Citation Nr: 1016446 Decision Date: 05/04/10 Archive Date: 05/13/10 DOCKET NO. 07-22 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial disability rating higher than 10 percent for migraine headaches. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to April 2005. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Roanoke, Virginia Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a May 2005 rating decision, the RO granted service connection for migraine headaches, and assigned a 0 percent initial disability rating. In a November 2006 rating decision, the RO denied service connection for hypertension. In a July 2007 rating decision, the RO increased the initial rating for migraine headaches to 10 percent, effective May 1, 2005. FINDINGS OF FACT 1. Mild hypertension first became manifest after the Veteran's separation from service. 2. Compensable hypertension did not become manifest during the year following the Veteran's separation from service. 3. The Veteran reports migraine headaches occurring on average of once a month, but during these times she is able to go to work if she takes medication. CONCLUSIONS OF LAW 1. Hypertension was not incurred or aggravated in service, and may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 2. The criteria for an evaluation in excess of 10 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2008)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2009). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, the Veteran submitted a signed VCAA acknowledgment form with her original application for compensation. Thereafter, the Veteran was provided notice regarding what information and evidence is needed to substantiate her claims, as well as what information and evidence must be submitted by her and what information and evidence will be obtained by VA in letters issued in February 2006, March 2006, and May 2008. The March 2006 letter advised the Veteran how VA determines disability ratings and effective dates. The case was last adjudicated in a January 2010 supplemental statement of the case. The appeal for a higher rating for migraine headaches arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2008). Thus, VA's duty to notify with respect to this issue has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, and VA examination reports. In this case, the Veteran was notified and aware of the evidence needed to substantiate her claims, the avenues through which she might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran actively participated in the claims process by submitting written argument and reporting for examinations. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process, and she has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection for Hypertension The Veteran is seeking service connection for hypertension. She notes that hypertension was found during the year following her separation from service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, including hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For purposes of entitlement to VA disability compensation for hypertension, the term hypertension means that the diastolic blood pressure is predominantly 90 millimeters of mercury or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 millimeters of mercury or greater with a diastolic blood pressure of less than 90 millimeters of mercury. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2009). Hypertension is manifest to a compensable degree (warrants a 10 percent disability rating) if diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or the individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. Blood pressure readings in the Veteran's service treatment records show diastolic pressure in the 40s through the 80s in 1983 through 2003. In measurements throughout service, her systolic pressure did not exceed 148. Blood pressure readings from the period closely preceding separation from service were 122/78 and 123/77 in February 2004, 127/82 in March 2004, 139/82 in December 2004, 134/78 in January 2005, and 139/81 and 132/83 in February 2005. The Veteran had a VA medical examination in February 2005, prior to her separation from service. On that examination, there were blood pressure readings of 137/81, 116/78, and 113/67. After service, the Veteran began to receive VA outpatient treatment in October 2005. At that time, her blood pressure was measured as 140/95. The screening clinician indicated that this was high. The Veteran indicated that there was history of hypertension in her family. The clinician recommended control of blood pressure through diet and exercise. The Veteran had a blood pressure reading of 140/87 in November 2005. In December 2005, a VA physician prescribed medication for the Veteran for hypertension. In January 2006, the Veteran's blood pressure was 146/91. The treating clinician included a diagnosis of hypertension, and prescribed ongoing medication for hypertension. The Veteran's blood pressure was measured as 129/81 in February 2006, 102/67 on May 2006, and 113/71 in September 2006. On a cardiology stress test in September 2006, the baseline blood pressure was 116/79, and the peak blood pressure was 138/43. The Veteran had a VA medical examination in October 2006. The examiner noted that the Veteran had hypertension that had existed since 2004, and that she had been on medication for hypertension for a year, with a good response. On examination, the blood pressure readings were 130/82, 130/84, and 130/84. Outpatient treatment notes show blood pressure readings of 113/71 in November 2006 and 113/72 in December 2006. VA treatment records dated through 2009 show ongoing medication for hypertension. On the 2006 VA examination report, the examiner indicated that the Veteran reported a history of hypertension since 2004. Throughout the Veteran's service, however, her diastolic pressure was measured as below 90. Hypertension was diagnosed within the year following her separation from service. During that year, however, her diastolic pressure remained under 100. Although she began continuous medication for hypertension during that year, she did not have a history of diastolic pressure predominantly 100 or more. Her hypertension therefore may not be presumed to have been incurred in service. With regard to service connection on a direct basis, the Veteran's blood pressure readings late in service were not predominantly close to the threshold for hypertension for VA purposes. A few months after service her blood pressure met and slightly exceeded the threshold for hypertension. The Veteran's blood pressure was measured as below the hypertension threshold during service, and was first measured as above 90 diastolic a few months after her separation from service. Diastolic pressure of 100 or more was not shown. She was not diagnosed with hypertension until after she left service. Thus, the preponderance of the evidence is against service connection for her hypertension on a direct basis. Higher Rating for Migraine Headaches The Veteran appealed the initial 0 percent rating that the RO assigned for migraine headaches. In a July 2007 rating decision, the RO increased the initial rating to 10 percent effective from May 1, 2005. The Veteran has continued her appeal, seeking an initial rating higher than 10 percent. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. An evaluation of the level of disability present also includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on the functional abilities. 38 C.F.R. § 4.10. 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. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, the Veteran appealed the initial disability rating that the RO assigned. The Board will consider the evidence for the entire period since the May 1, 2005, effective date of the grant of service connection, and will consider whether staged ratings are warranted. The rating schedule provides the following criteria for evaluating migraine headaches: 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 With less frequent attacks ............................... 0 percent 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran's service treatment records reflect her reports of recurrent headaches during the later years of her service. In December 2003 and January 2004, she reported a one to two year history of headaches that did not resolve with over the counter medications or sleep. In March 2004, she indicated she had headaches that improved when she was in a dark and quiet room. She stated that she had stopped taking preventative medication for headaches, because the headaches had stopped. She indicated that an over the counter medication she had taken for headaches no longer worked. Treatment records from December 2004 reflect a prescription for medication for headaches. In the VA examination performed in February 2005, prior to the Veteran's separation from service, the Veteran reported that she had migraine headaches about every three weeks, and that each migraine lasted up to three days. She stated that her vision became blurred during onset, which prevented any activity, and that her eyes became sensitive to light. She indicated that during the headaches she went to work, but required medication. She stated that the headaches caused her to lose time from work about once a month. Records of VA medical treatment after service reflect ongoing treatment with medication for headaches. In October 2005, the Veteran reported that she had migraine headaches on average two times per month. She stated that the currently prescribed medication worked very well for the migraines. In January 2006, the Veteran again reported that the prescribed medication worked very well for her migraines. She stated that she took the medication once or twice a month. In a March 2006 statement, the Veteran reported that she had headaches two or three times a month. She stated that prescribed medication made the pain subside. She indicated that without the medication she would have to go and lay down. On VA examination in October 2006, the Veteran reported that she had migraine headaches that occurred twice a month and lasted 48 hours. She stated that when the attacks occurred, she was able to go to work, but she required medication. In a December 2006 statement, the Veteran wrote that her migraine headaches really affected her during attacks. She stated that during attacks she was very sensitive to light and had to wear sunglasses. She reported that the prescribed medication took the edge off the pain, but that the pain nonetheless lingered on for two to three days. She noted that during service it was often recommended that she go to quarters during her migraine attacks. In her July 2007 substantive appeal, the Veteran wrote that she had a migraine headache at least once or twice a month. She stated that when she got a migraine, she was down for three days, and lost three days of work. She indicated that migraines could make her lose five or six days of work per month. On VA examination in November 2009, the Veteran reported that her migraine headaches were accompanied by sensitivity to light. She indicated that during headaches she had to wear sunglasses indoors. She reported that the headaches occurred about once per month, and that each headache lasted two to three days. She stated that when the headaches occurred, she was able to go to work but required medication. She related that during flare-ups she could not do anything except go to bed. VA treatment records dating from 2006 through December 2009 note that migraines were on the Veteran's problem list, but none of the treatment reports reflect visits specifically for headaches. A May 2007 treatment report noted the Veteran had "occasional headaches-relieved by zomig". A December 2007 treatment entry noted that she reported having a headache about once per month which was relieved by caffeine tablets, which she takes if she does not have the zomig tablets with her. Her active prescription list included Zolmitriptan for headaches in December 2007 but subsequent lists did not include any medication specifically for headaches. In 2005 and 2006, the Veteran indicated that, during her migraine headache attacks, she took medication, but was generally able to go to work. While she indicated in her substantive appeal that she had to stay home from work due when she had a headache, she reported to the VA examiner in 2009 that she was able to go to work as long as she took her medication. Review of her outpatient VA treatment records during the appeal period reflect that she had an active prescription for Zolmitriptan until December 7, 2007, but thereafter, such medication was not included on any active prescription lists through December 2009. The outpatient treatment records also note only brief mention that she suffers from occasional headaches. Indeed, in a December 2007 outpatient report, after she submitted her substantive appeal attesting to the severity of her headaches, she reported that her headaches were relieved by taking caffeine pills. Upon a review of the record, the Veteran's headaches reportedly occur once a month on average. While she reports missing 2 to 3 days of work when she has one, the preponderance of the medical evidence reflects her reporting that the headaches are relieved with medication or caffeine pills, and that she is able to go to work when she has a headache. As such, the Veteran's headaches are adequately addressed by the 10 percent rating presently assigned. The Board concludes that the medical findings on examination and in outpatient treatment records are of greater probative value than the Veteran's contentions proffered in response to her appeal. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for migraine headaches. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's migraine headaches. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim for service connection and against a rating higher than those assigned for headaches, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for hypertension is denied. An evaluation in excess of 10 percent for migraine headaches is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs