Insight from a recent PEB for Migraines

Jason Perry

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I recently appeared at a PEB for a client with migraines. He had a well detailed migraine log showing migraines several times per month. The only question was whether these migraines were "prostrating."

In the past, the definition of "prostrating" was clouded by the the now rescinded DoDI 1332.39, which defined prostrating as requiring the member to stop what they are doing and seek medical attention. I have always been concerned that PEB members who have been around at the time of that regulation have kept that definition in the back of their minds when adjudicating cases.

Oftentimes, before a Formal PEB hearing, I have an opportunity to speak with the PEB members (this can be when submitting exhibits, or just chatting). At this recent PEB, I pointed out during such a chat that the migraine log showed frequent migraines, so the only issue was whether these qualified as "prostrating." I then asked if the PEB had any position on what definition they were using for "prostrating." The PEB member asked me, "what definition do you think we should use?" Having considered this beforehand, I supplied an example from a Board of Veterans Appeals case that defined "prostrating" (from Dorland's Medical Dictionary) as "extreme exhaustion or powerlessness." (I submitted the BVA opinion as an exhibit).

The PEB accepted this definition (and quoted from it in its rationale). I point this out so that members are aware of this issue. What I would point out is that it is not clear that the PEBs are using a uniform definition and that it makes sense to argue (with support) the definition.

Hope this helps.
 

maparker

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Jason,

So what should be the definition of "completely prostrating", the term used in the VASRD for 50% rating for migraines.

Mike
 

sfxer02

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Good info Jason. Just so anyone that reads this. make sure you keep a log of your migraines, I kept a log and had no issues when I was rated by the PEB and received 40% TDRL. I think that is the most important thing is that log and showing how they affected your performaance in doing your job, and how often they occured.

I am doing the same now so I am prepared for my TDRL re-eval and my VA exam(whenever that might be, since I havnt heard from them yet)
 

Jason Perry

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Jason,

So what should be the definition of "completely prostrating", the term used in the VASRD for 50% rating for migraines.

Mike
Mike,

As you know, the VASRD does not define prostrating and so we are left to define both that term and then add "completely" to that definition. I am fine with the definition from Dorland's (and it is cited in many BVA cases; the Court of Appeals for Veterans Claims cases do not address the definition directly).

Before I step off with my thoughts on the correct definition, I want to add in one other procedural issue. The DoD Memo Implementing the 2008 NDAA states that the MEB's must meet the minimum criteria of the VA General Medical exam and the automated worksheets. The VA Migraine worksheet asks the examiner to "Obtain the history of frequency and duration of attacks and description of level of activity the veteran can maintain during the attacks. For example, state if the attacks are prostrating in nature or if ordinary activity is possible." This is important for two reasons. If the examiner states that in his/her opinion, the migraines are "prostrating" or "completely prostrating" then you have an argument that the opinion means that the condition fulfills the definition. Second, I think there is an argument that if ordinary activity is not possible, then the migraine is "prostrating."

Where I think the issue of what is "completely prostrating" resolves is in the entire rating criteria for 50%. "With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." I think that it is the rest of the criteria that is more important. If the migraines are very frequent (and compare that with the next lower criteria of occuring once a month) AND prolonged AND productive of severe economic inadaptability, then the "completely" part takes less importance. Or I think you could term it the other way, if it meets the other criteria, then they are "completely prostrating." If this wasn't convoluted enough already, there is no definition of how long counts for "prolonged" and what qualifies as severe economic inadaptability. I will not cover prolonged here, but take a look at severe economic inadaptability for a moment. Does this mean that it prevents you from holding a job? NO! TDIU grants a 100% rating for not being able to hold a job. So, we know it still allows for the ability to work, it just interferes with it to the point of "severe economic inadaptability."

But, I think this raises some other issues that need to be addressed if there are significant employment issues. I think you always have to consider asking for an extra-schedular rating (this is very rarely granted, as you know...in the case of the migraine rating, if the impact on work is significant, I think the issue should properly resolve in granting the 50% schedular rating at a minimum). If the ability to work is greatly impacted (to the point where the member is not or will not be able to earn more than the poverty level), then you have to consider asking for a 100% rating for IU.
 
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