Citation Nr: 1108907 Decision Date: 03/07/11 Archive Date: 03/17/11 DOCKET NO. 09-33 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable rating for chronic tension headaches. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served in the Tennessee Army National Guard from December 1986 to June 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for chronic tension headaches and assigned a noncompensable disability rating, effective March 28, 2005, the date of the Veteran's claim. FINDING OF FACT The Veteran suffers from frequent chronic tension headache attacks that tend to be completely prostrating, prolonged, and productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial 50 percent disability rating for the Veteran's chronic tension headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Part 4, Diagnostic Code 8100 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (West 2002 & Supp. 2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b) (2010). This notice must be provided prior to an initial unfavorable decision on the claim by the Agency of Original Jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, that will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, 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 490-91. Thus, because the notice that was provided in April 2005 before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Regarding the duty to assist, the RO has obtained the Veteran's service treatment records, as well as his VA and private treatment records. The Veteran has not indicated that there are any outstanding treatment records he wished VA to obtain. Additionally, the Veteran was afforded a VA neurological examination in July 2008. The duty to assist has, therefore, been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Rating In March 2005, the claim for service connection for cervicogenic headaches was received. The RO initially denied service connection for cervicogenic headaches in a rating decision dated in September 2005. Following completion of the Board's May 2008 remand directives, the RO readjudicated the Veteran's claim in December 2008, granting the Veteran's service connection claim, characterized as chronic tension headaches, assigning a noncompensable evaluation, effective May 28, 2005, the date of the Veteran's claim. The Veteran disagrees with this rating assignment and contends that a higher rating is warranted. A. Governing Law and Regulations Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2010). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2010). Otherwise, the lower rating will be assigned. Id. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. §§ 4.2 (2010); Peyton v. Derwinski, 1 Vet. App. 282 (1991). In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, in which the veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App 505 (2007). In this case, there has not been a material change in the disability level and a uniform rating is warranted. The Veteran bears the burden of presenting and supporting his claim for benefits. See 38 U.S.C.A. § 5107(a) (West 2002). In its evaluation, the Board considers all information and lay and medical evidence of record. See 38 U.S.C.A. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. See id. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board notes that the Schedule for Rating Disabilities does not include a disability specifically for tension headaches. In this case, Diagnostic Code 8100 (migraines) is deemed by the Board to be the most appropriate, primarily because, while it does not specifically address tension headaches, it has been rated by analogy. The Veteran has not argued that the currently assigned diagnostic code is inappropriate. Accordingly, the Veteran's disability will continue to be rated under Diagnostic Code 8100. Diagnostic Code 8100 assigns a 10 percent rating for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. Finally a 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a (2010), DC 8100. The rating criteria do not define "prostrating." The Board additionally observes that the Court has not undertaken to define "prostrating." Cf. Fenderson, supra., in which the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what is a prostrating attack. According to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." The rating criteria also do not define "severe economic inadaptability." However, the Court noted that nothing in Diagnostic Code 8100 required the claimant to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). B. Analysis Initially, the Board notes that the Veteran has been awarded a noncompensable disability rating under 38 C.F.R. 4.124(a), Diagnostic Code 8100. The Veteran was afforded a VA neurological examination in July 2008. The examiner noted that his headaches have been pounding and that they are located in the occipital region, radiating to the top. She noted that they usually last the entire day and that he usually takes Tylenol for his headaches. She also noted that he complains of aching in his neck and back. The examiner further noted that his headaches had been occurring about once every other day, but that more recently they had somewhat improved to a frequency of once every week. Finally, the examiner noted that the Veteran denied having symptoms of nausea, vomiting, photophobia, phonophobia, or blurred vision associated with his headaches. The Veteran indicated to the examiner that his back pain usually exaggerated his headaches, and that during radiofrequency lesioning treatment performed in November 2004, his headaches stopped for about a period of two months, but later recurred. The examiner assessed that, per the Veteran's description, he has chronic tension headaches that began after his lower back injury. In his January 2009 Notice of Disagreement (NOD), the Veteran contends that the VA neurological examiner misunderstood or mischaracterized a number of his statements, perhaps as the result of her non-native English speaking ability. He contends that he told the examiner that he does get nausea and that he has vomited on several occasions in association with his headaches. He alleges that he recently had a severe headache that lasted three days and was associated with dizziness and vomiting. He also alleges that he reported to the examiner that he cannot stand light during his headaches and that he has to avoid even the computer and the television screen. He contends that his headaches are prostrating and that at the onset of his headaches, he has to retire to his bedroom and close his blackout curtains. In his VA Form 9, substantive appeal, the Veteran further explained that the VA examiner asked him if he had tried Tylenol for his headaches, to which he answered that he had tried Tylenol along with many other treatments, leading to her statement that he uses Tylenol to treat his headaches. He further explained that even the most helpful treatments that he has tried provide only a little relief. The Veteran's claims file is replete with VA and private medical records, statements from the Veteran and his girlfriend, and various other forms of evidence that describe his long history of headaches. In a December 2003 record of Medical Evaluation Board (MEB) proceedings, reviewing the Veteran's numerous medical issues, the MEB noted that the Veteran reported having a lot of headaches, and that at the time, his doctors thought that his headaches were in reaction to his pain medication. In a November 2004 statement in connection with his claim for an increased rating for his service connected back disability, the Veteran asserted that he was burdened with severe headaches all the time. In a January 2005 VA spine examination, the examiner noted that the Veteran began developing headaches approximately one month after his third surgery, and that he has pounding type headaches two to three days per week. It was noted on this occasion that the headaches start in the posterior neck and radiate across the top of his head. The headaches were noted as varying from a 1/2 to a 9/10 on the Analog Pain Scale, and as being aggravated by light and loud noises. At that point, the Veteran had experienced nausea and/or vomiting on two occasions. The examiner further noted that the headaches last up to 24 hours and that the Veteran's analgesics have little effect on his headaches. To seek relief, the examiner noted, the Veteran typically lies down in an attempt to sleep off the headache. In January 2005, both the Veteran and his girlfriend, S. D., provided statements in connection with his back claim. In his statement, the Veteran explained that he experiences headaches nearly every day, with some being worse than others. At the same time, S. D. explained that the Veteran's headaches became worse after his third surgery and that he has the headaches just about every day. She explained that with all of the pain that the Veteran suffers that he needs assistance when bathing and that she has to help him in and out of bed on bad days. The Veteran submitted two additional statements in April 2005 and September 2005 following the submission of his service connection claim for cervicogenic headaches. In the first statement, he explained that he has constant headaches that were only relieved temporarily by a facet block treatment. In the latter statement, he alleged that his headaches are getting worse and that he has them all the time now. The Veteran submitted an NOD in December 2005 and a substantive appeal in August 2006, following the September 2005 denial of his service connection claim for cervicogenic headaches. He additionally submitted statements in January 2006 and in August 2006. In each of these documents, the Veteran largely reiterates the above facts concerning the onset and severity of his chronic tensions headaches. Along with the VA medical records and numerous statements, the claims file contains numerous private medical reports from the Veteran's visits with Dr. Timothy Smythe, M.D., Dr. David Wiles, M.D., and Dr. W. Williams, M.D., each containing minor references to the Veteran's ongoing problem with headaches, and the various forms of pain treatment that he has endured for his back and headache pain. Taking into account all of the evidence of record, it appears that the July 2008 VA examiner did not accurately report the Veteran's statements regarding the onset and severity of his headaches. Accordingly, the Board finds that the Veteran's statements in his NODs and substantive appeal, as well as the statements that he made to the January 2005 VA examiner and the various statements made throughout the processing of his claim, are more reliable statements for the purposes of rating his disability. Accordingly, the Board finds that the Veteran suffers at least one to two prostrating and prolonged tension headaches per week, more closely approximating the criteria required for the 50 percent rating. The Board also notes that this is the maximum rating under this diagnostic code. In determining whether a higher rating is warranted for a service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports the Veteran's claim, and he is entitled to an initial 50 percent rating for his chronic tension headaches. III. Extraschedular Consideration The rating schedule represent as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's headaches (i.e., weekly headaches) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 50 percent rating assigned under DC 8100 contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, and the Board finds that these rating criteria reasonably describe the Veteran's disability. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to an initial 50 percent disability rating for chronic tension headaches is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs