Citation Nr: 1133419 Decision Date: 09/09/11 Archive Date: 09/15/11 DOCKET NO. 09-38 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for service-connected migraine headaches, rated as 30 percent disabling. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Brooks S. McDaniel, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to December 1964 and from January 9, 1966, to February 18, 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in January 2011. A transcript of the hearing is associated with the files. The Board has limited the psychiatric disorder claim as being one for posttraumatic stress disorder. The Board is aware of the holding of Clemons v. Shinseki, 23 Vet. App. 1 (2009). In that case, the United States Court of Appeals for Veterans Claims (Court) found that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim. Here, however, the Veteran has not been diagnosed with any psychiatric disorder. Thus, this is why the Board has limited its consideration of the psychiatric disorder to posttraumatic stress disorder only. FINDINGS OF FACT 1. Service-connected migraine headaches are manifested by characteristic prostrating headaches occurring on average once a month, but not by very frequent and prolonged attacks that were completely prostrating and productive of severe economic inadaptability. 2. The Veteran does not have a diagnosis of PTSD and the Veteran has testified that no health care professional has told him he has PTSD due to the documented incident in which he received a gunshot wound to the right thumb in 1963. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for migraine headaches are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2010). 2. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks increased compensation for the service-connected headache disability, as well as service connection for PTSD. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Court has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided complete notice with respect to his claims prior to the initial adjudication of the claims in June 2009 and August 2009 rating decisions. Notice as to the requirements for the increased rating claim were sent to him in August and September 2008. Complete notice with respect to the service connection claim was sent in September 2008. That notice also included specific information regarding the evidence necessary to support a claim with regard to PTSD based on personal assault. The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran has been obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Inasmuch as the Veteran's representative stated that police reports could be available to document the shooting incident which is the alleged stressor for the claim for PTSD, the Board notes that the incident is fully documented in the claims file and thus there is no need to verify the incident. The Veteran was afforded appropriate VA examination in September 2008 with regard to the claim for migraine headaches. The Veteran has not asserted, and the evidence of record does not show, that his disability has increased significantly in severity since that examination. The Veteran has also been afforded a hearing before the Board. The Veteran has not been afforded a VA examination in regard to the etiology of the claimed PTSD, but as explained in detail below he has not presented a prima facie case for service connection and examination is accordingly not required at this point. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam). The Board accordingly finds that any procedural errors on the originating agency's part were insignificant and non-prejudicial. Accordingly, the Board will address the merits of the Veteran's claim. II. Increased Rating for Migraine Headaches Legal Principles Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2010). The Veteran's service-connected migraine headache disability is rated under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8100 (migraine). The rating criteria in relevant part are as follows. A rating of 30 percent is warranted for characteristic prostrating attacks occurring on an average once per month over the last several months, and a rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating," nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (1999), in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack. By way of reference, the Board notes that 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." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson, 12 Vet. App. 119; Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2010) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. Service connection for migraine headaches was awarded in a May 1973 rating decision. A 30 percent rating was assigned at that time. The Veteran filed a claim for increased rating for migraine headaches in October 2004. This claim was not acted upon by the RO, and another claim was filed by the Veteran in December 2007. The RO denied the claim in June and August 2009 rating decisions. The Veteran filed this appeal. The Veteran sought treatment for migraine headaches on multiple occasions throughout the period from October 2004 through the present, as reflected in VA treatment records from Salem VA and Ashland VA Medical Centers. His treatments included oxygen treatment and various medications. Neurology clinic records from August 2005 show headaches early morning or late at night. He was breathing 100% oxygen for five minutes to decrease the headaches. The Veteran reported that Levetiracetum had not helped the headaches but lithium did help. He used a CPAP machine. The medications and oxygen were continued. A February 2006 neurology note shows that the headaches were localized to the right frontal head and often greatly affected the right eye vision though there was usually very little tearing. He did report that these headaches could be disabling. The time of day was random. The headaches usually lasted 10 to 20 minutes but could last up to an hour. A history of sleep apnea was also noted. He was not able to function when a bad headache was present. They were treated with Keppra, Lithium, Ibuprofen and oxygen. The assessment was cluster headaches, increase Keppra and adjust medications. The examiner noted that sleep apnea may have an impact on headaches. The Veteran underwent VA examination for headaches in September 2008. The Veteran reported headaches on the right side over the eye. Lithium helped reduced severity and frequency. He reported 2 to 3 headaches per week. These were mild if caught quickly, treated with pain reliever, and laid in a dark room. The headaches involved the right side of the face and were accompanied by throbbing and swelling. There was no photophobia or nausea. He has to lay down in a dark room with the headaches. The treatment of oxygen, lithium and pain reliever provided fair relief. Oxygen was used at the onset of a headache. Following examination, the examiner indicated that the Veteran had migraine headaches weekly despite medication; he noted that less than half of the attacks were prostrating. The examiner felt that the cluster headaches had mild to no effect on daily activities. The Veteran testified before the Board in January 2011 that he had headaches that were severe at least once a month. He had not worked in 5 months because he could not pass a Department of Transportation (DOT) examination for his driving job which involved sleeping. He noted that he had sleep apnea. He felt that his headaches affected his ability to work, in conjunction with other disabilities such as sleep apnea and a disability that caused him to frequently use the rest room. On review of the evidence of record, the Board finds the preponderance of the evidence is against an evaluation in excess of 30 percent for migraine headaches. He clearly has one or more migraine attacks per month, so the currently-assigned 30 percent rating is appropriate. However, the criteria for the higher 50 percent rating are much higher: "very frequent" and "completely prostrating and prolonged" attacks productive of "severe economic inadaptability." The provisions of DC 8100 are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (holding that the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision had to be met). Compare Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement had to be met in order for an increased rating to be assigned). Accordingly, all the conditions listed in DC 8100 must be met. In this case the Veteran credibly reportedly had at least one severe headache per month at his hearing. He described frequent headaches and weekly migraine headaches, half of which were considered not prostrating by the examiner, at the 2008 examination. Thus, the Board finds occasional attacks that were arguably completely prostrating, but attacks of such severity were infrequent according to the Veteran's own accounts to medical personnel. This is consistent with the complaints and findings noted in the treatment records discussed above and at the hearing. Finally, there is no indication the Veteran's headaches ever resulted in severe economic inadaptability, as the Veteran reported multiple problems affecting his ability to pass the DOT test, and noted that the primary problem related to sleep problems and the CPAP machine he had to use during sleep. Accordingly, the Board finds the disability on appeal did not approach the criteria for the 50 percent rating. Other Considerations Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a rating in excess of 30 percent. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the degree of severity and frequency of the headaches present is specifically contemplated by the schedular criteria. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. III. Service Connection for PTSD Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training or for disability resulting from injury incurred in or aggravated by inactive duty for training. 38 U.S.C.A. §§ 101, 106, 1110 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2010). Service connection specifically for PTSD "requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms an in-service stressor; and credible supporting evidence that the in-service stressor occurred." 38 C.F.R. § 3.304(f). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for posttraumatic stress disorder (PTSD) by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The provisions of the above amendment apply to applications for service connection for PTSD that (1) are received by VA on or after July 12, 2010; (2) were received by VA before July 12, 2010, but have not been decided by a VA regional office as of July 12, 2010; (3) are appealed to the Board of Veterans' Appeals (Board) on or after July 12, 2010; (4) were appealed to the Board before July 12, 2010 but have not been decided by the Board as of July 12, 2010; or (5) are pending before VA on or after July 12, 2010, because the United States Court of Appeals for Veterans Claims vacated a Board decision on an application and remanded it for readjudication. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2003). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Analysis Service treatment records (STRs) are silent in regard to any psychiatric abnormality. His September 1964 separation examination showed clinical psychiatric evaluation as "normal." Post-service treatment and examination records do not show psychiatric disability. The Veteran underwent neuropsychiatric examination in April 1973 in conjunction with a through VA compensation and pension examination. The examining physician made a diagnosis of (1) no psychiatric diseases found and (2) headaches, migraine-like in character, cause undetermined. The Veteran alleges PTSD related to an incident in service. The Veteran testified, and the record documents, that he suffered gunshot wound to the right thumb as a result of an altercation outside a restaurant in January 1963. Witness statements in the service personnel records confirm that the Veteran was shot in the right thumb in January 1963 by an acquaintance following a verbal altercation. The thumb was amputated as a result of the shooting. Service connection is in effect for the thumb amputation. At his hearing before the undersigned, the Veteran stated that he had an argument and the individual the night of the shooting. The person left the restaurant angry and came back with a gun. During a scuffle, the Veteran's thumb was shot off. His representative stated that the Veteran shared with him that he has continued to have nightmares and thoughts of what could have happened if he did not deflect the blast, since the gun was pointed right at him initially, and because of this he had been a loner all of his life. The Veteran further testified that no one had diagnosed him with PTSD or any other psychiatric disorder as a result of the incident involving the thumb. VA treatment records dated through September 2008 show no diagnosis or treatment for psychiatric disability to include PTSD. On review of the evidence above, the Board notes that the Veteran has apparently never been diagnosed with PTSD. Accordingly, service connection for that particular disorder cannot be granted. Further, absent diagnosis of PTSD the question of whether he had stressful experiences in service is irrelevant. The VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence of record in the form of correspondence from the Veteran, as well as Veteran's testimony at the hearing. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. 498. The Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case the Board notes at the outset that the Veteran was credible at the hearing to the extent that the incident happened as stated. However, he himself has testified that there is no diagnosis of PTSD related to the incident. To the extent that the Veteran has reported to his representative that he has had continuous nightmares, he has not sought treatment for these problems or reported them, despite having been a patient at VA medical centers for several decades. It is the province of health care professionals to enter conclusions that require medical opinions, such as a current diagnosis or an opinion as to the relationship between a current disability and service; see Jones v. Brown, 7 Vet. App. 134, 137 (1994). Thus, the Veteran's lay opinion does not present a sufficient basis to establish the required disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu, 2 Vet. App. 492, 494-95. Based on the evidence and analysis above the Board concludes that the preponderance of the evidence is against this claim. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to an increased rating for service-connected migraine headaches, rated as 30 percent disabling is denied. Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs