Citation Nr: 0812526 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 96-23 416A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for headaches as a distinct ratable entity. 2. Evaluation of chronic bronchitis, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The veteran had active service from September 1943 to November 1945. This matter came before the Board of Veterans' Appeals (Board) from August 1995 and June 2002 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The veteran testified before the undersigned Veterans Law Judge in June 2006. A transcript of his hearing has been associated with the record. The instant issues were remanded for additional development in January 2007 and August 2007. FINDINGS OF FACT 1. Migraines are a separate diagnostic entity from the service-connected post traumatic stress disorder (PTSD). 2. Chronic bronchitis is manifested by post- bronchodilatation results showing 81 percent FEV1, 110 percent FEV1/FVC and 73 percent FVC. CONCLUSIONS OF LAW 1. Migraine was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). 2. The criteria for an evaluation in excess of 10 percent disabling for chronic bronchitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.97 Diagnostic Code 6600. REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error')." Id. at 121. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. The record reflects that the originating agency provided the veteran with the notice required under the VCAA by letters dated in April 2002, March 2006 and March 2007. These letters provided adequate notice with respect to the evidence necessary to establish entitlement to service connection and an increased rating. Although the letters were issued after the initial adjudication of the claim, notice was given prior the issuance of a supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Based on the foregoing, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The Board also notes that the veteran has been given sufficient notice in compliance with the recent case Vazquez- Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), which held that a notice letter must inform the veteran that, to substantiate a claim, he or she must provide, or ask VA 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. The Court also held that where the claimant is rated under a diagnostic code that 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, the notice letter must provide at least general notice of that requirement. The Court further found that the notice must 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. Here, the veteran was provided with notification regarding the rating criteria in a Statement of the Case (SOC) prior to the readjudication of the case. Also, the veteran was issued a letter in March 2006 which informed him that the nature and symptoms of the condition, severity and duration of the symptoms, and impact of the condition and symptoms on employment are considered in determining disability ratings. The letter also provided examples of the type of evidence that may be submitted. Although complete VCAA notice was provided after the initial adjudication of the claim, this timing deficiency was remedied by the issuance of a SSOC. Mayfield, supra, at 1328. Thus, VA's duty to notify in this case has been satisfied and there is no prejudice to the veteran as he has been provided a meaningful opportunity to participate. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The veteran has been afforded appropriate examinations, and available service records and pertinent post service medical records have been obtained. The veteran has not identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the appeal. Legal Criteria and Analysis Entitlement to service connection for headaches as a separate disability Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of organic disease of the nervous system may be presumed if it is manifested to a compensable degree within a year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303. Direct service connection may not be granted without evidence of a current disability, evidence of in-service incurrence or aggravation of a disease or injury, and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability (aggravation). The Court has also held that service connection can be granted for disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service- connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995). When aggravation of a veteran's non- service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. The Board notes that 38 C.F.R. § 3.310 was amended on September 7, 2006. The amendment is to be applied prospectively; it is not for application in the present claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). During service the veteran complained of, and was treated for, headaches. In July 1945 it was noted that the veteran experienced headaches for the past two years, classified as throbbing in character. It was noted that the veteran was nervous and irritable. A state of anxiety was also noted. The veteran was seen again in July 1945 for anxiety; a notation of anxiety state, acute, transient mild, manifested by headaches and irritability was noted. X-ray examination of the head conducted in August 1945 was negative. The veteran was hospitalized in September 1945. The veteran reported severe headaches and nervousness. The examiner noted that no precipitating factor, emotional factor, could be determined. The examiner further noted that there's never been phenomina, other than this it could be labeled hysterical, but the veteran's make up seemed to be one more of emotional instability. The examiner then noted that it is entirely possible that if one searched deeply enough one might find a precipitating factor actually for this event. In an October 1945 examination, a notation of conversion hysteria, serve, manifested by stupor in an individual with a long standing anxiety state, moderate, as his underlying disability was given. In December 1945, the veteran was granted service connection for psychoneurosis, hysteria, symptomatic at discharge. Post service medical records show that in an April 1952 outpatient visit the veteran complained of restlessness and recurring headaches since discharge. An impression of headaches, psychogenic in origin was noted. The veteran's service connected psychiatric disorder once classified as psychoneurosis, hysteria was later changed to conversion reaction with headaches and then to PTSD. In a September 2001 VA neurological compensation and pension examination it was noted that the veteran had a longstanding history of headaches which looked like migraine-type headaches since service. During this examination, the veteran reported headaches mainly on the top of the skull, throbbing, occurring two to three times a month. The examiner found that the veteran's headaches were most likely migraine and that sometimes stress could make the migraine worse if the veteran was in the stress conditions like a war or explosion. The veteran's examination was basically normal and the examiner concluded that he did not know the exact relation of the veteran's headaches and service except that service and stress might make the headaches more frequent. In a June 2002 VA neurological compensation and pension examination, the veteran reported occasional headaches. Physician M.A.K. reviewed the veteran's medical records and in August 2002 he opined that it was more likely than not that the veteran's current headaches do not represent a separate disability and there is no connection to active service or his service connected PTSD. M.A.K. noted that during the September 2001 examination the veteran described his headaches occurring one to three times a month, but in his June 2002 examination he described occasional headaches not requiring any medical attention and relieved by over the counter pain medication. In an April 2007 VA compensation and pension examination for PTSD, the examiner addressed the issue of whether the veteran's headaches were related to his PTSD. The veteran reported during this examination that he gets headaches that are like a "bandana" and "pulse beat" in his head three to four times a month. It was noted that the veteran did not feel that his psychiatric condition affected his headaches. The examiner opined that the veteran's headaches were not clearly related to his service connected PTSD and that a neurologist would be better able to clarify the etiology of the headaches. In the veteran's September 2007 VA compensation and pension neurological examination, he reported headaches occurring about two to three times a week usually lasting about two to three hours or sometimes the entire day. The examiner, after reviewing the veteran's claims folder, found that there was not enough evidence to conclude that the veteran's headaches were attributable to service because the veteran had a nonfocal neurological examination. After review of the record, the Board finds in the veteran's favor. Although physician M.A.K. opined in August 2002 that it was more likely than not that the veteran's current headaches do not represent a separate disability and that there was no connection to active service or his service connected PTSD, the examiner did not provide an explanation for this conclusion. Because M.A.K. did not provide an explanation or rationale for his conclusion, we find his opinion unpersuasive. The September 2007 VA examiner found that there was not enough evidence to conclude that the veteran's headaches were attributable to service and the September 2001 VA examiner concluded that he did not know the exact relation of the veteran's headaches and service except that service and stress might make the headaches more frequent. The Board has considered the aforementioned VA examinations and has concluded that service connection for migraines as a distinct ratable entity is warranted. In reaching this determination, the Board notes that the most probative evidence tends to establish that the veteran has a headache disability which was diagnosed as migraines in 2001. The service medical also show that the veteran was treated for, and complained of, headaches during service. When the veteran was granted service connection for his psychiatric disorder, headaches were considered to be apart of the disorder. However, the veteran's service connected psychiatric disorder once classified as psychoneurosis, hysteria was later changed to conversion reaction with headaches and then to PTSD. The September 2007 VA psychiatric examiner found that the veteran's headaches are not associated with his PTSD. The Board notes that during service, the veteran was hospitalized for headaches and it was noted that no precipitating factor, emotional factor, could be determined. During the veteran's April 2007 examination he also reported that he is unaware of any precipitant to the headaches. In light of the service medical records and the VA opinions, the Board finds that it cannot determine with certainty that the veteran's migraines are not a separate ratable entity. Thus, the Board has resolved doubt in the veteran's favor and service connection for migraines as a distinct ratable entity is granted. In reaching this determination, the Board notes that throughout the claims file, the classification of the headache disability have not been a model of certainty. However, we cannot continue to associate headaches with PTSD when professionals have not made that judgment. Lastly, based upon the record, we are unable to conclude that there is no relationship between the current and in service manifestations. Evaluation of chronic bronchitis, currently rated as 10 percent disabling Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Where an award of service connection for a disability has been granted, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001), see also Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2007). After careful review of the evidentiary record, the Board concludes that a uniform evaluation is warranted. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The veteran's chronic bronchitis is rated under Diagnostic Code 6600. During the course of this appeal, the diagnostic codes and provisions relating to the respiratory system were revised effective October 7, 1996. 38 C.F.R. §§ 4.96, 4.97 (1995); 61 Fed. Reg. 46720-46731 (Sept. 5, 1996). Under the previous criteria, bronchitis resulting in moderate disability with such manifestations as considerable night or morning coughing, slight dyspnea on exercise, and scatted bilateral rales warranted a 10 percent rating. 38 C.F.R. § 4.97, Diagnostic Code 6600 (1995). Chronic bronchitis that resulted in moderately severe disability with such manifestations as a persistent cough at intervals throughout the day, considerable expectoration, considerable dyspnea on exercise, rales throughout the chest and beginning chronic airway obstruction warranted a 30 percent rating. Id. The evidence of record does not support an evaluation higher than 10 percent disabling for the veteran's chronic bronchitis under the old criteria. In an October 2001 VA examination it was noted that the veteran had dyspnea on exertion. He was able to walk a flight of stairs before becoming short of breath. The veteran denied productive cough. The examination showed no signs of wheezing, rales or restrictive disease. There was some slight kyphoscoliosis but no pectus excavatum and no signs of right ventricular hypertrophy or pulmonary hypertension. A June 2002 VA examination showed no signs of wheezing or rales. The veteran reported coughing with whitish sputum about once or twice a week. In a July 2003 examination, positive dry cough with no sputum production, no hemoptysis or wheezing was noted. In an October 2003 VA examination, the veteran reported a chronic cough over the past years with intermittent white sputum production one to two times a week. He also reported shortness of breath with exertion, he was unable to walk less than one flight of stairs. The examination results fail to show that a rating higher than 10 percent disabling is warranted under the old criteria. Because there is no showing of chronic bronchitis that resulted in moderately severe disability with such manifestations as a persistent cough at intervals throughout the day, considerable expectoration, considerable dyspnea on exercise, rales throughout the chest and beginning chronic airway obstruction, a rating in excess of 10 percent disabling is not warranted. The evidence of record also does not support a rating higher than 10 percent disabling for the veteran's chronic bronchitis under the new criteria. Under the revised criteria, a 10 percent disability rating is warranted for a FEV-1 of 71 to 80 percent predicted; or FEV-1/FVC of 71 to 80 percent; or DLCO (SB) of 66 to 80 percent predicted. A 30 percent evaluation is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) of 56 to 65 percent predicted. 38 C.F.R. § 4.97, Diagnostic Code 6600. The results of the veteran's September 2007 pulmonary function test showed pre-bronchodilatation results of 76 percent FEV1, 100 percent FEV1/FVC and 76 percent FVC. Post- bronchodilatation results showed 81 percent FEV1, 110 percent FEV1/FVC and 73 percent FVC. The September 2007 results show that a rating higher than 10 percent disabling is not warranted. This evidence is relatively consistent with the prior examinations. An October 2001 VA pulmonary function examination showed pre-bronchodilatation results of 68 percent FEV1, 86 percent FEV1/FVC and 82 percent FVC. Post- bronchodilatation results showed 75 percent FEV1, 97 percent FEV1/FVC and 80 percent FVC. A December 1999 VA pulmonary function examination showed pre-bronchodilatation results of 67 percent FEV1, 84 percent FEV1/FVC and 82 percent FVC. Post-bronchodilatation results showed 76 percent FEV1, 92 percent FEV1/FVC and 85 percent FVC. The record shows that the veteran has not met the requirements for an evaluation higher than 10 percent disabling at anytime during this appeal under the old and new rating criteria for chronic bronchitis. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability evaluation. Finally, the veteran has submitted no evidence showing that this disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. As such, 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), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Overall, the evidence of record does not support a rating in excess of 10 percent for chronic bronchitis and the claim for that benefit must be denied. 38 C.F.R. § 4.7. ORDER Service connection for migraines as a distinct ratable disability is granted. An evaluation in excess of 10 percent disabling for chronic bronchitis is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs