Citation Nr: 1603768 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 09-37 112A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Stepanick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2004 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2013, the Board remanded the current issue for further evidentiary development. In addition to the paper claims file, a paperless, electronic claims file is associated with the Veteran's claim, and has been reviewed. FINDING OF FACT The credible and probative evidence fails to show the Veteran's headaches manifest with characteristically prostrating attacks occurring on an average once a month. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2015) REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). This appeal arises from the Veteran's disagreement with 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. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are post-service medical records, a VA examination report, and lay statements. Additionally, the Appeals Management Center endeavored to undertake development as instructed in the Board's July 2013 remand. Updated VA treatment records were associated with the claims file, and the Veteran was scheduled for a VA examination. However, as discussed in the Analysis portion of this decision below, he did not report for that examination, nor has he provided "good cause" for failing to do so. See 38 C.F.R. § 3.655. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). After a careful review of the file, 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). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for that disability, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO granted the Veteran service connection for headaches in a February 2008 rating decision, assigning a 10 percent rating under Diagnostic Code 8100, effective the day after his separation from service. See 38 C.F.R. § 4.124a. Under that code, a 10 percent rating is assigned for migraine headaches with characteristic prostrating attacks averaging once in two months over the last several months, a 30 percent rating is assigned for characteristic prostrating attacks occurring on average once a month over the last several months, and a 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating." By way of reference, however, MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), defines "prostration" as "complete physical or mental exhaustion." A similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), which defines "prostration" as "extreme exhaustion or powerlessness." The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records document treatment for headaches on several occasions during service, including treatment with prescription ibuprofen and confinement to quarters for 24 hours as a result of a headache and nausea in June 2006. During a January 2008 VA examination, the Veteran reported having headaches no more than once every couple of months during service. He stated he would take Tylenol PM and "sleep it off," and that the headaches would last two days on average, with the pain gradually reducing. The Veteran also described in-service emergency department treatment during which he was given 800 milligram (mg) ibuprofen and placed in a dark room to lie down for an hour or two, after which he would go home and try to sleep. He noted that he was placed on quarters for a headache once during service, at his request. The Veteran reported that he still used both ibuprofen and Tylenol to treat his headaches. The examining physician diagnosed the Veteran with infrequent, mildly prostrating stress-related headaches. During VA treatment in June 2008, the Veteran reported a history of migraines, but none in the past year. He noted that he was unemployed and was waiting to start school. In January 2009, he sought treatment for headaches that had recurred in September 2008, and reported that he experienced them four times a week. He stated his pain lasted 30 to 45 minutes, and that he treated the headaches by taking Tylenol PM and going to sleep. He also noted that he had no sleep schedule and slept mostly during the day. The treating clinician provided the Veteran with a trial of amitriptyline to address his headache symptoms and several other medical conditions, including mood and sleep disturbances. During a February 2009 follow-up appointment, the Veteran stated his headaches had improved to less than four times per week and had decreased in severity and duration. He stated the pain lasted 20 minutes, that he continued to take Tylenol PM to address them, and that the headaches did not wake him up. The Veteran also noted that he was unemployed and not currently in school, but that he was going to New York City with friends over the next month and was looking forward to the trip. The examining clinician reported that the Veteran was prescribed amitriptyline and verapamil to address his headaches. In October 2009 correspondence submitted to VA, the Veteran described his headaches as "annoying as hell," and stated that he experienced them every day, including if he read too long, got upset, or was exposed to loud noise or fumes. In June 2010, the Veteran presented to a VA emergency department shortly before midnight, complaining of a headache since early that morning. The clinician diagnosed him with recurrent migraine headaches, administered a toradol injection, and discharged him with instructions to continue his use of non-steroidal anti-inflammatories (NSAIDs) and return as needed. In November 2010, the Veteran again reported to an emergency department, complaining of a throbbing headache for three days. He stated he had taken one dose of Tylenol and one dose of ibuprofen in the past three days without improvement. The clinician diagnosed him with a migraine headache, administered a toradol injection, and discharged him. The Veteran was instructed to return to the emergency department if the headache did not improve. During an annual medical evaluation the following month, the Veteran did not report any new complaints, and noted that he was attending nursing school. In August 2012, the Veteran again reported for treatment, noting that he took ibuprofen 800 mg to address his headaches and desired a refill. He stated that the headaches occurred two to three times per week. He noted that he was a student. As already discussed, the Board remanded this claim in July 2013 to afford the Veteran another VA examination, and he failed to report. The Veteran was notified of the missed examination in an August 2013 Supplemental Statement of the Case (SSOC). Although the Veteran's representative acknowledged the missed examination in his January 2016 brief, neither he nor the Veteran has demonstrated good cause, or provided any reason whatsoever, for the Veteran's failure to appear. The Board again notes that "the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet. App. at 193. In spite of the Veteran's failure to appear for his 2013 VA examination, as the current appeal arises from an original compensation claim, the claim for a higher initial rating must be considered based on the evidence of record. See 38 C.F.R. § 3.655. However, upon review of that evidence, the Board finds that an evaluation in excess of 10 percent for headaches is not warranted at any point during the period under review, as prostrating attacks occurring on an average once a month have not been shown. Although the 2008 VA examiner characterized the headaches the Veteran had experienced prior to the examination as "mildly prostrating," he noted that the Veteran experienced them only infrequently. That description is supported by the Veteran's indication during the examination that his headaches did not occur more frequently than once every couple of months. During subsequent VA treatment, the Veteran reported that he experienced no headaches from approximately June 2007 to September 2008, and, although he has since sought intermittent medical treatment for headaches that he reported occurred as frequently as four or more times per week, the evidence does not suggest that those headaches are prostrating. In that regard, although the Veteran has described treating the headaches with Tylenol PM and sleep, he has also reported that the pain associated with the headaches lasts less than an hour, and has not indicated that they hinder his school attendance. The Board acknowledges that the Veteran has, on several occasions, sought emergency medical treatment for headaches that have lasted for one or more days. Even conceding that the headaches that prompted that action were prostrating in nature, however, they still do not elevate the disability to the level of prostrating attacks occurring once a month on average. Indeed, the record reflects that such headaches have occurred, at most, twice a year. In short, the Board finds the credible and probative evidence does not reflect prostrating attacks occurring on an average once a month at any point during the time period under review. Accordingly, an evaluation in excess of 10 percent for headaches is not warranted. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability. See Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, the rating criteria specifically describe the Veteran's disability level and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In any event, the evidence also does not suggest that the Veteran's headaches have resulted in marked interference with employment above and beyond that considered by the assigned disability evaluation, or that he has been frequently hospitalized as a result of the condition. Indeed, the Veteran's infrequent emergency department visits for headaches have resulted in discharges within several hours. Consequently, referral for extraschedular consideration is not warranted. Id. As a final matter, the Veteran does not contend and the record does not suggest that he is unemployable due to his headaches. Accordingly, a claim for a total disability rating based on unemployability due to headaches has not been raised and no action pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is necessary. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v, 1 Vet. App. at 55-56. ORDER Entitlement to an initial disability rating in excess of 10 percent for migraine headaches is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs