Citation Nr: 0810076 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 02-12 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for cluster headaches. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from March 1968 to October 1970 and from December 1975 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) from a January 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The claims file was subsequently transferred to the RO in Waco, Texas, then to the RO in Muskogee, Oklahoma. In November 2007, the veteran and his wife appeared and testified at a hearing before the undersigned Acting Veterans Law Judge sitting in Muskogee, Oklahoma. A transcript has been made and added to the record. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The veteran's cluster headaches have for the entire period of increased rating claim been manifested by characteristic prostrating attacks occurring on an average of once a month over the last several months, but not by very frequent completely prostrating attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a 30 percent rating, but not more, for service-connected cluster headaches have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.27, 4.124a, Diagnostic Code (DC) 8100 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in August 2001, January 2004, and February 2006 the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. According to Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008 WL 239951 (Jan. 30, 2008), for an increased- compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from non-compensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In this case, the claimant was provided pertinent information in VCAA letter notices in August 2001, January 2004, and February 2006. In addition, in the April 2002 statement of the case, and July 2003, April 2005, August 2005, September 2005, November 2005, September 2006, and April 2007 supplemental statements of the case contained information about the evidence and criteria required to substantiate a claim for increased rating. Cumulatively, the veteran was informed of the necessity of providing on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. The veteran's pertinent medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. There is no objective evidence indicating that there has been a material change in the service-connected disability since the veteran was last examined. 38 C.F.R. § 3.327(a) (2007). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The January 2002, November 2005, and February 2007 examination reports are adequate for rating purposes and are otherwise supported by the other clinical records. The examination in this case is adequate upon which to base a decision, and the records satisfy 38 C.F.R. § 3.326 (2007). Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The veteran's cluster headaches have been rated under DC 8199-8100. DC 8199 represents an unlisted disability requiring rating by analogy to one of the disabilities listed under 38 C.F.R. § 4.124a. See 38 C.F.R. § 4.27. The veteran's cluster headaches are analogous to migraine headaches. Under DC 8100, a 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. In the instant case, the Board finds that the veteran meets the criteria for a 30 percent disability rating by analogy under DC 8100. The evidence shows that, for the entire period of increased rating claim, the veteran's service- connected cluster headaches have been manifested by characteristic prostrating attacks occurring on an average of once a month over the last several months, as required for a 30 percent disability rating. 38 C.F.R. § 4.124a, DC 8100. VA afforded the veteran an examination in January 2002. The veteran reported getting headaches three times a week lasting up to three days at a time, and that these headaches occurred at any time and were decreased by quiet, being dark room, rest, and pain medications. The veteran indicated that he had weakness, fatigue, and functional loss requiring rest. The veteran also stated that his anterior cervical fusion in April 2001 helped with his headaches approximately 50 percent. The claims folder is replete with medical records showing the veteran's complaints of headaches of varying duration for which he took medication. A January 2005 VA clinical record noted the veteran's report of a decrease of frequency of migraine headaches since starting Midrin in October 2004. He indicated that he had six migraines since then ranging from a few hours to 24 hours, that the migraines were relived by Midrin and rest, that bright lights could set off his headaches, and that the headaches can be preceded by blurry vision and nausea. A November 2005 VA examination report noted the veteran and his wife's report that he had headaches three to four times a week which may last for several hours at a time. They began in the occipital area and did not radiate; were pounding in nature; and were accompanied by visual blurring, nausea sometimes vomiting, and light and sound sensitivity. The veteran also stated that he took different kinds of medications throughout the years but nothing really relieved his headaches. The diagnosis was chronic headaches of many years duration, most likely migraine-cluster. A January 2006 VA clinical record noted the veteran's report of prostrating headaches located in the occipital region at least three to four times a week and lasting the whole day. The veteran reported that nothing alleviated the headaches, and they were associated with nausea, vomiting, and photophobia. A November 2006 letter from S. Mehta, D.O., noted the veteran's report of chronic debilitating cluster headaches approximately six to seven times per month. Dr. Mehta indicated that the veteran's chronic debilitating cluster headaches were the cause of his unemployability. A February 2007 VA examination report noted the veteran's statement that his headaches came and went; they could occur daily for 30 days, be gone for a few days, but when they occur, they occurred almost every other day; and that he took medication for management. The veteran also reported that the headaches were primarily occipital, pounding, or associated with some photophobia, but not necessarily, and that they are usually associated with profound nausea and vomiting. The veteran reported that he went to the emergency room when he was nauseous and vomited. The veteran noted that he has stomach problems due to medication use for back pain. At the November 2007 personal hearing, the veteran testified to getting headaches three to five times a week that lasted at least 24 hours, for which he took medication. He described the headaches as being located at the back of his neck and throbbing, that he also threw up, and that light, music, and noise bothered him during such episodes. The veteran's wife testified that the veteran had to lay down seven or eight times a week as a result of the headaches. The veteran further stated that he fell multiple times as result of the headaches, made 15-20 trips to the hospital in the past year, and saw the doctor two to three times a month. After a review of the evidence of record, the Board finds that the weight of the competent evidence demonstrates that the veteran service-connected cluster headaches have for the entire period of increased rating claim more nearly approximated characteristic prostrating attacks occurring on an average of once a month over the last several months, as contemplated by a 30 percent disability rating under DC 8100. The same evidence shows that his headaches have for any period of increased rating claim more nearly approximated very frequent completely prostrating attacks productive of severe economic inadaptability, as required for a higher disability rating of 50 percent under DC 8100. 38 C.F.R. § 4.124a, DC 8100. Based upon the guidance of the Court in Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), the Board finds that the veteran's symptoms met the 30 percent criteria, but no higher, throughout the entire appeal period, so staged ratings are not warranted. The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1), but finds that no evidence that the veteran's service-connected cluster headaches has caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise renders impractical the application of the regular schedular standards utilized to evaluate the severity of this disability. The Board notes that the evidence includes that veteran has been to the emergency room, that Dr. Mehta indicated that the veteran's chronic debilitating cluster headaches caused his unemployability. While the February 2007 VA examination report noted that the veteran reported missing work due to his chronic headaches some of which were severe and caused him to pass out and miss work, the examiner concluded that the veteran's unemployability seemed more related to his back disability. Also, the veteran testified at his hearing that he lost his job in 2001 due to his headaches. In any case, the existing schedular rating is already based upon the average impairment of earning capacity and incapacitating episodes, so contemplates the degree of economic inadaptability. In the absence of such factors, the Board finds that the requirements for an extraschedular evaluation for the veteran's service-connected disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER A rating of 30 percent for cluster headaches is granted, subject to the regulations governing the award of monetary benefits. REMAND In light of the Board's favorable action granting an increased rating to 30 percent for service-connected cluster headaches, the RO should review the veteran's TDIU claim. Currently, the veteran is service connected for cluster headaches, evaluated as 30 percent disabling; hypertension, evaluated as 10 percent disabling; cystectomy scars of the face, head, back, and right thigh, evaluated as non- compensable (0 percent); epididymitis, evaluated as non- compensable; left ear hearing loss, evaluated as non- compensable; and status-post right little finger fracture, evaluated as non-compensable. Additionally, VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). As noted above, the November 2006 letter from Dr. Mehta stated that the veteran's chronic debilitating cluster headaches were the cause of his unemployability. The February 2007 VA examination noted that the veteran's unemployability was primarily due to his spine disability and chronic narcotic use, causing him to be unable to do heavy work that he was suited for in the past. Additionally, the veteran receives Social Security disability benefits for his back disorder. As the veteran has not been afforded an examination specifically to determine the impact of his service-connected disabilities on his employment, on remand the veteran should be given an examination to determine the impact the service-connected disabilities have on his ability to participate in substantially gainful employment. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA medical examination to ascertain the impact the service-connected disabilities have on the veteran's ability to obtain or maintain substantially gainful employment. The examiner should comment on the degree of social and industrial impairment that the veteran experiences as a result of his service-connected disabilities. The examiner should disregard the veteran's age and his non-service- connected disabilities in making the determination. The claims folder should be made available to the examiner and reviewed in conjunction with the examination. 2. Re-evaluate the veteran's TDIU claim and, if the benefit remains denied, the veteran and his representative must be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2007). The appellant has the right to submit additional evidence and argument on the matter 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 Supp. 2007). ______________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs