Citation Nr: 0813605 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 04-39 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for a headache disability during the period prior to October 26, 2006, and to a rating in excess of 30 percent for the disability on and after that date. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Preston, Associate Counsel INTRODUCTION The veteran served on active duty from August 1950 to March 1952 and from June 1954 to June 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2006, the veteran attended a hearing before the undersigned Veterans Law Judge at the St. Petersburg RO. A transcript of the hearing is of record. In March 2007, the Board remanded the veteran's appeal for additional development. While the case was in remand status, the originating agency increased the disability rating for the veteran's headaches from noncompensable to 30 percent, effective from October 26, 2006. This did not satisfy the veteran's appeal. A motion to advance this case on the docket due to advanced age was granted by the Board in April 2008. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. On and after October 26, 2006, the veteran's service- connected headache disability has been productive of no more than characteristic prostrating attacks occurring on an average of once a month. 2. During the initial rating period prior to October 26, 2006, any prostrating attacks associated with the veteran's service-connected headache disability occurred on average less frequently than once in two months over any several month period. CONCLUSIONS OF LAW 1. During the period beginning October 26, 2006, the schedular criteria for a rating in excess of 30 percent for headache disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2007). 2. Prior to October 26, 2006, the schedular criteria for a compensable rating for headache disability were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), 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. They 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")." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under the VCAA, to include notice concerning the effective-date element of the claim, by letters mailed in February 2004 and April 2006. Although he was not specifically informed in either letter that he should submit any pertinent evidence in his possession, he was informed of the evidence that would be pertinent and requested to submit such evidence or to provide the information and any authorization necessary for VA to obtain the evidence on his behalf. Therefore, the Board believes that the letters put him on notice of the fact that he should submit any pertinent evidence in his possession. Although complete required notice was not sent until after the initial adjudication of the claim, 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). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the veteran's claim. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. The record also reflects that the veteran's service medical records and pertinent post-service treatment records have been obtained, and the veteran has been afforded appropriate VA examinations in response to his claim. The veteran has not identified any other evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the veteran. Accordingly, the Board will address the merits of the veteran's claim. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2007). A 50 percent evaluation is warranted for migraines with very frequent and completely prostrating and prolonged attacks that produce severe economic inadaptability. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. With less frequent attacks, a noncompensable evaluation is warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2007). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2007). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. §§ 3.102, 4.3 (2007). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. The veteran's headaches are currently evaluated as noncompensably disabling from June 24, 2003, to October 25, 2006, and as 30 percent disabling from October 26, 2006, to the present, under Diagnostic Code 8100. The Board notes that the veteran has muscle contraction headaches, rather than migraines. There is no Diagnostic Code for rating muscle contraction headaches. Therefore, the disability has been rated by analogy to migraine headaches. In his December 2003 notice of disagreement, the veteran stated that once every two months he experienced severe headaches, which lasted one and a half to two days. In his October 2004 substantive appeal, he stated that he experienced severe headaches periodically during the month. At the October 2006 hearing before the undersigned, he testified that he had severe headaches on average two times a week and that he relieved the headaches by taking naps. Following its review of the evidence, the Board has determined that the veteran's headaches do not warrant a compensable rating prior to October 26, 2006, or more than a 30 percent rating on or after that date. In this regard, the Board notes that the evidence supportive of the veteran's claim is limited to statements that he has provided for compensation purposes, to include those recorded in the VA examination reports discussed below. He has provided no corroborating evidence that his service-connected headache disability is productive of prostrating attacks. At the October 2003 VA examination, the veteran reported a long history of headaches associated with neck pain. He denied any history of migraine headaches. He described the headaches as starting at the back of his head and neck and going up the front all the way to the frontal area of the head. He said that the headaches were not pulsating and were constant. The examiner concluded that the veteran had chronic headaches as a result of muscle spasm associated with his service-connected cervical spine disability. At this examination, the veteran did not describe any prostrating attacks. Although VA outpatient records show that the veteran was seen on many occasions during the period of this claim, they include little reference to his headaches and no evidence that his headaches resulted in any prostrating attacks. At the May 2007 VA examination performed in response to the Board's remand directive, the veteran reported that he had constant neck pain and occasional band-like headaches. He indicated that the frequency of the band-like headaches had increased over the last two to three years. They now occurred two to three times a month and would last from one to three days. He reported that when these headaches occurred, he would lie down and go to sleep. He indicated that the headaches affected his daily activities and that he was unable to function during the headaches. The veteran denied experiencing any associated blurred vision, photophobia, phonophobia or aura. On examination, the veteran was noted to be in no acute distress. Bilateral cervical paraspinal tenderness was present, but the neurological examination was non focal. The examiner diagnosed muscle contraction headaches. He stated that they were not incapacitating. Although the veteran's headache disability is being rated by analogy to migraine headaches, the medical evidence shows that he does not have migraine headaches. In addition, none of the medical evidence shows that his muscle contraction headaches have resulted in the prostrating attacks associated with migraines. Moreover, the May 2007 examiner stated that the veteran's headaches were not incapacitating. Accordingly, in light of the absence of any objective or medical evidence substantiating that the veteran's headache disability has resulted in any prostrating attacks and the May 2007 VA examination report indicating that the veteran's headaches are not incapacitating, the Board concludes that the preponderance of the evidence establishes that a compensable schedular rating is not warranted during any portion of the initial rating period prior to October 26, 2006, and that a schedular rating in excess of 30 percent is not warranted for any portion of the initial rating period beginning October 26, 2006. See Fenderson v. West, 12 Vet. App. 119 (1999). Extra-Schedular Consideration The Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The record reflects that the veteran has not required frequent hospitalizations for his service-connected headache disability. Additionally, there is no other indication in the record that the average industrial impairment from the disability would be to a compensable degree prior to October 26, 2006, or more than 30 percent disabling on or after that date. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not warranted. ORDER Entitlement to a compensable rating for a headache disability during the period prior to October 26, 2006, and to a rating in excess of 30 percent for the disability on and after that date is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs