Citation Nr: 0503027 Decision Date: 02/07/05 Archive Date: 02/15/05 DOCKET NO. 96-12 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an evaluation greater than 30 percent for migraines. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher J. McEntee, Associate Counsel INTRODUCTION The veteran served on active duty from October 1987 to June 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 1994 decision by the Phoenix, Arizona, Regional Office of the Department of Veterans Affairs (VA) which, inter alia, granted the veteran's claim for service connection for migraines at 10 percent disabling. In the course of the appeal, the Phoenix Regional Office hearing officer granted the veteran a 30 percent rating for migraines in a June 1997 decision. The award was made effective from June 9, 1994. The veteran continued his appeal of this issue. The veteran's claims file was later transferred to the Chicago, Illinois, VA Regional Office (RO). The Board remanded this matter in September 2000 and in August 2003 for further evidentiary development related, in pertinent part, to the veteran's service connection claim for migraines. The Board finds that this matter is now ready for appellate review. FINDINGS OF FACT 1. Before September 8, 2000 the veteran experienced approximately one to two migraines per month; his condition was not productive of severe economic inadaptability. 2. Since September 8, 2000 the veteran has experienced approximately three to six migraines per month, which is productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for a migraine disorder before September 8, 2000 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2004). 2. The criteria for a disability rating of 50 percent for a migraine disorder from September 8, 2000 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter - VA's Duty to Notify and Assist Prior to proceeding with an examination of the merits of the claim, the Board must first determine whether the veteran has been apprised of the law and regulations applicable to this matter; the evidence that would be necessary to substantiate the claim; and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107. The VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In part, the VCAA specifically provides that VA is required to make reasonable efforts to obtain relevant governmental and private records that the claimant adequately identifies to VA and authorizes VA to obtain. The VCAA further provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In Pelegrini v. Principi, 18 Vet. App 112 (2004), it was in part held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision (i.e., that of the RO) on a claim for VA benefits. In Pelegrini, it was also observed that VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). It was also held in Quartuccio v. Principi, 16 Vet. App. 183 (2002) that VA must strictly comply with all relevant provisions of the VCAA. In this matter, the record indicates that the veteran has been fully apprised of what evidence would be necessary to substantiate his claim, as well as informed of the specific assignment of responsibility for obtaining such evidence. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In response to the veteran's original claim for service connection in November 1994, the RO granted the veteran service connection for a migraine disorder. The RO then provided the veteran with a copy of the original rating decision dated in December 1994 setting forth the general requirements of the then-applicable law pertaining to his claim for service connection. After the veteran expressed disagreement with the assigned disability evaluation in his notice of disagreement, the RO provided the veteran with the Statement of the Case in January 1996 which informed the veteran of disability evaluations for a migraine disorder. The veteran was provided with a personal hearing before the RO in August 1996. Based on information imparted at this hearing, the RO increased the veteran's evaluation to 30 percent in a June 1997 Supplemental Statement of the Case. The RO provided the veteran with a copy of this document, which again informed the veteran of disability evaluations for migraine disorder. The Board remanded the veteran's claim for further evidentiary development in September 2000 and in August 2003. Following the September 2000 remand, the RO advised the veteran by letter dated in December 2000 that the veteran should submit to the RO evidence related to his migraine disorder. In May 2002, the RO again provided the veteran with another Supplemental Statement of the Case informing the veteran of disability evaluations for migraine disorders. Following the August 2003 remand, the RO advised the veteran by letter dated in January 2004 of the evidence that would substantiate the veteran's claim for increased rating, and the responsibility for obtaining the evidence. In August 2004, the RO provided the veteran with another Supplemental Statement of the Case informing the veteran of disability evaluations for migraine disorders. Because the veteran had been continually apprised for multiple years of the laws and regulations pertaining to migraine disability ratings, and had been likewise apprised of the nature of substantiating evidence and his responsibility for obtaining it, the provisions of the VCAA as to notice have been satisfied. The record further reflects that in an effort to ensure that all relevant evidence had been obtained within its previous notifications, the RO obtained the veteran's service medical records, VA medical records, and received from the veteran records reflecting private medical care. Moreover, VA has afforded the veteran VA examinations for his migraine disorder since 1994. 38 U.S.C.A. § 5103A (a), (b) and (c). The claims file indicates records from relevant medical treatment were reviewed by the RO prior to its rating decision, Statement of the Case, and Supplemental Statements of the Case. The Board finds that VA has done everything reasonably possible to assist the veteran. In the circumstances of this case, additional efforts to assist the veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In sum, VA has satisfied its duties to inform and assist the veteran at every stage of this case. Given the extensive development undertaken by the RO and the fact that the veteran has pointed to no other evidence which has not been obtained, the Board finds that the record is ready for appellate review. The Merits of the Claim for Increased Rating I. Background The veteran has consistently claimed entitlement to an increased rating since filing his timely notice of disagreement with the original rating decision of December 1994. The veteran has stated that he experiences migraines on a regular basis which interfere with his capacity to function in ordinary activities. To corroborate his claim, in June 2001 the veteran submitted a letter from the Lead Supervisor at his former employer, 3COM Inc. The 3COM officer stated that the veteran was an outstanding employee until back and migraine disorders interfered with his job duties. The officer stated that, as a result, the company terminated the veteran's employment in September 2000. Moreover, on September 8, 2000, the veteran claimed in an email to the RO that he was then experiencing four to six migraines per month. This claim differed from previous claims in which he claimed one to two migraines per month. In March 2004, the veteran underwent a Compensation and Pension Examination administered pursuant to the Board's August 2003 remand. In the examination report, the examiner reported the veteran as stating that he experiences three to four migraines per month, each lasting approximately one 24- hour period, and each causing nausea, vomiting, diarrhea, photophobia, lightheadedness, chills, and severe pain. The veteran further stated that on the days he is experiencing a migraine, he is unable to function or do any activities of daily living other than bathroom activities. The veteran stated that each day he experiences mild frontal headaches also. The veteran reported to the examiner that though he had been prescribed multiple medications for symptoms associated with the migraines, due to negative symptoms associated with his liver, the medications had been discontinued. The examiner diagnosed the veteran with migraines of a frequency of three to four per month. The examiner further stated that this disorder prevents the veteran from functioning four days per month. II. Laws and Regulations Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Diagnostic Code 8100 provides disability evaluations for migraine disorders. Thereunder, a 30 percent disability evaluation is warranted for migraine disorders with characteristic prostrating attacks occurring on an average once a month over the last several months. Migraine disorders with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. III. Analysis The evidence of record demonstrates that the veteran's migraines are very frequent, completely prostrating, and prolonged. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The March 2004 medical diagnosis shows that the veteran frequently experiences migraines. This diagnosis is consistent with the veteran's repeated claims since September 2000 to having three to six migraines per month. The evidence of record also demonstrates that these migraines incapacitate the veteran. He has consistently stated since 1992, when he first reported migraines while in service, that his migraines cause him nausea, vomiting, diarrhea, photophobia, lightheadedness, chills, and such pain severe pain that he is unable to conduct ordinary daily activities. The evidence has also demonstrated that the veteran's migraines are productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The March 2004 examination shows that the veteran is incapable of functioning in a work environment while experiencing migraines. The letter from 3COM supports his claim that he has been unable to work since his termination from 3COM in September 2000. And as recent at September 2002, in his Veteran's Application for Increased Compensation Based on Unemployability, the veteran has maintained an inability to work due in part to his migraines. Evidence showing the severity of the migraine disorder, and evidence of economic impact, is uncontested. In the absence of evidence to the contrary, the Board finds that the veteran's disability picture more nearly approximates the criteria required for a 50 percent disability rating under Diagnostic Code 8100. 38 C.F.R. § 4.7. As the veteran is appealing the original assignment of the rating for his migraine disability, the severity of the veteran's disability is to be considered during the entire appeal period starting from the initial assignment of the disability rating. See Fenderson v. West, 12 Vet. App. 119 (1999). As the veteran has reported consistent symptomatology warranting a 50 percent rating since his September 8, 2000 statement to the RO, the Board finds that the 50 percent evaluation should be awarded from that date. The fact that 3COM terminated the veteran's employment in September 2000, near the time of his September 8, 2000 statement, supports the assignment of a 50 percent evaluation for that date. The Board finds that a 30 percent evaluation under Diagnostic Code 8100 is warranted from June 9, 1994 until September 8, 2000. The Board bases this finding on evidence of record showing that during this period the veteran had the capacity to function in a work environment and experienced migraines on a less frequent basis. In particular, the Board notes that during this period the veteran maintained employment or attended school full time. The Board also notes that, as the veteran testified in his August 1996 personal hearing, he experienced two migraines per month during this period rather than the three to six migraines per month he later claimed. Fenderson. As the 50 percent initial rating assigned herein, itself, is recognition that the veteran's industrial capability is impaired (see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993)), there simply is no basis for referral of the claim for assignment of any higher evaluation on an extra-schedular basis. 38 C.F.R. § 3.321(b)(1). There is no showing that the veteran's migraine disability, alone, is so exceptional or unusual, with such related factors as marked interference with employment (beyond that contemplated in the assigned evaluation), or frequent periods of hospitalization, so as to render impractical the application of the regular schedular criteria. The Board is therefore not required to refer this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an evaluation in excess of 30 percent for a migraine disorder before September 8, 2000 is denied. Entitlement to a 50 percent evaluation for a migraine disorder from September 8, 2000 is granted, subject to controlling regulations affecting the payment of monetary awards. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs