Citation Nr: 0122170 Decision Date: 09/07/01 Archive Date: 09/12/01 DOCKET NO. 00-24 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 30 percent for migraine headaches REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Stanley Grabia, Counsel INTODUCTION The veteran served on active duty from June 1983 to November 1994. This case comes before the Board of Veterans' Appeals (Board) from a decision rendered by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service-connection for migraine headaches, and assigned a 30 percent disability rating, effective from October 13, 1999, the date of receipt of the claim. The veteran disagreed with this rating. A claim placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed) but not yet ultimately resolved, as is the case herein at issue, remains an "original claim" and is not a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations must be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. After the claims file was forwarded to the Board, the veteran submitted new evidence through her service representative with a waiver of her right to have this new evidence initially considered by the RO. 38 C.F.R. § 20.1304(c), REMAND There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. On August 29, 2001, VA published final rules implementing the VCAA. The new regulations establish guidelines regarding the timing and scope of assistance VA will provide to claimant who have filed a substantially complete application for VA benefits. 66 Fed. Reg. 45,620 (Aug. 29, 2001)(to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The veteran seeks a rating in excess of 30 percent for her migraine headaches, asserting that they occur 3 to 4 times a week and impair her ability to keep a full-time job. The criteria for rating migraine headaches are set forth at 38 C.F.R. § 4.124a, Diagnostic Code 8100, and provide a 30 percent rating for migraine with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating requires very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. At a VA examination in January 2000, the examiner noted that no medical records were made available to him for review. The veteran reported migraine headaches beginning in 1985, with no known triggering factors. The frequency began to increase in the early 1990s, and she averaged about three to four headaches per week, lasting up to all day. They were always on the left side and throbbing. She often had blurry vision prior to the headaches as well as other visual aura. She did not have nausea, but did have occasional vomiting, and photophobia. She has used multiple medications without success. She had used Imitrex intramuscularly which blunted the headaches, but left her very tired. Neurological examination was entirely within normal limits. A CAT scan done in 1999 had also been within normal limits. The diagnosis was history of chronic migraines with frequency enough to cause significant lifestyle impact. After the case was received at the Board, additional medical records were added to the claims folder for the veteran. Private medial records showing treatment from 1996 to 1999 reflect that she was followed for migraine headaches and was prescribed Imitrex pills and Imitrex injections. Medical records from a VA medical facility in Charleston, South Carolina, reflect treatment during 1999 and 2000 for migraine headaches and chronic sinusitis. In October 1999 it was noted that he migraines lasted up to 24 hours and included nausea, vomiting, and flashing lights. In November 1999 she was seen for an exacerbation of migraine headaches. She reported that she had felt "sick" with headache for several days. A CT scan of her head with and without contrast resulted in an impression of "normal head CT." A notation dated in April 2000 reflects that she was started on Inderal. Medical records from a VA medical facility in Tampa, Florida, show that when the veteran was seen in October 2000 for a primary care clinic appointment, she reported a history of migraines and it was noted that Zomig and Fioricet would be prescribed for the migraines. She was again seen in May 2001 for an outpatient assessment. It was noted that she had a history of chronic migraine headaches and had been through a pain management clinic. The most effect treatment for her headaches was Imitrex tabs, followed by Imitrex injection. The veteran reported that she had 3 to 4 migraine headaches per week and was on Propranolol prophylaxis but that this medication caused trouble with her blood pressure. The veteran was seen in July 2001 because she was concerned about not being able to obtain injectable Imitrex. She again reported frequent migraine headaches, causing her to lose quite a bit of work. After consideration of the evidence currently of record, the Board finds that additional development of the evidence is required in order to properly evaluate the severity of the veteran's headache disorder and the impairment attributable to this condition. As the claims file and medical records were not available to the examiner at the time of her VA examination, a fully informed examination could not be accomplished. The fulfillment of the VA's statutory duty to assist the appellant includes providing an examination which takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, the veteran should be scheduled to undergo additional VA examination. As noted above, a 50 percent rating requires completely prostrating and prolonged attacks. The examiner should provide an opinion as to whether the veteran's headache disorder is productive of completely prostrating and prolonged attacks. As noted above, a 50 percent rating also requires very frequent attacks productive of severe economic inadaptability. The veteran has indicated that she has headaches 3 to 4 times a week and that the headaches impair her ability to keep a full-time job and cause her to lose quite a bit of work. More detailed information should be elicited from the veteran regarding the time lost from work due to headaches and the employment opportunities she has lost as a result of the headaches. Accordingly, this case is REMANDED for the following actions: 1. The RO should request the veteran to identify all medical providers who have treated her for migraine headaches since July 2001. Further, the appellant should be requested to provide more detailed information regarding the time lost from work due to headaches and the employment opportunities she has lost as a result of the headaches. She should be encouraged to provide any documentation she may have concerning the frequency of her headaches, such as headache logs. After securing any necessary releases, the RO should make all reasonable efforts to obtain medical records from all sources identified by the veteran which are not already in the file. To the extent there is an attempt to obtain records that is unsuccessful, the claims folder should contain documentation of the attempts made. The appellant and his/her representative, should also be informed of the negative results. 38 C.F.R. § 3.159. 2. The RO should arrange for the veteran to be scheduled for an examination to obtain information as to the frequency and severity of her headaches. The claims folder must be made available to the examiner prior to the examination, and the examiner is asked to indicate in the examination report that the file has been reviewed. All indicated testing should be accomplished and the results reviewed prior to completion of the report. The examiner should elicit details from the veteran concerning the frequency and severity of her headaches. Based upon the findings from the examination and review of the veteran's entire medical record, the examiner should provide an opinion as to whether the veteran's headache disorder is productive of completely prostrating and prolonged attacks, and if so, the frequency of such attacks. 3. The RO must then review the claims file and ensure that all notification and development action required by the VCAA and the implementing regulations is completed. 4. Thereafter, the RO must review the case. If the benefit sought on appeal remains denied, the veteran and her representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Gary L. Gick Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2001).