Citation Nr: 1046794 Decision Date: 12/14/10 Archive Date: 12/20/10 DOCKET NO. 07-25 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for migraines, from September 22, 2006, to February 27, 2009. 2. Entitlement to a disability rating in excess of 50 percent for migraines, from February 27, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The Veteran had active duty service from October 2003 until April 2005; he also had active duty for training with the Army National Guard, from March 1998 until November 1998. This matter originally came before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. This case was previously before the Board in December 2009, when it was remanded for additional development, including for a new VA examination and to attempt to obtain additional medical records, which has since been accomplished. FINDINGS OF FACT 1. The Veteran's migraines were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, from September 26, 2006, to February 27, 2009. 2. From February 27, 2009, the Veteran's migraines have been assigned a 50 percent rating, the maximum rating available under Diagnostic Code 8100, and there are no exceptional circumstances. CONCLUSIONS OF LAW 1. For the period September 26, 2006, to February 27, 2009, the criteria for an evaluation of 50 percent, and no higher, for migraines have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2010). 2. The criteria for an evaluation in excess of 50 percent for migraines, from February 27, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal arises from disagreement with the initial evaluation following the grant of service connection for a migraines disability. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated with the claims folder the service treatment records and reports of his post-service treatment. Although the December 2009 BVA decision remanded the Veteran's claim to obtain a Family and Medical Leave Act (FMLA) letter from one of his VA examiners, a March 2010 memorandum formally found that information unavailable. The Veteran also determined that he did not have a copy of the FMLA letter and requested that his claim proceed without that information. As such, all reasonable efforts have been expended to obtain that information. He was also afforded a formal VA examination, most recently in February 2010. Applicable Law Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, at the time of an initial rating, as is the situation in this case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Under Diagnostic Code 8100, migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation, which is the maximum schedular rating available. Migraine headache disorders with characteristic prostrating attacks occurring on an average once a month warrant a 30 percent disability evaluation. A 10 percent evaluation requires characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable evaluation is assigned for migraine headaches with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100). The rating criteria do not define "prostrating." Merits of the Claim The Veteran contends that his service-connected migraines are more severe than indicated by the 30 percent rating previously granted him, for the period September 26, 2006, to February 27, 2009. He also essentially contends that his service-connected migraines are more severe than the 50 percent disability rating granted him, from February 27, 2009. The Veteran received a VA examination in December 2006, which included a review of the claims file. The Veteran reported that his headaches had begun 2 years previously, but that he did not get an aura. He claimed that his headaches were in the frontal areas, with some nausea and that he had a tendency to lie down, but did not have photophobia or phonophobia. He further reported that his headaches would occur about 2 times a week and last about half a day. The examiner found the Veteran to have headaches to most likely fit into the migraine category. VA outpatient treatment records generally indicate that the Veteran receives continuing treatment for his headaches. For example, a July 2006 VA medical record noted that the Veteran reported headaches 2 to 3 times a week, with relief with over the counter Excedrin. A March 2007 VA neurology consult noted that the Veteran reported that his headaches started in Iraq, that they were previously infrequent, but that they were occurring more often, 3 times a week. He reported that the headaches would sometimes wake him from sleep, were non-radiating, and were aggravated by stress; they were not associated with nausea, vomiting or photophobia. The examiner diagnosed him with migraine headaches. A June 2007 VA neurology note indicated that the Veteran's headache frequency had decreased to 2 times per week and that he sometimes had no headaches in a week due to medication. A July 2007 VA outpatient treatment record noted that the Veteran had a 5 year history of headaches, 3 times per month; an addendum also noted that the examiner had completed a FMLA form and faxed it to the Veteran's employer, but did not indicate which disability the form concerned. An October 2007 VA outpatient treatment record noted that the Veteran reported headaches 3 times a week, of a throbbing quality. He reported that they sometimes woke him up from sleep and were non-radiating. The Veteran further reported that they were aggravated by stress, but not associated with nausea or vomiting or photophobia. The examiner noted that the Veteran had reported that the neurontin had helped for a time, but that his headaches had returned 3 times a week and that he has had to take off from work to go home because of the headaches. A December 2007 VA neurology note noted that the Veteran wanted to try a stronger medication than neurontin. A May 2008 VA outpatient treatment record noted that the Veteran only had 3 headaches a month; however, a January 2009 VA outpatient treatment record noted that he had headaches 3 or 4 times a week, which were worse when congested. The examiner noted that the Veteran had to go to bed to get over the headaches and that this was a problem as he did not have any sick leave yet with his new job. A February 12, 2009 VA outpatient treatment record noted that the Veteran had previously been prescribed a new medication, Topamax, and that he was having fewer headaches. Subsequent VA outpatient treatment records generally indicated fewer headaches following his receipt of Topamax. A March 27, 2009 VA outpatient treatment record noted that the Veteran reported not having any headaches since his last visit 2 weeks previously. A January 2010 VA outpatient treatment record noted that the examiner found Topamax to be helping to prevent migraine and that the Veteran has had some headaches, but that the new medication worked better. The Veteran received another VA examination in February 2010. The examiner noted that the Veteran reported headaches 3 to 4 times per week, and that he had a tendency to lie down if possible. The Veteran also reported taking medication, which he believed provided some help. The Veteran reported that he takes a couple of hours break, about 3 times per week, due to headaches. He also reported that he had been missing work about 2 times per week, but that he now had a flexible schedule and worked from home 3 times per week, so that he probably only missed work about 2 to 3 times per month. The examiner found the Veteran to have headaches consistent with migraine headaches. The Veteran has also submitted multiple reports of FMLA absences with AT&T. These records, however, did not indicate what disorders qualified him for FMLA. In a July 2008 statement, the Veteran reported that his migraines have caused him to leave work early and to take long breaks. He further reported that his VA physician, Dr. T.L.T., had signed off on FMLA for his migraines. Although a July 2007 VA medical record addendum noted that the examiner had completed a FMLA form and faxed it to the Veteran's employer, it did not indicate which disability the form concerned. The Veteran also provided lay statements from his coworkers and friends indicating that he had headaches. One July 2008 letter, from his coworker T.J., reported that the Veteran would take extra breaks at work and miss days from work due to frequent headaches. Under Diagnostic Code 8100, migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation, which is the maximum schedular rating available. The evidence of record prior to February 27, 2009 indicates that the Veteran has consistently reported having headaches or migraines at least once a week. Although the medical evidence is unclear as to whether these migraines were completely prostrating in nature, the record repeatedly indicates that the Veteran has reported having headaches that occur on average more than the once a month characteristic of a 30 percent rating. The Veteran has also repeatedly reported since his December 2006 VA examination that he would tend to lie down when he got the headaches and that they would last several hours to about half a day. The Veteran is able to report symptoms, but not make causation determinations. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 470 (1994); Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Additionally, he has stated that his headaches interfered with his work, and although the FMLA letters from his former employer are not clear as to whether his headaches were the cause of his FMLA leave, the lay evidence provided by his co-workers tend to indicate that the Veteran was having problems due to his headaches. Taken all together and giving the Veteran the benefit of the doubt, the Board finds the evidence of record to indicate that the Veteran's headaches occurred more than once a month and were of a prostrating nature that interfered with his employment. The medical evidence is consistent with the Veteran's statements, lay evidence of record, and employment records. As such, the Board finds that a 50 percent disability rating, prior to February 27, 2009, for the service-connected migraines is granted. In regards to the Veteran's claim for a rating in excess of 50 percent, both before February 27, 2009 and after that time, the Board notes that under Diagnostic Code 8100 a 50 percent rating is the maximum schedular rating possible and that no other diagnostic codes are applicable for rating his migraines. As there is no legal basis upon which to award a higher evaluation for migraines, that aspect of his appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board also finds that the disability does not warrant referral for extra-schedular consideration. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The rating criteria are inadequate, in that higher ratings are not available for the service-connected disability. However, the Board finds no exceptional or unusual factors are in evidence, such as marked interference with employment, which was already contemplated by Diagnostic Code 8100, or frequent periods of hospitalization, which would warrant an extraschedular evaluation. Finally, he Board considered the application of Rice v. Shinseki, 22 Vet. App. 447 (2009), which held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the migraines disability renders the Veteran totally unemployable. Rather, the VA medical records indicate that the Veteran has been employed throughout the course of the appeal. Furthermore, during the February 2010 VA examination, the Veteran indicated that he was currently employed, and was able to work due to his flexible schedule. As the issue was not raised by the record or the Veteran, a remand for adjudication of entitlement to TDIU as part of the increased rating claim is not necessary. [Continued on Next Page] ORDER Subject to the provisions governing the award of monetary benefits, an initial 50 percent evaluation, and no higher, for migraines, from September 22, 2006 to February 27, 2009, is granted. An evaluation in excess of 50 percent for migraines, from February 27, 2009, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs