Citation NR: 9703954 Decision Date: 02/04/97 Archive Date: 02/18/97 DOCKET NO. 94-27 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to an increased rating for chronic paroxysmal hemicrania (headaches), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from August 1967 to May 1970. This appeal comes before the Board of Veterans’ Appeals (BVA or Board) on appeal of an August 1989 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which denied entitlement to a evaluation in excess of 10 percent for headaches and an evaluation in excess of 70 percent for post-traumatic stress disorder (PTSD). The case previously came before the Board which, by decision dated in July 1991, remanded the case for further development, including clarification of the issues on appeal. In a Statement in Support of Claim, dated and received by the RO in January 1992, the veteran expressed satisfaction with the 70 percent evaluation for PTSD; accordingly, that issue is deemed withdrawn from appeal. However, he also expressed his continued dissatisfaction with the 10 percent evaluation assigned for headaches, and his desire to continue the appeal of that issue. During the pendency of the appeal, by rating decision of October 1992, the RO increased the evaluation assigned for headaches to 30 percent. However, that action does not abrogate the appeal, since 30 percent is not the maximum allowable benefit. See 38 C.F.R. § 4.124a, 8100 (1995); AB v. Brown, 6 Vet.App. 35, 38 (1993). Furthermore, the continued appeal of the increased rating issue is proper notwithstanding the fact that the October 1992 decision also granted entitlement to a total rating based on individual unemployability due to service-connected disability. As a final matter, the Board would point out that the issues certified for the appeal, entitlement to an effective date prior to June 1, 1992, for the establishment of a total rating based on individual unemployability due to service- connected disability, and entitlement to an effective date prior to May 1, 1992, for the establishment of a 30 disability evaluation for service-connected headaches, are not properly before the Board. Those effective dates were established pursuant to the aforementioned October 1992 rating decision, to which the veteran timely filed a notice of disagreement in July 1993. A statement of the case was forwarded to the veteran later in July 1993. However, the veteran has not perfected his appeal of either issue. Although a VA Form 9 (substantive appeal) was received by the RO in July 1994, it contained no reference to the issues on appeal (and was, in fact, construed as a claim for a temporary total evaluation for a period of hospitalization, and for compensable evaluations for service-connected hearing loss and for a service-connected eye condition) and was not timely filed. The Board thus has no jurisdiction over the effective date issues. See 38 U.S.C.A. § 7105(b),(d) (West 1991); 38 C.F.R. §§ 19.32, 19.35, 20.1302 (1995). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in denying an evaluation in excess of 30 percent for his service-connected headaches. He claims that he has prostrating headaches four to six times per month, that he has migraine and muscle contraction headaches, and that due to his medication level and headaches, he is unable to drive a car, that any work activity is limited, and that his other daily activities are extremely limited. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the assignment of a 50 percent evaluation for headaches. FINDING OF FACT The veteran headaches are of three types: tension, migraine, and a type involving the occipital nerve and the left eye, from which the veteran experiences disabling attacks several times per month. CONCLUSION OF LAW The criteria for assignment of a 50 percent evaluation for chronic paroxysmal hemicrania (headaches) have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.20, 4.124a, 6299-8100 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran’s claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), that is, plausible and capable of substantiation. A claim that a service-connected condition has become more severe is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 631-632 (1992). Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (1995). The veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1 (1995); Schafrath v. Derwinski, 1 Vet.App. 589 (1995). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Following the Board’s remand of the case in July 1991, a social and industrial survey of the veteran was conducted in October 1991. According to the report, that the veteran had discontinued his last full-time employment (as a dishwasher) in May 1989 because, due to his medications, he couldn’t feel the hot water and blistered his hands; he had worked at that job at seven months. The veteran and his house mate asserted that his complex migraine headaches prevented him from working. In January 1992, the veteran submitted a statement in which he indicated that his medication level (for PTSD and headaches) prohibited any work activity, prevented him from driving a car, and extremely limited his daily activity. In regard to the latter, he indicated that anything that raises his blood pressure or causes pressure on his head worsens his headaches. In a May 1992 statement, the veteran indicated that his headache disorder was made up of two types of headaches, a constant migraine-type headache and a muscle contraction-type headache; he indicated that he took medication to lessen the latter type. He emphasized that his headaches were prostrating an average of four to six times per month. The veteran underwent a VA neurological evaluation in September 1992. At that time, he reported daily headaches since 1969 which he believed, along with PTSD, rendered him unemployable. The examiner noted that the veteran complained of three types of headaches: a nearly continuous tension band which was aggravated by emotional situations and occasionally disabling; a disabling migraine-type headache which reportedly lasted two to seven days, occurring six to eight times per month; and, a third type which involved an unpredictable but stable pain from the left side of the occipital nerve to the back of the left eye, which the veteran contended was totally disabling for five to ten minutes. The examiner diagnosed tension and migraine headaches, but noted that the third type reported by the veteran was not diagnosable at that time. The examiner characterized the combined headaches as chronic paroxysmal hemicrania, left. The veteran’s headaches currently is assessed under Diagnostic Code 6099-8100, representing rating, by analogy, to an eye disorder (38 C.F.R. § 4.84a, 6099 (1995)) and migraine headaches (38 C.F.R. § 4.124a, Diagnostic Code 8100 (1995)); the disorder is evaluated under the criteria for migraine headaches. Under the applicable diagnostic code, the currently assigned 30 percent evaluation is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months, whereas a 50 percent evaluation requires evidence of very frequent, completely prostrating and prolonged attacks productive of severe economic inadapatability. Given the aggregate effect of the veteran’s combination headaches, the reported frequency of attacks, particularly, of migraine-type headaches, and the reported severity of such attacks, the Board finds that, resolving all reasonable doubt in the veteran’s favor, the veteran’s disability more nearly approximates the criteria for the assignment of a 50 percent evaluation under Diagnostic Code 8100. See 38 C.F.R. § 4.7 (1995). In reaching this decision, the Board acknowledges that the veteran also has nonservice-connected evaluations for the residuals of a head injury, and for myofascial neck pain. However, there is no medical evidence that the symptoms reported by the veteran are attributable to these conditions, as opposed to the combination headache diagnoses identified by the VA neurologist. The Board would also point out that its decision in the instant case is based solely upon the provisions of the VA’s Schedule for Rating Disabilities. In Floyd v. Brown, 9 Vet.App. 88, 96 (1996), the Court held that the Board does not have jurisdiction to assign an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) (1995) in the first instance. In this appeal, however, there has been no showing that the disability under consideration has caused marked interference with employment (beyond that contemplated in the assigned evaluation) or necessitated frequent periods of hospitalization so as to render the schedular standards inadequate and to warrant assignment of an extra-schedular evaluation. In this regard, the Board notes that, while the veteran has been granted individual unemployability benefits on the basis of both his PTSD (evaluated as 70 percent disabling) and his headaches, there is no objective evidence that his headaches, alone, render him unemployable or cause more than severe economic inadaptability. In the absence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet.App. 157, 158-9 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). ORDER Subject to the laws and regulations governing the payment of monetary benefits, a 50 percent evaluation for chronic paroxysmal hemicrania (headaches), is granted. JACQUELINE E. MONROE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), 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, 102 Stat. 4105, 4122 (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. - 2 -