Citation Nr: 1009155 Decision Date: 03/11/10 Archive Date: 03/17/10 DOCKET NO. 05-32 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for left ankle sprain with instability. 2. Entitlement to a compensable evaluation prior to October 17, 2006, and 10 percent thereafter for mechanical low back pain. 3. Entitlement to an evaluation in excess of 10 percent prior to February 23, 2009, and 30 percent thereafter for migraine headaches. 4. Entitlement to an initial evaluation in excess of 50 percent prior to February 23, 2009, and 70 percent thereafter for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Katrina J. Eagle, Attorney ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1990 to September 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision and an April 2008 decision review officer (DRO) decision of the Los Angeles, California, and San Diego, California, Department of Veterans Affairs (VA) Regional Offices (ROs). In the May 2004 rating decision, the RO increased the Veteran's service-connected migraine headaches to 10 percent disabling, effective April 2003. In the same rating decision, the RO denied service connection for posttraumatic stress disorder (PTSD) and continued the 10 and 0 percent evaluations for his service- connected left ankle sprain with instability and mechanical low back pain, respectively. In an April 2008 decision review officer (DRO) decision, the RO granted service connection for PTSD and assigned a 50 percent disability evaluation, effective April 2003. The RO also increased the Veteran's service-connected mechanical low back pain to 10 percent, effective October 2006. Subsequently thereafter, in a July 2009 Supplemental Statement of the Case (SSOC), the RO increased the Veteran's service-connected migraine headaches and PTSD disability evaluations to 30 percent and 70 percent, respectively, effective February 23, 2009. The Veteran was advised of the above grants of increased ratings; however, he did not withdraw his appeal. In AB v. Brown, 6 Vet. App. 35 (1993), the U.S. Court of Appeals for Veterans Claims (Court) held that, on a claim for an original or increased rating, the Veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Thus, this appeal continues. In April 2007 and February 2009, the Veteran testified at personal hearings before a DRO. Copies of the transcript for both hearings are of record. The issue of entitlement to an initial evaluation in excess of 50 percent prior to February 23, 2009, and 70 percent thereafter for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. VA has obtained all information and evidence necessary for an equitable disposition of the Veteran's appeal. 2. On February 24, 2009, and prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw from appellate status the issues of entitlement to an evaluation in excess of 10 percent for left ankle sprain with instability and a compensable evaluation prior to October 17, 2006, and 10 percent thereafter for mechanical low back pain. 3. Prior to February 23, 2009, the competent and probative evidence of record fails to show the Veteran's service- connected migraine headaches are prostrating and occur on an average of once a month over the last several months. 4. As of February 23, 2009, the competent and probative evidence of record demonstrates that the Veteran's service- connected migraine headaches are manifested subjectively, by monthly prostrating headaches, but objectively, are not completely prostrating or productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran, with regard to the issues of entitlement to an evaluation in excess of 10 percent for left ankle sprain with instability and a compensable evaluation prior to October 17, 2006, and 10 percent thereafter for mechanical low back pain have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.204 (2009). 2. Prior to February 23, 2009, the criteria for an evaluation in excess of 10 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code 8100 (2009). 3. As of February 23, 2009, the criteria for an evaluation in excess of 30 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code 8100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Decision A. Left Ankle Sprain with Instability and Mechanical Low Back Pain Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2009). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c) (2009). In a February 2009 statement, prior to the promulgation of a decision in the appeal, the Veteran indicated that he no longer wished to "pursue the appeals process" with respect to the issues of entitlement to increased ratings for his service-connected left ankle strain and mechanical low back pain. As the Veteran has withdrawn his appeal as to the stated issues, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on the issues of entitlement to an evaluation in excess of 10 percent for left ankle sprain with instability and a compensable evaluation prior to October 17, 2006 and 10 percent thereafter for mechanical low back pain, and they are both dismissed without prejudice. B. Migraine Headaches Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2009). Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's entire history is reviewed when making disability ratings. 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). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. When all 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 preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his service-connected migraines warrant a higher disability rating. The Veteran's service-connected migraines are currently evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Migraines with less frequent attacks warrant the assignment of a 0 percent evaluation. Migraines with characteristic prostrating attacks averaging one episode in 2 months over the last several months warrant the assignment of a 10 percent evaluation. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent evaluation is warranted for migraines with very frequent and completely prostrating and prolonged attacks which produce severe economic inadaptability. By way of reference, in Dorland's Illustrated Medical Dictionary 86 (28th ed., 1994), "prostration" is defined as "extreme exhaustion or powerlessness." Prior to February 23, 2009 Based upon the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for the Veteran's service-connected migraines, prior to February 23, 2009. There is no evidence of the Veteran having prostrating attacks occurring on an average once a month over the last several months at any time prior to February 23, 2009. In this regard, at a March 2004 VA examination, the VA examiner diagnosed the Veteran with recurrent headaches exacerbated by sleep deprivation and "periodically incapacitating." It was noted that his headache frequency varied with sleep deprivation, and he lost approximately 16 1/2 weeks of work the previous year due to his headaches and insomnia. However, merely losing time from work due to headaches is not synonymous with characteristic prostrating attacks. The VA examiner did not find that the Veteran's headaches were characterized by "extreme exhaustion and powerlessness," nor did he state that any prostrating attacks occurred on an average of once a month. At the April 2007 DRO hearing, the Veteran testified that he has a migraine "once every couple of months." The Board acknowledges the Veteran's reports of experiencing migraine headaches three to four times in February 2006, as reflected in a May 2006 VA outpatient treatment note, and at an October 2006 examination provided by QTC Medical Services. The Board also notes that the Veteran is competent to report his headache symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, the Board finds that his recent statements at the April 2007 DRO hearing concerning the severity, frequency, and duration of his headaches are more credible in the context of the entire record rather than his assertions made in February 2006 and October 2006. This is further supported by VA outpatient treatment records dated September 2007, which report the Veteran having two types of headaches - migraine headaches and a "continuous headache with ups and downs." The VA physician noted that the Veteran experiences chronic headaches daily, but the migraine headaches were "not daily." Thus, the evidence of record fails to show characteristic prostrating attacks occurring on an average of once a month prior to February 23, 2009, and the Veteran's migraine headaches warrant no more than a 10 percent rating. The Veteran is competent to report his symptoms. The Board does not doubt the sincerity in the Veteran's belief that his disability is worse than the current 10 percent evaluation contemplates; however, the objective medical evidence does not support the contentions for a higher evaluation. The Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for migraines prior to February 23, 2009, and the benefit-of-the- doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. As of February 23, 2009 At the February 2009 DRO hearing, the Veteran testified that his service-connected migraine headaches have worsened. He testified that he has migraines approximately once a month and takes Tylenol 3 with codeine, which has become increasingly less effective. He explained that every three to four weeks, the migraines force him into a dark room because of extreme sensitivity to light and sound. The Veteran asserts a higher rating is warranted for his service- connected migraine headaches. Applying the criteria to the facts of this case, the Board finds no basis to assign the next-higher 50 percent disability evaluation for the Veteran's service-connected migraine headaches. At the outset, there is no medical evidence that his headaches cause very frequent completely prostrating and prolonged attacks, as required for a 50 percent disability evaluation. In this regard, at a May 2009 VA examination, the Veteran reported headaches once every three to four weeks. He stated that the headaches "move around to different areas of his head," and loud noises along with different aromas trigger and aggravate his headaches. The May 2009 VA examiner diagnosed the Veteran with migraine headaches, occurring once per month and "not prostrating." As such, there are simply no objective findings the Veteran has very frequent completely prostrating and prolonged attacks associated with his service-connected migraine headaches to warrant a higher disability rating. More importantly, the evidence of record shows in fact, the headaches are not considered prostrating. Thus, the Veteran's service-connected migraine headaches are not sufficient to meet the criteria for the next-higher 50 percent rating. Even assuming for the sake of argument, though not conceding, that the Veteran's headaches are characterized by very frequent prostrating and prolonged attacks, there is still simply no evidence that they have resulted in severe economic inadaptability, an essential element for the next-higher 50 percent rating under Diagnostic Code 8100. The May 2009 VA examiner concluded that ordinary activities were still possible with the Veteran's service-connected migraine headaches, and they do not have an effect on his ability to obtain and retain any substantially gainful employment. Thus, the Board finds no evidence indicating his headaches cause severe economic inadaptability. Therefore, the preponderance of the evidence is against finding that a disability evaluation higher than 30 percent for headaches is warranted as of February 23, 2009. The Veteran is competent to report his symptoms. The Board does not doubt the sincerity in the Veteran's belief that his disability is worse than the current 30 percent evaluation contemplates; however, the objective medical evidence does not support the contentions for a higher evaluation. The Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 30 percent for headaches, as of February 23, 2009, and the benefit-of-the- doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. At this time, the Board notes that the Veteran's attorney has asserted in her September 2009 statement that in addition to seeking an increased rating for his service-connected disability, the Veteran also requests an earlier effective date for the newly-assigned increased rating. As noted above, the Board has considered the assigned effective date and it finds that the currently assigned effective date is proper. As noted above, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, there is no other distinct time period with different ratable symptoms other February 23, 2009. Prior to February 23, 2009 the Veteran's disability picture consistently failed to show prostrating migraine headaches occurring on average of once a month over the last several months. Since February 23, 2009, the Veteran's disability picture has consistently shown migrane headaches occurring on average once a month over the last several months, but no more. No evidence of frequent completely prostrating and prolonged attacks productive of severe economic inadaptability is shown at any time. The currently assigned stage rating is proper. Hart, supra. 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), the Board notes that the Veteran has been unemployed since December 2007, and that the Veteran has been granted a total disability rating based on individual unemployability (TDIU), effective February 23, 2009. Nonetheless, the April 2009 VA examination report indicates that the Veteran's service- connected migraine headaches have minimal impact on his employability. Thus, 38 C.F.R. § 3.321(b)(1) would not apply to the Veteran's case. Barringer v. Peake, 22 Vet. App. 242 (2008). Evidence of marked interference with employment due solely to the Veteran's migraine headaches is not present. The evidence also fails to show frequent periods of hospitalization due to the Veteran's migraine headaches. 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 migraine headaches is adequate and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008). II. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA 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. In this case, the RO sent a letter to the Veteran in September 2003 with the VCAA notice requirements for his increased rating claim. In the letter, the Veteran was informed that the evidence necessary to substantiate the claim for an increased evaluation would be evidence showing that his disability was worse than the current evaluation contemplates. The letter also informed the Veteran that he must provide medical or lay evidence demonstrating a worsening of his disability and the impact on his employment and daily life, which can also be substantiated by sending statements from other individuals who are able to describe in what manner the disabilities have become worse. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The letter stated that he would need to give VA enough information about the records so that it could obtain them for him. See also the November 2008 VCAA letter. In addition to the foregoing analysis, to whatever extent the recent decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision. Since the claim is being denied, any such effective date question is moot. The Veteran has had ample opportunities to meaningfully participate in the adjudicative claims process. Any error or deficiency in this regard is harmless, and not prejudicial. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA obtained the Veteran's service treatment records, VA outpatient treatment records from November 1999 to December 2008, and private medical records dated September 2005 to December 2008. The Veteran was also provided VA examinations in connection with his increased rating claim, which are found to be adequate for rating purposes. The examiners reviewed the Veteran's medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board finds that the VA examination reports are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. ORDER The appeal as to entitlement to an evaluation in excess of 10 percent for left ankle sprain with instability is dismissed. The appeal as to entitlement to a compensable evaluation prior to October 17, 2006, and 10 percent thereafter for mechanical low back pain is dismissed. Entitlement to an evaluation in excess of 10 percent prior to February 23, 2009, for migraine headaches is denied. Entitlement to an evaluation in excess of 30 percent as of February 23, 2009, for migraine headaches is denied. REMAND Review of the record reveals that at the February 2009 DRO hearing, the Veteran's attorney stated that the Veteran has been treated for his PTSD at Loma Linda University Health Care system and VA Loma Linda Health Care System for his PTSD. She further added that "[h]e is in group therapy, as well as individual therapy for his PTSD . . . ." At the April 2009 VA examination, the Veteran also admitted to seeing a psychiatrist monthly for medication management, attending several weekly groups, and engaging in "talk therapy" with a psychiatrist for his service-connected PTSD. However, review of the claims file shows that VA outpatient treatment records and private treatment records as of 2009 have not been obtained. The Board notes that since VA has notice of outstanding potential relevant records, VA has a duty to obtain those records. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c) (2009). Additionally, VA records are considered part of the record on appeal since they are within VA's constructive possession, and these records must be considered in deciding the Veteran's claim. Therefore, as VA has notice of the existence of additional VA records, they must be retrieved and associated with the other evidence already on file. See Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from Loma Linda University Medical Center in Loma Linda, California. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 2. Obtain the Veteran's treatment records from VA Loma Linda Healthcare System in Loma Linda, California. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 3. Thereafter, the issue on appeal should be readjudicated. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs