Citation Nr: 0820107	
Decision Date: 06/19/08    Archive Date: 06/25/08

DOCKET NO.  06-31 396	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to an increased rating for headaches, currently 
rated as 30 percent disabling.


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate 
for Veterans Affairs


ATTORNEY FOR THE BOARD

Simone Krembs, Associate Counsel


INTRODUCTION

The veteran served on active duty from January 1991 to July 
1991.

This matter comes before the Board of Veterans' Appeals 
(Board) from a December 2005 rating decision of a Department 
of Veterans Affairs (VA) Regional Office (RO) that denied the 
veteran's claim of entitlement to a disability rating in 
excess of 30 percent for headaches.


FINDINGS OF FACT

1.  The veteran's headache disorder is manifested by frequent 
prostrating headaches that may last for as long as one to two 
days at a time.  The headaches are characterized by 
sensitivity to sound, serious steady pain, and are 
occasionally accompanied by nausea.  The headaches are not 
productive of severe economic inadaptability.

2.  The veteran does not have a diagnosis of multi-infarct 
dementia associated with brain trauma.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 30 percent 
for headaches have not been met.  38 U.S.C.A. §§ 1155, 5103, 
5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.124a, 
Diagnostic Codes (DCs) 8045, 8100, 9304 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Increased Rating

Disability ratings are determined by the application of the 
VA's Schedule for Rating Disabilities.  Separate diagnostic 
codes identify the various disabilities. 38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. § Part 4 (2007). When rating a 
service-connected disability, the entire history must be 
borne in mind.  Schafrath v. Derwinski, 1 Vet. App. 589 
(1991).  The Board will consider entitlement to staged 
ratings to compensate for times since filing the claim when 
the disability may have been more severe than at other times 
during the course of the claim on appeal.  Fenderson v. West, 
12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App.  505 
(2007).

Ratings for service-connected disabilities are determined by 
comparing the veteran's symptoms with criteria listed in VA's 
Schedule for Rating Disabilities (Rating Schedule), which is 
based, as far as practically can be determined, on average 
impairment in earning capacity.  Separate diagnostic codes 
identify the various disabilities.  38 C.F.R. Part 4 (2007).  
Where there is a question as to which of two ratings shall be 
applied, the higher rating 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).

The veteran's headaches are rated 30 percent disabling under 
DC 8100.  Diagnostic Code 8100 pertains to migraine 
headaches.  38 C.F.R. § 4.71a, DC 8100.  Diagnostic Codes 
8045 and 9304, which contemplate brain disease due to trauma, 
are also potentially applicable in this instance.  38 C.F.R. 
§§ 4.71a, DC 8045; 4.129, DC 9304 (2007).  However, as the 
veteran is already in receipt of a rating in excess of 10 
percent and he does not have a diagnosis of dementia 
associated with brain trauma, DCs 8045 and 9304 may not serve 
as a basis for an increased rating in this case.  38 C.F.R. 
§ 4.71a, DCs 8045, 9304.  Specifically, while the veteran has 
been diagnosed with ischemic changes and a right lacunar 
infarct, records dated in March 2007 show that these changes 
have been determined to be secondary to the veteran's 
nonservice-connected arteriosclerotic vascular disease rather 
than to a history of brain trauma.

Under DC 8100, a 30 percent rating is warranted for 
characteristic prostrating attacks occurring on an average of 
once a month over the last several months.  A maximum 50 
percent rating is warranted for very frequent completely 
prostrating attacks productive of severe economic 
inadaptability.  38 C.F.R. § 4.124a, DC 8100.

Treatment records dated from February 2005 to March 2007 show 
complaints of and treatment for prostrating headaches 
occurring with a frequency ranging from daily to once per 
week.  The headaches were described as generally lasting as 
long as one to two days at a time.  The treatment records 
show that the response to pain medication had been fair.  
Records dated in August 2005 show that the veteran's 
headaches were felt to possibly be symptoms of nonservice-
connected ischemic events, and records dated in April 2006 
show that the headaches were determined to be, at least in 
part, related to nonservice-connected neck pain.  Finally, 
records dated in April 2006 show that the veteran was working 
as a security guard, a position which required him to stand 
for long periods of time, and to carry heavy equipment.  

The veteran underwent VA examination for headaches in October 
2005.  At that time, the veteran described his headaches as 
unabating and more intense than they had been previously.  
The headaches reportedly occurred weekly and generally lasted 
for as long as one to two days.  The veteran stated that 
during the headaches, he was required to rest until the 
headache resolved.  The examiner noted that the veteran was 
employed as an armed guard at the Muniz Air Force base, on a 
night shift schedule.  After examining the veteran, the 
examiner determined that the veteran's headaches were related 
to muscular contraction, and were worsened by pressure.  The 
general impact upon the veteran's occupational function was 
felt to be significant.  However, the veteran's vision and 
musculoskeletal problems, which were unrelated to his 
service-connected headaches, were determined to the primary 
disabling factors.  The impression was muscle contraction 
headaches that had worsened in severity.

The Board finds that there is evidence of frequent 
prostrating attacks due to headaches.  However, because the 
veteran, throughout the appeal period, has been employed as a 
security guard, the Board finds that there is no evidence 
that the veteran's headaches are productive of severe 
economic inadaptability, as is required for a higher rating 
of 50 percent.  While the evidence reflects that the veteran 
continues to experience headaches that have worsened in 
severity, there is no evidence demonstrating that he is 
unable to work as a result of his service-connected 
headaches.  Therefore, the Board finds that an increased 
rating is not warranted.  See 38 C.F.R. § 4.124a, DC 8100.

The Board has also considered whether the record raises the 
matter of an extraschedular rating under 38 C.F.R. § 
3.321(b)(1) (2007).  In the October 2005 report of 
examination, the examiner opined that the veteran's 
service-connected headaches had a significant general 
occupational effect and had resulted in the assignment of 
different duties at work.  While the veteran appears to have 
been assigned different duties as a result of his headaches, 
there is no evidence demonstrating that he is unable to work 
as a result of his headaches.  Rather, the evidence reflects 
that the veteran has been given assignments that accommodate 
his disability, and that he has successfully continued to 
work, despite his headaches.  Accordingly, the Board finds no 
competent evidence that the disability causes marked 
interference with employment or requires frequent 
hospitalizations or otherwise produces unrecognized 
impairment suggesting extraschedular consideration is 
indicated.

In sum, the Board finds that the weight of the credible 
evidence demonstrates that the veteran's headache disability 
warrants no more than the current 30 percent rating pursuant 
to DC 8100.  As the preponderance of the evidence is against 
the claim for an increased rating, the claim must be denied.  
38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 
Vet. App. 49, 50 (1990).

Duties to Notify and Assist the Appellant

Upon receipt of a complete or substantially complete 
application, VA must notify the claimant and any 
representative of any information, medical evidence, or lay 
evidence not previously provided to VA that is necessary to 
substantiate the claim.  This notice requires VA to indicate 
which portion of that information and evidence is to be 
provided by the claimant and which portion VA will attempt to 
obtain on the claimant's behalf.  See 38 U.S.C.A. §§ 5103, 
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 
(2007).  The notice must:  (1) inform the claimant about the 
information and evidence not of record that is necessary to 
substantiate the claim; (2) inform the claimant about the 
information and evidence that VA will seek to provide; (3) 
inform the claimant about the information and evidence the 
claimant is expected to provide; and (4) request or tell the 
claimant to provide any evidence in the claimant's possession 
that pertains to the claim, or something to the effect that 
the claimant should "give us everything you've got 
pertaining to your claim(s)."  Pelegrini v. Principi, 18 
Vet. App. 112 (2004).  

Here, the RO sent correspondence in October 2005; and a 
rating decision in December 2005.  These documents discussed 
specific evidence, the particular legal requirements 
applicable to the claim, the evidence considered, the 
pertinent laws and regulations, and the reasons for the 
decisions.  VA made all efforts to notify and to assist the 
appellant with regard to the evidence obtained, the evidence 
needed, the responsibilities of the parties in obtaining the 
evidence, and the general notice of the need for any evidence 
in the appellant's possession.  The Board finds that any 
defect with regard to the timing or content of the notice to 
the appellant is harmless because of the thorough and 
informative notices provided throughout the adjudication and 
because the appellant had a meaningful opportunity to 
participate effectively in the processing of the claim with 
an adjudication of the claim by the RO subsequent to receipt 
of the required notice.  There has been no prejudice to the 
appellant, and any defect in the timing or content of the 
notices has not affected the fairness of the adjudication.  
See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on 
other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically 
declining to address harmless error doctrine); see also 
Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores 
v. Peake, 22 Vet. App. 37 (2008).  Thus, VA has satisfied its 
duty to notify the appellant and had satisfied that duty 
prior to the final adjudication in the August 2006 statement 
of the case.

In addition, all relevant, identified, and available evidence 
has been obtained, and VA has notified the appellant of any 
evidence that could not be obtained.  The appellant has not 
referred to any additional, unobtained, relevant, available 
evidence.  VA has also obtained a medical examination in 
relation to this claim.  Thus, the Board finds that VA has 
satisfied both the notice and duty to assist provisions of 
the law.


ORDER

A rating in excess of 30 percent for headaches is denied.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs