Citation Nr: 0529475 Decision Date: 11/03/05 Archive Date: 11/14/05 DOCKET NO. 03-19 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 30 percent for migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel INTRODUCTION The veteran served on active duty from June 1987 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana that continued a previously assigned 10 percent rating for migraine headaches. During the pendency of the appeal for an increased rating, the RO awarded a 30 percent rating. This was done by way of a September 2004 rating decision. FINDINGS OF FACT 1. The record does not contain sufficient information to allow the Board to grant a higher rating for migraine headaches-it does not show that the veteran's migraine headaches are characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Without good cause, the veteran failed to report for a VA compensation examination scheduled in connection with his claim for an increased rating for migraine headaches. 3. The compensation examination was required to help determine whether the veteran met the criteria for an increased rating. CONCLUSION OF LAW An increased rating for migraine headaches is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.655, 4.124a, Diagnostic Code 8100 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for migraine headaches was granted by way of a rating decision in January 1993. The veteran was assigned a 10 percent rating. The veteran submitted a claim for an increased rating in September 2001. As noted above, the RO issued a rating decision in September 2004 whereby the veteran's disability evaluation was increased to 30 percent. Treatment reports from S. Hoogendyk, M.D., dated from February 1998 to October 1998 reflect that the veteran had a history of migraine headaches. In February 1998, the veteran reported intense migraines and cluster headaches occurring about twice a year. He reported that the headaches occurred in the middle of the night, awakened him, and could last up to three hours. The headaches were noted to recur several times per day for several weeks. Associated with the claims file is a vocational assessment from Chris Georgeff and Associates dated in October 1999. The veteran reported that he had "never missed school" due to experiencing a headache but he reported being unable to work during the period from January 1999 to April 1999. (The veteran later indicated that the reference to never missing school was an inaccurate portrayal of his school performance.) The veteran did not indicate that he was ever terminated from employment as a result of his migraines. The vocational rehabilitation specialist did not assess the veteran as having a serious employment handicap as a result of his disabilities. The veteran was last afforded a VA examination in January 2002. At that time a magnetic resonance imaging (MRI) of the veteran's brain was normal. He was diagnosed with migraines. Associated with the claims file are private treatment reports from G. Buck, M.D., dated from September 1996 to September 2003. In February 1999, the veteran was seen for complaints of migraine headaches. The veteran reported that his headaches usually occurred in April through January and he usually felt better when he rested in a dark, quiet room. He reported being on several medications with no improvement in his symptoms. He reported that his headaches usually occurred on the right side behind the right eye and that they usually stayed in one place. He reported stabbing pain as 9 out of 10. At that time the veteran reported that he was having migraines more frequently. He stated that he had headaches for the prior four to seven days and that they lasted from one to three hours. The migraines awakened him from sleep occasionally. In September 1999, Dr. Buck reported that the veteran's headaches were not as severe as they had been previously. In June 2003, the veteran reported occasional headaches. In September 2003, the veteran reported frequent headaches and requested prophylactic treatment. Associated with the claims file are VA outpatient treatment reports dated from May 2001 to October 2004. In July 2001, an MRI of the brain was normal. In January 2002, the veteran reported that he had a different kind of headache which was constant in nature for a week and then he had no symptoms for two days after. The examiner reported that the strongest medication prescribed for the veteran was Imitrex which was taken with no relief. In February 2002, the veteran reported "lots of headaches lately." He reported that he was using Imitrex to treat the headaches and was out of his medication. The veteran reported that on one occasion his migraine resulted in lingering aches and the next time excruciating pain. His medication was taken with no relief. He reported that he often had a dull ache that lasted two or three days. In March 2002, the veteran was noted to be doing fairly well. A neurologic examination was normal. The examiner reported that the veteran had migraines with and without aura and he was continued on Imitrex. A letter from the veteran's treating neurologist at VA dated in March 2002 reflects that the veteran suffered from migraines which were exacerbated by stress, lack of sleep, and excessive sleep. The veteran was noted to be taking medication on an episodic basis. In August 2003, the veteran was noted to have migraine headaches about three times a month. The veteran also reported cluster headaches seven to eight times a day. The veteran reported that he was in continual pain for four to five months at a time. The examiner noted that the veteran had been treated with many different options without success. He was still noted to be taking Imitrex. An addendum dated in August 2003 noted that the VA pharmacy no longer carried Imitrex. In September 2004, the veteran was seen for reevaluation and management of chronic migraines among other things. The veteran reported that his migraines had increased in frequency to approximately every seven to ten days. A computed tomography (CT) scan of the brain was ordered. That same month the veteran reported he wanted to put off the CT scan until December 2004 because he was not having migraines. He reported that he would call back if he started getting migraines on a daily basis. In October 2004, an addendum noted that the veteran received a prescription for Imitrex nasal spray. Also that month, the veteran reported that his migraines were worse and that he had CT scan of the head at his primary care provider. The veteran was scheduled for a VA examination in May 2004 for which he failed to report. No explanation for his failure to appear was given. The veteran submitted time sheets from his employer in March 2005. He noted that he had missed whole days of work due to severe migraines four times from August 2004 to February 2005. He pointed out that he had used all of his annual sick leave in 2004 and even had to take a personal day in November 2004 because of migraines. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. §§ 1110, 1155 (West 2002); 38 C.F.R. § 4.1 (2005). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2005). Under the criteria for Diagnostic Code 8100, a 30 percent rating is for consideration for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is for consideration for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a (2005). VA regulations provide that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, . . . [and] the examination was scheduled in conjunction with . . . a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (2005). In this case, the available record does not show that a higher rating is warranted. Hence, the RO scheduled a May 2004 VA examination to aid the veteran in his claim. The available evidence shows that the veteran has experienced some prostrating attacks; however, the migraines were not characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The veteran's migraines cause stabbing pain on the right side behind the right eye. The veteran reported that his migraines occasionally awakened him and it helped him to rest in a quiet, dark room. In August 2003, the veteran was noted to have migraine headaches about three times a month. In September 2004 the veteran reported that his migraines had improved. While the veteran reported that his migraines had worsened in October 2004, the record does not reflect that the veteran's migraines were productive of very frequent completely prostrating and prolonged attacks. The vocational assessment which was submitted by the veteran did not indicate the veteran was ever terminated from employment as a result of his migraines. He left one job because of the employer's intolerance of his medical condition, but even then it was not shown that he was having very frequent prostrating attacks. The veteran's employment records indicate that he missed four days of work over a seven-month period. This is not suggestive of very frequent prostrating attacks that are prolonged. In other words, the evidence as a whole strongly suggests that the veteran indeed experiences prostrating attacks, but not frequently. Rather, the veteran appears to have prostrating attacks that occur in a way that is more akin to what is required for the 30 percent rating-averaging once a month. He also experiences headaches that bother him for prolonged periods, but they do not appear to be prostrating as required by the rating criteria for the higher rating. In summary, while the veteran's migraines are characterized by prostrating attacks, they have not been characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Consequently, the next higher schedular rating of 50 percent for migraines is not warranted on the available record. As noted above, a VA examination was scheduled to help the veteran with his claim, but he did not appear and no explanation was given. Because a higher rating cannot be established on the record as described above, and because the veteran did not provide good cause for his failure to appear, his claim for an increased rating must be denied. 38 C.F.R. § 3.655. In deciding the issue in this case, the Board has considered the applicability of the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). The Board has also considered the implementing regulations. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Under the VCAA, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2005). There is no outstanding information or evidence needed to complete a claim in this case. The veteran filed his claim for an increased rating in September 2001. The necessary information to complete his application for benefits is of record. Under 38 U.S.C.A. § 5103, the Secretary is required to provide certain notices when in receipt of a complete or substantially complete application. The purpose of the first notice is to advise the claimant of any information, or any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. The Secretary is to advise the claimant of the information and evidence that is to be provided by the claimant and that which is to be provided by the Secretary. 38 U.S.C.A. § 5103(a) (West 2002). In addition, 38 C.F.R. § 3.159(b), details the procedures by which VA will carry out its duty to assist by way of providing notice. The RO originally wrote to the veteran in December 2001 and informed him that it was working his claim. He was provided with notice of what evidence he should submit and what evidence VA was responsible for in developing his claim. The veteran was advised as to the best type of evidence to submit to support his contentions. The RO again wrote to the veteran in March 2005. The RO informed the veteran of the evidence that was required to substantiate his claim for an increased rating. He was informed of the evidence of record. He was further informed that he needed to have evidence that his service-connected disability had worsened. The RO provided additional notice of what actions would be taken to assist the veteran and what he needed to do in the development of his claim. He was asked to identify pertinent sources of information or evidence. He was informed of the elements to satisfy in order to establish a higher rating. In reviewing the requirements regarding notice found at 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), the Board cannot find any absence of notice in this case. As reviewed above, the veteran has been provided notice regarding the type of evidence needed to substantiate his claim. He has been told what was required of him and what VA would do. It is also clear that he was made to understand that he should submit any pertinent evidence in his possession. This was implicit in the various correspondences. In summary, the Board finds that no additional notice is required under the provisions of 38 U.S.C.A. § 5103 as enacted by the VCAA and 38 C.F.R. § 3.159(b). See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). (Although all notices required by the VCAA were not provided until after the RO adjudicated the appellant's claim in April 2002, "the appellant [was] provided the content- complying notice to which he [was] entitled." Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004). Consequently, the Board does not find that any late notice under the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.) The duty to assist claimants under the VCAA is codified under 38 U.S.C.A. § 5103A (West 2002) and established by regulation at 38 C.F.R. § 3.159(c)-(e). This section of the VCAA and regulation sets forth several duties for the Secretary in those cases where there is outstanding evidence to be obtained and reviewed in association with a claim for benefits. However, in this case there is no outstanding evidence to be obtained by VA in regard to the issue decided. The veteran was afforded a VA examination in January 2002. VA outpatient treatment records and private treatment records were obtained and associated with the claims file. The veteran has not identified any outstanding pertinent evidence. The Board notes that the veteran was scheduled for a VA examination in May 2004 for which he failed to appear. As already noted, when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, . . . [and] the examination was scheduled in conjunction with . . . a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (2005). In this case the evidence of record did not support an increased evaluation and the veteran failed to appear for his VA examination. There is no evidence to indicate that the veteran failed to appear on account of good cause. Therefore, the Board finds that VA has complied with the duty-to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e) (2005). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 30 percent for migraine headaches is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs