Citation Nr: 0815021 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 03-23 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for migraine headaches secondary to transient ischemic attack (ITA), prior to March 5, 2007, and an evaluation of 50 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active military service from February 1998 to August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Portland, Oregon. The September 2002 RO rating decision originally granted the veteran a 10 percent rating for his service-connected migraines; however, a June 2004 RO rating decision granted the veteran a 30 percent disability rating back to the original effective date of October 31, 2001. In February 2005 the Board remanded the issue on appeal to the RO via the Appeals Management Center (AMC) for further development. In a March 2008 rating decision, the RO granted the veteran a 50 percent rating, the highest available rating, for his migraine headaches, effective March 5, 2007, the date of a VA examination. As the claim on appeal involves a request for higher initial rating following the grant of service connection, the Board has characterized that issue in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing an initial rating claim from a claim for an increased rating for disability already service-connected). Inasmuch as a rating higher than 30 percent for the service- connected migraine headaches is available, and inasmuch as a claimant is presumed to be seeking maximum available benefit for a given disability, the claim for higher ratings, as reflected on the title page, remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that during the pendency of this appeal the veteran requested that his claims file be transferred to Denver, Colorado. Additionally, he revoked the Oregon Department of Veterans' Affairs as his representative and in July 2006 appointed Disabled American Veterans as his new representative. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues on appeal has been accomplished. 2. Prior to March 5, 2007, the migraine headaches are not shown to be manifested by completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. Since March 5, 2007, the veteran has been receiving the maximum amount under the rating schedule; an, an exceptional or unusual disability picture is not shown. CONCLUSIONS OF LAW 1. Prior to March 5, 2007, the criteria for an initial rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2007). 2. Since March 5, 2007, the criteria for a rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321(b)(1), 4.124a, Diagnostic Codes 8100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. In February 2005, after the rating decision on appeal, the RO sent the veteran a letter advising him that in order to support a claim for higher evaluation for a service-connected disability, the evidence must show that the disability had become worse; the veteran had an opportunity to respond prior to the issuance of the March 2008 Statement of the Case (SOC). The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claim for increased rating and has been afforded ample opportunity to submit such information and evidence. The Board also finds that a February 2005 letter and a June 2006 letter satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The June 2006 letter advised the veteran that VA is responsible for getting relevant records from any Federal Agency including medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. The letters also advised the veteran that VA must make reasonable efforts to help the veteran get relevant records not held by any Federal agency, including State or local governments, private doctors and hospitals, or current or former employers. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). As explained hereinabove, the first three content-of-notice requirements have been met in this appeal. The Board notes that the record does not show that the veteran was advised of the fourth content-of-notice requirement under Pelegrini (request that the claimant provide any evidence in his possession that pertains to the claim). However, even though the veteran was not expressly advised to "give us all you've got" the Board finds that this requirement has been constructively satisfied. As noted, the veteran has been advised of the evidence required to support his claim and of the evidence of record. The Board finds that he has accordingly been constructively invited to give VA all the relevant evidence in his possession not already of record at VA. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. However, the Board finds that the lack of full pre-adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, the delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. As indicated, the RO gave the veteran notice of what was required to substantiate the claim on appeal, and the veteran was afforded ample opportunity to submit such information and/or evidence. Neither in response to the documents cited above, nor at any other point during the pendency of this appeal, has the veteran or his representative informed the RO of the existence of any evidence-in addition to that noted below- that needs to be obtained prior to appellate review. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2007). During the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the in rating cases, a claimant must be informed of the rating formulae for all possible schedular ratings for an applicable rating criteria. As regards the claim for increase on appeal, the Board finds that this was accomplished in the August 2003 Statement of the Case (SOC), which suffices for Dingess. Dingess also held that VA notice must include information regarding the effective date that may be assigned, and this has was expressly done in a follow-up letter sent to the veteran in June 2006. Further, the Board's decision herein denies the claim for increased initial rating, so no effective date is being assigned. There is accordingly no possibility of prejudice under the notice requirements of Dingess as regards a claim for increased rating. With regard to the increased evaluation claim included in this decision, the Board is aware of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, the Board notes that this case does not apply to initial rating cases and that the veteran's testimony and statements reflect that a reasonable person could have been expected to understand in this case what was needed to substantiate the claim. Moreover, as the veteran discussed his service-connected disability in terms of relevant symptomatology at his hearing and as he described the functional effects of his disabilities on his everyday life in support of his claims during his examinations, the Board is satisfied that he had actual knowledge of what was necessary to substantiate the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). The Board finds that any notice errors are not prejudicial, inasmuch as they did not affect the "essential fairness of the adjudication." Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007). For all of these reasons, the Board finds that any notice errors with regard to the second and third requirements of Vazquez-Flores are not prejudicial, inasmuch as they did not affect the "essential fairness of the adjudication." Id. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claim on appeal. The veteran's service medical records and post-service VA medical records have been associated with the claims file. Neither the veteran nor his representative have identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having existing records that should be obtained before the claims are adjudicated. The veteran had VA examinations in January 2004, March 2007, and February 2008. Finally, the veteran was advised of his right to a hearing before the RO and/or before the Board, but he waived that right. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim for increased ratings for the service-connected disability of migraine headaches. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. §§ 3.102, 4.3 (2007). The September 2002 RO rating decision granted the veteran an initial 10 percent disability rating for his migraines, effective October 31, 2001. A June 2004 RO rating decision granted the veteran a 30 percent disability rating effective October 31, 2001. During the pendency of this appeal the RO granted him a 50 percent disability rating, effective March 5, 2007. The veteran's migraine headaches have been rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100 a 10 percent evaluation is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is granted if there are prostrating attacks occurring on an average once a month over the last several months. The highest available rating is 50 percent which is granted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The veteran was seen at the VA for his service-connected seizures and after careful review of his treatment reports the Board finds that there have been multiple clinical records addressing his headaches. In October 2001 the veteran was diagnosed with chronic headaches after left sided hemiparesis in April 2000. In January 2002 and December 2002 it was noted that his migraine headaches were well controlled under proporanolol. The veteran was hospitalized in September 2003, and the discharge summary stated that his migraines were secondary to the re-occurrence of left sided symptoms and possible seizure activity. He was diagnosed with migraines and put on proporanolol. It was noted that he had episodes weekly that lasted four to five minutes and he had one to two tension headaches per week At the veteran's January 2004 VA neurological examination, he was diagnosed with dilpopia. It was also noted in January 2004 that he had a history of ophthalmic migraines, and he had stopped taking the propranolol. In March 2004 he had a headache that lasted several hours with nausea, phonophobia, diaphoresis, and he felt hot. The veteran believed that the headaches were a result of forgetting two consecutive doses of Keppra, and it was also noted that there were no other headaches or episodes. In March 2004 it was noted that his driver's license was reinstated and that he had a new job. In May 2006 it was noted that there was a possibility of decreasing his topiramate, which was a new medication, since his migraine headaches were beginning to improve. The veteran was seen by a VA examiner in March 2007 who stated that the veteran's headaches were in the occipital and frontal region, were constant with a pressure sensation, and had begun three years prior. Nausea and vomiting were associated with the headaches. The headaches occurred two times per week and lasted all day. He also stated that they began in the morning, and he would walk outside to improve the pain. During the spells he could not concentrate or do any exertion but he could pick up objects. The usual intensity of the headaches were a 7 to 8 out of 10 and at their worst they were an 8 to 9 out of 10 and resulted in fatigue. The veteran's headaches were found to be most consistent with complex migraines with hypertension and seizure induced components. At the veteran's February 2008 VA examination he stated he had headaches two times a week that lasted all day and that it did not help when he lied on the floor but it did help when he walked around for hours during the headache. The headaches were 8 out of 10 for usual intensity a 10 out of 10 at their worst; these occurred once per month and had considerable nausea and vomiting. He was unable to eat during his severe headaches and had some trouble during his normal headaches. Associated with the headaches were neck pain, dizziness, scotomata, photophobia, and phonophobia. It was noted that a December 2006 MRI scan of the head revealed small T2 hyperintensities in the right hempisphere with white matter; however, there were no other mass or lucency. A 2006 EEG revealed epileptiform type activity in the right temporal lobe. The veteran described his functional loss as being unable to obtain a "CDL" license. He stated he could not do construction secondary to his service-connected seizure disorder, could not ride bikes or fly an airplane or sky dive also secondary to his service-connected seizure disorder, and could not drive or rig scaffolding. He also noted that taking Coumadin interfered with jobs because of the blood tests needed and he could not take any job with potential trauma. The Board notes that he is on Coumadin not for his migraine headaches but for his other service-connected disorders. The VA examiner diagnosed the veteran with frequent migraine headaches that interfered significantly with his work, occurred two times per week and that he was unable to walk around to relieve the headaches. The examiner opined that secondary to the migraine headaches was reduced productivity and reliability that would affect occupational and social functioning especially in his chosen career. Prior to March 5, 2007 Prior to March 5, 2007, the veteran was granted a 30 percent disability rating effective October 31, 2001, under 38 C.F.R. § 4.124a, Diagnostic Code 8100. After careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the service-connected migraine headaches warrant a rating of 50 percent prior to March 5, 2007. There is no medical evidence of completely prostrating and prolonged attacks productive of severe economic inadaptability, i.e., six totally incapacitating migraines a year in which the veteran had to leave his place of employment as an hourly employee, as well as one incapacitating migraine a week per month. In addition, the May 2006 VA clinical record showed there was improvement in his migraine headaches. Accordingly, the Board finds that an initial evaluation in excess of 30 percent for the service-connected migraine headaches, prior to March 5, 2007, is not warranted. Since March 5, 2007 After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent for migraine headaches. As stated above, a March 2008 rating decision granted the veteran a 50 percent disability rating for his migraine headaches, effective March 5, 2007. Under 38 C.F.R. § 4.124(a), Diagnostic Code 8100, a 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. However, this is the maximum rating available for migraine headaches pursuant to Diagnostic Code 8100. There is no provision for a higher rating for headaches in the Rating Schedule, and no evidence that the veteran's migraine headache disability is more appropriately evaluated under another Diagnostic Code. The veteran has not argued otherwise. Because the veteran is currently in receipt of the maximum schedular rating for migraine headaches, the Board has considered an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (2007). Under 38 C.F.R. § 3.321(b)(1), an extraschedular evaluation is warranted only if 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. Due to the nature of the veteran's service-connected headache disability, interference with employment is established. The evidence indicates that he has to walk around to relieve the headaches which can interfere with work; however, the medical evidence also reveals that any interference with work is not a result of his migraines but his service-connected seizure disorder. At the February 2008 VA examination it was noted that he could not obtain a CDL license, could not do construction or sky dive, in addition his coumadin interfered with jobs because of the blood tests needed; however, the Board finds that those restrictions are related to his service-connected seizure disorder and not his migraine headaches. The evidence does not show marked interference with his employment as a result of his service-connected disability beyond that contemplated under by his assigned schedular rating. In addition, the Board notes that the record contains no indication that the veteran has been frequently hospitalized for treatment of his service-connected headache disability; rather, his treatment has been on an outpatient basis. In summary, although the record shows that the veteran's headache disability results in occasional interference with work and his maximum disability rating of 50 percent is in recognition that his industrial capabilities are severely impaired. After reviewing the record, the Board is unable to identify an exceptional or unusual factor which would render impractical the application of the regular schedular standards. Thus, referral for consideration of extraschedular rating is not warranted. As the preponderance of the evidence is against the claim for a rating in excess of 50 percent for the veteran's migraine headaches, the benefit-of-the-doubt doctrine is inapplicable, and the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board agrees with the staged evaluations assigned by the RO. See Fenderson, supra. ORDER An initial rating in excess of 30 percent for the migraine headaches is denied A disability rating in excess of 50 percent for migraine headaches is denied. _____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs