Citation Nr: 0812715 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-08 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for Addison's disease. 2. Entitlement to an initial disability rating in excess of 10 percent for migraine headaches. 3. Entitlement to service connection for osteoporosis, claimed as secondary to Addison's disease. 4. Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran served on active duty from March 1982 to June 1985. This appeal arises from June 2003 and August 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In June 2003, the RO denied entitlement to a disability rating in excess of 20 percent for Addison's disease and denied entitlement to a total disability rating based on individual unemployability. In August 2004, the RO granted service connection for migraine headaches and assigned a 10 percent disability rating, effective from May 22, 2003. The RO also denied entitlement to service connection for osteoporosis. The issues of entitlement to an increased evaluation for Addison's disease, secondary service connection for osteoporosis, and a total disability rating for individual unemployability 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 Resolving all reasonable doubt in the veteran's favor, from May 23, 2005, the veteran's headaches have been manifested by very frequent, completely prostrating, prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW From May 23, 2005, the criteria for a 50 percent initial evaluation for headaches due to an undiagnosed illness have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8100 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). It has been held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 491, 500 (2006). No further action under the VCAA is required. See also Hartman v. Nicholson, No. 2006-7303 (Fed. Cir. Apr. 5, 2007); Dunlap v. Nicholson, No. 03-0320 (U.S. Vet. App. Mar. 22, 2007). Thus, with regard to the veteran's claim for an increased rating for migraine headaches, VA's duty to notify the veteran has been satisfied. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record discloses that VA has met its duty to assist the veteran. All available records identified have been obtained and associated with the claims folder, VA examinations have been conducted, and the veteran testified before a Veterans Law Judge in September 2007. Increased Initial Disability Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 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; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the veteran's favor. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). The veteran's migraine headaches are currently evaluated 10 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under this code, a 50 percent evaluation is assigned where the disability is manifested by very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. A 30 percent rating is warranted when the disability is manifested by headaches, with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent disability evaluation is warranted for characteristic prostrating attacks, averaging one in 2 months over the last several months. The veteran underwent a VA general medical examination in May 2003, at which time he reported a history of chronic headaches since he was diagnosed with Addison's disease. He stated that he must take headache medicine on a daily basis, and indicated that his headaches were relieved by medication and rest. The VA examiner diagnosed a headache disorder. A VA general medical examination was performed in May 2005. The veteran reported a twenty-one year history of headaches, although he indicated his symptoms had worsened in the last eight to ten years. He reported experiencing at least twenty headaches per month. He stated that medication and rest somewhat alleviate his symptoms. A September 2007 medical opinion from Dr. A. Hasan, the veteran's neurologist, notes a history of chronic migraine headaches approximately 10 to 15 times per month which hinder the veteran's ability to function on a daily basis. Dr. Hasan further indicated that 4 to 5 headaches per month are debilitating and leave the veteran bedridden. Dr. Hasan explained that the veteran's headache disability is not currently responsive to medical treatment. The veteran testified before the undersigned Veterans Law Judge in September 2007. He reported currently experiencing debilitating headaches five times per month. He also submitted a headache diary which notes the frequency and severity of his symptoms from December 2006 to September 2007. The journal noted headaches of varying severity approximately 2 to 4 times per week. The veteran noted that his prescription medication does not completely alleviate his symptoms. A review of the veteran's VA outpatient treatment records indicates he is currently taking both prescription and over- the-counter medication to manage his symptoms. Following a careful review of the evidence, the Board finds that this disability warrants a 50 percent evaluation under Diagnostic Code 8100; effective from May 23, 2005. In reaching this conclusion, the Board notes that during his May 2005 VA examination, the veteran informed the VA physician that his headache symptoms had worsened, and reported experiencing approximately twenty headaches per month with only partial relief from medication and rest. Subsequently, the veteran has submitted competent testimony and supportive documentation, including an opinion statement from his neurologist, which indicate his headaches occur several days per week, with debilitating headaches approximately once per week. Further, the veteran's private neurologist noted the veteran's headache disability has not responded to medical treatment. Thus, with resolution of all reasonable doubt in the veteran's favor, the Board finds that the criteria for a 50 percent evaluation are met; effective from May 23, 2005. There is no objective evidence of any symptoms of the veteran's service-connected headaches that are not contemplated by the rating criteria. Consequently, the Board concludes that referral of this case for consideration of the assignment of extraschedular ratings is not warranted. See Floyd v. Brown, 8 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). REMAND The Board finds that additional development is necessary here before the remaining claims may be adjudicated on the merits. The veteran contends that he is in receipt of Social Security Administration (SSA) disability benefits for his claimed medical conditions. Of record is an October 1999 SSA Decision which notes that several "severe" disabilities; including Addison's Disease and osteoporosis, prevent the veteran from sustaining work activities. In April 2004, VA made an initial request for the veteran's SSA disability records. The aforementioned records were not received, and there is no evidence that VA made a second attempt to procure the veteran's SSA records. This should be done. Accordingly, this case is remanded for the following: 1. Contact the SSA and request copies of all decisions that relate to the veteran's claim for disability benefits as well as copies of the records which were used as the bases for the decisions. Any negative search request should be noted in the record. 2. After undertaking any additional development as may then be deemed appropriate, including conducting a current examination of the veteran, the RO should re-adjudicate the issues on appeal. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond. The appeal should thereafter be returned to the Board for further review, if in order. The appellant has the right to submit additional evidence and argument on the 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). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs