Citation Nr: 1512277	
Decision Date: 03/23/15    Archive Date: 04/01/15

DOCKET NO.  99-18 537	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for migraines for the period prior to August 23, 2013, and in excess of 30 percent for the period beginning August 23, 2013.

2.  Entitlement to an extraschedular rating for migraine headaches.

3.  Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Holtz, Associate Counsel


INTRODUCTION

The Veteran had active service from October 1989 to February 1990, and from August 1991 to October 1991.  She also had reserve service.

This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana.

The Veteran testified before a Veterans Law Judge in May 2001.  The judge who conducted the May 2001 hearing is no longer employed by the Board, and the Board provided, at the Veteran's request, a new hearing in July 2010.  38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2014).  Transcripts of both of those proceedings are associated with the claims file. 

The appeal has been remanded by the Board in November 2003, June 2004, September 2006, December 2009, January 2011, and July 2013, twice to schedule the requested hearings, and at other times for evidentiary development.  Additionally, the Board sought a medical opinion concerning the headaches claim from the Veterans Health Administration (VHA) in October 2012.  38 U.S.C.A. §§ 5103A, 7109 (West 2014); 38 C.F.R. § 20.901 (2014).

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

The Veteran's headaches are very frequent, completely prostrating, and productive of severe economic inadaptability.


CONCLUSION OF LAW

For the entirety of the period on appeal, the Veteran's service-connected headache disability most closely approximates the criteria for an increased, 50 percent rating.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.21, 4.124a, Diagnostic Code 8100 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014).  

In this case, the Veteran appealed the initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007).  No further notice is needed under VCAA.

VA's duty to assist the Veteran in the development of the claim includes assisting her 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 claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  The results of an August 2013 VA examination, as requested by the July 2013 remand, are of record.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

The Veteran's statements in support of the claim are of record, including testimony provided at a July 2010 Travel Board hearing before the undersigned.  The Board hearing focused on the elements necessary to substantiate her increased rating claim and the Veteran, through her testimony and her representative's statements, demonstrated that she had actual knowledge of the elements necessary to substantiate the claim for benefits.  As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013).  The Board can adjudicate the claim based on the current record.  Bernard v. Brown, 4 Vet. App. 384 (1993).  

Disability Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  See 38 C.F.R. § 4.7; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

The Veteran is service-connected for tension headaches, which have been rated by analogy to migraines, under Diagnostic Code 8100.  Prior to August 23, 2013, she is in receipt of a 10 percent rating for headaches, which is applicable when there are characteristic prostrating attacks averaging one in two months, for a period of several months.  Migraines are rated 30 percent disabling when there are characteristic prostrating attacks occurring on an average of once a month over the last several months.  Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant the maximum rating of 50 percent.  38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100.

The Board finds, providing the Veteran the benefit of the doubt, that her headaches are most appropriately rated at 50 percent, the highest schedular rating provided under Diagnostic Code 8100.  The evidence has consistently demonstrated that the Veteran's headaches have occurred, at minimum, multiple times per month, and have ultimately become near-daily occurrences.  In July 1995, they were noted to occur four times month, and have become more frequent since that time.  In 1999, they were occurring at least once per week.  At other times during the appeal period, the headaches have occurred daily.  As such, the Board finds them to be "very frequent.  38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100.  Similarly, they are prolonged, often lasting up to a week at a time.  Id.  Although they could be relieved at times with medication, the headaches would return after the medication wore off.  

It is less clear as to how often the attacks are "completely prostrating."  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."  In 1998, the Veteran indicated that medications had very little effect on her headaches.  The evidence indicates that they have been productive of photophobia since some time prior to the March 1999 examination, and that the Veteran has generally had to wear sunglasses to avoid light.  In May 2001, she sought treatment for headaches that lasted more than a week, and in May 2005, she had to seek treatment at the emergency room due to the severity of her headaches.  In October 2006, the Veteran reported near total impairment related to her headaches, and in December 2009 she reported a history of headaches that consistently caused nausea, dizziness, phonophobia, scatoma, and other symptoms.  

In February 2010, the Veteran received treatment for migraine headaches with frequent acute exacerbation.  At her July 2010 hearing, she stated that her headaches were "stabbing," that she had to "keep [her] room dark," and that she had these headaches from the time that she woke in the morning.  At her February 2011 examination, she indicated that all of her headaches were disabling and prostrating.  In a May 2012 letter, the Veteran reported that her migraines were of such severity that she had to stay in the dark at least three days a week.   

In August 2013, during a VA examination, the Veteran reported that her headaches had remained generally consistent since separation from service.  The headaches were holocephalic in distribution, and sharp, stabbing, and throbbing in character.  They were of moderate-severe intensity, and were associated with nausea, dizziness, blurred vision, photophobia, and phonophobia.  Headaches generally lasted less than one day at a time.  The examiner noted the migraines to be of characteristic prostrating quality, and that they occurred very frequently, impacting her ability to work.

The Board recognizes that she has described the headaches in different ways over the course of the appeal.  There is no question that at times during the appeal, the evidence has reflected headaches that have been more severe than at other times.  Even though the severity of the headaches has worsened over time, and the description of the severity has at times been inconsistent, the Board finds based on the preponderance of the evidence that the headaches have generally been severe, with significant impacts on the Veteran's ability to function in day-to-day life, and could be appropriately described under the applicable law as "completely prostrating."  Even before she was required to spend entire days in the dark, she continued to experience severe headaches that lasted up to a week at a time, with limited relief from medication.  Her headaches have been productive of photophobia throughout the period on appeal, and at times, nausea, phnophobia, dizziness, and other symptoms.  Granting her the benefit of the doubt, the Board finds that the headaches have been "completely prostrating" throughout the period on appeal.  38 U.S.C.A. § 5107.  

Regarding whether the headaches were "productive of severe economic inadaptability," the Board notes that the Veteran was missing work frequently prior to 2001, when she stopped working, at least in part, per her testimony, due to her headaches.  The term "productive of severe economic inadaptability" has not been clearly defined by regulations or by case law.  The United States Court of Appeals for Veteran's Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing."  Pierce v. Principi, 18 Vet. App. 440, 445 (2004).  Thus, migraines need not actually "produce" severe economic inadaptability to warrant the 50 percent rating.  Id. at 445-46.  Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to a TDIU.  Id. at 446; see also, 38 C.F.R. § 4.16 (2014).  The Board notes, however, that the migraines must be, at minimum capable of producing "severe" economic inadaptability for a 50 percent rating.  

Considering the frequency of her headaches, the severity of the symptoms associated with those headaches, including photophobia and phonophobia, and the fact that they lasted days at a time, the Board finds it reasonable to conclude that her headaches were capable of producing severe economic inadaptability.  Pierce, 18 Vet. App. at 445.  The Veteran has not worked since 2001, which she has attributed to her headaches, and it is evident that she missed significant work prior to that time.  

As the evidence of record demonstrates that the Veteran experiences very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability, the Board finds that a 50 percent rating is most appropriate for her disability.  38 C.F.R. § 4.124a, Diagnostic Code 8100.  Further, the Veteran's symptoms have been generally consistent throughout her appeal, such that staged ratings are not appropriate.  Fenderson, 12 Vet. App. at 125-26.

The Board does not reach this conclusion lightly.  The evidence of record that spans the appellate period raises the issue of disparity between the "complained of" symptoms and the severity of the disability.  As discussed, the Veteran has not consistently indicated the frequency or duration of the symptoms and has provided varying recitations of the specifics as to when the headaches typically are most severe.  Further, the Board notes that at a February 2011 examination, the examiner noted that when called into the examination room the Veteran terminated a cell phone call, bent over and picked up her large handbag and other items, and walked to the examination room, smiling and with a normal, brisk pace.  The examiner indicated that there was initially no evidence of any physical pain, but once the Veteran entered the examination room her demeanor became somber, and she complained the lighting in the room was bothering her even though she was wearing sunglasses.  These facts raise questions regarding the Veteran's credibility.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  

Weighing the totality of the evidence, however, the Board has concluded that those credibility concerns are insufficient to overcome the frequency and ultimate severity of the Veteran's headaches.  The Veteran has consistently sought treatment for her headaches for twenty years, and there is no question that these headaches have had a significant impact on her daily functioning, and her economic adaptability.  While the Board does not necessarily believe that she was experiencing a headache at the time of the February 2011 examination, that fact alone is insufficient to undermine the frequency of the required treatment for her headaches.  


ORDER

Entitlement to an initial 50 percent schedular rating, and no higher, for migraine headaches is granted, subject to the laws and regulations governing the payment of monetary benefits. 


REMAND

The Veteran has indicated that she is unemployed due to her headaches, and thus the issue of entitlement to a TDIU is raised under Rice v. Shinseki, 22 Vet. App. 447 (2009) and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  Considering that the Social Security Administration has granted her disability benefits based on her non-service-connected psychiatric disabilities, and that no medical provider has specifically addressed the combined effects of her service-connected headaches, fibromyalgia, and exercise-induced urticaria on her ability to maintain gainful employment, a new examination is warranted.  As the Board has granted a 50 percent rating for migraine headaches dating to her initial claim in this matter, she meets the schedular requirements of 38 C.F.R. § 4.16(a), and consideration by the Director of Compensation and Pension under 38 C.F.R. § 4.16(b) is not warranted.

The Board also observes that, because questions remain as to the impact of the Veteran's migraines, as well as her service-connected fibromyalgia and exercise-induced urticaria, see Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014) (holding that the "plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities"), the Board is unable to address at this time the question of whether the Veteran's disability picture results in marked interference with employment such that an extraschedular rating might be warranted.  38 C.F.R. § 3.321(b)(1) (2014); Thun v. Peake, 22 Vet. App. 111 (2008).  While that inadequacy in the record has not prevented the Board from considering the Veteran's disability on a schedular basis, and granting the highest schedular rating available under Diagnostic Code 8100, the Board does not have sufficient information at this time to adjudicate the question of whether referral for extraschedular consideration is warranted.  

The Veteran is hereby notified that it is her responsibility to report for the examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2014). 

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an examination as to the effect of her service-connected disabilities on her employability.  The claims folder must be made available for the examiner to review. The examiner is then requested to provide a detailed explanation of the functional impairment caused by the service connected pathology, including migraine headaches, fibromyalgia, and exercise-induced urticaria.  The discussion should include daily limitations that are demonstrated and any that are made worse following exertion.  In providing the requested opinion, the examiner must consider the degree of interference with the capacity for employment caused solely by the Veteran's service-connected disabilities, as distinguished from any nonservice-connected disabilities, including her psychiatric disabilities.  The requested opinion must also take into consideration the relevant employment and educational history, and must be fully supported by an adequate rationale.

2.  In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

3.  After the development requested has been completed, the AOJ should review the examination report to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the AOJ must implement corrective procedures at once.

4.  The AOJ should then determine whether referral of the issue of entitlement to an extraschedular rating for migraine headaches to the Under Secretary for Benefits or the Director of Compensation and Pension for consideration is warranted pursuant to 38 C.F.R. § 3.321(b).  If referral is warranted, the AOJ should take appropriate steps before, if necessary, the preparation of a supplemental statement of the case.  

5.  Then, adjudicate the TDIU claim.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case addressing both remanded issues, and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim 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 2014).



______________________________________________
LAURA H. ESKENAZI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs