Citation Nr: 0639401 Decision Date: 12/18/06 Archive Date: 01/04/07 DOCKET NO. 01-10 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a cerebrovascular accident secondary to service-connected cephalgia as a residual of closed head injury. 2. Entitlement to an initial rating in excess of 10 percent for cephalgia as a residual of closed head injury. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from August 1963 to May 1965. In October 2001, the veteran testified before RO personnel at the Detroit RO. These matters come to the Board of Veterans' Appeals (Board) on appeal of July 2003 and August 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In the July 2003 rating decision, the RO granted service connection and assigned a 10 percent rating for cephalgia as a residual of closed head trauma effective May 4, 2000. As the appeal arises from the veteran's disagreement with the initial 10 percent rating assigned following the grant of service connection, the Board must consider this claim as a claim for a higher evaluation of an original award. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). FINDINGS OF FACT 1. A May 2003 MRI (magnetic resonance imaging) study of the veteran's brain reflects reported findings of mild volume loss due to age, but no evidence of traumatic encephalopathy. 2. No relationship has been established between the veteran's post-service cerebrovascular accident and his service-connected closed head trauma, to include any residual cephalgia. 3. The veteran does not have a diagnosis of multi-infarct dementia associated with brain trauma. CONCLUSIONS OF LAW 1. The veteran's cerebrovascular accidents are not proximately due to, or the result of, service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2006); 71 Fed. Reg. 52744-47 (Sept. 7, 2006). 2. The criteria for an initial rating in excess of 10 percent for cephalgia as a residual of closed head injury have not been met. 38 U.S.C.A. §§ 1155, 5107, (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.120, 4.124a (Diagnostic Code 8045), 4.130 (Diagnostic Code 9304) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2005). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Board finds that all notification and development action needed to render a decision on the claims on appeal has been accomplished. In this respect, through June 2004 and December 2005 notice letters, the RO notified the veteran of the evidence needed to substantiate his claims. After the notice letters, the veteran was afforded the opportunity to respond. Hence, the Board finds that the veteran has received notice of the information and evidence needed to substantiate his claims, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the June 2004 and December 2005 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the RO notified the veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It requested that the veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. The RO also requested that the veteran submit evidence in his possession pertinent to his claims. Also as regards to VA's notice requirements, the Board notes that, in the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim, (2) the evidence, if any, to be obtained by VA, and (3) the evidence, if any, to be provided by the claimant; and (4) VA must make a request that the claimant provide any evidence in the claimant's possession that pertains to the claim. As indicated above, the four content-of-notice requirements have been met in this case. Furthermore, as the veteran's original claim for service connection for cephalgia as a residual of closed head trauma has been granted, a rating awarded, and an effective date assigned, 38 U.S.C.A. § 5103(a) notice is no longer applicable with respect to that claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Otherwise, the more detailed notice obligations under 38 U.S.C.A. § 5103A and 38 U.S.C.A. § 7105(d) (West 2002) have been met in this case. The Board also notes that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Consequently, the Board does not find that any late notice in this case 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 Board also points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. Here, the claims file reflects the veteran's service records as well as relevant VA and private treatment records. Neither the veteran nor his representative has alleged that there are any outstanding medical records probative of the veteran's claims that need to be obtained. As for whether further action should have been undertaken by way of obtaining additional medical opinion on the question of whether the veteran's cerebrovascular accident is proximately due to, or the result of, service-connected disability, the Board notes that such development is to be considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4) (2006). In this case, the medical evidence demonstrates that the veteran suffered a cerebrovascular accident in August 2003, but, as will be explained below, there is no indication except by way of unsupported allegation that it may be associated with service-connected disability. Consequently, given the standard of the new regulation, the Board finds that VA did not have a duty to assist that was unmet. II. Analysis A. Entitlement to Service Connection The Board notes initially that the veteran is contending that his cerebrovascular accidents are proximately due to, or the result of, service-connected disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Secondary service connection may be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service- connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Although the veteran has not been informed of a recent amendment to the provisions of 38 C.F.R. § 3.310, see 71 Fed. Reg. 52744-47 (Sept. 7, 2006), the amendment merely sets a standard by which a claim of service connection based on aggravation is judged, but it applies only after it is determined that there has indeed been some worsening due to service-connected disability. Here, as noted above, no worsening due to service-connected disability has been shown. Moreover, the new provision is more restrictive than the older version of 38 C.F.R. § 3.310 and is consequently less favorable to claimants. Therefore, the Board finds that failure to notify the veteran of the amendment does not require remand. The Board has conceded, based in part on the veteran's reported history and post-service medical findings, that the veteran struck his head in service while chipping paint with an air hammer on a dummy loader (a mock up of a 38-caliber cannon). In this regard, service medical records reflect that following the above incident, in which the veteran was noted to have injured his low back, the veteran was taken the same day (February 14, 1964) to the hospital ship USS Isle Royale (AD-29) for treatment. The veteran was treated for low back pain but not for head trauma or head pain. The veteran's personnel records document that the veteran left the USS Isle Royale on February 15, 1964, without permission, proceeded to the USS Preston (DD-795), his assigned command, changed his clothes and went on liberty. For this action the veteran received non-judicial punishment. Thereafter, on February 18, 1964, the veteran was again examined on the USS Isle Royale and found free of any back complaint (likewise, no head complaint or headaches were noted) and he was discharged to full duty. Post-service medical evidence reflects a computed tomography (CT) scan of the veteran's brain in July 1997. Findings were reported as old and mild atrophic changes confined to the left temporal lobe. The etiology was uncertain. Otherwise, there was no indication of mass lesions, mass effects, or intracranial hemorrhage. A May 2003 MRI study of the veteran's brain revealed mild volume loss due to age, but no evidence of traumatic encephalopathy. Thereafter, in August 2003, the veteran suffered a left cerebellar infarct. During his hospitalization, he suffered additional infarcts (i.e., strokes) involving the left cerebellar, midbrain, thalamic, and occipital regions of the brain. The Board notes that there is an absence of any medical evidence or opinion that relates the veteran's cerebrovascular accident to service-connected disability either directly or by aggravation, and neither the veteran nor his representative has otherwise alluded to the existence of any additional evidence or opinion. The Board has considered the veteran's assertions, but as a layperson without the appropriate medical training or expertise, he is not competent to provide a probative opinion on a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). Under these circumstances, the Board finds that the claim for service connection for a cerebrovascular accident secondary to service-connected cephalgia as a residual of closed head injury must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as there is an absence of any competent evidence that supports the veteran's claim of secondary service connection either directly or by aggravation, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Higher Initial Rating Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. The veteran is currently assigned a 10 percent rating for cephalgia as a residual of closed head injury under 38 C.F.R. § 4.124a, Diagnostic Code 8045-9304, for brain disease due to trauma. See 38 C.F.R. § 4.27 (2006). Under diagnostic code 8045, purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc. resulting from brain trauma are rated under the diagnostic codes specifically dealing with such disabilities. Otherwise, a 10 percent rating is warranted for purely subjective complaints following trauma, such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma under 38 C.F.R. § 4.130, Diagnostic Code 9304. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Since the initial grant of service connection, May 4, 2000, the medical evidence reflects that the veteran suffers from cephalgia as a residual of closed head injury in service. As currently rated under diagnostic code 8045, the veteran's disability does not warrant a higher evaluation as the medical evidence does not reflect a diagnosis of multi- infarct dementia associated with the brain trauma. The veteran has contended that his service-connected cephalgia as a residual of closed head injury should be rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2006) for migraine headaches, as that diagnostic code is more favorable in rating the veteran's claim. The determination of an appropriate diagnostic code is relevant in this instance because of the difference in disability evaluations under diagnostic code 8100 (migraine) and diagnostic code 8045 (brain disease due to trauma). Under diagnostic code 8100, a maximum of a 50 percent disability rating may be assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating may be assigned with characteristic prostrating attacks occurring on an average once a month over the last several months. On the other hand, as noted above, the maximum available rating under diagnostic code 8045 is 10 percent for subjective complaints of headaches. A higher than 10 percent rating will not be assigned in the absence of a diagnosis of multi- infarct dementia associated with brain trauma. The Board notes that the assignment of a particular diagnostic code is dependent on the facts of a particular case. One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. The ROs and the Board possess specialized expertise in identifying and assessing the medical nature of a claimed condition, and their application of a particular diagnostic code to a particular condition is due considerable deference. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). At the same time, in reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application of the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this case, the Board finds that the RO granted service connection for post-traumatic cephalgia/headaches and not for migraines. The Board also finds that the analysis under diagnostic code 8045 (brain disease due to trauma), rather than diagnostic code 8100 (migraine), is consistent with the veteran's initial claim and grant of service connection for cephalgia/headaches. The Board is cognizant of a report of April 2005 examination from Emilio F. Gatti, M.D., in which Dr. Gatti notes the veteran's headaches are "similar to migraines." The veteran was diagnosed with post-concussion syndrome and chronic daily cephalalgia (cephalgia). Notwithstanding Dr. Gatti's impression, the regulations specifically distinguish headaches due to head trauma from migraine headaches. Therefore, the Board concludes that diagnostic code 8045, and not diagnostic code 8100, is for application. In short, the veteran is not service connected for migraine headaches. His disability is specifically contemplated by the rating criteria in Diagnostic Code 8045 and consequently may not be rated as migraine headaches. In reaching the above conclusion, the Board also notes that the veteran's reported history regarding the onset of his headaches is inconsistent. Here, the report of a March 2003 VA examination and Dr. Gatti's assessments of the veteran's condition note the veteran's reported history of headaches since hitting his head in service. However, a report of February 1997 medical examination associated with the veteran's claim for Social Security Administration disability benefits reflects the veteran's statement that he had never suffered from headaches until after undergoing nasal surgery in September 1996. Likewise, a September 1998 treatment record reflects the veteran's report of having headaches for only three to four years. Thus, it is not readily apparent to the Board whether any headaches for which the veteran is service connected due to the reported closed head injury in service are necessarily the same chronic daily cephalalgia noted by Dr. Gatti. Regardless, a rating greater than 10 percent is not warranted for the reasons noted above. Therefore, since the initial grant of service connection, May 4, 2000, the Board finds that the veteran's service-connected cephalgia as a residual of closed head injury does not warrant a rating in excess of 10 percent. 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8045-9304. The above determination is based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the veteran's cephalgia as a residual of closed head injury is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2006) (cited to in the August 2003 statement of case). There simply is no evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation) or frequent periods of hospitalization, or evidence that any impairment due to the veteran's service- connected cephalgia as a residual of closed head injury has otherwise rendered impractical the application of the regular schedular standards. Therefore, the criteria for invoking the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the claim for a rating in excess of 10 percent for cephalgia as a residual of closed head injury must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a cerebrovascular accident secondary to service-connected disability is denied. A rating in excess of 10 percent for cephalgia as a residual of closed head injury is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs