Citation NR: 9736768 Decision Date: 10/31/97 Archive Date: 11/05/97 DOCKET NO. 96-23 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased (compensable) rating for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew E. Betourney, Associate Counsel INTRODUCTION The veteran served on active duty from April 1965 to April 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the veteran's claim for an increased (compensable) rating for his service-connected migraine headaches. The veteran filed a timely appeal to this adverse determination. The Board’s decision of the issue of a schedular evaluation for the veteran’s headaches is set forth below. However, the consideration of whether an extra-schedular evaluation is warranted (a component of the increased rating decision) is set forth in the REMAND following the ORDER portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that an increased rating is warranted for his service-connected migraine headaches because the disorder is more severely disabling than is reflected by the current noncompensable evaluation. In support of his contention, he maintains that he suffers from debilitating cluster-type migraine headaches, which occur on average 6 to 7 times per year. A favorable determination has therefore been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 record supports the grant of an increase to 10 percent for the veteran's service- connected migraine headaches. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The veteran's migraine headaches occur, on average, once every two months, and are characterized by prostrating symptoms to include nausea, vomiting, blurred vision, photophobia, phonophobia, and severe pulsating pain. CONCLUSION OF LAW The schedular criteria for a 10 percent evaluation for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.7, 4.124a, Diagnostic Code 8100 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran’s claim for an increased rating for migraine headaches is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Veterans Appeals (Court) has held that a mere allegation that a service-connected disability has increased in severity is sufficient to render the claim well grounded. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board also is satisfied that all relevant facts needed to adjudicate a schedular evaluation of the veteran’s migraine headaches have been properly developed. No further assistance to the veteran is required on that issue to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Evidence relevant to the veteran's claim for an increased rating for his service-connected migraine headaches includes VA outpatient treatment notes, hospital summaries, and discharge summaries dated from June 1988 to January 1995. These records indicate numerous instances of complaints of, and treatment for, severe headaches. Diagnoses varied, but generally indicated some form of migraine headaches. Symptomatology included nausea, photophobia, phonophobia, seeing spots, and severe pain. In April 1993, the veteran underwent a VA examination. At that time, he reported a history of suffering a head injury while in the Navy, when he was attacked by a street gang, rendering him unconscious. In 1969, following discharge from service, he again experienced a head injury, when the pharmacy he was working in was robbed. He stated that he was beaten and rendered unconscious for 58 days. At the time of examination, the veteran reported experiencing migraine headaches once or twice per year, although he had not suffered from a migraine for the previous year. Symptoms reportedly included pulsating pain, nausea, vomiting, dizziness. The examiner made a relevant diagnosis of post- traumatic migraine and non-migraine headaches which were aggravated by the civilian injury in 1969 with seizures, loss of consciousness, and non-responsiveness over several minutes of time. He further diagnosed organic brain syndrome. A VA discharge summary dated in October 1993 indicates that the veteran was admitted with complaints of headaches. At the time of admission, the veteran reported experiencing migraine headaches approximately 3 to 4 times per year, lasting 2 to 3 hours each. Symptoms reportedly included nausea, vomiting, blurred vision, black spots, photophobia, and phonophobia. He reported his last migraine headache as having occurred one year earlier. He also reported experiencing a second type of headache, which started in approximately 1991 and which caused a dull, aching pain, sometimes accompanied by nausea and vomiting. These headaches were said to occur 1 to 2 times a day, and then disappear on their own. The examiner diagnosed atypical migraine. In February 1995, the veteran again underwent a VA examination. At that time, the veteran reported that his headaches were clustered in nature, averaging 3 or 4 episodes per year with between 6 and 23 clusters during each episode. The duration of each episode was stated to be between 5 days to 3 weeks. He reported having experienced 6 periods of cluster headaches in the previous year, with each headache lasting approximately 2 hours. Reported symptoms again included severe pain, nausea, vomiting, light-headedness, and occasional blackouts. The examiner diagnosed cluster migraine headaches, which were stated to be the primary cause of the veteran's headache problem. Also diagnosed were atonic seizures. The examiner stated that the veteran's head injuries might have aggravated a previously-existing cluster migraine headache problem. Furthermore, in response to a request by the RO for specific rating information and clarification of earlier diagnoses provided for the veteran's disorders, the examiner offered the following opinion: It is not possible to distinguish between the cluster migraine headaches and headaches from organic brain syndrome, but the symptoms are characteristic of migraine headaches more so than from organic brain syndrome. The only change after the skull fracture and craniotomy was [an] increase in frequency and intensity of the headache but it remained in the same location and had the same characteristics it did before. VA outpatient treatment notes dated from February to July 1995 indicate ongoing complaints of, and treatment for, migraine headaches. In September 1995, the veteran testified before an RO hearing officer. At that time, he reported experiencing 4 to 5 headaches per month, each lasting from 2 to 2 and 1/2 hours. The veteran testified that these headaches essentially put him "out of commission" for the rest of the day. He also stated that he suffered from headaches "all the time," although not all of them were migraine headaches. In May 1997, the veteran underwent a new VA examination. At that time, he reported experiencing cluster-type headaches, averaging 6 to 7 clusters per year with anywhere from 12 to 26 headaches in each cluster. Symptoms included severe pulsating pain, blurred vision, nausea, vomiting, dizziness, and sensitivity to light. The veteran also reported bilateral frontal headaches, occurring approximately 3 times per week, consisting of a dull, aching pain. The examiner diagnosed chronic depression due to cluster headaches, black- outs due to cluster headaches, post-traumatic headaches, tension headaches, depression, and partial complex seizures because of his head injury. It appears that the examiner also rendered a diagnosis of cluster headaches aggravated by head injury with increased severity and frequency, although this statement actually appeared directly above the "diagnosis" section heading. In June 1997, the veteran testified at a hearing held before the undersigned Board Member at the RO. At that time, he reported that his migraine headaches caused agonizing pain, accompanied by nausea, vomiting, and sensitivity to light. He stated that these episodes were incapacitating, causing him to essentially retreat from the rest of the world until the migraine pain ceased. He also stated that his migraines have caused him to lose time from work, and caused him to lose several jobs. The veteran did not specifically testify as to the frequency of these migraines, but stated that they lasted up to two weeks when they did occur. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1996). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1996). The veteran's migraine headaches have been evaluated as noncompensably disabling under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100. As that code section specifically pertains to the evaluation of migraine headaches, it is the appropriate code section for evaluation of the disability under consideration. Pursuant to DC 8100, a 10 percent rating is warranted when migraines are characterized by prostrating attacks averaging 1 in 2 months over the last several months. A noncompensable (zero percent) rating is warranted when migraines are characterized by less frequent attacks. In order to warrant a 30 percent rating, migraines must be characterized by prostrating attacks occurring, on average, once per month over the last several months. Finally, a 50 percent rating is warranted for migraines characterized by very frequent completely prostrating and prolonged attacks which are productive of severe economic inadaptability. A review of the evidence described above reveals that the veteran has reported different levels of frequency for his migraine headaches, ranging from 1 or 2 times per year at the time of a VA examination in April 1993 to a high of 6 or 7 per year at the time of VA examinations in February 1995 and in May 1997. The Board acknowledges that the veteran testified in September 1995 that he experienced 4 to 5 migraine headaches per month. However, after a review of his entire testimony, including statements made later in the transcript, it is unclear whether this number actually refers to his migraine headaches, to the second type of apparently unrelated frequent "dull aching" headaches he has repeatedly complained of at the time of VA examinations, or to a combination of both types. In addition, the Board finds that this frequency estimate is wholly inconsistent with all other estimates of migraine headache frequency reported at every other instance of VA treatment and examination. Thus, the Board finds that the statement that the veteran experiences 4 to 5 migraine headaches per month is not credible. In any case, the Board finds that the most recent medical evidence, i.e., the May 1997 VA examination report, indicates that the veteran then reported experiencing 6 to 7 migraine headaches per year. This statement is supported by the veteran's earlier consistent report to a VA examiner in February 1995 that he had experienced 6 migraine headaches in the previous year. Thus, the Board finds that the veteran's report of 6 to 7 migraine headache episodes per year is both the most current and most reliable report of migraine frequency. In this regard, the Board notes that while lay witnesses, such as the veteran, are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Indeed, the Board recognizes that for disorders such as migraine headaches, the veteran's own report of frequency of occurrence may be the most reliable gage of the number of occurrences per year, particularly if, as appears to be the case in this situation, a veteran treats his symptoms with prescription medication, rather than seeking outside medical treatment at the time of every migraine attack. The Board thus finds that the veteran's migraines attacks have occurred, on average, once every 2 months over the last several months. In addition, the Board finds that the veteran's migraine headaches are indeed characterized by "prostrating" attacks. The veteran has consistently stated at the time of examination and treatment that his migraine headaches are characterized by such symptoms as severe pulsating pain, nausea, vomiting, photophobia, phonophobia, dizziness, and seeing black spots. He has twice testified, in September 1995 and again in June 1997, that his migraine headaches are debilitating, causing him to retreat from the world into a dark, quiet area until the extreme pain subsides. Thus, the Board finds that the veteran's migraine headaches are characterized by a frequency of occurrence and symptomatology which most closely approximate the criteria for a 10 percent rating under DC 8100. However, as the evidence does not indicate that the veteran suffers from prostrating migraine attacks occurring on an average of once per month, a higher, 30 percent evaluation is not warranted by the evidence. As migraine headaches is a disability for which a specific diagnostic code exists under the Rating Schedule, as noted above, an evaluation by analogy to under another diagnostic code section is not appropriate in this case; therefore, there is no other diagnostic code which could potentially provide a basis for assignment of more than 10 percent assigned. For the foregoing reasons, the Board finds that a 10 percent rating is the appropriate rating for the veteran's migraine headaches under the Rating Schedule. ORDER An increased schedular rating to 10 percent for migraine headaches is granted, subject to the controlling regulations governing the payment of monetary awards. REMAND A review of the veteran's claims file reveals that during the course of his June 1997 hearing before the undersigned Board Member, the veteran stated that his migraine headaches had caused him to lose time from work "over and over again." He testified that he was unable to maintain employment at most of his prior positions due to his headache disorder, and was forced to call in sick anywhere from 2 to 15 days in a row due to his migraine headaches. The veteran stated that he was not working at the time of the hearing, but indicated that when he was working he missed 40 to 50 days of work a year because of his headaches. The Board notes that the record does not contain any corroborating evidence to support the veteran's claims of lost time from work due to migraine headaches. However, the record also does not indicate that the veteran was ever advised that he could submit such evidence to the RO for consideration. The Board notes that the provisions of 38 C.F.R. § 3.321(b)(1) allow for the assignment of an extra-schedular evaluation in those cases where a disorder presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization. Although the question of whether an extra-schedular evaluation is warranted is considered a component of the increased rating issue, a review of the record indicates that this provision has not been considered by the RO. In Floyd v. Brown, 9 Vet. App. 88, 96 (1996), the Court held that the Board does not have jurisdiction to consider and assign an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) in the first instance. Accordingly, in view of the veteran’s contentions suggesting marked interference with employment, and in order to give the veteran every consideration with respect to the present appeal and to accord the veteran due process of law, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and advise him that he may supplement the record with evidence in support of his contention that his migraine headaches have interfered with his ability to obtain and maintain employment. Any evidence obtained in this regard should be associated with the claims file. 2. Following the receipt of any additional evidence (or the expiration of a reasonable period of time allowed for this purpose), the RO should review the veteran's increased rating claim and determine whether the assignment of an extra-schedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) is warranted for the his service-connected migraine headaches. If this determination is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and be afforded the applicable time period to respond. The veteran and his representative should be advised that in order for the Board to obtain jurisdiction over an issue not currently in appellate status, a timely notice of disagreement and substantive appeal must be filed with the RO. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The purpose of this REMAND is to obtain additional development and adjudication, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. As noted above, the veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. JACQUELINE E. MONROE Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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. Appellate rights do not attach to those issues addressed in the remand portion of the Board's decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -