Citation Nr: 1039724 Decision Date: 10/25/10 Archive Date: 11/01/10 DOCKET NO. 06-37 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased evaluation in excess of 30 percent for tension headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1987 to March 1991. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). FINDING OF FACT The Veteran's tension headaches are manifested by migraine headaches occurring two to three times weekly, accompanied by severe pain, nausea, vomiting, dizziness, photophobia, phonophobia, and blurred vision. CONCLUSION OF LAW The criteria for an evaluation of 50 percent, but no more, for tension headaches are met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.124a, Diagnostic Code 8100 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2009). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Service connection for the Veteran's tension headaches was granted by an October 1995 rating decision and a noncompensable evaluation was assigned under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100, effective from January 17, 1995. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. An April 1999 rating decision increased the evaluation to 30 percent effective January 17, 1995. The Veteran filed her present claim for an increased evaluation for her service-connected tension headaches in June 2004. In a June 2005 rating decision, the RO continued the 30 percent evaluation for her service-connected tension headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran filed a timely notice of disagreement in May 2006 and perfected her appeal in June 2006. The Veteran's service-connected tension headaches are evaluated under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, 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. Id. The rating criteria do not define "prostrating" nor has the Court of Appeals for Veterans Claims. Cf. Fenderson v. West, 12 Vet. App. 119, 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), "prostration" is defined as "extreme exhaustion or powerlessness." In a September 2003 VA neurology report, the Veteran gave a history of chronic headaches for 16 years. The Veteran stated that the headaches were usually on the left side behind the eye and on the side of the head. She reported nausea, vomiting, photophobia, phonophobia, and right hand tingling with some headaches. She stated that the headaches were better with sleep and Imitrex and worse around her menstrual period. Caffeine, nuts, chocolate, and alcohol consumption brought on headaches, but without aura. The Veteran was taking migraine prevention medication, called Topamax. She reported that she was working approximately 40 hours a week and she was having chronic daily headaches. The assessment was chronic migraines without aura. In a January 2004 VA neurology report, the Veteran reported that her headaches were particularly bad as she lost her medicine when she moved to a new address. A March 2004 magnetic resonance imaging of the Veteran's brain was normal. A large polyp was found in the right maxillary sinus. An April 2004 VA outpatient treatment reported that the Veteran was seen for evaluation with a history of migraines. The Veteran reported having daily headaches, usually on the right side, and stated that the headaches had worsened since 2000. She also reported that none of the medications worked. The Veteran stated, during the headache attacks, she would have to go to the bed, turn off the lights and sound, apply cool compression, rub her temples, and "pulling top of head." In a May 2004 VA neurology report, the Veteran related that her headaches were getting worse and that she wished to try Percocet as her coworkers told her that it made their headaches better. The Veteran reported severe headaches occurring 4 times weekly. The VA neurologist noted that the Veteran tried most prophylactic medication for headaches and would try Inderal. It was suggested that if this was not effective, then the Veteran should be seen in pain control. An August 2004 VA treatment report noted an assessment of migraines and the Veteran's report of chronic daily headaches. The VA physician stated that the headaches were likely due to some analgesics or triggered by stress, and that allergies might contribute. A September 2004 VA neurology report noted that the Veteran was unable to tolerate Inderal due to weight gain and cough and she had gone back on Topamax. In an April 2005 VA neurology report, the Veteran reported that she was able to work with the current level of pain. An April 2005 VA treatment report noted that chronic pain clinic cancelled a consultation and stated that they deferred chronic headache management to neurology, with the exception of greater occipital neuralgia, which were treated with steroid injection. In May 2005, the Veteran underwent a VA neurological examination. The Veteran related that her headaches started in the late 1980s. She reported headaches occurring about four times per month and lasting two days at times. She reported severe pain with the headaches, nausea, vomiting, sensitivity to light, sound, motion, and smells. Sometimes she could hardly walk. The Veteran stated that she tried many different medicines over time and was currently taking Serzone and Topamax. She would also take Imitrex and Percocet when a headache started. She stated that she had to leave work early due to headaches at least once a week and sometimes it would be so bad that she would have to get someone to take her home. On physical examination, the cerebellum showed good rapid alternating movements and good finger to nose testing. The Veteran's cranial nerves II - IV were intact. The diagnosis was migraine headaches. It was noted that the Veteran missed at least part of one day every week due to the headaches. In January 2007, the Veteran was afforded another VA neurological examination. After a review of the claims file, the VA examiner noted a history of a diagnosis of "migraine-type headaches," which were both common and classical in nature, and could be incapacitating for the Veteran. The Veteran stated that she had headaches since 1987. She reported the headaches occurred about four times a week and lasted anywhere from one to one-and-a-half days. It was noted that the headaches were located in the top of her head and were described as sharp, dull, throbbing, or steady, and sometimes aggravated by light. The Veteran reported taking prophylactic medications to prevent headaches, but when she had a headache, she would take Fioricet. If that did not work, she would Imitrex, and if that did not work, she would have to go to the emergency room for a shot. She reported getting three shots a month. The Veteran stated that she had been followed at the VA Medical Center for some time, but her neurologist stated that he could not help her at all. It was noted that her past computerized tomography scans were negative. She related that the headaches were worse in that they were more severe. She reported an aura of pain in her eyes and also her ears tingled. She stated that the headaches were associated with nausea and vomiting. On neurological examination, the Veteran was right-handed, and her station and gait were within normal limits. The Veteran's cranial nerves II - XII and IX - XII were grossly intact. Her vision was grossly within normal limits; all extraocular movements were intact; facial muscle strength testing was intact; facial sensory testing was intact to light touch; and voice, gag, and swallow were within normal limits. Trapezzi and sternocleidomastoid strength was within normal limits; tongue was midline without deviation; and no asymmetry, involuntary movements, weakness, or atrophy was shown in the motor system. Muscle tone was within normal limits; deep tendon reflexes were symmetrical and normoactive; pain and sensory tract was intact; and coordination tract was intact with finger to nose testing. The diagnosis was combined tension-migraine headaches. An April 2008 VA treatment report noted that the Veteran complained of recurrent migraine and needed refill of her migraine medication. It was noted that the Veteran used Imitrex injection and Imitrex tablets previously and recently her migraine was better controlled with Topamax. Migraine medication included Imitrex injection for intractable episodes, Zomig tablets for acute episodes, and Topamax for prevention. Most recently, the Veteran was afforded a VA examination in July 2008. She reported headaches occurring two or three times a week and lasting up to three days if she did not take her medicine quickly enough. The headaches started in the frontal area and went all over, and were described as sharp, steady and throbbing, aggravated by lack of sleep. The Veteran took Imitrex by mouth, but if that did not work, she would give herself an injection. She related that her headaches were worse in that they were more frequent. She also related that she would have an aura of nausea, and the headaches were associated with nausea and vomiting. As for employment, she reported working in public service for 13 years, full time. She missed about two days a week because of her headaches as she could not drive when she had a headache. On neurological examination, the Veteran was right-handed, and her station and gait were within normal limits. The Veteran's cranial nerves II - XII and IX - XII were grossly intact. Her vision was grossly within normal limits; all extraocular movements were intact; facial muscle strength testing was intact; facial sensory testing was intact to light touch; and voice, gag, and swallow were within normal limits. Trapezzi and sternocleidomastoid strength was within normal limits; tongue was midline without deviation; and no asymmetry, involuntary movements, weakness, or atrophy was shown in the motor system. Muscle tone was within normal limits; deep tendon reflexes were symmetrical and normoactive; pain and sensory tract was intact; and coordination tract was intact with finger to nose testing. The diagnosis was migraine headaches. In November 2009, the Veteran submitted additional evidence in the form of weekly headache logs, dated from June to November 2009, and information indicating hours of leave taken at work during the period of July to November 2009, along with a waiver of RO jurisdiction. At her November 2009 hearing before the Board, the Veteran testified that she had 2 to 3 headaches a week and missed work at least one day a week. She stated that she took two migraine suppressant medications daily. When a headache came on, she would also take migraine mediations and move on to Imitrex tablets and then to Imitrex injections. She stated that when the headaches occurred, she could not work and her son would call her in sick as she would get dizzy and nauseous. She would have to go to a dark room with no motion, light, or sound. The Veteran also stated that her headaches kept her from sleeping and as a result she was chronically exhausted. She testified that she missed approximately 30 days of work in the previous year because of her headaches. She also testified that she received a counseling statement as she failed to meet her performance standards and that she could not get performance award or promotion for the same reason. After reviewing the totality of the evidence, the Board finds that the Veteran's testimony as to the frequency of her headaches is credible, and demonstrates that they are very frequent, completely prostrating, and produce severe economic inadaptability. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). The Veteran has reported that her migraine headaches occur two to three times a week, lasting up to three days, and are prostrating in nature, rendering her unable to perform work duties or care for herself. The headaches were accompanied by various symptoms, such as severe pain, nausea, vomiting, dizziness, blurry vision, photophobia, and phonophobia, which are representative of severe headaches which would reasonably be expected to be described as prostrating. The Veteran testified that these headaches incapacitate her to the point that she cannot work or function, and her son would have to call her in sick at work. She would have to lie in a dark room with no light, sound, or motion, and the headaches kept her from sleeping. The evidence shows that the Veteran experiences significant pain and difficulties due to the headache episodes and the headaches occur more frequently than once a month. The Board views such a situation as effectively constituting frequent completely prostrating attacks. In addition, although the Veteran has been able to maintain employment, she contends her work has been adversely affected and she missed work frequently because of her headaches. At the November 2009 Board hearing, the Veteran testified that she had missed 30 days over the past year due to headaches and that she currently misses at least one day a week. To that effect, she presented records indicating hours of leave taken at work during the previous 5 month period. Thus, while the Veteran's headaches may not result in severe economic inadaptability, this fact, in addition to the frequency, intensity, and duration of the Veteran's headaches more closely approximates the criteria for a 50 percent disability rating. See 38 C.F.R. § 4.7. A 50 percent disability rating is the maximum evaluation available for migraine headaches under Diagnostic Code 8100. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2009). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2009). The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular scheduler standards. Id. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria under the Schedule reasonably describe a veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Schedule, and the assigned schedular evaluation is adequate, and no referral is required. In this case, the Veteran's disability picture is not so unusual or exceptional in nature as to render the current rating inadequate. The Veteran's headache disorder is evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, the criteria for which are found to specifically contemplate the level of disability and symptomatology. The Veteran's service- connected headaches are manifested by migraine headaches occurring two to three times weekly, accompanied by severe pain, nausea, vomiting, dizziness, photophobia, phonophobia, and blurred vision. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the disability rating assigned herein for her service-connected headache disorder. The maximum evaluation assigned specifically indicated that migraine headaches must be "productive of severe economic inadaptability." Thus, interference with employment is contemplated by the schedular criteria, and the remaining evidence of record does not show such an "exceptional and unusual disability picture" that goes beyond the limits of same. The criteria for the current disability rating more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate and no referral is required. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected tension headaches, the evidence shows no distinct periods of time during the pendency of this appeal, during which the Veteran's service-connected headache disorder varied to such an extent that a rating greater than or less than 50 percent would be warranted. Thus, staged ratings are not in order. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim for an increased evaluation in excess of 50 percent for service-connected tension headaches, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation of 50 percent, but no greater, for tension headaches is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs