Citation Nr: 1122000	
Decision Date: 06/07/11    Archive Date: 06/20/11

DOCKET NO.  10-35 496	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for neuralgia headaches. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Veteran and neighbor, E.L.  


ATTORNEY FOR THE BOARD

Saira Spicknall, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1951 to November 1953 and from October 1957 to October 1961.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the North Little Rock, Arkansas Department of Veterans' Affairs (VA) Regional Office (RO).  In a May 2009 rating decision, the RO granted service connection for headaches due to gunshot wound, face and jaw below right orbit, and assigned a noncompensable (0 percent) rating, effective November 20, 2008.  By a January 2010 rating decision, the RO assigned the Veteran an initial 10 percent disability rating for headaches, effective October 7, 2009, and continued the noncompensable rating assigned from November 20, 2008.  Thereafter, an August 2010 rating decision granted an initial 10 percent disability rating for neuralgia headaches, effective November 20, 2008.  

The Veteran testified at a Travel Board hearing before the undersigned Veterans' Law Judge in May 2011.  A transcript of that hearing has been associated with the claims file.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's neuralgia headaches are productive of very frequent, completely prostrating, and prolonged attacks occurring approximately seven to 10 days each month which are resistant to treatment.  




CONCLUSION OF LAW

The criteria for an initial disability rating of 50 percent for neuralgia headaches have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2010).  The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the Appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim.  See generally VCAA.  

In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision.  

Pertinent Laws and Regulations

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.  Separate diagnostic codes identify the various disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2010).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned.  See 38 C.F.R. § 4.7 (2010).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

When, as here, the Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations.  See Powell v, West, 13 Vet. App. 31, 35 (1999).

When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2010).

The veteran's entire history is reviewed when making disability evaluations.  See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found - this practice is known as "staged ratings."  See id. at 126.

The Veteran's neuralgia headaches are currently rated under Diagnostic Code 8100, which provides ratings for migraine headaches.  Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as noncompensably (0 percent) disabling.  Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling.  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.  

Analysis

The Veteran claims that his neuralgia headaches warrant a higher initial disability rating than the 10 percent currently assigned.  During a May 2011 Travel Board hearing, the Veteran's neighbor for the past five years, E.L., testified that in the past year and a half, the Veteran had increasing prostrating headache episodes occurring approximately seven to 10 days every month.  She also testified that during this time, the Veteran preferred to be lying down or sitting in a dark area for about a whole day.  Finally, she testified that his pain medication did not help him and he had taken up to three pills a day.  

In a February 2009 VA examination the Veteran reported that he had been having headaches for a few years with pain starting above the right eye and going back to his head.  He described having a sharp pain from around a five to seven on a scale of zero to 10.  He reported that he had these symptoms every day and they were present all the time, although pain seemed to exacerbate.  He denied nausea, vomiting, photophobia, or phonophobia.  An examination revealed the Veteran had some problems with memory.  A motor examination revealed no upper extremity drift, strength of 4+/5 in upper extremities, and 4/5 in the lower extremities with give away type of component.  A sensory examination revealed decreased sensation in the lower extremities.  Deep tendon reflects were 1-2+ in the upper extremities and 1+ in the knees and ankle reflexes traces.  The Veteran was diagnosed with headaches.  The examiner found that the Veteran likely had neuralgia causing his symptoms and neuralgia may have been caused by either the shrapnel itself from the shrapnel wound to the head or the scar tissue.  Therefore, the examiner believed that the right sided sharp pain was caused by neuralgia and was most likely due to the gunshot injuries the Veteran had in service.  

In a December 2009 VA examination, the Veteran complained of headaches, described as a sharp pain above his eyebrow.  He reported that pain was constant, sharp, and shooting.  Pain was reported to occur more at night, and bothered the Veteran more at night.  Pain was noted to be a six out of 10 on a scale of zero to 10.  The Veteran denied any nausea, vomiting, photophobia, or phonophobia.  He reported taking pain medication which helped with symptoms.  The Veteran reported pain was not interfering with activities but bothered him significantly.  A neurologic examination revealed the Veteran was alert and oriented.  On motor examination, there was no upper extremity drift and strength was 4+/5 in upper extremities, and 4/5 in the lower extremities with give away type of weakness due to pain.  A sensory examination revealed the Veteran had decreased sensation in both extremities and deep tendon reflexes were +1 in the upper extremities, knees, and ankles.  The Veteran was diagnosed with headaches.  The examiner believed the Veteran had neuralgia causing the sharp pain above his right eye.  He also stated that he did not believe the Veteran had migraine headaches, however, he was having sharp pain which was neuralgia and was most likely due to his service-connected shrapnel injures to the right eye.  

Private medical records from within a year of the Veteran's claim for service connection, from November 2007, to June 2010 reflect that the Veteran had complained of and been treated for headaches, including with blackouts.  In an April 2010 letter, the Veteran's private physician, Dr. B. K., reported that the Veteran had been seen several times over the past two years for headaches that had been resistant to treatment.  

After a review of the record, the Board finds that the evidence of record more nearly approximates the criteria for an initial 50 percent disability rating for the Veteran's service-connected neuralgia headaches.  The objective evidence of record reflects that the Veteran's neuralgia headaches are productive of very frequent, completely prostrating, and prolonged attacks occurring approximately seven to 10 days each month which are resistant to treatment.  In this regard, the Board notes that the objective medical evidence of record reflects that the Veteran complained of and was treated for headaches with blackouts and his private treating physician reported in April 2010 that he had been seen several times over the past two years for headaches that had been resistant to treatment.  In addition, the testimony provided from the Veteran's neighbour, E.L., reflects that she witnessed his symptoms worsening in the past year and a half and that the Veteran had increasing prostrating headache episodes, occurring approximately seven to 10 days every month, for which he had to lie down or sit in a dark area for about a whole day, and that his pain medication did not help.  Thus the evidence of record demonstrates the Veteran's neuralgia headaches are characterized by very frequent, completely prostrating, and prolonged attacks which are severe enough to resist any treatment.  

Therefore, the Board finds that the neuralgia headache symptoms more nearly approximate the criteria for a 50 percent disability rating.  The Board notes that 50 percent is the maximum possible disability rating that may be assigned under Diagnostic Code 8100.  See 38 C.F.R. § 4.124a.  Accordingly, resolving all reasonable doubt in favor of the Veteran, an initial rating of 50 percent for neuralgia headaches is warranted.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An initial disability rating of 50 percent for neuralgia headaches is granted, subject to the provisions governing the award of monetary benefits.



____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs