Citation Nr: 1138926 Decision Date: 10/19/11 Archive Date: 10/25/11 DOCKET NO. 06-22 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable rating for migraines. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from September 1996 to June 1997 and from September 1999 to June 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that granted service connection for migraines and assigned a noncompensable evaluation effective June 16, 2003. FINDING OF FACT Throughout the entire appeal, the Veteran's migraines have been characterized by frequent headaches and regularly occurring prostrating attacks, but not very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for an initial 30 percent rating, but no more, for migraines have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 8100 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist the Veteran in substantiating his claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Here, the claim for an increased rating for headaches arises from a disagreement with the initial disability rating that was assigned following the grant of service connection. 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). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service, VA treatment records, and Social Security Administration (SSA) records have been obtained and he has been provided with VA examinations in connection with the present claim. He has not indicated there are any additional records that VA should seek to obtain on his behalf and he also has declined a hearing related to his present claim. Thus, the Board finds that reasonable efforts were made by VA to satisfy its duty assist and to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to develop evidence is required. Finally, the claim was remanded by the Board for additional development in November 2010. The RO was instructed to contact the Veteran and request that he identify any additional evidence, obtain additional VA outpatient treatment record and afford him a VA examination. There has been substantial, if not full, compliance with the Board's remand directives. Analysis The Veteran's migraine headaches are rated as noncompensably disabling. In various written statements; including, but not limited to his June 2002 Notice of Disagreement, August 2007 VA Form 646, June 2006 Substantive Appeal (VA Form 9), the Veteran contended that his migraine headache disorder warranted at least a 30 percent rating. In an Appellant Brief submitted in September 2011, the Veteran's representative argued that a 30 percent rating is warranted from June 16, 2003 to April 2004 and a 50 percent rating is warranted since April 2004. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). Migraines are rated under 38 C.F.R. § 4.124a, DC 8100 (2010). Under this diagnostic code, noncompensable (0 percent) rating is assigned for migraines with less frequent attacks. A 10 percent evaluation is proper where there are characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent evaluation is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. Finally, a 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating." According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." Service treatment records show complaint and treatment for migraine headaches. The Veteran underwent an initial VA examination in July 2003. The examiner indicated review of the claims file. The Veteran reported that his migraines began in 2002. He reported that his symptoms begin in the back of his neck and come across the left cranium and around the left side. The pain was a squeezing-like sensation. He was unsure of nausea. He reported photophobia when the headaches occur; sitting in a dark room helped. The headaches reportedly occurred twice a month and lasted from 12 to 14 hours. The Veteran reported that he was working part-time at Sears as a cashier. He had been on convalescent leave for 11 months. Physical examination of the head and face were normal. Cranial nerves II-XII were intact and the Veteran was alert and oriented. The examiner's diagnosis was migraines by history. During a VA psychiatric examination in July 2003 the Veteran reported he was working up to 30 hours part-time as a cashier at Sears. Also, during a VA joint examination in July 2004 he reported that his knee and back pain caused him to miss work on a weekly basis. He reported that he was employed at a call center and worked 12 to 20 hours per week. He stated that he did not do any physical activity on a daily basis, other than lying on his sofa and maybe folding clothes. On a July 2004 Application for Increased Compensation Based on Individual Unemployability (VA Form 21-8940), the Veteran reported that his service-connected back disability, peripheral neuropathy of the right lower extremity, hiatal hernia, and major depressive disorder prevented from him gainful employment. He did not include reference to his service-connected migraine headaches. He reported that from May 2003 to July 2004, he had worked part time at three companies, and had lost many days of work due to illness. In a statement accompanying that application, the Veteran gave a lengthy and detailed report of how his physical many ailments, including his back, costochondritis, hiatal hernia, peripheral neuropathy, and major depressive disorder caused significant interference with his activities of daily living and with gainful employment. Nowhere in this statement was any mention of the service-connected migraine disorder and its negative effect on the Veteran's ability to work. The Veteran was awarded SSA disability benefits in December 2004 based on a discogenic/degenerative back disorder and osteoarthritis and allied disorders with onset in July 24, 2004. On his July 2004 application for SSA benefits, the Veteran reported that he experienced two or more migraines per month. He reported that he could not concentrate on tasks and that use of a computer contributed to the onset of migraines. He stated that he had not sought any formal treatment because he could not afford to, but reported taking Imitrex, Alleve, and other medications for pain. SSA records include copies of VA outpatient treatment records from June 2003 to April 2005. In an April 2004 primary care note, the Veteran reported that his headaches occurred at least once a week. A July 2004 pain consult clinic note related to treatment and evaluation of the Veteran's chronic low back pain reveals that he was working part-time at a call center and was reportedly unable to sit for the 4 and 1/2 hour work periods required between breaks. A July 2004 treatment note shows the Veteran still had migraines and was using Imitrex samples that his wife had given to him. Additional VA treatment records dated from September 2004 to September 2005 show occasional treatment for migraine headaches. An October 2004 treatment note shows the Veteran was prescribed Sumatriptan Succinate for his headaches. In November 2004, he was prescribed Zolmitriptan (i.e. Zomig) to replace the Imitrex. During a behavioral medicine psychological interview in May 2005, the Veteran reported that he had migraines 3 to 4 times a month. In August 2005, he reported occasional tunnel vision, light headedness, fatigue and other vague symptoms. The clinical assessment was that these vague complaints could not be explained. A September 2005 treatment note shows the Veteran reported a history of migraines, along with episodes of peripheral or central vision loss, and associated with dizziness and nausea. His vision was good between episodes. The clinical impression was visual migraines; hyperopia and presbyopia. In a May 2005 statement in support of his appeal, the Veteran reported that he experienced two or more migraines every month and could not concentrate on tasks. He stated that he attempted to self-medicate with over the counter medications and by lying in a dark quiet room. The over the counter medications did not completely resolve his migraine symptoms, which were at a level of 9-10 at onset. He stated that his disability warranted at least a 10 percent rating. In a statement received in February 2006, the Veteran's wife reported that he has excessive fatigue during the day and has several migraines each month and experiences muscle spasms and several nerve pains. She also reported that he has many periods of vertigo during the week. In a June 2006 statement, the Veteran reported that during his migraines he also has nausea, dizziness, and is unable to participate in any activity, eat, get up, and is worthless for any task. He contended that these symptoms created an incapacitating condition. He further stated that his migraines occurred several times a month and his VA doctor has prescribed Zomig for his condition. In closing, he requested a favorable evaluation of at least 30 percent for his migraines. Additional VA treatment records dated since September 2005 show the diagnosis of chronic migraine headaches remained on the Veteran's medical problem list. In April 2006, he sought a neurologic consultation for several vague complaints, some of which he specifically related to the onset of his migraines. He reported eye problems described as reverse tunnel vision, tunnel vision, and nerve pain that appeared with onset of his migraines. He also reported additional symptoms that he did not associate with his migraines such as head pain that felt like muscle cramps, light-headedness, shakiness in his hands, vertigo, nerve pain and tightness in his hands, a crawling sensation on his face, arms, and other areas, shock sensations on the left side of his head and down the spine, heat sensitivity, muscle tremors in his face, jaw, mouth, eyes, and stomach; and brief lapses of consciousness. On physical evaluation, a cranial nerve examination was normal. Sensory testing was subjectively decreased in the left side of his face and left upper extremities. An electroencephalogram (EEG) conducted in July 2004 to evaluate his reported symptoms was normal. An August 2009 treatment note indicated that there was no current exacerbation of the Veteran's migraines. A March 2010 treatment note reflects that the Veteran reported that he had several migraines a week. A June 2010 treatment note reflects that the Veteran reported that Zomig was the only medication that worked and that he usually used it twice a week when needed. The Veteran underwent a VA examination in December 2010. His claims file was reviewed. The Veteran reported that he has as many as 75 headaches per month. He stated that he keeps Zomig (Zolmitriptan) in his wallet and takes it when they occur. His response to this treatment has been fair. He reported that the headaches are always weekly, but not daily. He related casual changes and stated that he cannot perform ordinary activities during the headaches. He denied nausea and vomiting. The Veteran denied any history of neurologic-related hospitalization, surgery or trauma. He reported that over the past 12 months, the migraines had occurred weekly, lasted for hours, and most attacks were prostrating. He did not treat them with continuous medication, but used Zomig as needed. On physical examination, all cranial nerves were intact and cerebrellar examination, fundoscopic examination, and mental status examinations were all normal. An MRI of the brain performed in March 2006 showed a single non-specific 3.0 millimeter focus of increased signal intensity in the right periventricular white matter that was likely of no clinical significance and no mass effect, midline shift, or significant periventricular changes were seen. The examiner indicated that the diagnosis was migraine headaches and there was no effect on the Veteran's usual occupation. He was not currently employed and had retired in 2006 due to his back condition and psychiatric conditions of major depression and bipolar disorder. In a February 2011 statement, the Veteran reported that between 2003 and 2004 he self-medicated his chronic, persistent migraines with Tylenol and Motrin until 2005 when he was prescribed Zolmitriptan. The Veteran also reported that he informed the recent VA examiner that he experiences 8 to 12 migraines each month and that during these migraines he has eye problems. He explained that his eyes are "jumpy" and he feels as though he has spots and even a dark cloud over the middle of his eyes and "squiggly lines" on the sides. He also noted that his eyes hurt. He stated further that these symptoms occur especially when he tries to concentrate on the details of an object, with computer use, and with writing. The Veteran further contended that his migraines are debilitating. He reported additional migraine symptoms of ringing in his ears, feeling hot and sweaty, sickness in his stomach, and feeling worn out. He also noted that many times, his facial nerves are "jumpy" and he experiences some temporary facial numbness at the end of his tongue and in his lips. He also reported that he has noticed a "tic" in his face, arms, hands, and neck during most migraines. He reported that he cannot drive during a migraine and must lie in a dark room with a fan blowing on him. The migraines last several hours to a full day. He must take Zomig at the initial sign of onset to limit the duration of the attack. The Board finds that the evidence of record, both lay and medical, supports the assignment of a 30 percent disability rating, but no more, for the Veteran's service-connected headache disability since the grant of service connection. Given the reported frequency of the Veteran's headaches, and the fact that they reportedly necessitated rest in a dark room and ceasing most, if not all, activity (i.e. were prostrating), the Board finds that the Veteran's migraines meet the 30 percent criteria of prostrating attacks occurring on average of at least once per month. The preponderance of the evidence, however, is against the assignment of a disability rating in excess of 30 percent for any period of time covered by this appeal. As noted, a 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board finds that the Veteran's headaches are not 'very frequent' in nature. At his July 2003 VA migraine examination, and in his July 2004 SSA application, and in a May 2005 statement, the Veteran reported the migraines occurred at least twice a month. During outpatient treatment in April 2004 and May 2005, he reported having 3 or 4 migraines every month. In statements received in February 2006 and June 2006 respectively, the Veteran and his wife both stated that he experienced 'several' migraines a month. During the December 2010 VA examination, the Veteran reported a history of as many as 75 migraines a month, but noted that during the last 12 months they had only occurred on a weekly basis. Based on this evidence, the Board finds that the migraines are frequent, but not 'very frequent' in nature. Throughout the appeal, the Veteran has also reported that when the migraines occur, he cannot concentrate or participate in activities and must go into a dark room and cease all activity. Thus, the Board finds, based on his testimony that his migraine attacks may be considered prostrating in nature. It is noted, however, that at his recent examination, he indicated that most, but not all, of the attacks are prostrating. The Board also finds that the Veteran's migraine attacks may be considered 'prolonged' in duration. As reflected in his written statements to VA, as well as his VA treatment records and examination reports, he has reported that his attacks can last for hours at a time. Nonetheless, the Board finds that the Veteran's migraine headaches are not 'productive of severe economic inadaptability.' The Board notes that the terms "severe economic inadaptability" are not defined in VA law. The Court has held that it must also be considered whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, VA conceded that the words, "productive of" could be read to mean either "producing" or "capable of producing." Id. at 446, 446-447. Here, the Board observes that the Veteran has not submitted any evidence to show his migraine headaches have been 'productive of severe economic inadaptability.' He has not submitted any official leave report or written statements from his former employers indicating his usage of vacation or sick leave related to his migraines. He also has not submitted any evidence showing that he lost any of his prior jobs, or was ever in jeopardy of losing one of his jobs, due to excessive use of leave related to his migraines. The Board finds that the evidence as a whole shows that other disabilities (i.e. his lower back, knees, hiatal hernia, and depressive disorders, and peripheral neuropathy of the lower extremities) caused significant interference with his prior part-time employment. In fact, at a July 2003 VA psychiatric examination, the Veteran had reported that his back and knee conditions had caused him to miss work on a weekly basis. Also, during a July 2004 outpatient visit, the Veteran indicated that he was working at a call center and was unable to sit for his required 4 and 1/2 hour work periods due to his low back pain -not his migraines. On his July 2004 SSA application, the Veteran indicated that his lower back, knees, hiatal hernia, depression, and peripheral neuropathy disorders prevented gainful employment and caused significant interference with his activities of daily living. He provided SSA with a very lengthy and detailed statement of how those conditions interfered with his employment; he made no mention of migraine headaches. Indeed, SSA awarded him disability benefits based on diagnoses of discogenic/degenerative back disorder and osteoarthritis and allied disorders. Finally, the December 2010 VA examiner also opined that the Veteran's migraines did not cause any work problems and noted that the Veteran had retired in 2006 due to his back condition and psychiatric conditions of major depression and bipolar disorder. Based on the foregoing, the Board finds that this evidence does not show the migraine headache disability has caused significant interference with the Veteran's employment or that it has been productive of severe economic inadaptability at any time during the appeal. Therefore, the criteria for a higher rating of 50 percent are not met. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's migraine headache disability. The Veteran's migraine headache attacks, which reportedly occur with some visual symptoms, nausea, and fatigue, are frequent and mostly prostrating. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's migraine headache disability and referral for consideration of extraschedular rating is not warranted. Finally, the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) held that every claim for a higher rating includes a claim for a total disability based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevents him from working. In this case, the Veteran is already receiving TDIU effective as of June 7, 2004, which is the last date that he was gainfully employed. (See Supplemental Statement of the Case dated September 2006). ORDER An initial disability rating of 30 percent, and no more, for migraines is granted subject to the law and regulations governing payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs