Citation Nr: 1511264 Decision Date: 03/17/15 Archive Date: 03/27/15 DOCKET NO. 10-22 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial compensable disability rating for tension headaches. 2. Entitlement to an initial compensable disability rating for hemifacial muscular spasm. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D.C. Babaian, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to June 1991 and from March 2004 to February 2009. She also had additional service with the Army National Guard (ANG). These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. A September 2012 Board decision granted service connection for sleep apnea, implemented by a rating decision that same month. Neither the Veteran nor her representative has advanced any subsequent contentions related to this issue. The Board remanded the remaining issues on appeal for a contemporaneous VA examination and treatment records, both VA and private. The requested development has been, at the very least, substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran has experienced characteristic prostrating headaches, averaging one in two months over several months, since-but not prior to-June 2, 2010. 2. The Veteran has experienced neither characteristic prostrating attacks occurring on an average once a month over several months, nor very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, during the pendency of this appeal. 3. During the pendency of this appeal, the Veteran has not been shown to experience moderate incomplete, severe incomplete, or complete paralysis of the seventh cranial (facial) nerve, nor has she been shown to experience any other associated functional impairment. CONCLUSIONS OF LAW 1. The criteria have been met for a 10 percent evaluation for tension headaches from June 2, 2010, but not earlier. 38 U.S.C.A. §§ 1155, 5107, 5110(a) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.124a, Diagnostic Code 8100 (2014). 2. The criteria for an initial compensable disability evaluation for hemifacial muscular spasm have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.73, Diagnostic Code 5325, 4.79, 4.124a, Diagnostic Codes 8103, 8207 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided in a VA letter of March 2009, including how the VA determines the disability rating and effective date. The Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private and VA treatment records are a matter of record. The Veteran also testified at a Board hearing. The Veteran was provided with VA examinations in October 2009 and in March 2011, the reports of which have been associated with the claims file. The Board finds the collective result of these examinations to be thorough and adequate, providing a sound basis upon which to render a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from her. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Neither the Veteran, nor her representative, has objected to the adequacy of the examinations. See Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. Since VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Initial Increased Rating The rating decision of November 2009 assigned noncompensable evaluations for tension headaches and hemifacial muscular spasm, effective the day after the Veteran's discharge from service in February 2009. A. Schedular Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes (DC) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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 Board also appreciates that staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532 (1993). VA may change the diagnostic code, but must specifically explain such change. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). That is, VA attempts to quantify the symptoms and limitation caused by a variety of impairments, regardless of how they are diagnosed. Accordingly, all potentially relevant diagnostic codes will be considered. Neither tension headaches, nor hemifacial muscular spasm, are specifically listed in the Schedule for Rating Disabilities. When an unlisted condition is encountered it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptoms are closely analogous. 38 C.F.R. § 4.20 (2014); see Hudgens v. Gibson, 26 Vet. App. 558, 563 (2014) ("When the Secretary's regulations do not provide DCs for specific disorders, VA may evaluate those conditions under codes for similar or analogous disorders." (citing Lendenmann v. Principi, 3 Vet. App. 345, 351 (1992))). As such, the disabilities on appeal here will be rated by analogy. Tension Headaches In this case, the Veteran's headache disability is to be rated under the criteria for migraines, a closely related disease in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Veteran's headaches have been rated analogously to migraine headaches, found in DC 8100. Under DC 8100, a 10 percent (compensable) evaluation is assigned when there are characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted when the evidence demonstrates characteristic prostrating attacks occurring on an average of once a month over the last several months. The maximum 50 percent schedular rating requires very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. After a review of all the evidence, lay and medical, the Board finds that the criteria for a compensable initial rating for service-connected tension headaches are not met prior to June 2010 and that a rating in excess of 10 percent is not met thereafter. During her October 2009 VA examination, the Veteran reported headaches, persisting for two days every three weeks. She endorsed occasional nausea and vomiting, but denied photo or phonophobia and visual symptoms. The Veteran indicated that Motrin and Tylenol were helpful. She denied missing any work due to headaches. The VA examiner found that the Veteran's headaches were not of such severity as to be classified as either prostrating or incapacitating. In a December 2009 Notice of Disagreement, the Veteran reported biweekly headaches that were accompanied by nausea and vomiting. However, she described the headaches as "very minor." Thus, the preponderance of evidence clearly establishes a noncompensable evaluation on and before December 2009, as the headaches were not prostrating by either the Veteran's own description or by the examiner's findings. However, in the Veteran's June 2, 2010 substantive appeal, the Veteran detailed having to recently pull to the side of the road to vomit while working, due to a headache. She reported an increase in headaches from monthly to weekly. The following day, VA treatment records contain a primary care note, detailing her history of excruciating persistent headaches with vomiting. The Veteran denied such symptoms on that day though. A VA obstetrics and gynecology note from July 2010 also documents complaint of headaches. Then, in February 2011, VA treatment records show a history of sporadic-every ten days-migraines, with prescription for Imitrex and with an assessment of migraine, unspecified, without mention of intractable migraine without mention of status migrainosus. During the February 2011 Board hearing, the Veteran reported experiencing headaches approximately every other week (ranging in frequency between once per month and once every ten days), occasionally with associated nausea. The Veteran indicated that since she worked at home, she had the ability to lie down when the headaches were severe enough. Symptoms included vision disturbance, such as floaters, and difficulty focusing. VA treatment records contain a March 2011 neurology consult at which the Veteran reported sometimes feeling nauseated with headaches. However, the VA neurologist concluded that the occasional migraines were not "complex." VA treatment records from August and September 2011 show complaints of headaches. On the former date, it was noted that no effective treatment had been achieved, yet, and on the latter date, the provider noted that medication was working for the Veteran. Private treatment records from February and September 2012 show the Veteran's complaints of headaches, without nausea or vomiting. In October 2012, the same VA neurologist who performed the March 2011 consult reviewed the record and completed a VA examination questionnaire. She documented that the Veteran had reported headaches once or twice per month, lasting up to three days at a time. The headaches also could be associated with vomiting. The VA examiner cited the February 2011 Board hearing testimony, in which the Veteran indicates that the headaches were sufficiently severe that she had to lie down. Symptoms included an inability to concentrate, occasional floaters, sonophobia, and photophobia. She noted that the Veteran took Sumatriptan as needed. The Board pauses to note that the 2012 VA examination report has a diagnosis of migraine, including migraine variants. To the extent that this is a distinct disability from the service-connected tension headaches, the VA examiner opined that the most recent diagnosis was also related to military service. The VA examiner characterized the headaches as frequently prostrating and prolonged attacks, more frequently than once per month. The VA examiner also indicated that the Veteran's ability to work would be significantly impaired on the days the Veteran had a headache. Last, she indicated that headaches would likely improve if the Veteran were compliant with her sleep apnea treatment. In a November 2012 statement, the Veteran reported headaches every three to four weeks, persisting for three to four days at a time. The Veteran reported headaches, with occasional nausea, and denied other symptoms. She stated that in some instances, three to four Motrin per day would allow her to get by over the course of the headache. If not, she reported seeing a doctor. The Board notes that the medical record does not show one doctor visit per month for treatment of headaches, over several months. The Board now turns to the relative weight of the available evidence detailed above. When viewing the evidence in totality, the record clearly establishes that not all of the Veteran's headaches involve nausea and vomiting or require that the Veteran lie down-in other words, not all of her headaches are prostrating in nature. The Board hearing testimony cited by the VA examiner in October 2012, in fact, did not indicate that all of the Veteran's headaches required her to lie down. This assumption by the VA examiner undermines the probative value of her ultimate conclusions. Additionally, the VA examiner's report seems in conflict with her neurology consult upon which the report is based, during which she indicated that the occasional migraines were not complex. Furthermore, the Veteran has repeatedly indicated that the severe symptoms do not manifest with each instance of a headache, and private treatment records appear consistent. Assuming, then, that every other headache is prostrating, the Veteran would experience a prostrating attack, on average, every month and a half. Therefore, a 10 percent evaluation is warranted from June 2, 2010, the date of first evidence that the disability had worsened to a compensable degree during the appeal period. This decision does not end the inquiry, as the Veteran is presumed to be seeking the maximum rating. AB v. Brown, 6 Vet. App. 35 (1993). Consequently, the Board considers the applicability of the higher evaluation criteria. The overall disability picture does not more closely approximate a 30 percent evaluation, as the record does not show prostrating headaches every month over any period of several months during the pendency of the claim. While the Board fully appreciates that the Veteran is competent to report those symptoms within her observation and descriptive capacity, the record is inconsistent and, when viewed in totality, does not best approximate the requisite frequency of prostrating attacks required by the rating criteria for a higher evaluation. Moreover, a 50 percent evaluation is not warranted either. While the disability clearly impacts the Veteran's ability to perform her job on occasion, that impact has not been shown to have risen to the level of severe economic inadaptability, based on the frequency of prostrating headaches. Again, notwithstanding the most recent VA examiner's report that is not supported either by the evidence cited or by her own prior consult, the record as a whole shows that the Veteran has been able to continue to work over the significant majority of time, despite her headaches. Thus, the weight of evidence does not sufficiently balance the scales in favor of a rating in excess of 10 percent. Hemifacial Muscular Spasm In this case, the Veteran's hemifacial muscular spasm disability is to be rated under the criteria for paralysis of the seventh (facial) cranial nerve, a closely related disease in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Veteran's hemifacial muscular spasm has been rated analogously to paralysis of the seventh (facial) cranial nerve, found in DC 8207. Under DC 8207, complete paralysis of the seventh cranial nerve warrants a 30 percent rating, severe incomplete paralysis warrants a 20 percent rating, and moderate incomplete paralysis warrants a 10 percent rating. 38 C.F.R. § 4.124a, DC 8207. These ratings are dependent on the relative loss of innervations of facial muscles. Id., Note. During October 2009 VA examination, the Veteran reported twitching of the muscles associated with the left lower eyelid, once per week for five minutes. She had only experienced spasms in the right eyelid twice. The Veteran denied experiencing either numbness or tingling. In a December 2009 Notice of Disagreement, the Veteran reported monthly episodes, persisting for two hours (though previously lasting for up to two weeks). The Veteran detailed the impact of the spasms on her work in sales, including having to postpone meetings, with increased symptomatology during stress. In a June 2010 substantive appeal, the Veteran, again, indicated that episodes of muscle spasms would persist for up to two weeks at a time. Symptoms became intermittent after service, with a frequency of approximately once per month. The Board notes that disability evaluations are based on the extent of symptoms manifested during the appeal period and are not influenced by the severity prior to the date of service connection. As such, a history of symptoms during service is not relevant to the disability rating here, as service connection already has been established in this case. During a March 2010 VA neurology consult, all cranial nerves tested were found to be normal, including for strength testing where applicable. The VA physician concluded that the Veteran does not have blepharospasm but, rather, a lower eyelid twitch that does not interfere with work or anything else. VA treatment records from June 2010 are consistent, showing that the cranial nerves were intact. During the February 2011 Board hearing, the Veteran reported recurrent and unpredictable muscle spasm around predominantly her left eye, once every one or two weeks. In October 2012, the same VA neurologist who performed the March 2011 consult reviewed the record and completed a VA examination questionnaire. She stated that the twitching or tic did not constitute a hemifacial spasm and that it was a common phenomenon, in normal people and in those with disorders alike; facial tics manifest and worsen with stress and with sleep deprivation. The VA examiner documented that the twitching did not really bother the Veteran. More importantly, the VA examiner expressly confirmed the absence of paralysis, neuritis, or neuralgia of any facial nerve and of any other neurological dysfunction. In a November 2012 statement, the Veteran reported that her left eye still throbs from time to time, when she is not well rested or is under stress. Consequently, the record does show symptoms which best approximate moderate incomplete paralysis, for a compensable evaluation under DC 8207. The Board has also considered evaluations under the Schedule of Ratings-Eye, generally, and under DCs 5325 and 8103. The Veteran has consistently denied any involvement of the eye, itself, and VA examination and treatment records do not document any eye related disability. A March 2010 VA neurology consult established that the disability did not impact vision or result in physical abnormality. Upon examination, both conjunctiva and eyelids were normal. Thus, no evaluation is warranted under the rating schedule pertaining to eye disability. Diagnostic Code 5325, for evaluating muscle injuries involving the facial nerves, instructs that functional impairment for such disability will be rated as seventh (facial) cranial nerve neuropathy or disfigurement due to scarring. 38 C.F.R. § 4.73, DC 5325. A minimum evaluation of 10 percent may be assigned if the muscle injury interferes to any extent with mastication. Id. However, the record does not contain any evidence of associated scars or difficulty chewing. Thus, an evaluation under DC 5325 is also not for application. Diagnostic Code 8103 provides an evaluation for convulsive tics. 38 C.F.R. § 4.124a, DC 8103. A noncompensable evaluation is assigned for a mild convulsive tic. Id. A higher 10 percent evaluation is warranted for a moderate convulsive tic, while a maximum 30 percent is assigned if the tic is severe. Id. The evaluation depends on frequency, severity, and muscle groups involved. Id., Note. The Board notes that words such as mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Here, a compensable evaluation is not warranted, as the nondisabling twitching does not best approximate moderate impairment. It is noted that the condition is infrequent in nature and does not appear to cause any debilitation. As described, the evidence of record does not establish a compensable schedular rating for hemifacial muscular spasm, under any potentially applicable DC, at any time during the pendency of the appeal. As such, the Veteran's claim is denied. B. Extraschedular The Board now also considers whether referral for consideration of an extraschedular rating is warranted. The Board recognizes that if an exceptional case arises, where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The U.S. Court of Appeals for Veterans Claims has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, the schedular rating criteria do not appear to adequately contemplate the Veteran's symptoms, as the tension headaches and hemifacial muscular spasm are rated by analogy to other disabilities. However, turning to the second step of the analysis, the VA, private, and lay evidence fails to show anything unique or unusual about the Veteran's disability alone or in association with other service-connected disability that would render the analogous schedular criteria inadequate. The Veteran's disability manifests as monthly headaches-occasionally prostrating due to nausea, vomiting, and inability to concentrate-and as periodic muscle twitching around the eyes. Those are symptoms that are consistent with headaches and with an eye twitch. Moreover, not only does the disability picture not appear exceptional, but the disabilities have not exhibited any other related factors such as those provided by the regulation as "governing norms" of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1). For example, the Veteran has not been hospitalized for either her headaches or her hemifacial muscular spasm. Likewise, while the Veteran has referenced some interference with employment, such as having to lay down when a headache came on, or having to reschedule meetings, she has not suggested that either condition has caused marked interference with employment. She has not alleged that business has been lost, or that she has been unable to do her job, only that as an example meetings have been rescheduled. Therefore, referral for consideration of an extraschedular rating is not warranted. C. Total Disability Based On Individual Unemployability (TDIU) The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here, the Veteran is currently employed and she has not alleged that she is unemployable on account of either of the service connected issues on appeal. Thus, the Board finds that Rice is inapplicable. ORDER A compensable evaluation for tension headaches, from February 2009 to June 2010, is denied. An evaluation of 10 percent for tension headaches is granted from June 2, 2010, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 10 percent for tension headaches is denied. A compensable evaluation for hemifacial muscular spasm is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs