Citation Nr: 1205471	
Decision Date: 02/13/12    Archive Date: 02/23/12

DOCKET NO.  06-31 726	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to an increased rating for migraine headaches currently rated as 30 percent disabling.


REPRESENTATION

Appellant represented by: The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

D. Johnson, Counsel 

INTRODUCTION

The Veteran served on active duty from July 1996 to February 1999.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  This case was remanded by the Board in September 2010 for further development.  

In this decision, in which the Board grants entitlement to a 50 percent evaluation for the Veteran's migraine headaches.  The Board notes that the Veteran is also in receipt of a total schedular rating for major depressive disorder and a 10 percent rating for a right foot disability.  Pursuant to 38 U.S.C.A. § 1114(s) (West 2002) and 3.350(i) (2011), the Veteran is entitled to special monthly compensation.  This matter is referred to the RO for appropriate action.


FINDING OF FACT

Migraine headaches are manifested by very frequent, completely prostrating and prolonged attacks capable of producing severe economic inadaptability.


CONCLUSION OF LAW

The criteria for a 50 percent rating for migraine headaches have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, DC 8100 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

In this decision, the Board grants entitlement to the maximum rating possible for the service-connected migraine headache disability on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.  

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations.  38 U.S.C.A. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  Where, as here, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.  Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts).  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran is currently receiving a 30 percent disability rating for her migraine headaches.  Migraines are rated under Diagnostic Code 8100.  Under this code, a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months; a 50 percent rating, the maximum available, requires migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Id.  

Private treatment records dated from 2005 to 2007 show the Veteran had recurrent throbbing and pounding headaches that were occasionally accompanied with nausea and vomiting.  They were relieved by lying down and reducing stimuli and were worse with light.  These records also reflect at least two visits to the immediate care department for severe migraines that required treatment with intramuscular injections and prescription medication.  In a June 2006 statement, the Veteran reported that her headaches initially occurred on average bi-weekly basis, but had increased to over four to five per week and were massive in nature.  She further stated that although she was in school full-time, her migraines prevented her from taking more than two online classes and one at the campus, so she could work when her condition allowed.

On VA examination in September 2006, the Veteran reported having exploding, throbbing, and piercing headaches that primarily affected her right side.  The headaches improved, but were not completely relieved, by being in a dark room and medication.  The pain was associated with nausea and throbbing behind the eyes.  She reported approximately twenty throbbing headaches per month.  Once a month, she must seek emergency treatment to receive a shot.  The examiner's diagnosis was migraine headaches mixed with tension headaches that had clearly worsened since the Veteran first developed the syndrome.

On VA examination in February 2006 (for depression secondary to her headaches), the Veteran stated her migraines were her primary disability and occurred at least once a week and lasted for two to three days at a time.  She also reported that she was unable to watch television with her children because it is too loud and was unable to go outside and do things with her children due to photophobia associated with the migraines.  She reported that she felt as though her migraines caused her to neglect her children.  She further stated that sometimes her migraine headaches (and her depression) were so bad that she wanted to die.  She also reported having a seasonal job as a sales clerk working about four hours per day, twice a week, from October 2006 to January 2007.  She had to frequently call in due to her migraines.  She stated that she could not fit the job into her life due to the amount of time that she was losing due to her migraines and had not worked since January 2007.  Following clinical evaluation, the examiner stated that her flexibility, adaptability, and efficiency in an industrial environment were essentially totally impaired due to migraines and due to depression that was secondary to her migraine headaches.  It was not clear what percentage of this would be related to the migraine headaches directly, or to the major depression that was secondary to her migraine headaches, but it was clear that she was not able to maintain continuous employment.  

VA outpatient treatment records from January 2010 to October 2011 show the Veteran presented to the emergency department on two occasions, in January 2010 and June 2010, for treatment of sharp stabbing migraines that had persisted for several days.  A September 2011 treatment note indicates that she reported her migraines occurred once a month and that she takes Topamax daily, in addition to various other pain medications on an as needed basis.  She reported the migraines consisted of stabbing, piercing, unbearable unilateral headaches with nausea. They were worse with light and noise and better with use of ear plugs, face masks, darkness, and cold cloths to the face.  The diagnosis was migraine headaches.

On VA examination in September 2010, the Veteran reported that her migraines produced pain in the right frontotemporal region, were sharp in nature and ranged from moderate to severe in intensity.  She denied any neurovisual disturbances but did report nausea and vomiting, as well as sensitivity to light and noise.  She noted that the migraines affected her normal activity in that she must go into a dark room and recline for relief.  Triggering events include smells of popcorn or propane.  Flare-ups can least two to three days.  She has treated with Topomax twice daily.  Following clinical evaluation, the examiner diagnosed migraine headaches.  The examiner further opined that although the Veteran also has depressive episodes, the migraine headaches alone impair and impact the ability to work.

Based on the evidence of record, and resolving doubt in the Veteran's favor, the Board assigns a 50 percent disability rating for the service-connected migraine headaches as the clearly evidence demonstrates that they are very frequent and completely prostrating and that she has prolonged attacks productive of severe economic inadaptability.  The Board notes that the terms "severe economic inadaptability" are not defined in VA law.  The Court has held that it must also be considered whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability.  See Pierce v. Principi, 18 Vet. App. 440, 446 (2004).  In addition, VA conceded that the words, "productive of" could be read to mean either "producing" or "capable of producing."  Id. at 446, 446-447.  

The Board finds credible the Veteran's report that she is unable to work during her headaches.  Further, both the February 2007 and September 2010 VA examiners opined that her headaches have negatively impacted her employability and in fact precluded employment.  These opinions are competent and probative in this matter, as these examiners reviewed the claims file, included a synopsis of her medical and social history, and performed examinations of the Veteran.  Medical opinions that are factually accurate, fully articulated, and based on sound reasoning carry significant weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Thus, resolving all doubt in the Veteran's favor, the Board finds that the Veteran's frequent headaches are produce severe economic inadaptability.  As such, a maximum schedular evaluation of 50 percent rating is granted for the entire appeal period.  

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Here, the Board finds that the rating criteria contemplate the Veteran's migraine disability for the entire period of time during the pendency of this appeal.  The migraine headache disability is productive of pain, limitation of function, and causes interference with employment, manifestations specifically contemplated in the rating criteria.  The rating criteria are thus adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. 


ORDER

A 50 percent disability rating for migraine headaches is granted subject to the law and regulations governing payment of monetary benefits.

____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs