fenderson v. West, 12 Vet. App. 119, 126 (1999) (for initial rating claims).

Under the provisions of 38 C.F.R. § 4.124a, DC 8100, the Veteran is currently assigned a staged rating for service-connected migraine headaches, with an initial noncompensable rating assigned prior to August 15, 2012, a 30 percent rating assigned from August 15, 2012 to July 21, 2019, and a 50 percent rating assigned from July 21, 2019.

Under DC 8100, migraines are rated as follows: a noncompensable rating is warranted with less frequent attacks; a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months over the last several months; a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months; and a 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100.

The rating criteria do not define “prostrating.” Dorland’s Illustrated Medical Dictionary defines “prostration” as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007).

Turning to the pertinent evidence of record, prior to her separation from service and commencement of the appeal period, the Veteran service treatment records (STRs) indicate that in January 2008, she complained of nausea with migraine headaches. She was afforded an initial VA examination for headaches in June 2009. At that time, she reported having migraine headaches about three times per week, lasting several hours. She reported that she could not see out of her right eye with severe migraine attacks. She reported taking over-the-counter medications for treatment.

In her August 2009 notice of disagreement, the Veteran asserted that she had prostrating migraine headache attacks two to three times per week, which she treated herself.

During subsequent VA examination for headaches in August 2012, the Veteran reported worsening headaches, occurring every few days. She reported taking large doses of acetaminophen and ibuprofen. She reported having given up seeking treatment from doctors. She noted that she had difficulty with doing most anything and that her 4-year-old had to help her put on shoes. She reported having constant head pain localized to one side of the head, with pain occurring on both sides of the head during her headaches. Her headaches were accompanied by nausea, sensitivity to light and sound, and changes in vision. Typical headaches reportedly lasted less than one day, with worse headaches lasting a few days. The examiner noted that the Veteran had prostrating migraine headaches, and non-migraine headache attacks more frequently than one time per month over the last several months. The examiner indicated, however, that the Veteran did not have very frequent prostrating and prolonged attacks of migraine and non-migraine headaches.

In the report of a December 2017 VA examination, the examiner noted the Veteran’s report of having continued migraine headaches about three to four times per week, typically lasting all day. She reported that her pain moved around her head, but commonly began in the back of her head and moved to the area behind her eyes. The pain was most commonly on the right side. She continued to report sensitivity to light and sounds, and reported having problems with balance (falling to the right). She reported rarely having nausea with a headache, but that she also had numbness and tingling in her extremities with a headache. In addition to previous noted medications, she was also taking ketoprofen, but she particularly noted that she had to lay down and sleep during headaches, as this was the most effective course of treatment. The examiner assessed that the Veteran has one characteristic prostrating headache attack per month over the last several months, but that she did not have very prostrating and prolonged headache attacks productive of severe economic inadaptability.

During her April 2018 Board hearing, the Veteran noted that she had headaches every day, and had to take over-the-counter medication to go to sleep. She reported that her headaches were so severe that she could not hold a job. She maintained that although her headaches had increased in severity, they had been severe since her separation from service.

In a May 2018 letter, the Veteran’s husband described her debilitating headaches, noting that she was unable to think clearly, and that she would say wrong words, ant that it was difficult to have a conversation with her. He noted that her pain was so intense that she effectively would end up shutting down mentally until the headaches passed, which sometimes could take days. Also in a May 2018 letter, the Veteran described having constant migraines and headaches, and noted that she had to take pain killers in order to go to sleep, but that she would still wake up with migraines. He noted that her headaches affected her mood, appetite, willingness to interact with other, and her sleep.

The Veteran was most recently afforded a VA examination for headaches in July 2019. She reported that she was not working due to her migraine headaches as well as other conditions that caused pain. Her noted headaches symptoms included, pulsating or throbbing head pain, pain localized to one side of the head, and pain that worsened with physical activity. Additional symptoms included nausea, vomiting, sensitivity to light and sound, changes in vision, and sensory changes. Headaches typically lasted more than two days. The examiner noted that the Veteran had characteristic prostrating attacks of headache pain one time per month, and that her headaches were very prostrating and prolonged, and productive of severe economic inadaptability. The examiner further noted the Veteran report that her headaches limited her ability to work.

In July 2020, the AOJ obtained an opinion taking into consideration the severity of the Veteran’s migraine headaches throughout the entirety of the appeal period under consideration. The physician that provided the assessment noted that, based on the Veteran’s reported history, the frequency of her headaches was unchanged but that the duration of the headaches had minimally increased. The physician assessed that the characteristics of the Veteran’s headaches and the associated symptoms were essentially the same at the time of her June 2009 VA examination as during the more recent examinations in 2017 and 2019. The physician noted that there was no evidence that the Veteran’s headaches had changed, and that other than an initial visit with a VA primary care provider conducted by phone in May 2020, at which time she reported having headaches four times a week, with no change in the pattern of the headaches, there was no evidence that she had sought medical attention for a headache condition, as she had reported giving up on doctors. As a result, the physician concluded that there was no evidence in the available medical records that the characteristics, frequency, duration or severity of the service-connected headache condition had changed since she separated from service in 2008.

Based on the evidence presented, and affording the Veteran the benefit of the doubt, the Board finds that a 50 percent rating for the Veteran’s headaches is warranted for the entire appeal period. In this regard, the Veteran’s statements and the examination reports of record clearly demonstrate that he has had very frequent and very severe migraine headaches that have had a significant detriment on her daily functioning, throughout the entire appeal period. From the time of the June 2009 VA examination, she was noted to have very frequent headaches, occurring multiple times per week, and lasting several hours to days. She consistently noted that her headaches have required constant medication, including in order for
headache condition had changed since she separated from service in 2008.

Although the June 2009 VA examination report did not clearly state whether the Veteran’s migraine headache attacks were completely prostrating, and although subsequent examiners in August 2012 and December 2017 stated that the headaches were not completely prostrating, the Veteran has otherwise credibly reported difficulties with her daily functioning with these headaches, including loss of vision in her right eye, and difficulty attending to tasks such as putting on her shoes, as noted in those reports. Moreover, the December 2017 report noted that that the only effective means to treat the Veteran’s headache was for her to lie down and sleep, thus indicating that the headaches were completely prostrating on some regular basis. The Veteran’s husband additionally reported that she effectively had to shut down until her severe headaches passed.

The Board further finds that the evidence shows that the severity of the Veteran’s headaches has remained fairly constant throughout the period under consideration in this appeal. Most notably, the physician that provided the July 2020 VA report indicated that based on his review of the record, the characteristics, frequency, duration, severity, and associated symptoms of the Veteran’s service-connected headaches were essentially the same at the time of her June 2009 VA examination as during the more recent examinations in 2017 and 2019.

Based on this report, together with the noted lay evidence and the July 2019 VA examiner’s conclusion that the Veteran had very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability, the Board accordingly finds that, with resolution of reasonable doubt in the Veteran’s favor, the evidence supports a finding that the criteria for a 50 percent rating have been met for the entirety of the appeal period under consideration.

In reaching these conclusions, the Board notes that the Veteran is competent to report the severity of her headache symptomatology, including frequency and severity. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Her husband is likewise competent to report his observations of the Veteran’s demeanor during her headaches. Moreover, their reports are consistent with the examination reports of record, to include the most recent July 2019 VA examination reports, and the July 2020 VA physician’s report. Further, there is no evidence of record indicating that the Veteran’s headaches are, or have been, manifested by any significant lesser severity than as contended in the lay reports.

While a 50 percent rating is warranted for the Veteran’s service-connected headache disability for the entirety of the appeal period, no higher rating is assignable at any other time pertinent to the appeal, as the assigned 50 percent rating is the highest schedular rating available under DC 8100. The Veteran’s headache disability also has not been shown to involve any other factor(s) warranting any higher rating under any other provision(s) of VA’s rating schedule at any pertinent point.

For all the foregoing reasons, the Board finds that with resolution of all reasonable doubt in the Veteran’s favor, the criteria for an initial, 50 percent rating for the Veteran’s migraine headaches are met for the entire period under consideration, but that there is no basis for assignment of any higher rating at any point since the December 2008 effective date of the award of service connection. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

As a final point, the Board notes that the claim for higher ratings for migraine headaches on appeal has been decided based on the evidence of record, and that no other issues have been raised by the Veteran or the evidence of record with respect to the claim herein decided. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the
); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

REASONS FOR REMAND

Unfortunately, the Board finds that further AOJ action on the remaining claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter.

With respect to the Veteran’s Lyme disease, following the Board’s July 2018 remand, she was afforded a VA examination for the disease in July 2019. Notably, the examiner determined that based on a review of all of the available medical evidence, there was insufficient clinical evidence to support a diagnosis of Lyme disease, currently or in the past. The examiner, therefore, concluded that the initial diagnosis of Lyme disease while in service was in error, and that the diagnosis of Lyme disease at her prior VA examination was in error. Thus, the examiner concluded that the Veteran’s claimed symptoms would not be due to Lyme disease. Notably, however, the examiner did not provide any indication as to whether the symptomatology upon which the previously apparent Lyme disease had been determined to be service connected could be attributed to any other chronic disease or disability.

Further, in spite of the VA examiner’s conclusions, medical evidence within the Veteran’s VA clinical records indicates that she has been treated for, and otherwise suffered complications due to, Lyme disease. Most notably, her VA clinical records indicate that she has been noted to have chronic pain, and pregnancy complications due to Lyme disease. Also, a recent May 2020 clinical report noted that her chart indicated that she had Lyme disease in spite of negative laboratory findings.

Further still, the Board notes that in July 2016, the Veteran was approved by VA to receive treatment for her Lyme disease at Creek Trail Medical Clinic, a non-VA provider. While clinical records from this provider have not been associated with the claims file, it still remains unclear whether the Veteran has a current diagnosis of Lyme disease, in spite of laboratory findings, or whether her reported symptomatology that has been attributed to service-connected Lyme disease may be the result of another chronic disease or disability. Accordingly, the Board finds that remand of this claim is warranted to afford the Veteran a new VA examination to clarify her diagnosis and the severity of her symptomatology. Cf. 38 C.F.R. § 4.2.

While these matters are on remand, to ensure that all due process requirements are met and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records.

As for VA records, the claims file currently includes VA treatment records dated through June 2020. However, as more recent records may exist, the AOJ should obtain and associate with the claims file all outstanding records of VA evaluation and/or treatment of the Veteran dated since June 2020.

As for private treatment records, the Board again notes that the Veteran’s treatment records from Creek Trail Medical Clinic have not been associated with her VA clinical records, or otherwise associated with the claims file. Therefore, The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to any remaining claim(s) on appeal (particularly, regarding private (non-VA) treatment and/or employment), explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran furnish, or furnish authorization, to obtain, her treatment records from Creek Trail Medical Clinic, as well as from any other private (non-VA) provider(s).

Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159.

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 510
(clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran furnish, or furnish authorization, to obtain, her treatment records from Creek Trail Medical Clinic, as well as from any other private (non-VA) provider(s).

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. Adjudication of the higher rating claim should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate

The matter is hereby REMANDED for the following action:

1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran, dated since June 2020. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file.

2. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record.

Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, her clinical treatment records from Creek Trail Medical Clinic, as well as from any other private (non-VA) provider(s).

Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claims within the one-year period).

3. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo a VA examination of service-connected Lyme disease by an appropriate medical professional.

The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions.

All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail.

Based on examination results and on the Veteran’s documented medical history and lay assertions, the examiner should identify the presence, and describe the current frequency of all Lyme disease residuals, to include reported short-term memory problems, cognitive deficits, dizziness, balance issues, immune system problems, heartbeat irregularities, numbness and tingling in the bilateral upper and lower extremities, fatigue, adrenal problems, joint pain and arthritis, iron deficiency and anemia, reproductive problems, sleep impairment, and depression.

If the examiner determines that the Veteran does not currently have or has not ever had Lyme disease, he or she should reconcile such determination with evidence of record indicating that the Veteran suffered from Lyme disease associated symptoms, in spite of laboratory findings. The examiner should additionally determine, to the extent possible, whether the Veteran suffers from another chronic disease or disability to which her reported symptomatology that has thus far been attributed to Lyme disease, both during and since her separation from service, may be attributed.

All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached, must be provided.

4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

5. After completing the above-requested actions, and any additional action(s) deemed warranted, adjudicate the remaining higher rating claim on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include consideration of whether staged rating of the Veteran’s Lyme disease is appropriate).

JACQUELINE E. MONROE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board Michael Wilson, Counsel

The Board’s decision in this case is binding only

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