Citation Nr: 1324666 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 09-32 265A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE 1. Entitlement to an initial compensable disability rating for headaches. 2. Entitlement to service connection for a low back disorder, to include sacroiliac pain. 3. Entitlement to an initial compensable disability rating for service-connected irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1979 to August 1986, and from January to May 1991. The DD 214 shows that her military occupational specialty (MOS) was that of licensed practical nurse (LPN). She also has unverified service in the Army Reserve from December 1978 to June 1979, and from 1986 to 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2008 and February 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. By these rating actions, the RO denied service connection for low back pain and granted service connection for headaches, receptively. The RO assigned an initial noncompensable disability rating to the service-connected headaches. The Veteran appealed the above-cited ratings actions to the Board. In a March 2011 supplemental statement of the case (SSOC), the RO characterized the back issue to include the Veteran's claim of sacroiliac pain. Accordingly, to reflect this procedural history, the Board has recharacterized this claim as is noted on the title page of this decision In April 2012, the Board, in part, remand the issues on appeal to the RO for additional development. The matters have returned to the Board for appellate consideration The Veteran requested a Decision Review Office (DRO) hearing, in part, on her claim for service connection for a low back disorder on her December 2008 notice of disagreement. A hearing was scheduled for March 2009, but the Veteran requested that the hearing be rescheduled in a March 2009 correspondence. She requested a DRO hearing with respect to the hypertension claim on her March 2009 NOD. A hearing was scheduled for September 30, 2009. Instead, however, an informal conference was held with a DRO on the day of the hearing. See November 5, 2009 Letter. In a September 30, 1999 correspondence, the Veteran indicated that the informal conference satisfied her request for a hearing with respect to all three claims. Under these circumstances, the hearing request is deemed withdrawn. The Veteran having withdrawn her hearing request, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (e) (2012). At the beginning of the appeal, the Veteran was represented by Veterans Service Organization. In an April 2007 correspondence, she revoked this power of attorney. Subsequently, in an April 2007 VA Form 21-22, the Veteran appointed the Wisconsin Department of Veterans Affairs (WDVA) as her representative. By an April 2012 rating action, the RO, in part, awarded service connection for IBS; an initial noncompensable disability rating was assigned, effective November 17, 2006. The Veteran was informed of the RO's decision that same month. In a statement, received by the RO in late October 2012, the Veteran disagreed with the initial noncompensable rating assigned to the above-cited service-connected disability. (See Veteran's typographed statement to VA, wherein she disagreed, in part, with the initial noncompensable disability rating assigned to the service-connected IBS). As will be discussed in the Remand below, the Board will remand this issue for the sole purpose of ensuring the issuance of a statement of the case (SOC) along with information about the process for perfecting an appeal as to this issue, if the Veteran so desires. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). After issuance of an October 2012 supplemental statement of the case (SSOC), wherein the RO addressed the issues entitlement to an initial compensable rating for service-connected headaches and entitlement to service connection for a low back disorder, to include sacroiliac pain, the Veteran submitted additional evidence (i.e., headache log and statement, prepared by N. B., a fellow service comrade) in support of the above-cited claims without a waiver of initial RO consideration. As the Board is granting the maximum 50 percent rating for headaches for the entire appeal period in the decision below, the Veteran is not prejudiced by the Board's adjudication of this claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). As the Board is unable to award service connection for a low back disability based on the current evidence of record, a remand is necessary to have the RO consider the newly received evidence (i.e., statement, prepared by N. B.) in the first instance with respect to this claim, as discussed in the remand section below. 38 C.F.R. § 20.1304 (2012). The issues of entitlement to service connection for a low back disorder, to include sacroiliac pain, and entitlement to an initial compensable disability rating for service-connected irritable bowel syndrome (IBS), are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected headaches have been manifested throughout the appeal period by very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial 50 percent evaluation, but no higher, for headaches have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Before addressing the merits of the initial rating claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.326(a) (2012). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VA's General Counsel has clarified that no additional VCAA notice is required in this circumstance concerning a "downstream" issue, such as the rating or effective date assigned for a service-connected disability and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003. The filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(3). Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability-rating and/or earlier-effective-date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a statement of the case if the disagreement concerning the downstream issue is not resolved. Since the RO issued a statement of the case in March 2011 addressing the downstream initial rating claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher rating, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). The Board also notes that in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009), the United States Court of Appeals for Veterans Claims (Court) clarified VA's notice obligations in increased rating claims. As the claim for an initial compensable rating for the service-connected migraine headaches stems from the grant of initial compensation benefits, as opposed to an increased rating claim, Vazquez- Flores is inapplicable to this claim. Id. VA also has a duty to assist a Veteran in the development of her initial rating claim. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO associated the Veteran's service treatment records, and VA and private treatment records with the claims files. No outstanding evidence has been identified. The Veteran was afforded a VA examination in connection with her initial rating claim, most recently in December 2008. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the December 2008 VA examination report to have been thorough and adequate upon which to base a decision on her initial rating claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran regarding the frequency and severity of her headaches , and provided the information necessary to evaluate them under the applicable rating criteria. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the initial rating claim. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the initial rating claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Laws and Regulations Increased Rating-general criteria Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). When the appeal arises from an initial rating, such as here, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in increased-rating claims in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a service-connected disability is already established, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). III. Merits Analysis The Veteran seeks an initial noncompensable rating for her service-connected migraine headaches. By the appealed February 2009 rating action, the RO granted service connection for headaches; an initial noncompensable percent disability rating was assigned, effective April 3, 2008--the date the RO received the Veteran's initial claim for compensation for this disability. The RO based its award of service connection, in part, on the Veteran's service treatment records reflecting that she had received treatment for occasional migraine headaches. The RO also based its award on a December 2008 VA examination report, which contained the examiner's opinion that the Veteran's headaches were more likely the result of her military service. (See December 2008 VA hypertension examination). In view of the above-cited clinical findings, the RO assigned an initial noncompensable disability rating to the service-connected headaches under 38 C.F.R. § 4.71a, Diagnostic Code 8199-8100. Hyphenated Diagnostic Codes are used when a rating for a particular disability under one Diagnostic Code is based upon rating under another Diagnostic Code. See 38 C.F.R. § 4.27. The four digits before the hyphen is the Diagnostic Code for the disability. Id. 99 indicates that the Veteran's disability is not listed in the Schedule for Rating Disabilities, while 81 indicates that it is related most closely to the listed neurological disabilities. See 38 C.F.R. §§ 4.20, 4.27. The four digits after the hyphen is the Diagnostic Code for the disability specifically found to be most analogous. 38 C.F.R. § 4.27. Under Diagnostic Code, 8100, the Diagnostic Code used to evaluate migraine headaches, a zero percent rating is warranted for migraine headaches less frequent attacks. For migraines with characteristic prostrating attacks averaging one in two months over the last several months, a 10 percent evaluation is assigned. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating," nor has the United States Court of Appeals for Veterans Claims (Court). Cf. Fenderson, 12 Vet. App. at 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), "prostration" is defined as "extreme exhaustion or powerlessness." The Veteran seeks an initial 50 percent disability rating for her service-connected headaches. She contends that she has weekly prostrating headaches that are associated with nausea, are alleviated by ice packs to the forehead, rest, prescription and over-the-counter medications, and range on a scale of severity, with 10 being the highest degrees of severity, from five (5) to 10. She maintains that the only reason that she has not been totally incapacitated enough not to maintain employment is because she has a flexible work schedule that allows her to work on evenings and use flex time to leave early or arrive late to work in order to compensate for time lost from her prostrating headaches. (See Veteran's typographed statement to VA, received by the Board in early June 2013). The Board finds that with resolution of doubt in the Veteran's favor, that the evidence of record supports an initial rating of 50 percent for the service-connected headaches. VA examined the Veteran in December 2008. At that time, the Veteran gave a history of having had headaches since military service that were not completely responsive to Advil. The Veteran indicated that her headaches were occasionally precipitated by sleep disturbance, which she felt was related to her PTSD. She related that she experienced severe headaches two (2) to three (3) per month with one (1) being severe. The Veteran reported that she missed a couple of days a work per year because of her headaches. She denied any nausea, aura or vomiting with her headaches. The examiner noted that the Veteran had not sought formal treatment for her headaches other than to discuss them with her personal physician. She denied any weakness or fatigue attributable to her headaches. The examiner diagnosed the Veteran, in part, with headaches. In October 2012 and June 2013, the Veteran submitted headache logs, wherein in she documented the frequency and severity of her headaches from 2008 to 2013. (See headache logs, prepared by the Veteran and received by the RO and Board in October 2012 and June 2013, respectively). According to the headache logs, the Veteran suffered from prostrating headaches that occurred several times a week; were associated with nausea; required her to lie down with an ice pack for several hours; ranged on a pain scale of one (1) to ten, with 10 being the highest degree of severity, from four (4) to 10); and, had caused her to depart work early several times a week. According to the headache logs, the Veteran took Aspirin and Nortriptyline for her headaches in 2008. She submitted copies of prescriptions from a local pharmacy for Nortriptyline, dated in the calendar year 2011. The Veteran related that while an increase to 25 milligrams of Nortriptyline had alleviated her headaches, it had caused her to have severe gastrointestinal-related issues, so she was unable to remain on the high dosage. The Veteran also included a statement prepared by her counselor of several years, J. B. J. B. indicated that the Veteran had complained of having headaches for which she had sought treatment. J. B. related that according to the Veteran, her headaches became so severe that there were "literally prostrating." (See Veteran's typographed statement, along with headache logs, and statement, prepared by J. B, received by the RO and Board in late October 2012 and early June 2013, respectively). The Veteran has consistently reported throughout the appeal period that she has severe and prostrating headaches that last an entire day; occur several times a week; are associated with nausea; and, require her to lie down and apply ice to her head. In addition, they have resulted in severe economic inadaptability by causing frequent absences from work and requiring her to work on week-ends and use flextime in order to make-up time missed from work. The Board finds the Veteran's statements regarding her headaches to be credible, and that assessment has been supported by her counselor. Affording the Veteran the benefit of the doubt, the Board finds therefore that the criteria for an initial 50 percent rating for her migraine headaches have been met throughout the appeal period. Inasmuch as 50 percent is the highest rating provided by the Rating Schedule for migraine headaches, no higher schedular rating may be assigned. The Veteran has indicated in written statements to VA throughout the appeal period that she believed her migraine disability warranted a 50 percent rating. Therefore, the 50 percent rating assigned herein constitutes a full grant of the benefit sought on appeal. Cf. AB v. Brown, 6 Vet. App. 35, 39 (1993) (holding that where there is no clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition, the RO and BVA are required to consider entitlement to all available ratings for that condition). IV. TDIU Consideration In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record reflects that throughout the appeal, the Veteran has remained employed. Accordingly, the Board concludes that a claim for TDIU has not been raised by either the Veteran or the record. V. Extraschedular Consideration In evaluating the Veteran's claim for an initial rating for the service-connected headaches, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected headaches is inadequate. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's migraine headaches are more than adequately contemplated by the 50 percent disability rating assigned herein by the Board. No higher rating is provided by the Rating Schedule. The manifestations of the Veteran's service-connected headaches, such as severe headaches that occur several times a week that last several hours and, as reasonably stated by the Veteran, have resulted in severe economic inadaptability by causing frequent absences from work, are specifically contemplated by the criteria for a 50 percent rating. Accordingly, the criteria for a 50 percent disability rating reasonably describes the Veteran's disability level and symptomatology and, therefore, the assigned schedular evaluation is adequate and no referral is required. ORDER For the entire appeal period, an initial 50 percent rating for headaches is granted, subject to the law and regulations governing the award of monetary benefits. REMAND For the reasons outlined below, the Board finds that it must remand the claims for service connection for a back disability, to include sacroiliac pain; and entitlement to an initial compensable disability rating for service-connected irritable bowel syndrome (IBS) . Accordingly, further appellate consideration will be deferred and this case remanded to the RO for action as outlined in the indented paragraphs below. At the outset, and as noted in the Introduction, after issuance of an October 2012 SSOC, the Veteran submitted additional evidence in support of her appeal for service connection for a low back disability without a waiver of initial RO consideration. Specifically, the April 2012 statement of N. B., a service comrade of the Veteran, wherein she discussed the onset of the Veteran's low back disability during her second period of active military service. Thus, a remand to have the RO consider this evidence in the first instance is necessary. 38 C.F.R. § 20.1304. Second, the Veteran is represented by the WDVA. The record does not contain a VA Form 646 or any other indication that the claims file was made available to the Veteran's representative for review prior to certification to the Board in December 2012. The VA Manual indicates that a Form 646 is not required for remanded appeals when new evidence is not submitted or the appeal was remanded by the Board solely for the assembly of medical records. See VA Adjudication Manual M21-1 MR, Part I, Chapter 5, Section F, § 28(c) (December 9, 2004). In this case, however, a Form 646 is required because the Board remanded the above-cited claim in April 2012 to have the RO determine the Veteran's dates of Army Reserve service from December 1978 to June 1979, and from 1986 to 1991, to include any periods of active duty for training. The Board also requested that the RO contact the National Personnel Records Center (NPRC) to obtain any additional service treatment records from December 1978 to June 1979 and from January to May 1991. (See April 2012 Board remand, pages (pgs.) 8, 9, 11, and 12)). Thus, the Board's April 2012 remand instructions were not limited to the procurement of medical records. (Parenthetically, the Board observes that prior to the Board's April 2012 remand, the Veteran's representative submitted a VA Form 646, Statement of Accredited Representative in Appealed Case, dated in April 2011). The Veteran is entitled to representation at all stages of an appeal. 38 C.F.R. § 20.600 (2012). The United States Court of Appeals for the Federal Circuit has recently held that Veteran's have a property interest in VA benefits and constitutionally protected due process rights in the claims adjudication process. Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009). Therefore, her representative, WDVA, should have an opportunity to review the new evidence added to the record and provide argument in response to the continued denial of the claim for service connection for a low back disability, to include sacroiliac pain. Finally, by an April 2012 rating action, the RO, in part, awarded service connection for IBS; an initial noncompensable disability rating was assigned, effective November 17, 2006. The Veteran was informed of the RO's decision that same month. In a statement, received by the RO in late October 2012, the Veteran disagreed with the initial noncompensable rating assigned to the above-cited service-connected disability. (See Veteran's typographed statement to VA, wherein she disagreed, in part, with the initial noncompensable disability rating assigned to the service-connected IBS). The RO has not issued a statement of the case (SOC) that addresses the above-cited initial evaluation claim. The Board notes that, where a claimant files a notice of disagreement and the RO has not issued a SOC, the issue must be remanded to the RO/AMC for a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Thus, on remand, the RO/AMC should provide the Veteran with a SOC that addresses the above-cited initial evaluation claim. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The issue of entitlement to service connection for a low back disorder should be reviewed by the RO/AMC on the basis of additional evidence added to the claims files since issuance of an October 2012 supplemental statement of the case (SSOC). If the above-cited claim is not granted, the Veteran and her representative, WDVA, should be furnished a SSOC that addresses all the evidence received after issuance of the October 2012 SSOC. They should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 2. Prior to recertifying the appeal to the Board, the AMC/RO must afford the Veteran's representative, Wisconsin Department of Veterans' Affairs, an opportunity to review the claims files and complete a VA Form 646 or equivalent written argument on the issue of entitlement to service connection for a back disability, to include sacroiliac pain. 3. Provide the Veteran and her representative with a SOC on the following issue: entitlement to an initial compensable disability rating for service-connected IBS. This issue should be returned to the Board only if the Veteran perfects a timely appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs