Citation Nr: 0814437 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 99-18 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable disability rating for migraine headaches on a schedular basis. 2. Entitlement to an initial compensable disability rating for migraine headaches on an extraschedular basis. 3. Entitlement to an initial disability rating in excess of 20 percent for service-connected low back strain, with cyst, L5-S1 facet (low back disability) prior to December 21, 2005, and in excess of 40 percent since December 21, 2005. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran had active service from December 1977 to December 1980, and from January 1982 to February 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) rating decisions. A May 1999 rating decision, granted service connection for low back strain, with cyst, L5-S1 facet and assigned a 20 percent evaluation. That decision also denied service connection for headaches. In June 2000, the veteran appeared at the RO for a videoconference hearing before a Veterans Law Judge. The Board remanded the case in October 2000 for additional development and adjudicative action. In an October 2002 rating decision, the RO granted service connection for migraine headaches and assigned a noncompensable evaluation. The Board remanded the case in September 2003 for additional development and adjudicative action. In August 2004, he had a personal hearing before the undersigned. The Board remanded the case again in March 2005 for additional development and adjudicative action. In a February 2006 rating decision, the RO awarded a 40 percent evaluation for low back strain, with cyst, L5-S1 facet, effective December 21, 2005. The Board remanded the claims to the RO in July 2006 for further development and consideration. The Board has recharacterized the issue regarding the rating of the migraine headaches to conform with the evidence of record. The issues of entitlement to an initial compensable disability rating for migraine headaches on an extraschedular basis and of entitlement to an increased rating for service- connected low back disability 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. FINDINGS OF FACT 1. From August 14, 2006, the veteran's migraines are manifested by characteristic prostrating attacks occurring on an average of once a month over the last several months. Prior to that date, there was no evidence of characteristic prostrating attacks averaging one in 2 months over the last several months. 2. From August 14, 2007, the veteran's migraine headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a schedular evaluation of 30 percent for migraine headaches have been met from August 14, 2006. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2007). 2. The criteria for a schedular evaluation of 50 percent for migraine headaches have been met from August 14, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, the Secretary is required to inform the appellant of the information and evidence not of record that (1) is necessary to substantiate the claim, (2) the Secretary will seek to obtain, if any, and (3) the appellant is expected to provide, if any, and to request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). For an increased-rating claim, VA must, at a minimum, notify a claimant that, (1) to substantiate an increased-rating claim, the evidence must demonstrate "a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life" and (2) that if an increase in the disability is found, the rating will be assigned by applying the relevant Diagnostic Codes (DC) based on "the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life." The notice must also provide examples of the types of medical and lay evidence that may be obtained or submitted. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Although the appellant received inadequate preadjudicatory notice in connection with the increased rating claim decided herein, and that error is presumed prejudicial, the record reflects that the purpose of the notice was not frustrated. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In an April 2005 letter, the RO stated that to establish entitlement to an increased evaluation for his service- connected migraine headaches, the evidence must show that his condition "ha[d] worsened enough to warrant the payment of a greater evaluation." The letter also explained that the VA was responsible for (1) requesting records from Federal agencies, (2) assisting in obtaining private records or evidence necessary to support his claim, and (3) providing a medical examination if necessary. The October 2002 rating decision explained the criteria for the next higher disability rating available for the service-connected migraine headaches under the applicable diagnostic code. The March 2004 statement of the case provided the appellant with the applicable regulations relating to disability ratings for his service-connected migraine headaches, as well as the requirements for an extraschedular rating under 38 C.F.R. § 3.321(b) and stated that, pursuant to 38 C.F.R. § 4.10, disability evaluations center on the ability of the body or system in question to function in daily life, with specific reference to employment. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his service connection claims, and as such, that he had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication was not affected. See Sanders, 487 F.3d at 489 In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the veteran of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant evidence. VA has obtained several examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. II. Analysis Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2. The veteran's statements regarding the severity of his service-connected disability are deemed competent with regard to the description of symptoms. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be considered with the clinical evidence in conjunction with the appropriate rating criteria. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged rating." Fenderson v. West, 12 Vet. App. 119 (1999). Hart v. Mansfield, 21 Vet. App. 505 (2007). Migraine headaches are evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under this Code, a noncompensable (zero percent) disability rating is assigned for less frequent attacks than for a 10 percent rating. A 10 percent disability evaluation is warranted for characteristic prostrating attacks, averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating." By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." A VA examination was conducted in June 2002. The veteran stated that he had daily headaches which were frontal and radiated to the sides of his head. Sometimes, dizziness, nausea, blurred vision, and weakness were associated with the headaches. The headaches usually lasted between four and five hours, and were usually incapacitating. The diagnosis was moderate to severe chronic migraine headaches. A VA examination was conducted in August 2006. The veteran stated that he has three headaches per day, and he takes two days off per week because of these headaches. He has been told that the frequency of his headaches may impact his job security. The diagnosis was migraine headaches. In an addendum dated August 14, 2007, the veteran reported that he has migraine headaches four to five times per day with photophobia, the headaches are getting progressively worse, and he missed about two days per week due to headaches and a back condition. It was also noted that frequency on headaches during the past twelve months were weekly, had an average duration of minutes, and less than half the attacks were prostrating. As noted, the veteran's testimony is competent to establish his symptoms. Espiritu, 2 Vet. App. at 494. The assignment of a staged rating would best reflect the veteran's actual situation and disability picture during the course of the appeal. From August 14, 2006, the Board finds that a 30 percent rating is warranted. The August 14, 2007, addendum noted that frequency of headaches during the past twelve months were weekly, had an average duration of minutes, and less than half the attacks were prostrating. Given the frequency and the examiner's characterization of even less than half as prostrating, the Board finds that the veteran suffered characteristic prostrating attacks occurring on an average of once a month over the last several months. Thus, affording the veteran reasonable doubt, the findings more closely approximate the criteria for a 30 percent evaluation from August 14, 2006, one year before the date of that addendum. 38 C.F.R. §§ 4.7, 4.21. Prior to August 14, 2006, there was no evidence of characteristic prostrating attacks averaging one in 2 months over the last several months such that a compensable rating would be warranted. As of August 14, 2007, the evidence shows that the veteran's headaches result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The veteran has stated that he has had to take leave due to his low back disability and migraine headaches, and he submitted multiple notes from his physician noting that he was going to be absent from work due to back pain, and was to be on light duty on his return to work. As the veteran had daily headaches that were chronic, daily and continuous, the Board finds that the veteran's migraines can be described as very frequent and more closely approximate the criteria for a 50 percent evaluation as of the date of the addendum to the VA examination. 38 C.F.R. §§ 4.7, 4.21. This is the maximum schedular evaluation for migraines. Diagnostic Code 8100. ORDER A 30 percent schedular evaluation for migraine headaches is granted from August 14, 2006. A 50 percent schedular evaluation for migraine headaches is granted from August 14, 2007. REMAND In exceptional cases where the schedular evaluation is found to be inadequate, pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service may approve an extra- schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Board cannot assign an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). Instead, the claim for an extra-schedular rating must be sent by the Board to those "officials who possess the delegated authority to assign such a rating in the first instance." Id. The August 2007 addendum to the VA examination included the examiner's report that the veteran was currently on an unpaid leave of absence from work to "attend headaches." This suggests that the service-connected headache disability causes marked interference with employment beyond that contemplated by the maximum schedular evaluation of 50 percent. As such, the Board is required to remand the claim for referral to the appropriate first line authorities for consideration of an extraschedular rating. The regulations used to evaluate diseases and injuries of the spine have changed twice during the course of the appeal. These changes became effective on September 23, 2002, and on September 26, 2003. See 38 C.F.R. § 4.71a (Diagnostic Codes 5285, 5286, 5287, 5288, 5289, 5290, 5291, 5292, 5293, 5294, 5295) (2002); 67 Fed. Reg. 54345 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a (Diagnostic Code 5293) (2003); 68 Fed. Reg. 51454-58 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a (Diagnostic Codes 5235, 5236, 5237, 5238, 5239, 5240, 5241, 5242, 5243)). The September 2003 remand noted the earlier change, but the criteria were changed again subsequent to that remand. The veteran should be specifically advised of the new and the old rating criteria for evaluating diseases and disabilities of the spine and the claim should be evaluated under all versions. The Board also notes that the evidence of record is inadequate to determine the neurological manifestations of the veteran's low back disability. Finally, the veteran submitted additional evidence pertaining to his low back disability in January 2008 which will be considered on remand. Accordingly, the case is REMANDED for the following action: 1. Refer the veteran's claim for entitlement to an increased rating for migraine headaches to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). 2. Ask the veteran to identify all VA and non-VA health care providers that have treated him for a low back disability, since July 2006. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already on file. 3. Thereafter, schedule the veteran for an appropriate examination to determine the current extent and severity of his service-connected low back disability. The claims folder must be made available to the examiner for review as part of the examination. All indicated tests and studies should be undertaken, to include range of motion testing. The examiner is requested to: a). describe applicable loss of motion (flexion, extension and rotation) of the lumbar spine. b). report the presence of any muscle spasm and any abnormal alignment of the spine. c). determine whether the veteran's lumbar spine exhibits weakened movement, excess fatigability, or incoordination attributable to his service-connected disability and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost. c). if neurological involvement involving the lumbar spine is found, the examiner should identify the nerve(s) involved and indicate whether the degree of paralysis is complete or incomplete. If incomplete, whether the degree is moderate, moderately severe, or severe. The examiner should also note any intervertebral disc disease, and, if so, its severity, and whether it causes incapacitating episodes (bed rest prescribed by a physician) and, if so, describe the number and duration of such episodes during the past 12 months. Complete rationale for the opinions expressed should be included in the examination report. 4. After completion of the foregoing, re-adjudicate the remanded claim based on a consideration of all of the evidence of record, both prior and current rating criteria; including the current provisions of Note (1) of Diagnostic Code 5243 which provides a separate evaluation for the veteran's associated objective neurological abnormalities under an appropriate diagnostic code. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence submitted since the last supplemental statement of the case issued in October 2007, and a citation and discussion of the applicable laws and regulations. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs