Citation Nr: 1042107 Decision Date: 11/09/10 Archive Date: 11/18/10 DOCKET NO. 07-00 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for low back disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to a higher initial evaluation for migraine headaches, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to March 1994. This appeal arises from June 2005 and May 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran in his November 2005 notice of disagreement limited the issues on appeal from the June 2005 rating decision to service connection for a low back disorder and a psychiatric disorder. In a November 2006 rating decision the RO granted a higher initial rating to 10 percent for migraines, effective November 25, 2005. The issues of service connection for a low back disorder and a psychiatric disorder are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected migraine headaches occur on average twice per month and cause symptoms such as nausea, vomiting, photophobia, and sound sensitivity of such severity as to be prostrating. CONCLUSION OF LAW The criteria for an initial 30 percent rating for migraine headaches have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION 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) (2010). This appeal arose from a May 2006 rating decision which granted service connection for migraines and assigned a noncompensable rating. In Dingess v. Nicholson, 19 Vet. App. 473 (2006) the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 491. The Board is aware the Veteran informed VA in March 2005 that he was receiving Social Security (SSA) Disability benefits, and that his medical records in support of his claim for SSA benefits have not been requested or obtained. Nevertheless, in this instance, the Veteran has identified his records of treatment for migraine and been examined by VA to determine the severity of his migraines. The Veteran has not identified any records of treatment for migraine which have not been obtained and placed in the claims folder. As migraines are rated based on frequency and severity of attacks and the Veteran has provided a history of the frequency of his migraines and described their course, there can be no benefit to the Veteran in delaying adjudicating his claim so that his SSA records may be obtained. Initial Rating Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Schedule for Rating Disabilities provides the following criteria for evaluating disability due to migraines: Migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated as 50 percent disabling. Migraine with characteristic prostrating attacks occurring on average once a month over the last several months are rated as 30 percent disabling. Migraine with characteristic prostrating attacks averaging one in 2 months over the last several months are rated as 10 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2010). VA has the duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App 589 (1991). These regulations include 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition. The provisions of 38 C.F.R. § 4.2 require that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. June 1989 service treatment records reveal the Veteran complained of nausea and severe headache. He reported having a headache for ten hours. It was bifrontal which he described as squeezing in nature. It worsened when standing up or moving around. He was nauseous and had vomited three times. He was given various medications. August 1992 service treatment records reveal the Veteran had a migraine for seven hours. He had a history of migraine with light sensitivity. He was given Demerol and Vistaril. He was also given a prescription and advised to take Darvon. The Veteran was seen in the emergency room in October 1992. He complained of a headache which had begun at two o'clock and by four o'clock he had increased pain as if his head was being squeezed with his heartbeat. There was no visual disturbance. His last headache was one month ago. There was no photophobia, but he was intolerant to noise. He was given Stadol and Phenergan, and Midrin was prescribed. He was sent for a neurology consult in October 1992. A history of intermittent bifrontal headaches which began and progressed to severe headaches approximately four times per month was recorded. There was no aura, but occasional nausea with severe headache. Atypical migraine was diagnosed. December 1992 service treatment records indicate the Veteran had taken two Midrin the previous day and then two at three AM, but had not taken his cyproheptadine and currently had headache. He appeared to be in discomfort. Migraine was the assessment. Toradel was prescribed. He was told to return in the morning if the symptoms persisted or sooner if they increased. Three weeks later in December 1992 he had an episode of headache for three days that had not resolved. His current medication was Cafergot. He had previously been taking Midrin with some success. He was extremely photophobic and nauseated and appeared to be in pain. He was given Toradal, DHE, Demerol and Phenergan. He instructed to take Midrin, Cafergot, Sausert and Inderal, after his headache resolved. In July 1993 he was again seen in the emergency room with a headache that had started that morning. Midrin usually stopped the pain. He had nausea and his eyes were sensitive to light. He was given Imitrex with extremely rapid improvement in his symptoms. Within two minutes of taking Imitrex all his symptoms resolved. Midrin and Inderal were prescribed. August 1993 service treatment records reveal he was again seen in the emergency room with a headache since two PM the previous day. He was nauseous and had photophobia. He was given Imitrex and a prescription of Vicodin and Periactin. The Veteran was seen by his private physician in November 1997 complaining of a headache of 8 hours duration. Headaches and a Tylenol overdose was the assessment. July 2005 VA outpatient treatment records reveal the Veteran had recurring headaches for which he had been given Fiorinal. His headaches were occipital to frontal and caused a pounding sensation. Walking made them worse. He had nausea, vomiting, photophobia and phonophobia. In September 2005, the Veteran's spouse described his headaches. She related that he had three different types of headaches. The first one lingered for days. He was able to function fairly normally. The second kind caused sensitivity to light and sound. Then he had sensitivity to light sound along with throwing up and dry heaving. When he got that type of headache he suffered for several days, and during the second and third type he did not function well. A VA neurology examination of the Veteran was conducted in May 2006. He was currently taking Butalbital for his symptoms. His related that his headaches had become worse since he got out of the military. He had them twice a month, they lasted two days, were sharp and throbbing, but there was no aura. He had nausea and vomiting with his headaches, intense photophobia and phonophobia and had to go and lie down in a quiet dark room and not be disturbed. If he woke up with a headache in the morning nothing relieved it. Generally he took various medications to relieve the headaches, but he was totally debilitated during attacks. Migraine headaches was diagnosed. January 2006 VA records include history of chronic headaches. The criteria for rating disability due to headaches is based in part on the frequency of prostrating attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2010). In May 2006, the Veteran reported having migraines twice per month which lasted for two days. The intense photophobia and phonophobia resulted in his having to lie down in a dark room. The frequency of his migraines, two per month, and the necessity of lying down in the dark room is consistent with prostrating attacks twice per month. A higher rating to 30 percent requires characteristic prostrating attacks occurring on average once a month over the last several months. His reports as to the frequency of his migraines which necessitate lying down in a dark room are consistent with the criteria for a 30 percent rating for migraine. The Board has considered whether the Veteran's migraines meet the criteria for a higher initial rating of 50 percent. A 50 percent rating requires "very frequent", "completely prostrating", and "prolonged attacks" which cause severe economic inadaptability. The Diagnostic Code does not specify the number of attacks which would be considered "very frequent", but the criteria for 30 percent requires an average of one per month, an additional attack would more nearly approximate that number, rather than be considered very frequent. The Veteran's spouse has described the Veteran as having three types of headaches, not all of which are prostrating. In addition, the Veteran indicated he is able to function and treat his headaches in some circumstances. This is inferred by his statement that if he wakes up with a headache nothing relieves it, which implies he is able to relieve other headaches. The Veteran has informed VA he was awarded SSA disability benefits. A review of his medical records reveals notes to his employer stating he is unable to work due to his back disorder. The record does not include any statements from the Veteran or documentation indicating his migraines cause severe economic inadaptability. The Board has concluded the evidence does not demonstrate the Veteran has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 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 found no variation in the severity of the Veteran's migraines during the rating period that would indicate that staged ratings should be assigned. The evidence supports the assignment of a 30 percent initial rating for migraine headaches. ORDER A 30 percent initial rating for migraine headaches is granted, subject to regulations governing the award of monetary benefits. REMAND After reviewing the claims folder the Board has concluded that additional development of the Veteran's claims for service connection for a low back disorder and an acquired psychiatric disorder is required. Service treatment records reflect multiple low back complaints. Post service private medical records include diagnosis of a herniated nucleus pulposus, and the Veteran is currently status post laminectomy. Service medical records also include psychiatric treatment and post service private records include diagnosis of anxiety and depression. The regulations provide that VA will obtain a medical opinion when the evidence of record does not contain sufficient medical evidence to decide the claim if there is competent medical evidence of a current diagnosed disability, the evidence establishes the veteran suffered an event, disease of symptoms of a disease in service and there are indications the claimed disability may be associated with the event or injury in service. 38 C.F.R. § 3.159(c)(4) (2010). The claims are remanded to afford the Veteran VA psychiatric and orthopedic evaluations to obtain medical opinions as to the etiology of any current psychiatric or low back disorders. It also appears the Veteran was awarded SSA benefits based on a low back disability. SSA records in this regard should be sought. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify all health care providers who have treated him since July 2006 for his low back disorder or a psychiatric disorder. With any necessary authorization from the Veteran, attempt to obtain copies of pertinent treatment records identified by the Veteran. 2. Obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. The Veteran should be afforded a VA orthopedic examination. The claims folder should be made available to the examiner for review before the examination. The examiner is to diagnose any current disorder of the low back. For each disorder diagnosed the examiner is asked to answer the following question: Is it at least as likely as not (50 percent probability) that the current low back disorder/s either began in service or is related to some incident in service? The examiner should include an explanation for whatever opinion is expressed with reference to any clinical findings which support his conclusion. 4. The veteran should be afforded a VA psychiatric examination. The claims folder should be made available to the examiner for review before the examination. For each psychiatric disorder diagnosed the examined is asked to answer the following question: Is it at least as likely as not (50 percent probability) that the current psychiatric disorder began in service? The examiner should include an explanation for whatever opinion is expressed with reference to any clinical findings which support his conclusion. 5. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with an appropriate supplemental statement of the case and be given opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs