Citation Nr: 0814130 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 99-05 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial disability evaluation greater than 10 percent for post-traumatic headaches, residuals of a head injury. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESSES AT HEARING ON APPEAL Appellant & his wife ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The veteran had active service from May 1971 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 1998 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which essentially reopened and denied, in pertinent part, the veteran's claim of service connection for post-traumatic headaches, residuals of a head injury (characterized as residuals of a head injury). The veteran disagreed with this decision in July 1998. He perfected a timely appeal in March 1999 and requested a Travel Board hearing, which was held before the undersigned in November 1999. In February 2000, the Board determined that the veteran had sustained a head injury in the line of duty and remanded, in pertinent part, the veteran's application to reopen a previously denied claim of service connection for post- traumatic headaches, residuals of a head injury, to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. In November 2001, the Board reopened the veteran's claim of service connection for post- traumatic headaches, residuals of a head injury, and remanded this claim to the RO/AMC. In an April 2003 rating decision, the RO granted, in pertinent part, the veteran's claim of service connection for post-traumatic headaches, residuals of a head injury, assigning a zero percent rating effective October 8, 1997. The veteran disagreed with this decision later that same month, seeking an initial compensable rating for his service- connected post-traumatic headaches. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In August 2003, the Board remanded, in pertinent part, the veteran's claim for an initial compensable rating for post- traumatic headaches to the RO/AMC. In a November 2005 rating decision, the RO assigned a higher initial 10 percent rating to the veteran's service-connected post-traumatic headaches, residuals of a head injury, effective October 8, 1997. In May 2006, the Board remanded, in pertinent part, the veteran's claim for an initial rating greater than 10 percent for post-traumatic headaches, residuals of a head injury, to the RO/AMC. The Board observes that, in April 2003, the veteran filed an application to reopen a previously denied claim of service connection for a back disability. In a Deferred Rating Decision dated in November 2005, it was noted that no action had been taken on this claim. The Board subsequently referred this claim back to the RO for appropriate action in the May 2006 remand. Unfortunately, to date, the RO has taken no action on this claim. Thus, the Board again refers the veteran's application to reopen a previously denied claim of service connection for a back disability to the RO for adjudication. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran is receiving the maximum disability rating for his post-traumatic headaches. 3. The medical evidence shows that the veteran's complained of migraines are a different headache disorder than his post- traumatic headaches and does not contain a diagnosis of multi-infarct dementia associated with brain trauma. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation greater than 10 percent for post-traumatic headaches, residuals of a head injury, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, 4.130, Diagnostic Code (DC) 9304-8045 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice must be provided to a claimant before the initial unfavorable adjudication by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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 notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the RO provided the appellant with VCAA notice in February 2001, May 2002, April 2004, and in June 2006. The RO also provided the appellant with notice of the Dingess requirements in June 2006. Although this notice was provided after the June 1998 RO decision that is the subject of the current appeal, the Board observes that the RO could not have provided the veteran with pre-adjudication VCAA notice in this case because the June 1998 RO decision was issued prior to the enactment of the VCAA. The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. The veteran's claim was readjudicated subsequently in a supplemental statement of the case (SSOC) issued in November 2007, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. As the claim for an initial disability evaluation greater than 10 percent for post-traumatic headaches, residuals of a head injury is denied herein, no new disability rating or effective date for an award of benefits will be assigned. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess, supra. The veteran is challenging the initial evaluation assigned following the grant of service connection. 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. See Dingess, 19 Vet. App. at 490-91. Thus, because the notice that was provided in connection with the grant of service connection was legally sufficient, VA's duty to notify has been satisfied. The Board notes that the Veterans Court, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), clarified VA's notice obligations in increased rating claims. The appeal for a higher initial rating for post-traumatic headaches, residuals of a head injury, originates, however, from the grant of service connection for this disability. Consequently, Vazquez-Flores is inapplicable. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the veteran the opportunity to give testimony before the RO and the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file; the veteran has not contended otherwise. Higher Initial Rating for Post-Traumatic Headaches In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2 (2007); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has 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). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). All reasonable doubt is resolved in the veteran's favor. 38 C.F.R. § 4.3 (2007). As noted in the Introduction, where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson, 12 Vet. App. at 126. The veteran's service-connected post-traumatic headaches, residuals of a head injury, are currently evaluated as 10 percent disabling by analogy to 38 C.F.R. §§ 4.124a, 4.130, DC 9304-8045 (dementia due to head trauma-brain disease due to trauma). See 38 C.F.R. §§ 4.124a, 4.130, DC 9304-8045 (2007). DC 8045 provides that purely subjective complaints such as headaches, recognized as symptomatic of brain trauma, will be rated 10 percent and no more under DC 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. A higher rating for brain disease due to trauma under DC 9304 cannot be assigned in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. See 38 C.F.R. § 4.124a, DC 8045 (2007). As noted, service connection was granted and a 10 percent disability evaluation was assigned effective October 8, 1997; this rating has been in effect since then. VA clinical records show that the veteran received regular outpatient treatment for his headaches beginning in 2000. For example, on outpatient treatment in April 2000, the veteran complained of almost daily headaches. He denied any nausea or vomiting. Physical examination showed that his cranial nerves were intact. The impression was headache, probable migraine. A computerized tomography (CT) scan of the veteran's brain in July 2000 showed no abnormalities. On VA examination in January 2003, the veteran complained of constant headaches and shooting pain beginning in the left occiput and moving around to the frontal area. He reported sustaining a head injury during active service in 1973. "He is unclear about the details." His headaches occurred 3 times a week and lasted all day. They also were accompanied by nausea and vomiting. Physical examination showed intact cranial nerves except for decreased temperature sense on the right side and normal motor skills. CT scan of the veteran's head from 1999 was normal. The assessment was post-traumatic headaches with debilitating frequency of about 3/week. In an addendum to this examination report, the VA examiner stated that a magnetic resonance imaging (MRI) scan of the veteran's brain was unremarkable and there were no hemosiderin deposits suggestive of an old contusion. An MRI scan of the veteran's brain in February 2003 showed normal ventricles and no supratentorial and infratentorial abnormalities. On VA outpatient treatment in October 2003, the veteran complained that he experienced exacerbations of his headaches 2 to 3 times per week. The impression was headaches, probable migraine. In February 2004, the veteran complained that he experienced daily mild headaches and 3 "big" headaches per week. The impression was unchanged. In September 2004, the veteran reported that, although he still had headaches, they were better than before. He experienced 8 "big" headaches per month that were relieved only by best rest. He also experienced small headaches that were relieved by rest. The impression was unchanged. In March 2005, the veteran complained that he experienced 5-6 headaches per month and had a constant headache all the time. He reported that he had a "bad" head injury in the past and had a head injury in 1973 right before service separation. There was no change on physical examination. The impression was unchanged. In a July 2005 note, the veteran's VA treating physician stated that the veteran experienced continuous headaches at 1-2 per week. The veteran's headaches appeared cervicogenic in origin but with migraine features. There was no change in visual acuity, no chest pain, no dyspnea on exertion, no gastroesophageal reflux disease (GERD), and no constipation. The impression of headache, probable migraine, was unchanged following subsequent VA outpatient treatment in July and October 2005 and in March 2006. In a September 2006 note, the veteran's VA treating physician noted that the veteran had shown up to the VA clinic complaining that his physician had discontinued prescribing him valproic acid. The VA examiner noted that the veteran had been seen last in March 2006 and had more than 10 missed appointments for headaches since that time. The veteran also complained to this VA examiner that he had discontinued prescribing his trazodone. When the VA examiner stated that the discontinued medications were for the veteran's mental health problems and had been prescribed by other doctors, the veteran became belligerent, threw his medication profile at the VA examiner, and slammed his can down on the examination table. At that point, the VA examiner asked the veteran to leave or the police would be called. The veteran left, stating that he refused to "play games." The impressions included non-compliance and chronic headaches with mixed features. In an October 2007 opinion, a different VA examiner stated that he had reviewed the veteran's claims file, including his service medical records. He noted that the veteran's service medical records were negative for any complaints of or treatment for headaches. The veteran had reported in January 1975 that he had been assaulted with a pipe wrench during active service but that there was no record of this assault. The veteran also related a complaint of frequent headaches to this in-service assault. The VA examiner stated that, although it was not stated specifically, the veteran's description of his headaches implied that they were tension headaches rather than migraine headaches. The VA examiner also stated that, following head trauma, headaches usually occur immediately or soon after the trauma. He stated further that, while the severity and frequency of headaches will change over time, the basic characteristics of a headache disorder remain fairly constant. The VA examiner concluded that, although there were no medical records documenting the veteran's claimed in-service assault and head injury, the veteran's January 1975 report suggests that a headache disorder may have existed at that time. The VA examiner also concluded that the veteran's reported headaches could be related to the undocumented in-service head injury. "Given the veteran's history of substance abuse, he also was at a significant risk for other head injuries that could be responsible for a headache disorder." Based on the change in the basic character of the headaches described in 1975 and the veteran's current headache complaints, the VA examiner determined that the veteran had a different headache disorder that was not related to active service. The Board finds that the preponderance of the evidence is against the veteran's claim for an initial evaluation greater than 10 percent for post-traumatic headaches, residuals of a head injury. The medical evidence does not establish that, at any time during the appeal period, the veteran had multi- infarct dementia associated with brain trauma such that a higher evaluation than 10 percent is warranted. See 38 C.F.R. § 4.124a, DC 8045 (2007). Instead, the medical evidence shows continuing post-service treatment for headaches which the veteran incurred as a result of a line- of-duty accident where he sustained a head injury. Repeated CT scans of the veteran's brain were unremarkable. The veteran's VA treating physician also noted in September 2006 that the veteran's chronic headaches had mixed features. A different VA examiner specifically concluded in October 2007 that the veteran's in-service headache disorder could be related to his undocumented in-service head injury. This examiner also concluded, however, that, because the character of the veteran's current headaches differed from his in- service headaches, his current headache disorder was not related to active service. Finally, the initial 10 percent evaluation currently assigned for post-traumatic headaches, residuals of a head injury, appropriately compensates the veteran for the level of disability that he has experienced since he filed his service connection claim; accordingly, further consideration of staged ratings is not warranted. ORDER Entitlement to an initial disability evaluation greater than 10 percent for post-traumatic headaches, residuals of a head injury, is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs