MIGRAINE

Summary

The veteran, who served in the U.S. Army across multiple periods between January 2000 and September 2019, appeals the denial of an increased rating for his service-connected migraine headaches. The appeal specifically concerns the period prior to June 30, 2018. The Board reviewed the veteran's service treatment records, VA examinations, lay statements, and hearing testimony. While a September 2014 VA examination noted migraines occurring 4-6 times per year, lasting 2-3 days, and not producing severe economic inadaptability, the veteran's treatment records and testimony indicated much more frequent migraines, occurring multiple times monthly or even daily. These frequent and severe migraines, coupled with the need to take leave from work and seek emergency room treatment, led the Board to find that the veteran's condition more closely approximated the criteria for a 50 percent rating. The Board concluded that the veteran's migraine headaches were characterized by very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. Therefore, the Board granted an initial rating of 50 percent for migraine headaches for the period prior to June 30, 2018, finding this rating to be the maximum schedular evaluation warranted.

Rationale

Veteran's reported migraine frequency (multiple times monthly to daily) and severity (requiring ER visits, leave from work) more closely approximated 50% criteria than the initial 10% rating.; Migraine headaches are rated under DC 8100, with 50% for very frequent, completely prostrating, prolonged attacks causing severe economic inadaptability.; Separate rating for migraine headaches is permissible as they are distinguishable from service-connected sinus headaches.

Full Decision Text

Citation Nr: 24032970
Decision Date: 11/14/24	Archive Date: 11/14/24

DOCKET NO. 19-00 484
DATE: November 14, 2024

ORDER

An initial rating of 50 percent, and no higher, for service-connected posttraumatic headaches (hereinafter "migraine headaches") prior to June 30, 2018 is granted.

FINDING OF FACT

For the entire initial rating period prior to June 30, 2018, the Veteran's migraine headaches most nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

CONCLUSION OF LAW

The criteria for entitlement to an initial 50 percent rating, and no higher, for migraine headaches have been met prior to June 30, 2018.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8100.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from January 2000 to May 2000, May 2004 to September 2004, January 2005 to September 2007, March 2008 to September 2008, March 2011 to April 2012, October 2013 to September 2014, December 2014 to July 2015, July 2016 to June 2017, and from February 2019 to September 2019.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  A hearing with the undersigned was held in March 2020.  In a March 2023 Board decision, an initial rating of 10 percent, and no higher, for the Veteran's service-connected migraine headaches from October 1, 2014 to June 29, 2018 was granted and the issue of entitlement to an initial rating in excess of 50 percent for service-connected migraine headaches since June 30, 2018 was denied.  

The Veteran appealed the March 2023 Board decision to the United States Court of Appeals for Veterans Claims (CAVC) for the issue of entitlement to an initial rating in excess of 10 percent prior to June 30, 2018.  Counsel for the Veteran and the Secretary of VA (the parties) filed a partial Joint Motion for Remand (JMR).  In a December 2023 Order, CAVC granted the motion and remanded this issue to the Board.  

Entitlement to an initial rating in excess of 10 percent prior to June 30, 2018 for migraine headaches

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities.  38 C.F.R. Part 4.  The Board determines the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided.  38 C.F.R. § 4.14.

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 

The Board notes that service connection is in effect for the Veteran's sinusitis, which is rated as 
 the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 

The Board notes that service connection is in effect for the Veteran's sinusitis, which is rated as 50 percent disabling under DC 6513 from October 1, 2014.  The Board notes that the General Rating Formula for Sinusitis (Diagnostic Codes 6510 through 6514) expressly includes headaches as a symptom of that disability.  38 C.F.R. § 4.97.  Thus, service connection or a separate rating under DC 8100 for sinus headaches cannot be provided without pyramiding.  38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 203, 206 (1993) (noting that pyramiding is improper because rating a claimant twice for the same symptoms would overcompensate for the actual impairment suffered).  However, where there are non-sinus headaches or migraines for which the symptoms are distinct and separable from those related to one's sinus headaches, separate ratings would be permissible.  See e.g., Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  As the Veteran's migraine headaches in this case are distinguishable from his sinus headaches as noted in a February 2020 VA treatment record, rating the Veteran separately under DC 8100 for his migraine headache symptoms and DC 6513 for his sinus headache symptoms does not constitute pyramiding.  

The Board considers whether an initial rating in excess of 10 percent prior to June 30, 2018 for migraine headaches is warranted.  The Veteran's migraine headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100 during the entire initial rating period on appeal.    The next-higher rating of 30 percent is rated for migraine headaches with characteristic prostrating attacks occurring on an average once a month over several months.  Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling, the maximum available on a schedular basis.  

The criteria for rating migraines are successive.  Johnson v. Wilkie, 30 Vet. App. 245, 247 (2018).  Successive criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, a veteran can only be rated at the level that does not require the missing component.  Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008).  Although 38 C.F.R. §§ 4.7 and 4.21 generally provide that symptoms need only more nearly approximate the criteria for a higher rating to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria.

The phrase "completely prostrating" (which is required for a 50 percent rating) is defined as "completely lacking in vitality or will" and "powerless to rise."  Johnson, 30 Vet. App. at 245.  This phrase means the headaches "must render the veteran entirely powerless."  Id. at 253.  This differs from "characteristic prostrating" (which is required for a 30 percent rating), which means that migraine attacks "typically produce powerlessness or a lack of vitality."  Further, "prolonged" has been defined as "to lengthen in time: extend duration: draw out: continue, protract."  Id.  The rating criteria do not define "severe economic inadaptability;" however, nothing in Diagnostic Code 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating.  Pierce v. Principi, 18 Vet. App. 440 (2004).  The term "productive of economic inadaptability" could be read as either "producing" or "capable of producing."  Id. at 445.

Review of the evidentiary record during the initial rating period prior to June 30, 2018 (from October 1, 2014 to June 
 lengthen in time: extend duration: draw out: continue, protract."  Id.  The rating criteria do not define "severe economic inadaptability;" however, nothing in Diagnostic Code 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating.  Pierce v. Principi, 18 Vet. App. 440 (2004).  The term "productive of economic inadaptability" could be read as either "producing" or "capable of producing."  Id. at 445.

Review of the evidentiary record during the initial rating period prior to June 30, 2018 (from October 1, 2014 to June 29, 2018) documents the following symptomatology of the Veteran's migraine headaches.  

In a November 2017 Periodic Health Assessment, the Veteran noted both recurrent pressure headaches likely due to sinuses in the headache section of the assessment, but also noted daily headaches and lower back pain in the chronic pain section of the assessment.  

The Veteran was afforded a VA examination for headaches (including migraine headaches) in September 2014.  The examiner noted the Veteran reported severe throbbing pain with some phonophobia and worse with head movement, occurring 4 to 6 times a year and lasting 2-3 days.  The examiner noted the Veteran took Advil for his migraines and had been to emergency room.  The examiner noted that the Veteran had not lost time from work in the past year due to headaches but did not discuss if the Veteran had lost time from work prior to that.  The examiner noted that the Veteran had characteristic prostrating attacks with less frequent attacks, but these did not produce severe economic inadaptability.

Following the September 2014 VA examination, an August 2015 emergency department note showed the Veteran presented with migraine headaches lasting 4 days.  A January 2018 neurology consult noted migraine and sinus headaches for several years.  The Veteran stated his migraine headaches were 4-6 times monthly following a concussion in 2001.  The Veteran reported his headaches were in the right parietal regional with throbbing quality.  The Veteran reported these headaches as potentially disabling if severe enough.  An April 2018 emergency department note showed the Veteran had a fall on April 14, 2018, and the migraines the Veteran experienced likely worsened after his recent fall.  Since the fall the Veteran reported headaches every 10-15 minutes lasting seconds.  An April 2018 neurology consult showed a longstanding history of migraines following a motor vehicle accident in 2001, and severe headaches were noted to occur 3-4 times a week.  

At the March 2020 Board hearing, the Veteran stated his headaches have been consistent prior to 2018 through the hearing and have been daily.  The Veteran asserted that his migraines were the same in 2014-2015 as they were in 2018.  The Veteran stated his migraines occurred multiple times a week and interfered with work.  The Veteran stated he had to use leave without pay due to his migraines in 2012, 2015, 2016, 2017, 2018, and 2019 for a period.  The Veteran asserted that he had left work multiple times due to his migraines, and had work accommodations for migraines, such as being allowed to go to an adjacent room to sit, turn the lights off, deal with the migraine, and let medication take effect.  

While the September 2014 VA examiner reported that the Veteran suffered from prostrating migraine attacks 4-6 times per year, the Veteran's treatment records, lay statements, and hearing testimony show that the Veteran experienced much more frequent migraines, with migraines being reported anywhere from 4-6 times monthly to daily.  Additionally, while the September 2014 VA examiner reported that the Veteran did not have very prostrating and prolonged attacks of migraines of severe economic inadaptability, the VA examiner did note the Veteran suffered from severe throbbing pain with some phonophobia, worse with head movement, occurring 4 to 6 times a year and lasting 2-3 days.  The examiner noted that the Veteran did not miss any work in the prior year, but the Veteran reported missing work in 2012, 2015, 2016, 2017, and 2018, and his service treatment records also showed being sent to quarters during service due to headaches, as noted in treatment records and the March 2020 Board hearing transcript.

Based on the totality of the Veteran's medical and lay evidence, the Board finds the Veteran's disability picture more closely approximates a 50 percent evaluation for the entire initial rating period prior to June 30, 2018.
 some phonophobia, worse with head movement, occurring 4 to 6 times a year and lasting 2-3 days.  The examiner noted that the Veteran did not miss any work in the prior year, but the Veteran reported missing work in 2012, 2015, 2016, 2017, and 2018, and his service treatment records also showed being sent to quarters during service due to headaches, as noted in treatment records and the March 2020 Board hearing transcript.

Based on the totality of the Veteran's medical and lay evidence, the Board finds the Veteran's disability picture more closely approximates a 50 percent evaluation for the entire initial rating period prior to June 30, 2018.  The Board finds the Veteran's reported migraine headache symptoms were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Moreover, having to go to the emergency room due to severe throbbing pain with phonophobia, which occur multiple times a year and last for multiple days, in addition to having to repeatedly take leave from work due to migraines, and having daily migraines, are sufficient to find severe economic inadaptability. 

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Lastly, since the Veteran's service-connected migraine headaches has been assigned the maximum schedular rating available for migraines during the entire appeal period prior to June 30, 2018, the Board finds there is no legal basis upon which to award an initial higher schedular evaluation for migraines during the appeal period from October 1, 2014 to June 29, 2018.  As such, entitlement to an initial rating in excess of 50 percent for migraines prior to June 30, 2018 is not warranted on a schedular basis.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).

 

 

T. Blake Carter

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Axelrad, E

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.