BVA9404239 DOCKET NO. 93-18 041 ) DATE ) ) ) THE ISSUE Entitlement to an increased rating for post-concussion headaches, rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Marshall O. Potter, Jr., Associate Counsel INTRODUCTION The veteran had active service from August 1973 to September 1983. This appeal comes to the Board of Veterans' Appeals (Board) from a January 1993 rating decision by the Department of Veterans Affairs (VA), Hartford, Connecticut, Regional Office (RO) which denied the veteran's claim for an increased rating for his service-connected post-concussion headaches, currently rated 10 percent disabling. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the frequency and severity of post- concussion headaches are such that a higher evaluation is warranted. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and considered all of the evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for an increased evaluation of service-connected post-concussion headaches. FINDING OF FACT The veteran's post-concussion headaches are manifested by subjective complaints of daily headaches which are not prostrating in nature; objective neurological findings are normal; and impairment from the headaches does not exceed that for a migraine condition with characteristic prostrating attacks averaging one in two months and the last several months. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for post- concussion headaches have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Codes 8045, 8100, 9304 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has submitted a claim which is not inherently implausible. We are satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist him. Id. I. Factual Background The veteran's service medical records show that while on active duty in May 1981 he sustained head trauma that required a period of hospitalization. He continued to complain of headaches. A medical evaluation board in June 1983 and a physical evaluation board in August 1983 resulted in a diagnosis of post-concussion migraine tension headache syndrome. The veteran was retired from service because of this condition, considered 10 percent disabling. In June 1990, the veteran underwent a VA neurological evaluation. He reported having intermittent pounding headaches once or twice a week. He stated that sleep offered the best relief. He reported taking medication. He reported that he had been laid off secondary to frequent headaches interfering with his job. He stated that he had no regular physician. A neurological examination was normal. The impression was persistent post-traumatic headaches, possible vascular. An RO rating decision in March 1990 granted service connection for post-concussion headaches, rated 10 percent disabling. In 1992 the veteran filed a claim for an increased rating. In September 1992 the veteran underwent a VA neurological evaluation. He reported that his headaches averaged one a day. He stated they occurred with physical stress or reading. He stated that if he rested or took medication the headaches eased within 1/2 to 1 hour. He reported the headaches were bitemporal-retroorbital and pounding in character. Neurological examination was entirely normal. The diagnosis was post-traumatic stress-induced vascular headaches. At an August 1993 hearing before a member of the Board, sitting in Hartford, Connecticut, the veteran testified that he was an air conditioning and heating mechanic. He stated that in that job he drove a van and made many service calls. The veteran stated that when headaches occurred, he took a break. He stated that he would also take medication, Motrin, and that when this was done the headaches would go away in about half an hour. He reported having a headache on the average of once a day. He stated that his employer was not aware of this problem. He stated the last time he went for outpatient therapy for the headaches was last year. II. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Brain disease due to trauma, with purely neurological disabilities, will be rated under the diagnostic codes specifically dealing with such disabilities. Brain disease due to trauma, with purely subjective complaints such as headaches, recognized as symptomatic of brain trauma, will be rated 10 percent, but no more under Code 9304. Code 8045. A 10 percent evaluation is warranted for migraine with characteristic prostrating attacks averaging 1 in 2 months over the last several months. A 30 percent evaluation requires characteristic prostrating attacks occurring on an average of once a month over the last several months. Code 8100. The medical evidence, including the 1992 VA examination, shows normal neurological findings, and residuals of brain trauma consist of subjective headaches which have been rated as migraine under Code 8100. At the 1992 examination and at his 1993 hearing, the veteran asserted that he had daily headaches for which he took medication and short rest breaks while on the job, with good relief of symptoms. The medical evidence and the veteran's own testimony do not depict characteristic prostrating attacks, as contemplated by Code 8100, where the affected person is truly incapacitated for a substantial period of time and must lie down and rest until headaches abate. Rather, the evidence shows low-grade headaches that are readily relieved and which have no major impact on the veteran's ability to work. The aggregate impairment from these headaches does not exceed that which would be found in a migraine condition with characteristic prostrating attacks averaging one in two months over the last several months (i.e., the 10 percent criteria of Code 8100). Thus, an increase in the current 10 percent rating must be denied. ORDER An increased rating for post-concussion headaches is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (MEMBER TEMPORARILY ABSENT) L. W. TOBIN STEPHEN A. JONES *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.