Citation Nr: 1120846 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 07-31 134A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Entitlement to an initial compensable rating for migraine headaches for the period from September 19, 2003 to January 4, 2007. 2. Entitlement to a rating in excess of 30 percent for migraine headaches from January 4, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from May 1985 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Los Angeles, California RO, which granted service connection for migraine headaches and assigned a 0 percent rating, effective from September 19, 2003. Subsequently, in July 2007, the RO increased the evaluation for headaches from 0 percent to 30 percent, effective from January 4, 2007. Because that is not the highest possible rating available under the Rating Schedule for this disability, and because the veteran has not indicated that he is content with the rating, the appeal continues. See AB v. Brown, 6 Vet. App. 35, 39 (1993). (In January 2008, jurisdiction over the Veteran's claims folder was transferred to the VA Regional Office in San Diego, California.) In a May 2008 VA Form 9, the Veteran requested the opportunity to testify at a hearing before a Veterans Law Judge at the RO. By letter dated in August 2009, the Veteran was informed that a hearing was scheduled for him at the RO in September 2009. However, the Veteran failed to report for the September 2009 hearing. Therefore, his request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). (The issue of entitlement to a rating in excess of 30 percent for migraine headaches from January 4, 2007, is addressed in the remand that follows the decision below.) FINDING OF FACT For the period prior to January 4, 2007, the Veteran's migraine headaches were tantamount to characteristic prostrating attacks occurring on an average once a month, without completely prostrating attacks. CONCLUSION OF LAW The criteria for a 30 percent disability rating for service-connected migraine headaches were met during the period September 19, 2003, to January 4, 2007. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321(b)(1), 4.124a, Diagnostic Code (DC) 8100 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. 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 subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in December 2003 from the RO to the Veteran, which was issued prior to the RO decision in February 2004. An additional letter was issued in August 2006. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Veteran was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination afforded the Veteran is adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examination was conducted by a medical professional who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the appeal. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. II. Background Of record is a treatment report from R. Tyler Given, D.C., dated in November 1995, indicating that the Veteran was seen for evaluation and treatment of injuries sustained in a motor vehicle accident. The Veteran presented with symptoms that included constant right neck and upper back pain; he also complained of almost constant headaches in the front of his head. Also of record is a medical statement from a VA doctor, dated in November 2000, indicating that the Veteran was seen at the spine clinic, and he was found to have a herniated C4-C5 disc; he also had longstanding neck and shoulder pain since the motor vehicle accident in 1995. The physician stated that it was highly likely that the herniated nucleus pulposus of the cervical spine was caused or aggravated by the 1995 motor vehicle accident. By a rating action in March 2002, service connection was granted for herniated nucleus pulposus, C4-5, evaluated as 30 percent disabling, effective September 28, 2000. The Veteran's claim for service connection for migraines secondary to the cervical spine disorder was received in September 2003. Submitted in support of the claim were private treatment reports dated from May 2003 through December 2003, reflecting treatment for the cervical spine disorder. During a clinic visit in December 2003, the Veteran complained of neck pain and headaches; he stated that the headaches had been getting progressively worse during the past 2 to 3 weeks. He noted that the pain was in the left occipital region. The impression was chronic headaches; he was prescribed Topomax. A treatment report from Dr. Barry B. Ceverha, dated in November 2003, reflects that the Veteran was seen for complaints of headaches for the past several months; he described the headaches as throbbing in nature. The Veteran indicated that Vicodin was not helping. He reported difficulty with his speech and photosensitivity. The diagnosis was headaches. In October 2004, the Veteran was seen at the neurology clinic for evaluation of migraine headaches. It was noted that the Veteran had a 10-year history of migraine headaches, usually occurring over the left orbital area. It was noted that the Veteran experienced "spotted lights" at the same time as a headache; the headache starts as throbbing pain, with photophobia and sonophobia. He had an episode in June 2004 with slurred speech and numbness in the right upper extremity; he noted that the headaches were usually triggered by neck pain. He experienced no relief with ibuprofen, Tylenol, Naprosyn, Vicodin, or Excedrin. The Veteran indicated that he occasionally lost time from work due to the headaches. The assessment was a history of migraine headaches with 2 headaches per month. The Veteran was seen in the emergency room on November 23, 2004, at which time he reported that he had been suffering from right-sided migraine headaches with vomiting and photophobia since 2 o'clock in the afternoon. Of record is a statement from P. H., a co-worker, dated in December 2004, indicating that she was a witness to one of the Veteran's migraine attacks. P. H. noted that the Veteran was in severe pain; she also noted that the pain was so severe that the Veteran had to leave work. The Veteran maintained a schedule of the frequency and severity of his headaches during the months of November and December 2004. These records show that the Veteran experienced headaches 3 to 4 times per week, half of which were described as severe headaches. The Veteran was again seen at a VA neurology clinic in January 2005 with complaints of migraine headaches. The Veteran indicated that the headaches began with pain in either eye and migrated to front part of the head, associated with seeing "light spots," photophobia, nausea and vomiting, occasional dysarthria and right upper extremity numbness, which resolves when the headaches resolves. The Veteran indicated that the headaches occurred on a weekly basis and lasted up to 4 days. The Veteran also indicated that he has tried numerous medications, all of which only dulls the pain; currently, he was on Amitriptyline which decreased the pain from "10/10" to "5/10." A neurological examination revealed slight discomfort due to headaches; the examiner did not attempt to check papillary reflex because the Veteran was currently having a headache and photophobia. The assessment was chronic migraine headaches that began 10 years ago. Similar history and findings were reported in August 2006. The Veteran was afforded a VA examination in October 2006. He complained of migraine headaches. The Veteran reported a history of migraine headaches since 1995; he stated that the pain was on the right or left side above the eyes and was associated with nausea, vomiting and slurred speech, phonophobia and photophobia. The Veteran also reported that, when the attacks occur, he has to stay in bed and not do anything. The attacks averaged once a week, lasting 2 to 3 days; he described the pain as throbbing. The Veteran stated that he was unable to perform daily function when he has headaches. The pertinent diagnosis was migraine headaches. III. Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2010). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). A disability may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. However, where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations can be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of 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; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The Veteran's migraine headaches have been evaluated as noncompensably disabling under Diagnostic Code 8100. Under Code 8100, migraine headaches resulting in characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraine headaches resulting in characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating;" nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." In weighing the evidence of record, the Board concludes that assignment of a 30 percent evaluation for the migraine headaches is warranted prior to January 4, 2007. Significantly, during the period from September 2003 to January 2007, the evidence of record demonstrates that the Veteran reported headaches at least twice a month; the headaches were described as throbbing and accompanied by photophobia and phonophobia. During a clinical visit in October 2004, the Veteran reported that he had missed work due to headaches. A lay statement from a co-worker, in December 2004, reported witnessing the Veteran having one of his migraine attacks; she noted that the Veteran was in severe pain and, on one occasion, had to leave work due headaches. In January 2005, the Veteran also reported nausea and vomiting. Moreover, on the occasion of the October 2006 VA examination, the Veteran reported weekly headaches, most of which were prostrating; that is, he reported nausea, vomiting, phonophobia, photophobia and slurred speech. The Veteran also indicated that he was unable to perform daily functions when he has the headaches. Such symptoms appear to satisfy the criteria for a 30 percent rating. While a 30 percent evaluation is warranted prior to January 4, 2007, a rating in excess of that amount is not justified for that period. Indeed, the pertinent evidence of record, as set forth earlier, does not demonstrate a disability picture characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Although the Veteran at times described his headaches as preventing him from doing anything and affecting him for days at a time, there is no corroboration of such severe episodes. In fact, the contrary appears true. He has indicated that he only occasionally missed work, and while a co-worker related an experience where the Veteran had a headache so severe that he had to leave work, it does not appear that such a problem occurred frequently, not to mention on a "very frequent" basis as required for the award of a 50 percent rating. Even when the Veteran described the effects of medication, it was noted that pain was reduced from a 10/10 to a 5/10, which evidence strongly suggests that his headache symptoms were not so severe as to produce completely prostrating and prolonged attacks that cause severe economic inadaptability. Consequently, the Board finds that the Veteran's disability did not equate to the criteria for a rating higher than 30 percent for the period from September 19, 2003, to January 4, 2007. The Board has considered whether an extraschedular rating is warranted for the period prior to January 4, 2007; however, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's migraine headaches that would render the schedular criteria inadequate. The Veteran's main headache symptom includes pain, which is specifically accounted for by the schedular criteria. Furthermore, the Veteran has not been hospitalized as a result of his headaches; nor is it shown that the Veteran's headaches caused problems not contemplated by the schedular criteria during the period prior to January 4, 2007. As such, consideration of an extraschedular rating is not called for. For the reasons set out above, and based on the pertinent evidence of record, the Board finds that a rating of 30 percent more nearly approximates the severity of the Veteran's service-connected migraine headaches prior to January 4, 2007, but no more. ORDER A 30 percent rating, but no higher, for migraine headaches from September 19, 2003, to January 4, 2007, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran is seeking an evaluation in excess of 30 percent for his migraine headaches for the period beginning January 4, 2007. The Veteran indicates that he suffers from severe incapacitating headaches at least 2 times per month, which last anywhere from 2 to 3 days. The Veteran described eye sensitivity to light, sensitivity to loud noises, nausea and vomiting, as well as lightheadedness associated with the headaches. He reported taking an assortment of medications to control the headaches, including Zomig and Propranolol. The Board notes that the criteria for evaluating the severity of migraines, 38 C.F.R. § 4.124a Diagnostic Code 8100, requires consideration as to the frequency of prostrating attacks due to migraines. Under Diagnostic Code 8100, 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. Review of the evidence of record reveals that the Veteran was last afforded a VA examination for his headaches in October 2007. At that time, he reported worsening migraine headaches since an April 2007 VA examination. However, neither examiner addressed the issue of whether the Veteran's headaches have been so severe as to cause very frequent completely prostrating and prolonged attacks. The examiners also neglected to indicate whether the Veteran's headaches resulted in severe economic inadaptability. A medical opinion is adequate when it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). As the VA medical examinations of record do not address the rating criteria in that they were not sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings - they are of little probative value. Consequently, the Board finds that further medical evaluation as to this issue would be helpful. To ensure that VA has met its duty to assist, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following actions: 1. The AOJ should ask the Veteran to identify all medical care providers who have treated him for his headaches since January 2007. The AOJ should obtain a copy of all treatment records referred to by the Veteran, and which have not already been associated with the claims folder. Any and all VA treatment records not already on file must be obtained regardless of whether in fact the Veteran responds to the foregoing request. 2. The Veteran should be afforded an examination to determine the severity of his service-connected migraine headaches. The claims file must be made available to the examiner for review prior to the examination. All studies deemed appropriate should be performed and all findings should be set forth in detail. Specifically, the examiner should comment on the frequency and prostrating nature of the migraines (e.g., whether the attacks are very frequent and completely prostrating). The examiner should describe in detail the level of activity the Veteran can maintain during the attacks. The VA examiner should also indicate whether these attacks are productive of severe economic inadaptability. All opinions expressed by the examiner should be accompanied by a complete rationale. 3. The AOJ should ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 4. Thereafter, the AOJ should readjudicate the Veteran's claim of entitlement to a higher evaluation for migraine headaches from January 4, 2007, to the present. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The supplemental statement of the case must provide reasons and bases for the decision reached. The Veteran and his representative should be given the opportunity to respond. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purposes of this remand are to further develop the record and to afford the Veteran due process of law. No action is required of the Veteran until he is notified. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2010). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs