A rating in excess of 30 percent for a headache disability is denied.
Prior to July 31, 2013, a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied.
Dr. Craig Bash has done thousands of case evaluations at the VA Hospital/regional office/BVA and court levels.
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Citation Nr: 19186215 Decision Date: 11/19/19 Archive Date: 11/15/19 DOCKET NO. 18-51 304 DATE: November 19, 2019 ORDER A rating in excess of 30 percent for a headache disability is denied. FINDING OF FACT The Veteran’s headache disability does not result in very frequent completely prostrating and prolonged productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent a headache disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1964 to May 1967. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran was granted service connection for a headache disability by an August 2013 Board decision. A September 2017 rating decision effectuated the grant and assigned a 30 percent rating effective July 8, 2009, the date the Veteran filed his service connection claim. He disagrees with the assigned initial rating and asserts he is entitled to a higher rating. The Veteran’s headache disability is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating, the maximum rating, is assigned for headaches with very frequently completely prostrating and prolonged attacks productive of severe economic inadaptability. The phrase "characteristic prostrating attacks" plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet App. 245 (2018). "Completely prostrating" means that "the headaches must render the veteran entirely powerless." Id. at 253. The rating criteria do not define “severe economic inadaptability,” but nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). The Secretary has conceded that the term “productive of economic adaptability” could be read as either “producing” or “capable of producing.” Id. at 445. The Veteran’s treatment records do not show headache disability findings consistent with a rating in excess of 30 percent. In March 2011, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner reported that less than half of the Veteran’s headaches, which occur weekly, were prostrating. The examiner reported that while experiencing a severe headache, the Veteran would have reduced work efficiency. At a February 2013 Board hearing, the Veteran testified that he sometimes headaches that forced him to lay down and do nothing. In July 2013, the Veteran was provided a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner indicated that the Veteran did not experience prostrating attacks of migraine headache pain or non-migraine headache pain. The examiner indicated that the Veteran’s headache disability did not impact his ability to work. In January 2015, the Veteran underwent a private medical examination with Dr. Craig N. Bash. The Veteran reported having chronic debilitating headaches that moderately interfered with work. In May 2016 the Veteran was afforded a VA examination. The Veteran reported that he had headaches once per week and prostrating headaches once every four to six weeks. The examiner indicated that the Veteran experienced prostrating headaches once every month. The VA examiner indicated that the Veteran’s headache disability impacted his ability to work and would reduce work efficiency and quality, if employed. The evidence does not establish that the Veteran’s headache disability results in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The March 2011 VA examiner indicated that less than half of the Veteran’s headache attacks were prostrating. In addition, the VA examiner did not report that the Veteran’s headache disability resulted in severe economic inadaptability. The July 2013 VA examiner indicated that the Veteran did not experience prostrating headache attacks and that the Veteran’s headache disability did not impact his ability to work. The May 2016 VA examiner indicated that the Veteran had prostrating headache attacks once every month. While the examiner indicated that the Veteran’s headache attacks would impact his work quality and efficiency, again, the examiner did not report that the Veteran’s headache disability resulted in severe economic inadaptability. The Board is sympathetic to the concerns that have been voiced, and notes that the Veteran’s headaches undoubtedly cause impairment as is suggested by the 30 percent rating that is assigned. However, the record contains no evidence showing that his headache disability rises to the level of assignment of a 50 percent rating. The rating schedule was created as a guide to evaluating disability resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. In September 2011, the Veteran reported that he experienced intermittent headaches that could be totally disabling, but his headaches were not continuous. In August 2013, he reported that he experienced headaches about one to three times per week and often had headaches that required him to lay down and try to relax or sleep. However, the Veteran’s medical record does not show that his headache disability has resulted in very frequent completely prostrating and prolonged productive of severe economic inadaptability, which would be equivalent to a 50 percent rating. (Continued on the next page) Accordingly, the criteria for a schedular rating in excess of 30 percent for the Veteran’s headache disability have not been met, and the Veteran’s claim is denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Glen J. Capers 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.