Citation Nr: 0740845 Decision Date: 12/28/07 Archive Date: 01/03/08 DOCKET NO. 04-07 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE 1. Entitlement to an evaluation greater than 10 percent, for the period March 6, 2002, to June 15, 2006, for chronic headaches. 2. Entitlement to an increased evaluation for chronic headaches, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. M. Macierowski, Associate Counsel INTRODUCTION The veteran served on active duty from September 1988 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). In an August 2006 letter, the veteran reported that he continued to experience systemic joint aches and pains throughout his entire body, causing weakness and limitation of movement. The Board notes that the veteran served more than 18 months in the Persian Gulf, and has previously filed a claim for this condition. To that end, the issue of entitlement to service connection for undiagnosed illness, to include systemic muscle and joint aches as well as other symptomatology, is referred to the RO for the appropriate development. FINDINGS OF FACT 1. For the period March 6, 2002, to June 15, 2006, the veteran's chronic headaches were manifested by frequent attacks, with periods where they would occur daily, sometimes with photophobia, but not so severe as to be considered prostrating. 2. The veteran's chronic headaches are currently manifested by headaches indicative of characteristic prostrating attacks; however, severe economic inadaptability has not been shown. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 10 percent for chronic headaches, for the period March 6, 2002, to June 15, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8199- 8100 (2007). 2. The criteria for a rating in excess of 30 percent for chronic headaches, for the period beginning June 16, 2006, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8199-8100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the veteran's claims for entitlement to increased initial and current evaluations, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication of the veteran's claim, a letter dated in August 2002 satisfied the duty to notify provisions; an additional letter was sent in October 2006. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Information concerning the establishment of a disability rating and of an effective date was included with the July 2006 statement of the case. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Overton v. Nicholson, 20 Vet. App. 427 (2006). The veteran's service medical records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The veteran was also accorded a VA examination in June 2006. 38 C.F.R. § 3.159(c) (4). There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 473. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Service connection for chronic headaches disorder was granted by a December 2002 rating decision, and a 10 percent evaluation assigned under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100-8199, effective March 6, 2002. By a June 2006 rating decision, the evaluation was increased to 30 percent, effective June 16, 2006. Unlisted disabilities requiring rating by analogy will be coded first the numbers of the most closely related body part, and "99," and if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. See 38 C.F.R. §§ 4.20, 4.27. In this case, the RO assigned Diagnostic Code 8100-8199, and evaluated the veteran's disability pursuant to the criteria for migraine headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100. To that end, a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months; a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months; and the maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, the Board notes that in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), "prostration" is defined as "extreme exhaustion or powerlessness." Initial Evaluation for Chronic Headaches, March 6, 2002, to June 15, 2006 As early as a February 1995 private treatment record, the veteran was diagnosed with an acute frontal migraine headache. The March 1995 VA examiner diagnosed him with chronic intermittent headaches, likely secondary to tension and aggravated by visual strain. Later, VA outpatient treatment records dated in June 2001, November 2001, and January 2002, the veteran reported chronic, daily headaches, each lasting a few hours. During the January 2002 visit, the veteran was prescribed Verapamil for prophylactic purposes. This reported symptomatology continued through March 2003; although the severity of the veteran's headaches varied, it was noted that they were less severe and less frequent when he was compliant with his Verapamil regimen, and that at the most severe, the veteran could take ibuprofen in addition to his daily Verapamil dosage. VA outpatient treatment records dated from September 2003 through April 2006 note continued diagnoses of chronic headaches and instructions to continue with Verapamil; the September 2003 outpatient treatment record reflected that the veteran's headaches had improved. After careful review of the claims file, the Board finds that the evidence fails to support an evaluation greater than 10 percent for the period March 6, 2002, to June 15, 2006. The evidence clearly indicates that the veteran's headaches are chronic, and that at least for parts of the appeal period in question, occurred on a daily basis. However, the evidence does not tend to show that the veteran's headaches were of the severity required to satisfy the criteria in 38 C.F.R. § 4.124a. There is no evidence that the veteran's headaches were prostrating, as defined above; the evidence of record for this period reflected that for the time he was employed, he was able to work 30 hours a week as a cook in a chain restaurant. During the period that he was unemployed, as noted in November 2003 and December 2003 VA outpatient treatment records, the evidence does not suggest that the veteran's employment ended due to his headaches but rather psychiatric symptomatology and disagreements with supervisors. Accordingly, an evaluation in excess of 10 percent disabling for service-connected chronic headaches is not warranted. Because the evidence of record does not reflect that the veteran's headaches consist of characteristic prostrating attacks occurring on an average once a month over the last several months, the preponderance of the evidence is against the veteran's claim for an evaluation greater than 10 percent for the period March 6, 2002, to June 15, 2006. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Evaluation for Chronic Headaches, Beginning June 16, 2006 The sole medical evidence for consideration of the appeal period beginning June 16, 2006, is the June 2006 VA examination report. At that time, the veteran reported constant headaches consisting of sharp, throbbing right-sided pain, and associated with nausea, vision disturbance, photophobia, phonophobia, and occasional vomiting and disequilibrium. The evidence of record reports that the veteran works approximately 30 hours per week. He noted that he had lost at least one working day per month due to his headaches. Additionally, the veteran reported that because he is not afforded many breaks at his job as a cook in a chain restaurant, he often has to have someone cover for him when he starts to have a headache so he can walk away and lean up against the wall to help relieve his symptoms. He also reports that his headaches cause interference with him being able to concentrate, stand, and walk. Significantly, the veteran stated that when he has a headache while at home, he lies down in quiet dark room for at least an hour to abate the severity of the headache; most of his time is spent this way when he is not at work, which impedes on the time he is able to spend with his young sons. Based on this record, the Board concludes that a rating in excess of 30 percent is not for assignment beginning June 16, 2006. Although the veteran has reported constant headaches, at times prostrating, they have not been shown to be productive of severe economic adaptability. The veteran works 30 hours a week, and although he has to take breaks and has missed work due to his service-connected headache disorder, the evidence of record does not show severe economic adaptability. Because the evidence of record does not reflect that the veteran's headaches produce severe economic adaptability, the preponderance of the evidence is against the veteran's claim for an evaluation greater than 30 percent beginning June 16, 2006. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation greater than 10 percent for chronic headaches, for the period March 6, 2002, to June 15, 2006, is denied. An evaluation greater than 30 percent for chronic headaches, beginning June 16, 2006, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs