Citation Nr: 0703557 Decision Date: 02/05/07 Archive Date: 02/14/07 DOCKET NO. 05-11 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected residuals of aseptic meningitis, including headaches. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from March 2003 to August 19, 2003. This appeal arises from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. FINDINGS OF FACT 1. The veteran was hospitalized for treatment of active aseptic meningitis with severe headaches and fever, from August 27, 2003 to September 8, 2003. 2. The veteran's residuals of meningitis have been diagnosed as chronic recurring muscle tension headaches. The veteran reports they occur two to three times per week and are relieved by Advil or Panadol, and sleep. The veteran has not indicated how often bed rest is required to alleviate his headaches. CONCLUSIONS OF LAW 1. The criteria for an initial 100 percent rating for treatment of service-connected active meningitis, from August 27, 2003 to September 8, 2003, have been met. 38 U.S.C.A. §§ 1110, 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8019 (2006). 2. The criteria for an initial rating, in excess of 10 percent, from September 9, 2003, have not been met. 38 U.S.C.A. §§ 1110, 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8019, 8100 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board must first address VA's duty to notify and assist claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). The veteran filed his claims for service connection in October 2003. The RO sent the veteran a letter in November 2003 which informed the veteran of the evidence needed to support his claim and explained how VA could assist in obtaining evidence. VA afforded the veteran an examination in April 2004. The RO obtained the veteran's records of hospitalization for treatment of meningitis. The RO granted service connection for meningitis in an October 2004 rating decision. A 10 percent rating was assigned as of the day after the veteran's separation from the service, August 20, 2003. The RO issued the veteran a statement of the case in February 2005. It included the criteria for rating headaches. The veteran withdrew his request for a hearing in April 2005. The veteran has not identified any additional evidence which has not already been obtained. 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 VCAA notice of 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. The veteran was not adequately notified of the type of evidence necessary to establish a disability rating or effective date for any increase. This is harmless error, as the effective date assigned for the service-connected meningitis is the day after separation from service, which is the earliest possible date which could be assigned. 38 C.F.R. § 3.400 (2006). In addition, the decision below grants the veteran a 100 percent rating for active meningitis and the veteran was informed of the criteria for rating his residuals which have been diagnosed as headaches. The February 2005 statement of the case included the criteria for rating headaches. The Board has concluded that, in the circumstances of this case, any additional development or notification 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 claimant). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the veteran. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Relevant Laws and Regulations: Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2005). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2006). Epidemic cerebrospinal meningitis as an active febrile disease is rated as 100 percent disabling. A minimum 10 percent rating is assigned for residuals of meningitis. 38 C.F.R. § 4.124a, Diagnostic Code 8019 (2006). Migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated as 50 percent disabling. Migraines with characteristic prostrating attacks occurring on an average once a month over last several months are rated as 30 percent disabling. Migraines with characteristic prostrating attacks averaging one in 2 months over the last several months are rated as 10 percent disabling. With less frequent attacks a 0 percent rating is assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2006). Factual Background and Analysis. The veteran's DD Form 214 indicates he was separated from the service on August 19, 2003. Records from the Hospital De La Concepcion and a statement from the veteran's private physician, (hereafter, Dr. B.), reveal the veteran was admitted on August 27, 2003 with headaches, fever, malaise and a generalized rash. Aseptic meningitis was diagnosed. September 5, 2003 records of hospitalization indicate the veteran's headache had resolved. The veteran was discharged on September 8th. Dr. B. in an October 2003 letter indicated the veteran was symptomatic for four days prior to his admission. The evidence of record does not include any other medical records which demonstrate the veteran had active meningitis after September 8, 2003. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. The Board has concluded that staged ratings are appropriate in this instance. The Board has concluded that a 100 percent rating is warranted for the period from August 20, 2003 to September 8, 2003, based on active febrile meningitis as provided by 38 C.F.R. § 4.124a, Diagnostic Code 8019 (2006). The Schedule for Rating Disabilities provides that a minimum rating of 10 percent is assigned for residuals of meningitis. The RO assigned a 10 percent rating. The April 2004 VA examination report notes the residuals of the veteran's meningitis are limited to chronic headaches. Higher ratings for headaches may be assigned by analogy under the diagnostic code for evaluating disability due to migraines. 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 the anatomical localization and symptomatology are closely analogous. Conjectural analogies are to be avoided, as are the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor are ratings assigned to organic diseases and injuries to be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2006). A 30 percent rating for migraines requires evidence of characteristic prostrating attacks on average of once per month over several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2006). The veteran told the VA examiner in April 2004 that his headaches became less frequent after his hospitalization. He experiences headaches intermittently, two to three times per week on average. He described them as occurring maybe two times a week. They were located to the frontal and top of the head region which he described as a pressure sensation with dull pain which he rated as 8/10. Sometimes they lasted less than two hours and went away with Advil, Panadol or with bed rest. The veteran was living with his parents and studying. He was independent in all activities including self care. A history of aseptic meningitis with residual chronic recurring muscle contraction headache was diagnosed. In April 2005 on his VA Form 9 the veteran indicated his headaches affected his studies. While the veteran has reported having headaches as often as two to three times per week he has not stated they are prostrating attacks. He told the VA examiner he was able to treat them with medication and only sometimes with sleep. He did not report that his headaches were prostrating. He described them as lasting maybe two hours and they were diagnosed as muscle tension headaches. In the absence of evidence of characteristic prostrating attacks occurring at least once a month for several months, a higher rating to 30 percent is not warranted. 38 C.F.R. § 4.124, Diagnostic Code 8100 (2006). ORDER A initial 100 percent rating, for active meningitis, for the period from August 20, 2003 to September 8, 2003, is granted subject to regulations governing the award of monetary benefits. An initial rating, in excess of 10 percent, for the period commencing on September 9, 2003 is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs