Citation Nr: 0810483 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 03-24 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased evaluation for service- connected vascular headaches, currently evaluated as 50 percent disabling. 2. Entitlement to a total evaluation based on individual unemployability (TDIU) due to service-connected disabilities on a schedular basis. 3. Entitlement to an extraschedular rating for service- connected vascular headaches under 38 C.F.R. § 3.321(b) (2007). 4. Entitlement to a total evaluation based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran served on active duty from February 1971 to May 1972. This matter comes to the Board of Veterans' Appeals (Board) from a December 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this case in February 2007 for further development. The issues of an increased rating for vascular headaches and TDIU on an extraschedular bases are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's only service-connected disability is vascular headaches, currently rated 50 percent disabling, the highest available schedular rating. CONCLUSIONS OF LAW 1. There is no legal basis for assignment of a schedular rating in excess of 50 percent for service-connected vascular headaches. 2. The schedular requirements for a TDIU rating are not met, and a TDIU rating on a schedular basis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.340, 3.341, 4.16 (a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The record shows that in May 2006 and March 2007 VCAA letters, the appellant was informed of the information and evidence necessary to warrant entitlement to higher ratings on a schedular basis. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The Board also notes that the VCAA letters notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was advised to submit any evidence in his possession that pertains to his claim. The Board concludes that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the VCAA notices were provided after the initial rating decision. The Board recognizes that subsequent VCAA notices were provided after the initial decision. However, the deficiency in the timing of these notices was remedied by readjudication of the issues on appeal in subsequent supplemental statements of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet.App. 473 (2006). The VC AA letters gave notice of the types of evidence necessary to establish a disability rating and effective date. The Board also notes here that the issue of an increased rating on a schedular basis and the issue of a total rating based on individual unemployabilty on a schedular basis are being denied in this decision based on application of law. Under such circumstances, it is arguable that VCAA notice requirements do not apply. Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001). Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes VA treatment records and a VA examination report. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. The veteran was afforded a VA examination in July 2007. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination report obtained contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issues of an increased rating and TDIU on a schedular basis. Increased Rating on a Schedular Basis The veteran's service-connected vascular headache disability is rated 50 percent disabling under the provisions of Diagnostic Code 8100. This rating contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Moreover, this 50 percent rating is the highest schedular rating assignable under Code 8100. In sum, there is no legal basis for assigning a schedular rating in excess of the current 50 percent for the headache disability. TDIU on a Schedular Basis The second issue on appeal involves the issue of a total rating based on unemployability due to service-connected disabilities. Such a total rating may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The veteran's only service-connected disability is vascular headaches, rated 50 percent disabling, effective July 30, 1997. As the veteran's service-connected disability as not been rated 60 percent or higher, under the 38 C.F.R. § 4.16(a) criteria outlined above, he does not meet the schedular criteria for a schedular TDIU rating. Consequently, a TDIU rating on a schedular basis, under 38 C.F.R. § 4.16(a), is not warranted, and must be denied for lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Discussion of further factors for consideration follows in the remand below. ORDER Entitlement to a schedular rating in excess of 50 percent for service-connected vascular headaches is not warranted. Entitlement to TDIU on a schedular basis is not warranted. To that extent, the appeal is denied. REMAND The current appeal also includes the issues of entitlement to an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) for the veteran's service-connected vascular headaches, and pursuant to 38 C.F.R. § 4.16(b) for TDIU. Again, the Board notes that a 50 percent disability rating is the highest rating assignable under the current rating criteria for migraine headaches. See 38 C.F.R. § 4.124(a) (2007), Diagnostic Code 8100; Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Compensation ratings are based upon the average impairment of earning capacity. To accord justice in the exceptional case where the scheduler evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service is authorized to approve an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). In other words, by regulation, an extraschedular rating may be considered when a case presents "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). Further, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, for those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), but are unemployable due to service connected disabilities, rating boards should submit such cases to the Director, Compensation and Pension Service, for extra- schedular consideration. 38 C.F.R. § 4.16(b). In the instant case there is evidence to suggest that the severity of the veteran's service-connected vascular headaches disability is sufficient to warrant referral for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) for the veteran's service-connected vascular headaches, and under 38 C.F.R. § 4.16(b) for TDIU. The veteran was previously employed as a registered nurse until he stopped working in 1997. A January 2004 VA treatment record showed that the veteran had chronic recurrent migraine headaches that appeared to be quite disabling. Significantly, a September 2007 VA examination report stated that the veteran's migraine headaches were serious enough to prevent him from working as a registered nurse. The examiner opined that the veteran's descriptions had been consistent throughout the years and the examiner had no doubt that the veteran had a significant problem with migraine headaches, which would prevent him from concentrating on patient care and could lead to mistakes in medications and treatment of patients. The examiner also indicated that the veteran would have difficulty working a sedentary administrative job with requirements for concentration, planning and reviewing of patient care. The examiner further indicated that until the veteran's headaches could be treated effectively, the veteran should not work in the nursing field. Given the evidence of record, the Board finds that marked interference with employment has been shown; and, thus, submission of the issue of an increased rating for vascular headaches to the Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration is warranted pursuant to 38 C.F.R. § 3.321(b)(1). Further, as there has also been evidence of unemployability, the criteria for submission of the issue of TDIU to the Director, Compensation and Pension Service for extraschedular consideration is warranted pursuant to 38 C.F.R. § 4.16(b). Lastly, in a March 2007 statement, the veteran stated that he had a private examination in March 2007 pertaining to his headaches at Hidalgo Medical Services. It does not appear that these records have been associated with the claims file. However, in its October 2007 supplemental statement of the case, the RO provided that the veteran had not submitted authorization in order for the RO to obtain these records. Nevertheless, in light of the need to return this case for another matter, the RO should take appropriate action, including attempting to get authorization from the veteran, to obtain these medical records. Accordingly, the case is REMANDED for the following actions: 1. The RO should take appropriate action, including attempting to get authorization from the veteran, to obtain medical records from March 2007 from Hidalgo Medical Services. If these records are unavailable, it should be clearly noted in the claims file. 2. Thereafter, the RO should submit the veteran's claims for an extraschedular rating for his service-connected vascular headaches and for a total disability rating based on individual unemployability on an extraschedular basis to the Under Secretary for Benefits or Director, Compensation and Pension Service for extraschedular consideration. 3. Thereafter, the remaining two extraschedular issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs