Citation Nr: 1032958 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 04-41 579A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 30 percent for migraines. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1986 to January 1993. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). In January 2008, the Board remanded this case for further development. FINDING OF FACT The Veteran's migraines are characterized by frequent headaches and regularly occurring prostrating attacks, but not very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for service-connected migraines are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and 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 notice from VA must inform the claimant about the 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). These notice requirements apply to all five elements of a service connection claim, including disability ratings and effective dates. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). This notice must be provided prior to the initial decision on a claim for VA benefits. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by a subsequent content-complying notice and readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). In June 2004, the Veteran received a notice letter, which notified her of what information and evidence was needed to substantiate her claim, what information and evidence must be submitted by the claimant, and what information and evidence would be obtained by VA. The Veteran also received a February 2008 letter that informed her how the disability ratings and effective dates are assigned, as required by Dingess. VA issued a SSOC in October 2009. As to the duty to assist, the Board is not aware of the existence of additional relevant evidence in connection with the Veteran's claims that VA has not sought. Service and VA treatment records, VA medical examination results and statements of her representative have been obtained. In compliance with the Board's January 2008 remand, VA sent the Veteran a February 2008 letter requesting that she forward copies of her employer's records pertaining to her job performance, or alternately that she complete an Authorization and Consent to Release Information form so that VA could obtain these records. No response was received from the Veteran. Further, in September 2009, the Veteran had a VA medical examination. Thus VA has complied with the January 2008 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has been accorded ample opportunity to present evidence and argument in support of her appeal. The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. Analysis In an April 1998 rating decision, service connection was granted for migraine headaches, evaluated as 30 percent disabling, effective October 6, 1997. The Veteran filed a claim for an increased rating in April 2004. To warrant the next higher evaluation of 50 percent, the Veteran's migraines must be characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. 4.124a, DC 8100. In July 2004, the Veteran underwent a VA medical examination in conjunction with this claim. The examiner found that the Veteran had chronic daily migraines with no identified prostrating events. The examiner noted the Veteran's report of suboptimal work performance, which needed to be verified by her employer. In her August 2004 notice of disagreement, the Veteran stated that her migraines made her unable to function for 24 hours or more and that she was unable to take the usual medication for her migraines because of risk of stroke. This possible side effect of her medication is confirmed by the October 2004 VA cardiology attending note. She was prescribed an alternate medication. VA treatment records from February 2004 to October 2004 reflect complaints of chronic recurring migraines. A March 2004 record notes that the Veteran experienced her first episode of complicated migraine (aura symptoms) at that time. The April 2004 pain clinic note reports headaches occurring four or five times per week, lasting from one to three days. She was again treated for migraine with aura in June 2004. In December 2004, the Veteran submitted her leave usage report for the preceding year. This record shows 121.5 hours of leave, roughly three weeks, attributed to some variety of sick leave, which is less than half of the 250.5 total hours of leave taken that year. She indicated that the sick leave was taken due to her migraines and the record does not specify the underlying illness, however, the Board notes that some of this leave was taken in September 2004, which corresponds to the Veteran's treatment for chest pains. Additional compensatory leave, which was not included in the three weeks reported above, was taken in March 2004 for a transient ischemic attack. As noted above, she has not provided or identified employment records showing the impact of her migraines on her job productivity. In September 2009, the Veteran had another VA medical examination, where she complained of headaches four times a week lasting a couple of hours each that required her to lie down in a dark room. She treated her migraines with daily medication. She stated that when she gets a headache at work she continues working and reported that she had only lost four days of work due to her migraines. The examiner noted that less than half of the attacks were prostrating and found there were no significant effects on her usual occupation. The examiner noted that no effects of daily activities except during acute headaches. Based on the evidence described above, the Veteran's symptoms most nearly approximate the criteria for a 30 percent evaluation. The record shows chronic recurring headaches occurring approximately four times per week. The record shows that the Veteran used approximately three weeks work of sick leave during 2004. The record does not indicate that the Veteran took any leave without pay during that time nor does it show that the Veteran lost her job due to excessive leave usage. In 2009, the Veteran reported only missing four days of work due to her migraines. There is no objective evidence of severe economic inadaptability due to the Veteran's migraines. While undoubtedly painful, the Veteran has generally been able to "stick it out" when she gets a migraine at work, which is inconsistent with a finding of completely prostrating and prolonged attacks. Thus, the rating criteria for a 50 percent evaluation are not satisfied. Thus, the Board determines that the preponderance of the evidence is against the assignment of an evaluation in excess of 30 percent for the Veteran's migraines. 38 C.F.R. § 4.7. Consideration has also been given regarding whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2009); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the Veteran or reasonably raised by the record). The Board finds that referral for consideration of an extraschedular evaluation for the Veteran's migraines is not warranted. An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. Here, the schedular rating, which contemplates the severity, frequency, and economic impact of the Veteran's migraines, in is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflects that those manifestations are not present in this case. As such, extraschedular referral is not in order here. The Board finds that, at no time during the pendency did the Veteran's migraines warrant an evaluation in excess of 30 percent. Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, staged rating is not warranted. ORDER Entitlement to an evaluation in excess of 30 percent for migraines is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs