Citation Nr: 1006715 Decision Date: 02/23/10 Archive Date: 03/02/10 DOCKET NO. 98-08 950A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to an initial rating in excess of 30 percent for migraine headaches, for the period from February 8, 1997, through December 1, 2004. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active military service from July 1985 to February 1997. This appeal to the Board of Veterans' Appeals (Board) arose from an August 1997 rating decision in which the RO, inter alia, granted service connection and assigned an initial 0 percent (noncompensable) rating for migraine headaches, effective February 8, 1997. The Veteran filed a notice of disagreement (NOD) with the assigned rating in April 1998, and the RO issued a statement of the case (SOC) in May 1998. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in June 1998. In December 1999, the Veteran testified during hearing before RO personnel; a transcript of the hearing is of record. Thereafter, also in December 1999, the RO assigned a higher initial rating of 30 percent for the Veteran's migraine headaches, effective February 8, 1997. In December 2003, the Board remanded to the RO the matter of a higher initial rating for migraine headaches for further development. After accomplishing all requested action, the RO continued the denial of the Veteran's claim (as reflected in the October 2004 supplemental SOC (SSOC)) and returned the matter to the Board. In March 2005, the Board remanded the matter on appeal to the RO (via the Appeals Management Center (AMC) in Washington, DC) for further development, to include providing the Veteran a VA examination. After accomplishing further action, the AMC continued denial of the Veteran's claim (as reflected in the August 2006 SSOC), and returned the matter to the Board.. In an April 2007 decision, the Board determined that a maximum rating of 50 percent rating for the Veteran's migraine headaches, effective December 2, 2004, was warranted. Also in April 2007, the Board remanded matter of a higher rating for migraine headaches prior to that date to the RO, via the AMC, for further development, to include requesting additional evidence. After accomplishing all requested action, the AMC continued denial of the Veteran's claim (as reflected in the October 2009 SSOC), and returned the matter to the Board for further appellate consideration. Because the Veteran has disagreed with the initial rating assigned following the grant of service connection for migraine headaches, the Board has characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service- connected disability). Moreover, although the RO has granted a higher rating during the pendency of the appeal for the Veteran's migraine headaches, inasmuch as a higher rating for this disability is available, for the period from February 8, 1997, through December 1, 2004, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for higher rating for this period remains viable on appeal. Id., AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter remaining claim on appeal have been accomplished. 2. While the Veteran experienced prostrating migraine headaches during the period from February 6, 1997, through o December 1, 2004, the migraine headaches were not productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for migraine headaches, from February 6, 1997, through December 1, 2004, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, the May 1998 SOC set forth the criteria for higher ratings for migraine headaches. Also, an n October 2007 post-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for a higher rating, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the above-described notice and opportunity for the Veteran to respond, the October 2009 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter remaining on appeal. Pertinent medical evidence associated with the claims file consists of Social Security records, VA and private treatment records, and the reports of April 1997 and February 2003 VA examinations. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and by his representative, on his behalf. The Board finds that no additional RO action to further develop the record in connection with this claim is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the ROAMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is 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. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. 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 entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Considering the pertinent evidence in light of the above, the Board finds that an initial rating greater than 30 percent for the Veteran's migraine headaches, for the period, from February 6, 1997, through December 1, 2004, is not warranted. The initial 30 percent rating for the Veteran's migraine headaches was assigned pursuant to the criteria of Diagnostic Code 8100, for migraine headaches. Pertinent to the matter of a higher rating for the period in question, migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a. In April 1997, the Veteran underwent VA examination. He then described pain behind his ears that radiated to his occiput. He had no nausea or vomiting. There was some photophobia. His last episode occurred about five days ago. Following examination, the diagnosis was headaches, most likely stress related, as described. During the December 1999 RO hearing, the Veteran testified that, when he gets migraines, they average four to five per month. He indicated that they generally lasted up to an hour and a half. He stated that he has gotten one headache at work, and that he rested for about ten minutes. Reportedly, he had two during December 1999, but stated that the average was about four per month. He described pounding, throbbing pain. A February 2000 VA record of a transcranial Doppler indicates that the Veteran complained of unilateral headaches with associated visual obscuration and nausea. The headaches occurred about two to three times per month. The interpretation following the procedure was that migraine was the best explanation for the Veteran's complaints. A December 2001 VA outpatient treatment record shows that the Veteran had been having frequent headaches that were no longer relieved by Motrin. An April 2002 VA treatment record shows that the Veteran reported that he got a headache once every two or three months. The impression was migraine headache. In a May 2002 written statement, the Veteran indicated that his frequent and prolonged attacks caused him significant time lost from employment. A July 2002 VA outpatient treatment record indicates that the Veteran wanted an adjustment of his migraine medication. He complained of headaches occurring from one to three times per week. They throbbed, and loud noises were painful. He had no change in vision, olfaction, or hearing. The impression was that the Veteran had common migraine headaches that occurred about ten times per month. Severe headaches that were disabling occurred at least four times per month. In February 2003, the Veteran underwent VA examination. His headaches were intermittent and persistent. They occurred on a daily basis and lasted several hours. He took Verapamil and Wellbutrin for the headaches. The headaches were associated with nausea, and he sometimes saw spots. He denied any functional loss with the headache. The impression was that the Veteran had a migraine disorder. In June 2003, the Veteran submitted records from his employer, showing the dates and times he was absent from work. During the time period from October 2000 to May 2003, the Veteran took 179.5 hours of sick leave and 72 hours of leave without pay. A June 2003 VA treatment record indicates that the Veteran's headaches occurred once or twice a week. He had notice reduced severity and duration with the use of prophylactic divalproex. The impression was that the headache frequency was stable, and the severity was well-controlled. In a June 2003 written statement, the Veteran's VA physician reports that the Veteran was under her care. The Veteran was treated with Verapamil and Divalproex but continued to get severe headaches several times per week. He took ibuprofen and oxycodone as needed for pain. At times, the headaches were so severe that he had to leave work. A December 2003 VA outpatient record shows that the Veteran complained of a current migraine headache that had lasted for an hour and a half. It was throbbing and moderately severe. A February 2004 VA treatment record reveals that the Veteran continued to complain of headaches. An April 2004 VA outpatient record shows that the Veteran had previously reported having much less frequent headaches. A May 2004 VA treatment record indicates that the Veteran reported that his migraines were much improved with two weeks off of work. In a July 2004 written statement, the Veteran's VA physician indicates that she treated him for migraine headaches. They were treated with various types of prophylactic medications, but he still got frequent headaches requiring narcotic pain medication. In July 2004, the Veteran underwent private evaluation in connection with his claim for Social Security Administration benefits. The Veteran reported that he had headaches present on a daily basis or more often. Mild daily headaches were described as dull. Severe headaches occurred once or twice per week. He described them as a sledge hammer, and they responded to Percocet. Vomiting was no longer a symptom associated with the headaches. He had no other associated symptoms suggestive of migraine or vascular headaches. The Veteran generally responded to severe headaches by lying down and taking a nap. The headache generally subsided in two to four hours. Following examination, the diagnosis was chronic daily headaches. A September 2004 VA outpatient record shows that the Veteran reported not experiencing much relief with his current medications. Based on consideration of the above-cited evidence, the Board finds that the criteria for a 50 percent rating for migraine headaches, for the period from February 6, 1997, through December 1, 2004, are not met. The evidence shows that the Veteran experienced migraine headaches up to two times per week or ten times per month. At times, the Veteran indicated that medication helped these headaches. Nevertheless, he also reported that, during these headaches, he would lie down, and they would resolve in two to four hours. At times, during this time period, the Veteran also reported that his headaches had lessened in severity and frequency due to medications. For the period in question, the Board finds that the Veteran's s migraine headaches were not productive of severe economic inadaptability. The Veteran certainly reported that his headaches caused him to miss work, and a VA examiner reiterated this report in a June 2003 written statement. However, in reviewing this evidence and the evidence of the Veteran's sick leave used during this time period, the Board cannot conclude that his migraine headaches resulted in severe economic inadaptability. The Veteran used 179.5 hours of sick leave over a period of two years and eight months of work, which is approximately six hours of sick leave per month. Even including the Veteran's leave without pay, the Board finds that this amount of sick leave does not show that the Veteran's headaches resulted in severe economic inadaptability. Accordingly, for the time period in question, the criteria for the maximum schedular rating for migraine headaches were not met. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that there is no showing at any point from February 6, 1997, through December 1, 2004, that the Veteran's service-connected migraine headaches from reflects so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra- schedular basis. See 38 CFR § 3.321 (cited to and discussed in the October 2004 SSOC). . The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that schedular criteria are adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology, and provides for rating higher than that assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's migraine headaches, pursuant to Fenderson, for the period from February 6, 1997, through December 1, 2004, and that the claim for a higher initial rating for this time frame must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating for the period in question, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 30 percent for migraine headaches, for the period from February 6, 1977, through December 1, 2004, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs