Citation Nr: 1004763 Decision Date: 02/01/10 Archive Date: 02/18/10 DOCKET NO. 06-02 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable rating for migraine-type headache disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The appellant is a veteran who served on active duty from November 1980 to May 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO), that, in pertinent part, granted service connection for migraine headaches, rated 0 percent, effective from September 2004 (the date of claim for service connection). The matter was before the Board in February 2008, when it was remanded. FINDING OF FACT It is not shown at any time during the appeal period that the Veteran's migraine-type headache disorder was manifested by characteristic prostrating attacks averaging one in two months over a period of several months. CONCLUSION OF LAW A compensable rating for migraine-type headaches is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.124a, Code 8100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A December 2005 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating. October 2006 and October 2009 supplemental SOCs readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in November 2004 and in August 2008. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).] He has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. The Veteran's migraine-type headaches have been assigned a 0 percent rating under Code 8100, which provides that migraine headaches, with very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability will be rated 50 percent. Migraine headaches, with characteristic prostrating attacks occurring on an average of once a month of the last several months are rated 30 percent. With characteristic prostrating attacks averaging one in two months, over the last several months, a 10 percent rating is warranted. With less frequent attacks, a 0 percent rating is warranted. 38 C.F.R. § 4.124a. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In a claim for an increased rating, "staged" ratings may be warranted if the claim involves the initial rating assigned with a grant of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). On November 2004 VA examination, it was noted that the Veteran had a history of headaches since 1980 and of seizures since 1981. (Service connection for migraine headaches was established as secondary to the Veteran's service connected seizure disorder.) MRI and EEG studies were normal. No complaints of headaches were found on review of neurology notes. The Veteran stated that two to three times per month he had headaches which lasted anywhere from two hours to half a day. They started in the temple areas and migrated to the entire head. He stated that he got nausea, but there was no vomiting. He had no photosensitivity or blurred vision with the headaches. He took Tylenol. He reported having had no incapacitating episodes and had not lost time from work due to headaches. There were no known precipitating or aggravating factors. The diagnosis was atypical headaches. In his substantive appeal, the Veteran stated that he had at least two prostrating migraine headaches per month that lasted from several hours to several days. He indicated that he had missed an average of one day of work per month over the past 8 months. VA treatment notes, dated from February 2005 to a report of VA examination in August 2008 do not show ongoing complaints of headaches. On August 2008 VA examination it was noted that the Veteran's C-file was reviewed. He reported that during service he had headaches about two to three times per month, lasting a few hours and with associated nausea and light sensitivity. He had been treated conservatively. There was fatigue after the headaches, but functionally, there was no impairment as far as work conditions were concerned. He used the medication Tramadol as needed with some relief, although drowsiness was a side effect. The examiner stated that the Veteran did not have any functional impairment as far as occupation was concerned. During day-to-day activities at home, he waited the headaches out, taking rest breaks until the headaches subsided. The headaches were bilateral and started in the temple regions. They gradually spread diffusely. They were associated with nausea, but no vomiting. He also had some photosensitivity, but no phonosensitivity. The frequency was two to three times per month, lasting 6 hours at most. His sleep was disturbed at times, but functionally, he was able to manage his schedule at work. The diagnosis was chronic nonclassic migraine headaches. The examiner stated that the Veteran did have migraine headaches during service, but that the disability had not progressed over the years. The headaches had stabilized and he was able to manage them with medication, as needed. Although the Veteran reports having headaches two to three times per month, these are not described as prostrating attacks such that they interfere in any way with his ability to maintain employment. Notably, there were no complaints of headaches in his VA treatment records. The headaches were described on both VA examinations as non-debilitating, and not interfering with employment. In August 2008, it was noted that they were stable and managed by medication as needed. Thus, the evidence reflects that the Veteran has not (at any time) had characteristic prostrating attacks averaging one in two months, over the last several months. Consequently, a schedular compensable rating is not warranted. The Board has considered whether referral for extraschedular consideration is warranted. See 38 C.F.R. § 3.321. Comparing the symptoms of the headaches shown with the schedular criteria (discussed above), the Board finds that the manifestations of the Veteran's headaches are entirely encompassed by the schedular criteria for a 0 percent rating; therefore, those criteria are not inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Furthermore, the disability picture is not exceptional. The Veteran himself has indicated that they do not interfere with occupational functioning. Consequently, referral for extraschedular consideration is not indicated. Finally, as the Veteran is shown to be employed, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim. Accordingly, it must be denied. ORDER A compensable rating for migraine-type headache disorder is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs