Citation Nr: 0701643	
Decision Date: 01/19/07    Archive Date: 01/25/07

DOCKET NO.  03-33 232	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to an evaluation in excess of 30 percent for 
migraine headaches with dizziness, formerly claimed as 
Meniere's disease.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Associate Counsel


INTRODUCTION

The veteran served on active duty from December 1992 to May 
1998 and from March 1999 to February 2002.

This matter comes to the Board of Veterans' Appeals (Board) 
from a March 2002 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, 
Florida.  The veteran was afforded a travel Board hearing in 
September 2004 and a transcript of the testimony from that 
hearing has been associated with the record.  

This matter was last before the Board in March 2006 when it 
was remanded for further development.  Following the Board's 
remand, the RO continued the 30 percent evaluation in a 
September 2002 supplemental statement of the case.  Because 
the maximum benefit was not granted, the issue of entitlement 
to a higher evaluation remains on appeal.  See AB v. Brown, 6 
Vet. App. 35, 38 (1993). 


FINDING OF FACT

The veteran's disability is manifested by headaches and 
vertigo and the veteran has normal hearing.  


CONCLUSION OF LAW

The criteria for an evaluation in excess of 30 percent for 
migraine headaches with dizziness have not been met.  38 
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.124a, 
Diagnostic Code 8100 (2006). 





REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

Before assessing the merits of the appeal, VA's duties under 
the VCAA, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 
5126 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a) (2003), are examined.

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. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. 
Principi, 16 Vet. App. 183, 187 (2002).  Additionally, VA 
must indicate which portion of that information should be 
provided by the claimant, and which portion VA will try to 
obtain on the claimant's behalf, which was accomplished by a 
March 2006 letter.  The letter told the veteran that the 
evidence should show that her service-connected disability 
had increased in severity.

During the pendency of this appeal, on March 3, 2006, the 
Court issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 
held that the VCAA notice requirements of 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service connection claim.  Those five elements include 
the following:  1) veteran status; 2) existence of a 
disability; 3) a connection between the veteran's service and 
the disability; 4) degree of disability; and 5) effective 
date of the disability.  The Court held that upon receipt of 
an application for a claim of service connection, 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating or is necessary to substantiate the elements 
of the claim as reasonably contemplated by the application.  
Dingess/Hartman, 19 Vet. App. at 484.  In the aforementioned 
March 2006 letter, the veteran was provided with notice 
regarding how VA determines the degree of disability and 
effective date.  

The Court in Pelegrini v. Principi, 18 Vet. App. 112 (2004), 
continued to recognize that typically 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 on a claim for VA benefits.  In this 
case, the appellant did not receive sufficient VCAA notice in 
a timely fashion.  Nonetheless, no harm will result to the 
veteran in proceeding with consideration of the issue on 
appeal because any defect with respect to the timing of this 
notice has been cured by readjudication in a September 2006 
supplemental statement of the case.  See Mayfield v. 
Nicholson, No. 02-1077 (U.S. Vet. App. Dec. 21, 2006).

It is further noted that in order to be consistent with  38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), a VCAA notice  
must also request or tell the claimant to provide any 
evidence in the claimant's possession that pertains to the 
claim 38 C.F.R. § 3.159(b)(1).  In this case, the March 2006 
letter from the RO asked the veteran to provide any evidence 
or information in her possession that would support her 
claim.

Next, VCAA requires VA to assist the claimant in obtaining 
evidence necessary to substantiate a claim, 38 C.F.R.  § 
3.159(c), which includes providing a medical opinion when 
such is necessary to make a decision on the claim.  In this 
case, the record contains the veteran's service medical 
records and all of the veteran's VA treatment records.  The 
veteran underwent several VA examinations, and further 
assessment is not necessary to make a decision on the appeal.  
The veteran has not requested VA's assistance in obtaining 
any other evidence.  

Based on the foregoing, VA satisfied its duties to the 
veteran. 

Laws and Regulations

Disability evaluations are determined by the application of a 
schedule of ratings, which is based on average impairment of 
earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
Part 4 (2006).  Separate rating codes identify the various 
disabilities.  38 C.F.R. Part 4.  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.  Any reasonable doubt regarding the degree of disability 
is resolved in favor of the veteran.  38 C.F.R. § 4.3.

The VA schedule of ratings will apply unless there are 
exceptional or unusual factors which would render application 
of the schedule impractical.  See Fisher v. Principi, 4 Vet. 
App. 57, 60 (1993).  38 C.F.R. Section 3.321(b)(1) provides 
that, in exceptional circumstances, where the schedular 
evaluations are found to be inadequate, the veteran may be 
awarded a rating higher than that encompassed by the 
schedular criteria.  According to the regulation, an 
extraschedular disability rating is warranted upon a finding 
that "the case presents such an exceptional or unusual 
disability picture with such related factors as marked 
interference with employment or frequent periods of 
hospitalization that would render impractical the application 
of the regular schedular standards."  Id.

The evaluation of the same disability under various diagnoses 
is to be avoided.  Disability from injuries to the muscles, 
nerves, and joints of an extremity may overlap to a great 
extent, so that special rules are included in the appropriate 
bodily system for their evaluation.  Both the use of 
manifestations not resulting from service-connected disease 
or injury in establishing the service-connected evaluation, 
and the evaluation of the same manifestation under different 
diagnoses are to be avoided.  38 C.F.R. § 4.14.  
Notwithstanding the above, VA is required to provide separate 
evaluations for separate manifestations of the same 
disability which are not duplicative or overlapping.  See 
Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

Where entitlement to compensation has already 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).  In addition, an appeal from the initial assignment 
of a disability rating requires consideration of the entire 
time period involved, and contemplates "staged ratings" 
where warranted.  See Fenderson v. West, 12 Vet. App. 119 
(1999).  

When an unlisted condition is encountered it is permissible 
to rate under a closely related disease or injury in which 
not only the functions affected, but also the anatomical 
localization and symptomatology are closely analogous.  
Conjectural analogies will be avoided, as will the use of 
analogous ratings for conditions of doubtful diagnosis, or 
for those not fully supported by clinical and laboratory 
findings, nor will ratings assigned to organic disease and 
injuries be assigned by analogy to conditions of functional 
origin.  See 38 C.F.R. § 4.20.

The veteran's headaches are evaluated under the criteria set 
forth at 38 C.F.R. § 4.124a, Diagnostic Code 8100.  Under 
this provision, migraine headaches with characteristic 
prostrating attack averaging one in two months over the last 
several months warrant a 10 percent rating.  A 30 percent 
rating is warranted for migraine headaches manifested by 
characteristic prostrating attacks occurring on an average of 
once a month over the last several months.  A 50 percent 
rating is warranted for migraine headaches with very frequent 
completely prostrating and prolonged attacks, productive of 
severe economic inadaptability.  This is the maximum rating 
available for migraine headaches pursuant to Diagnostic Code 
8100. 

The RO has considered 38 C.F.R. § 4.87, Diagnostic Code 6205 
(2006), Meniere's syndrome (endolymphatic hydrops); however, 
the Board finds that the veteran's disability cannot be rated 
as Meniere's syndrome.  A key feature of Diagnostic Code 6205 
is that the disability be manifested by hearing impairment.  
As discussed below, the veteran's hearing is not impaired and 
her disability has been characterized as migraine headaches.  
Accordingly, Diagnostic Code 6205 is not for consideration.  

Analysis

In July 2002, the veteran was seen at the VA medical center 
for evaluation, at which time she reported a history of 
Meniere's disease.  She specifically complained of episodes 
of vertigo in the morning and sometimes during the day and 
denied hearing loss, but reported episodic tonal tinnitus and 
aural fullness.  An audiology consult note from this time 
reveals a diagnosis of normal hearing and that normal hearing 
and daily vertigo are atypical of Meniere's disease

In March 2005 the veteran was once again seen at the VA 
medical center for an examination.  At that time, the veteran 
reported a history of dizziness with headache for the past 12 
years.  She stated that the dizziness and headaches usually 
occur in the morning upon waking up and described a sensation 
of the room spinning around her.  After examination, the 
examiner diagnosed migraine headaches because the dizziness 
and headaches experienced by the veteran always occurred in 
conjunction with one another.  

In March 2005, the veteran also received an examination of 
her ears, which did not reveal any abnormalities of the ears.  
The examiner diagnosed generalized imbalance/lightheaded and 
stated that the recurrent attacks did not appear to be of 
vestibular origin and that it was likely a possibility of 
central origin or some vascular or neuralgic cause.  An 
audiology examination conducted at this time yielded a 
diagnosis of normal hearing.  

In July 2005, the veteran underwent a neurological 
examination at the VA medical center.  At that time, the 
veteran repeated the history of symptoms including headaches 
and vertigo with nausea and tinnitus.  The veteran stated 
that she had these attacks about once per month and that they 
did not cause her to miss work.  The examiner diagnosed 
headaches and episodic vertigo.  

The veteran has offered evidence regarding the symptoms of 
her migraine headaches with dizziness.  In several personal 
statements, the veteran reports mild headaches, nausea, 
dizziness and a ringing sensation in her ears.  At the 
September 2004 hearing, the veteran echoed these statements.

A rating in excess of 30 percent is not warranted.  The 
aforementioned evidence clearly indicates that the veteran's 
migraines are manifested by headaches, dizziness and 
tinnitus.  It is noted that the veteran is separately 
evaluated for tinnitus.  As aforementioned, 50 percent is the 
maximum evaluation under Diagnostic Code 8100, which requires 
very frequent completely prostrating attacks, productive of 
severe economic inadaptability.  These requirements are not 
met in this case because the veteran suffers attacks only 
once per month and the attacks have never interfered with her 
employment.  Accordingly, an evaluation in excess of 30 
percent must be denied.


ORDER

Entitlement to an evaluation in excess of 30 percent for 
migraine headaches with dizziness formerly claimed as 
Meniere's disease is denied.



____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs