Citation Nr: 1621162 Decision Date: 05/25/16 Archive Date: 06/02/16 DOCKET NO. 10-35 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a disability evaluation in excess of 30 percent for headaches as a residual of traumatic brain injury (TBI). 2. Entitlement to a disability evaluation in excess of 30 percent for vertigo as a residual of TBI on an extraschedular basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from November 1987 to April 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from April and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In September 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO; a transcript of the hearing has been associated with the claims file. In May 2015, the Board denied entitlement to a schedular disability rating higher than 30 percent for vertigo and this matter is no longer before the Board. At the same time, the Board remanded the claims regarding entitlement to a disability rating in excess of 30 percent for headaches and a disability in excess of 30 percent for vertigo on an extraschedular basis; these matters are once again before the Board. The issue of entitlement to a disability evaluation in excess of 30 percent for vertigo as a residual of TBI on an extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT Throughout the appeal period, the Veteran's headache disability has more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Throughout the appeal period, the criteria for a rating of 50 percent, but not higher, for headaches as a residual of TBI are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8045-8100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Initially, 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; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service connection claim (veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified in December 2009 of the criteria for establishing increased rating, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. The letter accordingly addressed all notice elements and predated the initial adjudication by the RO for each issue. Nothing more is required in this case. As for the duty to assist, the Veteran's service treatment records have been obtained. Pertinent post-service medical records have been obtained, as submitted by the Veteran. In June 2015 correspondence, VA asked the Veteran to identify and authorize VA to obtain ongoing treatment records for service-connected headaches since April 2012. She was advised to complete the enclosed authorization to obtain medical information forms so that VA could obtain the treatment records or for her to submit the records herself. In response, the Veteran submitted treatment records from Premier Family Medicine, VA treatment records dated in June 2015, and multiple statements in support of her claim. Additionally, VA obtained complete VA treatment records from VA Nebraska Western Iowa Health Care System, Omaha Division dated from December 2010 through April 2016. In light of the discussion above regarding the Veteran's treatment records, the Board finds that there was substantial compliance with the May 2015 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, January 2010 and April 2016 VA examination reports discussed all applicable medical principles and medical treatment records relating to the increased rating issue discussed herein, and the opinions therein are considered adequate upon which to decide the claim at issue. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Legal Criteria & Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1 (2015); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The terms mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2015). Use of those descriptive terms by medical examiners, although an element of the evidence to be considered by the Board, is not dispositive of an issue. The Veteran's service-connected headaches as a residual of a TBI have been assigned a 30 percent rating under Diagnostic Codes 8045-8100. 38 C.F.R. § 4.124a (2015). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2015). As an initial matter, the Board notes that the Veteran has also been separately rated for vertigo and a seizure disorder each as residuals of closed head injury/TBI, under Diagnostic Codes 8045-6240 and 8045-8910, respectively. See November 2007, April 2010, and May 2010 rating decisions. Also, the April 2010 rating decision granted service connection for a cognitive disorder, not otherwise specified and assigned a 10 percent disability evaluation under Diagnostic Code 8045 based upon the highest seventy level of "1," which was assigned for the following facets: memory, attention, concentration, executive functions, and judgment (which was increased to a 30 evaluation under Diagnostic Codes 8045-9304 in a February 2011 rating decision). Ratings for a TBI encompass a range of symptoms including cognitive impairment, emotional/behavioral dysfunction, and physical dysfunction; however, distinguishable symptoms, such as headaches, vertigo, and a seizure disorder may be rated separately. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Here, the service-connected headaches as a residual of closed head injury/TBI have been rated separately. The 30 percent disability rating was continued based on characteristic prostrating attacks occurring on an average of once per month over a period of several months. See April and May 2010 rating decisions. As such, the Board's analysis will follow the rating criteria used to rate headache disabilities. Rating the service-connected headache disability with consideration of the other service-connected TBI symptoms, which are accounted for in the separately service-connected vertigo, seizure disorder, and cognitive disorder as residuals of closed head injury/TBI, would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; see also See November 2007, April 2010, May 2010, and February 2011 rating decisions (assigning and continuing a 30 percent disability rating for dizziness with occasional staggering, a 0 percent disability rating for not having a confirmed diagnoses if epilepsy or a requirement of continuous medication, and a 30 percent disability rating for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks ). Under Diagnostic Code 8100 for migraines, a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months, and a 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a (2015). After a review of all the evidence, lay and medical, the Board finds that, throughout the appeal period, the weight of the lay and medical evidence is in equipoise on the question of whether the migraine headache disability has manifested very frequent, completely prostrating headaches with prolonged attacks that are productive of severe economic inadaptability. Here VA treatment records show ongoing treatment and various medications prescribed in an effort to treat the Veteran's headaches. In August 2009 correspondence from Omaha Neurological Clinic, Inc., Dr. E M. Schima noted the Veteran's complaints of headaches for the previous year with bifrontal pain and "squiggly lines" occurring twice a week. On January 2010 VA mental disorder examination, the examiner noted that the Veteran was employed as a Director of Human Services for Sarpy County and was quite distressed by the manner in which her daily headaches impacted the efficiency of her functioning on her job. She claimed that her daily headache pain, which escalated throughout the day, had a negative impact on the efficiency of her cognitive focus and functioning. She missed two weeks of work in the last 12 months due to headaches. On January 2010 VA neurological examination, the Veteran indicated that her headache pain, which was a daily occurrence, was a significant factor that impacted her attention and concentration. She described difficulty with finding words while conversing and used visual cues in her workstation (for example, she has written down the name of her agency on a card as a visual cue while she does work with clients over the phone). Her concentration also wavered and was hard for her to keep focused on client conversations. She reported that when her headache pain intensified, it appeared that her hearing became less accurate. The examiner noted that there was some indication that the Veteran was under-reporting her level of distress at this point. On January 2010 VA TBI with headache and vertigo examination, the Veteran reported daily headaches that awoke her from sleep. She used over-the-counter medication with minimum benefit. She reported that her headaches lasted hours in duration and caused decreased balance. She reported some photophobia and light sensitivity at all times, which increased with headaches. She claimed that two times a week she experienced an incapacitating headache. During this time, she experienced a decrease in concentration, cephalagia, ad dizziness. Her condition was described as progressively worse since onset with fair response to treatment. The Veteran described the headaches as moderate. In regard to cognitive impairment and other residuals, the examiner noted that the Veteran had three or more subjective symptoms that mildly interfered with work, instrumental activities of daily living, or work, family, or other close relationships due to intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light. The examiner stated the Veteran's residual headaches and vertigo caused significant effects on her occupational activities due to decreased concentration, mobility, weakness or fatigue, and decreased strength. As a result, she had increased absenteeism and was assigned different duties. She lost two weeks from work in the last 12 months due to headaches, decreased concentration and dizziness. In a statement received in September 2009, M.L.J., the Veteran's co-worker, stated that over the years the Veteran has mentioned that she suffered from severe headaches. M.L.J. reported that on March 11, 2010, she noticed that the Veteran was suffering with another severe headache, which was not unusual. However, on this day, M.L.J. observed that the Veteran was having a more difficult time with concentrating. She also noticed that the Veteran was sitting at her desk holding her head in her hands. The Veteran told her that she felt extremely dizzy. Approximately 30 minutes later, the Veteran passed out and had to be taken to the emergency room by ambulance. M.L.J. reported that the Veteran has continued to have daily headaches. In March and October 2010 correspondence, Dr. R.A. Cooper reported that the Veteran had chronic daily headaches and has been tried on a number of medications over the years without a great deal of relief. The Veteran also underwent a VA skin evaluation in November 2011, which noted that the Veteran was prescribed antiepileptic medication to treat her headaches in addition to seizure control. She continued to require suppression medication with prednisone while also on Keppra, another antiepileptic medication. An April 2011 VA treatment record noted a history of headaches, present all over the head, worse with bright light and loud noise, no particular reliving factors, and associated with nausea, sometimes with episodes of vomiting. In June 2011, she had complaints of daily headaches and severe migraine headaches approximately once a week. She was prescribed maxalt and imitrex. She also was prescribed rizatriptan, prophylaxis, and Topamax. On November 2011 VA mental health examination, the examiner noted that the Veteran's headaches, migraines and dizziness caused her to miss three weeks of work within the past 12 months. Treatment records from Papillon Family Medicine showed ongoing treatment for the Veteran's migraine headaches. A February 2012 treatment record revealed that the Veteran had an acute migraine with a sudden onset and more intense than usual. The headache was accompanied with vertigo, balance issues, right arm shakiness, photo and phono-phobia, and vomiting. She was given 25 mg Phenergan IM in the clinic and taken home by friends and told to sleep. VA treatment records dated in February 2012 noted that the Veteran had been missing a lot of work lately and her ability to drive was becoming more limited due to her headaches. She stated that her headaches were more frequent and lasted a lot longer. A November 2013 record noted headaches three to four times a week. She also received Botox injections. She indicated that she had dizziness associated with her headaches that caused her to fall. In July 2014, even with Botox injections, her headaches increased in intensity. She was seen for a follow up regarding her headaches and had present complaints of word finding difficulty. VA treatment records dated throughout 2015 showed complaints of migraine type headaches that occurred three to four times a week in addition to daily headaches. A June 2015 record noted that she had migraines with aura and she was referred for Botox injections. The physician indicated that the Veteran was previously prescribed Topamax that caused word finding difficulty and nortriptyline caused a rash. Also, as she had light-headedness in her baseline, she did not want to try propranolol. She currently was on verapamil and naproxen. A July 2015 record noted that she had tried several oral medications for migraine prophylaxis, all with side effects. Although botulinum toxin injections did not alleviate headaches, they did decrease the frequency. In September 2015, she was started on riboflavin. In correspondence dated in September 2015, a co-worker of the Veteran attested to the Veteran experiencing daily headaches. At the time of her April 2016 VA residuals of TBI disability benefits questionnaire (DBQ), the Veteran had complaints of migraine type headaches that occurred 3-4 times per week along with daily headaches. In the past, she has tried propranolol, sumatriptan, zolmitriptan, topiramate, and depakote. She also underwent Botox therapy for approximately two years; however, all of these therapies were either ineffective or produced unwanted side effects. The patient was willing to try a different prophylactic medication at this time. The examiner noted that the Veteran's residual conditions attributable to a TBI impacted her ability to work as a result of missing work one to two days per week due to headaches. On April 2016 VA headaches DBQ, the Veteran reported that she had migraines three times per week combined with nausea/vomiting and vertigo. Her treatment plan included using Botox, valium, and verapamil for her headaches. She experiences headache pain as well as pulsating or throbbing head pain on both sides of her head. She also experienced aura prior to headache, vomiting, nausea, vomiting, sensitivity to light, and sensitivity to sound. She reported that the pain lasted from less to one day to two days. The examiner reported that the Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain once every month. The examiner indicated that attacks of headache pain were not productive of severe economic adaptability. However, the examiner also found that the Veteran's headache disability impacted her ability to work in that she missed one to two days of work each week due to headaches. On an April 2016 neck (cervical spine) conditions DBQ, the examiner noted that the Veteran has had multiple falls due to her headaches and vertigo. Throughout the appeal period, the Veteran's migraine headache disability has been described as resulting in frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. VA and private treatment records reflect that the Veteran experienced ongoing daily headaches with frequent migraine headaches that were difficult to treat. Even with multiple medications and injections, her headaches did not appear to decrease in intensity. The Botox injections only occasionally decreased the frequency in which the headaches occurred. Oftentimes, the medications resulted in additional side effects. The Veteran has consistently described daily headaches along with incapacitating migraine-type headaches occurring one to four times per week that had a negative impact on the efficiency of her cognitive focus and functioning on the job as well as resulted in increased absenteeism, including missing as much as one to two days a week of work within a 12 month period. On January 2011 VA examination, the examiner noted that the Veteran's residual headaches, in part, caused significant effects on her occupational activities due to decreased concentration, mobility, weakness or fatigue, and decreased strength. As a result, she had increased absenteeism and was assigned different duties. Although the April 2016 VA headaches DBQ examiner indicated that the Veteran's characteristic prostrating attacks of headache pain was not productive of severe economic impact, the examiners on both the April 2016 VA headaches and residuals of TBI DBQs, specifically reported that the that the Veteran's headaches impacted her ability to work as a result of missing work one to two days per week due to headaches. Resolving reasonable doubt in the Veteran's favor, the Board finds that throughout the appeal period, the Veteran's headache disability has more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, a 50 percent rating is warranted for a headache disability under Diagnostic Codes 8100 for the entire appeal period. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a. The Board finds that the service-connected for headaches as a residual of a TBI is rated at the highest schedular rating under Diagnostic Code 8100; therefore, an increased disability rating in excess of 50 percent is not available. C. Other Considerations The Board has considered referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). However, while the Board recognizes the Veteran's difficulties caused by the Veteran's headaches as a residual of a closed head injury/TBI, as discussed above, such disability are adequately contemplated in the applicable rating criteria. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Diagnostic Code 8100 provides specific ratings based on the frequency and duration of prostrating attacks, and economic inadaptability due to headaches and related attacks. The Veteran's headaches have manifested prostrating and prolonged attacks of headache pain, constant daily headache pain, and functional impairment resulting in increased absenteeism at work. Based on these symptoms, the Board finds that the degree of disability throughout the rating period is contemplated by the rating schedule and the assigned rating is, therefore, adequate. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); 38 C.F.R. § 4.124a. In view of the circumstances as a whole, the Board finds that the rating schedule is adequate, even in regard to the combined effect of the Veteran's service-connected disabilities. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Finally, it has neither been alleged nor shown that the Veteran was prevented from securing or following a substantially gainful occupation. Despite increased absenteeism, throughout the appeal period, the Veteran has maintained full-time employment as a Director of Human Services for Sarpy County. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Throughout the appeal period, a rating of 50 percent, but no higher, for headaches as a residual of TBI, is granted. REMAND Regrettably, another remand is necessary for further evidentiary development of the Veteran's appeal regarding disability evaluation in excess of 30 percent for vertigo as a residual of TBI on an extraschedular basis. Specifically, in the prior May 2015 remand, the Board directed the AOJ to afford the Veteran an opportunity to submit evidence supporting her claim for an extraschedular rating for vertigo based on marked interference with employment such as any employment records including leave records, or other evidence (including lay statements) tending to show the Veteran's time lost from work and the effect her service-connected vertigo has on her ability to work. To date, VA has not requested such information from the Veteran. As such, the Board finds that the RO did not comply with the directives of the May 2015 remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to submit evidence supporting her claim for an extraschedular rating for vertigo based on marked interference with employment such as any employment records including leave records, or other evidence (including lay statements) tending to show the Veteran's time lost from work and the effect her service-connected vertigo has on her ability to work. 2. After the completion of number 1 above, the AOJ should forward the claims files to the Director of the Compensation and Pension Service for additional consideration of the assignment of an extraschedular rating for the Veteran's increased rating claim involving her service-connected vertigo pursuant to the provisions of 38 C.F.R. § 3.321(b). 3. Then, readjudicate the Veteran's remaining claim on appeal. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs