Citation Nr: 1627960 Decision Date: 07/13/16 Archive Date: 07/22/16 DOCKET NO. 09-09 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an extraschedular rating in excess of 50 percent for migraine headaches. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that increased the rating for the Veteran's service-connected migraine headaches to the maximum schedular evaluation of 50 percent. The Veteran testified at a Travel Board hearing before a Veterans Law Judge in February 2011. A transcript of those proceedings is of record. When this matter was most recently before the Board in October 2015, the Board denied an extraschedular rating in excess of 50 percent for the Veteran's migraines. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which, in a May 2016 order, granted the parties' Joint Motion for Remand (JMR), vacating the Board's decision and remanding the case for compliance with the terms of the JMR. In the May 2016 JMR, the parties determined that the Board, relying on a decision by the Director of Compensation and Pension Service, improperly dismissed the appeal without conducting a de novo review of the matter. FINDING OF FACT The Veteran's migraine headache symptomatology is contemplated within the applicable rating criteria and his disability picture is not so unusual or exceptional as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an extraschedular rating in excess of 50 percent for migraine headaches are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As noted above, the Veteran is currently in receipt of a 50 percent disability rating for migraine headaches, the maximum schedular evaluation available under Diagnostic Code 8100. 38 C.F.R. § 4.124a. The Veteran contends that the standard rating schedule is inadequate to rate his migraine headaches and that an extraschedular rating is required based on his symptomatology. Among the reasons advanced by the Veteran for an extraschedular rating are: that his migraines are nearly daily; that they last from four hours to four days each; that the migraines and required medication prohibit driving and thus working as a claims adjustor; and that his migraines have caused memory loss. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014) (citing Forcier v. Nicholson, 19 Vet. App. 414, 426 (2006)), vacated and remanded sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). (when an attorney agrees to JMR based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion). I. Law Disability evaluations are generally determined by application of a schedule of 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. However, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptomatology of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Furthermore, a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The appeal period before the Board is from October 18, 2005, the date VA received the claim for increased rating, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and degree of his recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). II. Findings and Analysis The Board has reviewed the medical and lay evidence in the Veteran's file. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); see Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (absent specific evidence indicating otherwise, all evidence contained in the record at the time of the Board's decision must be presumed to have been reviewed by VA and no further proof of such review is needed). Thus, the Board will summarize the evidence as appropriate, and the analysis will focus on what the evidence shows, or fails to show, as to the relevant issues within the claims under appeal. In the instant case, the Board finds that the symptomatology and impairments caused by the Veteran's migraine headaches are contemplated by the schedular rating criteria, and therefore, that no extraschedular rating is warranted. VA treatment records indicate that the Veteran suffers from head pain, blurred vision and blinking lights. He has been treated at various points with Topamax/Topiramate, Botox/DHE injections, Percocet and Oxycodone. During VA examinations in January 2007, May 2008, and July 2012 the Veteran described head pain, blurred vision and occasional sparkling,flashing lights and also nausea and vomiting, visual difficulties including light sensitivity and occasional tunnel vision, along with sensitivity to sound. Bowel troubles were reported in 2007 but not since then. These symptoms generally combine to render the Veteran prostrate for several hours during migraine headache episodes, during which he takes medication and rests in a darkened room. The frequency and duration of these episodes has varied over time but generally appear to occur multiple times weekly lasting from a few hours to multiple days. Most of the symptoms attributable to the Veteran's migraines are intrinsic manifestations of migraine headaches in general and are inherent in the diagnosis itself. See Richardson v. Nicholson, No. 03-2100, slip op. (U.S. Vet. App. May 17, 2006) ("Migraine, also known as a vascular headache, is '[a] symptom complex occurring periodically and characterized by pain in the head (usually unilateral), vertigo, nausea and vomiting, photophobia, and scintillating appearances of light.' STEDMAN'S 1118 [STEDMAN'S MEDICAL DICTIONARY (27th ed. 2000)]."); see also Dorland's Illustrated Medical Dictionary, 31st ed. at 1183 (migraine symptom complex often includes "irritability, nausea, vomiting, constipation or diarrhea, and often photophobia"). The only recurring symptomatology not expressly contemplated within the definition of migraine and/or the applicable rating criteria is the Veteran's memory loss. The Veteran has alternatively attributed his memory problems to Topamax or to the "39 years of migraines" themselves. However, while the Veteran, as a lay person, is competent to report observable symptomatology, he lacks the medical training and expertise necessary to provide a probative opinion on the medically complex issue such as the diagnosis or etiology of memory loss. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, while the Veteran associates his difficulty with memory to his migraine or migraine medication, he is not medically qualified to address such a complex question. The issue was addressed at an April 2008 Social Security Administration (SSA) disability psychiatric assessment. The examiner found indications of a thought disorder, although the Veteran was oriented to time, place and situation, and was able to provide recent information such as his social security number and phone number, was able to relate information regarding childhood and history, and could recall information regarding his education, employment and family history. The examiner noted that his fund of information was functional and that he recalled current events. Results of general memory testing were in the low average range, indicating that his capacity to use his memory effectively in everyday tasks was just below that of the average person. Other scores ranged from low average to high average and his general memory was more effective than working memory. The examiner concluded that that the test results argued against the likelihood of a significant organic cognitive decline in functioning. It seemed likely that anxiety or mood/affective difficulties may be a significant factor in his difficulty and that his difficulties may be related to retrieval of information rather than actual memory storage. At an April 2011 VA psychiatric examination, the Veteran reported memory, concentration and attention deficits due to his medication. The examiner found the Veteran's thought processes and cognition to be normal with no confusion or poor judgment and normal abstract thinking. The examiner noted that the Veteran's memory was mildly impaired as to names, directions and recent events. The medical evidence of record suggests that the Veteran may have mild memory difficulties, although, as noted, this may involve difficulty with memory retrieval rather than actual memory storage. In either case the Veteran's memory functioning has been reported as only slightly below average. Furthermore, aside from the Veteran's lay statements and reports to medical examiners, the record does not illustrate a connection between any memory loss and the Veteran's migraine headaches or migraine medication. The SSA examiner opined that the Veteran's memory loss, if it could be so described, was more likely a function of his anxiety or mood/affective disorder. Overall, the impairment and symptomatology attributable to the Veteran's migraine disability is contemplated by the schedular rating criteria and definition of migraine headaches, which, taken together, reasonably describe his disability level and symptomatology. In sum, his migraine disability picture is not so unusual in terms of symptoms or effects as to warrant extraschedular consideration. Thun, 22 Vet.App. at 115. Turning to the second Thun element, much of the Veteran's rationale for the application of an extraschedular rating concerns the frequency of his migraine episodes and the negative impact that they have had on his ability to drive to work, or to work at all. However, the Veteran's current disability rating expressly contemplates "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability," which aptly describes the Veteran's situation. 38 C.F.R. § 3.124a. Moreover, the Veteran is already in receipt of a total disability rating based on individual unemployability (TDIU). This rating is specifically meant to compensate the Veteran based on an inability to maintain substantially gainful employment. 38 C.F.R. § 4.16. Moreover, the Veteran has not been frequently hospitalized due to migraines. The medical evidence of record and the Veteran himself have stated that his usual course of treatment involves self-medication with prescription narcotics. The record does not suggest that the Veteran has required inpatient hospitalization for his migraines on any sort of frequent or recurring basis. 38 C.F.R. § 3.321(b)(1). Thus, even if his migraine disability picture was exceptional or unusual, extraschedular compensation would not be warranted. Finally, the Veteran has not asserted, and the evidence of record has not suggested, a combined effect or collective impact from his the combination of his migraines and service-connected diabetes mellitus and/or peripheral neuropathy that create such an exceptional circumstance to render the schedular rating criteria inadequate. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's current disabilities and symptomatology. Therefore, in the absence of exceptional factors, the Board finds that the criteria for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Thun, 22 Vet. App. at 115-16; Johnson, 762 F.3d 1362; Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An extraschedular rating in excess of 50 percent for migraine headaches is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs