Citation Nr: 1004584 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 05-40 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to a disability rating greater than 10 percent for service-connected headaches due to concussion. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. This case was previously before the Board in August 2008 at which time the claim was remanded for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The medical evidence of record does not show a diagnosis of multi-infarct dementia associated with brain trauma and there is no diagnosis of migraine headaches or evidence of prostrating attacks. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for headaches due to concussion have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124(a), 4.129, Diagnostic Codes 9304-8045 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his service-connected headaches due to concussion are more disabling than currently evaluated. Service treatment records show that the Veteran tripped while walking down the street in July 1973. Thereafter, he complained of tension-type headaches on several occasions until his separation from military service in June 1975. The Veteran filed an initial claim for service connection for headaches in July 1978 and by rating decision dated in February 1979 the RO granted service connection for headaches due to concussion. A 10 percent rating was assigned under 38 C.F.R. § 4.124a, Diagnostic Code (DCs) 8045-9304, effective July 7, 1978, the date of the Veteran's initial claim. The Veteran appealed this initial award and in March 1980 the Board continued the 10 percent disability rating assigned. The 10 percent disability rating was continued again by Board decisions dated in March 1984 and March 1992. The Veteran filed the pending claim for an increased rating for his service- connected headaches in March 2003. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran's current service-connected headaches due to concussion is rated under 38 C.F.R. § 4.124a, DC 8045. Under DC 8045, VA assigns a 10 percent rating for purely subjective complaints following trauma, such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under 38 C.F.R. § 4.130, DC 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., resulting from brain trauma are rated under the diagnostic codes specifically dealing with such disabilities. 38 C.F.R. § 4.124a, DC 8045. Thus, the maximum rating available under DCs 9304-8045 is 10 percent for subjective complaints of headaches. The Board notes that the criteria for evaluating residuals of traumatic brain injury were recently revised. However, these revisions apply only to applications for benefits received by VA on or after October 23, 2008. 73 Fed. Reg. 54693 (Sept. 23, 2008). The older criteria will apply to applications received by VA before that date, including the instant claim. Also relevant to this case is the diagnostic code for evaluating migraine headaches, 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, migraines are evaluated as follows: with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability (50 percent); with characteristic prostrating attacks occurring on an average once a month over last several months (30 percent); with characteristic prostrating attacks averaging one in 2 months over last several months (10 percent); and with less frequent attacks (0 percent). The rating criteria do not define "prostrating," however 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." Relevant Medical Evidence Evidence relevant to the current level of severity of the Veteran's service-connected headaches includes VA examination reports dated in May 2004 and January 2009. During the May 2004 VA examination the Veteran reported that he tripped and hit his head during military service in July 1973 and has been given a diagnosis of tension headaches, mainly in the occipital region, since the in-service injury. He reported that these headaches occur several times each day and last approximately one hour after he takes medication. Pain flares up to 8 out of 10 on a pain scale. He stated that he has some fatigue with headaches. He is not sure what causes these headaches. He does not have any nausea or vision changes. He treats the headaches with Tylenol or aspirin and takes up to three Tylenol or sometimes four to five aspirin per day. The Veteran denied any side affects from these medications and indicated that they are effective. The Veteran also indicated that he takes Morphine for a nonservice-connected back disorder and opined that this probably helps his headaches. The Veteran reported that he was not able to do much during the day due to his back disability. With headaches, he lies down until the pain medication becomes effective. The Veteran reported that his headache condition has not changed much from previous examinations except the frequency has changed from two headaches per day to three headaches per day and the severity of the pain has increased. The Veteran indicated that he was unemployed and was currently in receipt of Social Security disability benefits. Neurological examination revealed cranial nerves II-XII to be grossly intact and there was decreased pain sensation to painful stimuli bilateral on both hands. The diagnosis was service-connected tension headaches secondary to traumatic brain injury, treated with medication. During the January 2009 VA examination the Veteran complained of daily headaches with a severity of 7 to 8 out of 10 on a pain scale. There were no flare-ups worse than that. The headaches are chronic and last all day. They are located in the front of the head and the sensation was described as squeezing. The Veteran reportedly took Morphine and Percocet which were prescribed for his nonservice-connected back disorder and indicated that neither of these medications were effective for the Veteran's headaches. The Veteran reported that his headaches have been worsening over the years as the duration was longer and the intensity more severe. He reported that he is incapacitated every day, all day long. When the examiner reviewed what incapacitated meant, i.e., unable to do any activity due to a headache, the Veteran reported that he sometimes goes to bed at 5:30 pm due to his headaches. This happens two to three times per week and he reportedly did not sleep well. The Veteran indicated that he last worked in 1978 at a wrecking yard where he sustained an on-the-job back injury which stopped him from working at that time. He said he was able to ambulate and normally uses a cane, but did not bring it to the examination. The Veteran also indicated that his activities of daily living are independent. He reported that he owns his own vehicle and is able to drive but does not drive all the time due to his headaches. He indicated that he spends most days out at bars drinking coffee and diet soda and goes to two to three different bars each day. Physical examination revealed pain with palpation over the temple areas bilaterally. There was no other pain in the face or the rest of the head. Neurological examination revealed 5/5 strength with grip and with upper extremity range of motion. Reflexes to biceps tension were 2+ and the Veteran had decreased sensation to painful stimuli over the hands. Cranial nerves 2-12 were grossly intact. The diagnosis was headaches, tension type. Also of record is a January 2006 examination report from a private neurologist, Dr. T.O.M. At that time the Veteran complained of headaches involving the whole head which were described as daily and constant. The Veteran indicated that he wakes up with a headache and goes to bed with a headache and described them as staying the same throughout the day, although he occasionally has more severe headaches. He rated them as a 6/10. With the headaches he denied any nausea or vomiting. He did have photophobia and phonophobia. He had been on multiple medications in the past but could not tell Dr. T.O.M. exactly what he had been on. He apparently has had brain scans done which have all been within normal limits. He reported some neck pain, but this did not necessarily seem to trigger the Veteran's headaches. The Veteran had a history of diabetes and has had diabetic peripheral neuropathy. Apparently the Veteran had been diagnosed with cluster headaches, although he denied any symptoms consistent with cluster headaches. It was unclear whether the Veteran had been tried on Triptans in the past. In looking through his medication list, Dr. T.O.M. noted that the Veteran has been on multiple medications which can cause daily headaches. The Veteran denied any other current neurologic complaints. Neurologic examination revealed that the Veteran was awake, alert, and oriented times three. Attention span and concentration were normal. There was no evidence of a thought disorder. Affect was also normal and immediate recall, recent, and remote memory were intact. There was no right/left disorientation, finger agnosia, or dyscalculia. Speech was normal. Verbal expression, comprehension, repetition, reading, and writing were intact. Prosody was also intact. Cranial nerve examination showed pupils were 5 millimeters (mm) in size and reactive to light and near. There was no relative afferent papillary defect. Fundoscopy was unremarkable. Visual fields were full to confrontation. Ocular motility was also full. There was no nystagmus. Strength of masticatory muscles was normal. There was no temporal wasting. Facial sensation was normal. Facial expression was unremarkable without hypomimia. There was no facial weakness. Hearing was intact to finger rub bilaterally. Palatal movements were intact. Sternocleidomastoid and trapezii strength was normal. Tongue protruded in the midline and showed no tremor or fasiculations. Motor examination showed normal muscle bulk and tone. Muscle strength was symmetric and graded as MRC 5/5 in all muscle groups tested. There were no adventitious movements. There was no pronator drift. Cerebellar examination showed normal serial finger tapping and rapid alternating movements. Finger-nose and heel-knee-shin testing were also within normal limits. Sensory examination showed diminished light touch, pinprick, and vibration sense in the distal bilateral lower extremities which normalized at the ankles bilaterally. Upper extremity testing was intact to all modalities. Romberg was negative. Muscle strength reflexes were 2+ and symmetric. Plantar responses were flexor bilaterally. Erect posture was normal. There was no postural instability. Tandem, heel, and toe walking was unremarkable. The impression was chronic daily headaches likely secondary to traumatic brain injury. Dr. T.O.M. also indicated that he could not rule out a diagnosis of transformed headache secondary to analgesic overuse. The examiner also indicated that the Veteran's neurological examination was normal. Also of record are VA outpatient treatment reports dated from June 2000 through February 2009. These treatment reports note continued complaints of headaches. In particular, a January 2009 treatment note shows that the Veteran complained of headaches occurring every few weeks with no ongoing treatment. Analysis Upon review of the above, the Board finds that a disability rating greater than 10 percent for the Veteran's service- connected headaches due to concussion is not warranted. In order for a higher disability rating to be warranted under DCs 9304-8045, the Veteran must suffer from multi-infarct dementia associated with brain trauma. Following a careful review of the record, the Board finds that the evidence is silent for any diagnosis or treatment of multi-infarct dementia. As a diagnosis of multi-infarct dementia associated with brain trauma is not shown, a rating higher than 10 percent is not warranted under DCs 9304-8045. Furthermore, there is no evidence of any purely neurological disabilities resulting from the Veteran's in-service brain trauma. As above, neurological examinations in May 2004, January 2006, and January 2009 were within normal limits. Therefore, a higher disability rating is not warranted under the diagnostic codes dealing with neurological disabilities. The Board has also considered the diagnostic code for migraine headaches. The RO granted service connection for headaches due to concussion based on the Veteran's complaints of headaches. The Veteran's service-connected headaches have consistently been characterized as tension- type headaches and the Veteran has not been diagnosed with migraine headaches. In addition, the Veteran's headaches produce no associated symptoms and they do not cause prostration. As such, a higher rating based on migraine headaches is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board finds, therefore, that the evaluation assigned adequately reflects the clinically established impairment experienced by the Veteran. The criteria for a higher rating are not met. As the evidence preponderates against the claim for a rating in excess of 10 percent for the Veteran's service-connected headaches due to concussion, the claim must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration As to whether the record raises the matter of referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1), a review of the record shows that the Veteran is not currently working. Thus, 38 C.F.R. § 3.321(b)(1) would potentially apply to the Veteran's case. Barringer v. Peake, 22 Vet. App. 242 (2008). Specifically, the record shows that the Veteran is in receipt of Social Security disability benefits due to a psychiatric disorder. There is no evidence that the Veteran is unemployed due to his service-connected headaches. The Board finds that the rating criteria considered in this case regarding these issues reasonably describe the Veteran's disability level and symptomatology. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected headaches is not required. Thun v. Peake, 22 Vet. App. 111 (2008). Notice and Assistance 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, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "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." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, --- F.3d ----, No.2008- 7150, (Fed. Cir. Sept. 4, 2009). Complete notice was sent in April 2003, May 2003, November 2008, and March 2009 letters and the claim was readjudicated in an October 2009 supplemental statement of the case. Mayfield, 444 F.3d at 1333. 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). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board although he declined to do so. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. The Veteran's representative has contended that the January 2009 VA examination is inadequate as it was not specific to the Veteran's headaches and was not performed by a neurologist. The Board finds that the Veteran was afforded a headaches specific VA examination pursuant to the August 2008 Board remand. The Board also finds that the January 2009 VA examination is entirely adequate for rating purposes. The examiner reviewed the claims folder, noted the Veteran's pertinent history, examined the Veteran and offered a diagnosis. The report was signed by a physician's assistant and medical doctor. Most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the January 2009 VA examination was not performed by a neurologist, it was reviewed by a physician. Further, the Board also considered the private neurologist January 2006 report from Dr. T.O.M. in deciding the claim. The Board also notes that the results from the January 2009 examination are consistent with the findings by Dr. T.O.M. in January 2006 and thus finds that no additional VA examination is needed. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER A disability rating greater than 10 percent for service- connected headaches due to concussion is denied. ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs