Citation Nr: 1123002 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 11-08 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to increased evaluation for the service-connected ocular headache disability, rated as noncompensable prior to September 3, 2010, and as 10 percent disabling from that date. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York that granted increased evaluation of 10 percent for the service-connected ocular headaches effective from September 3, 2010. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). FINDING OF FACT The Veteran has not had prostrating headaches before or after September 3, 2010. CONCLUSION OF LAW The criteria for compensable evaluation for the service-connected ocular headache disability prior to September 3, 2010, and for evaluation in excess of 10 percent from that date, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts entitlement to increased evaluation for his service-connected ocular headache disability. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Veteran in this case was provided adequate VCAA notice by letter in September 2010, prior to issuance of the rating decision on appeal. The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran's disability file from the Social Security Agency (SSA) has also been obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran has been afforded appropriate VA examinations, most recently in September 2010. The Veteran has not asserted, and the evidence of record does not show, that his disability has increased significantly in severity since that examination. The Board will accordingly address the merits of the issue on appeal. Legal Principles Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2010). The Veteran's service-connected headache disability is rated under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100 (migraine). The rating criteria in relevant part are as follows. A rating of 10 percent is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A rating of 30 percent is warranted for characteristic prostrating attacks occurring on an average once per month over the last several months, and a rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating," nor has the Court. See 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 both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson, 12 Vet. App. 119; Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2010) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. The Veteran had a VA compensation and pension (C&P) examination of the eye in May 2009. The report is silent in regard to headaches. The Veteran presented to the VA primary care clinic (PCC) in January 2010 to follow up his various disabilities (diabetes, coronary artery disease, hyperlipidemia, chronic obstructive pulmonary disease, chronic back pain, lumbar disc disease and history of Bell's palsy). He stated he took one-half tablet of Oxycodone with acetaminophen per day for chronic back pain, or one tablet per day maximum, but he denied current headaches or dizziness. However, in February 2010 he endorsed using one tablet of Oxycodone with acetaminophen daily for headache and back pain. The Veteran submitted a Statement in Support of Claim in February 2010 in which he asserted he had headaches as a component of his original flashburn injury during service. The Veteran did not describe the severity of those headaches. The Veteran had a VA neurological C&P examination in April 2010 in which he complained of headache-like eye pain. The headaches were described as throbbing, bilateral and located near the eyes. The headaches were constant and unrelenting; the Veteran endorsed taking Oxycodone with acetaminophen in the evening to enable sleep. He described the headaches as non-prostrating in that ordinary activity was possible. The examiner diagnosed ocular headaches as residuals of flash burns to the eyes. In terms of impairment, the Veteran formerly tried to keep the problem hidden at work by sneaking drops into his eyes. The headaches caused limitation of function because of pain, decreased concentration and vision difficulties. Also, the headaches caused impairment of function in that opioid pain medication was needed to help the Veteran sleep. The examiner noted the Veteran was a former security guard and school bus driver who had retired in September 1981 due to herniated disc in the cervical spine, status post motor vehicle accident (MVA). The examiner also stated the Veteran's current headache disorder was likely caused by or a result of the service-connected residuals of flashburns to the eyes. Based on the medical opinion above the RO issued a rating decision in May 2010 that granted service connection for ocular headaches and assigned a noncompensable rating effective from April 6, 2004. The Veteran's representative asserts the period under appellate review extends to April 6, 2004, the effective date of service connection. However, where a claim for service connection is granted during the pendency of an appeal a second Notice of Disagreement must thereafter be timely filed to initiate appellate review concerning the compensation level or the effective date assigned for the disability. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In this case the Veteran was notified of the initial disability rating and effective date by a letter in May 2010 but he did not appeal. The initial disability rating, effective from April 2004, is accordingly not on appeal before the Board. The Veteran presented to the VA PCC in June 2010 for follow-up in which he complained of headaches behind the eyes and a burning sensation. The clinician's assessment was eye problems, characterized by the Veteran as "headaches" but shown on further discussion to actually refer to eyes burning. The Veteran had a VA home health assessment in July 2010 in which he complained of chronic continued headache pain and burning sensation in the eyes; he took Oxycodone with acetaminophen for relief of pain symptoms. The Veteran submitted the instant claim for increased evaluation in September 2010, asserting entitlement to increased rating due to chronic headaches daily treated by aspirin. He also submitted a Statement in Support of Claim the same month asserting he would wake up with pain and go to sleep with pain; although the headache would vary in intensity, the headache was actually continuous. The Veteran had a VA neurological examination in September 2010. The Veteran endorsed using Oxycodone with acetaminophen in the evening to allow sleep; he stated the relief was only temporary but did help him to sleep. The Veteran also endorsed using eyedrops and ophthalmic ointment. The headaches were described as non-prostrating (ordinary activity possible). The Veteran emphasized that his headache is constant and lasts all day; he also stated his eyes are very photosensitive and exposure to light will trigger headaches unless he wears dark glasses. The examiner also noted constant pain on the left side of the face from jaw to temple, associated with Bell's palsy the Veteran had developed three years earlier. In terms of impairment, the Veteran stated that while working he would use up all of his sick time due to problems associated with his eye condition and his headaches. Current impairment was limitation of driving and taking frequent naps to resolve headaches; he also stated cooking anything hot bothered his eyes and made them burn more. The Veteran had retired in September 1981 due to herniated disc in the neck consequent to MVA. The Veteran submitted an Appeal Election Form in December 2010 in which he asserted that during his daily headaches his whole head would hurt, especially around the eyes. He would usually have to lie down when headaches occurred. It was becoming difficult for the Veteran to drive and he accordingly utilized the shuttle bus to go to VA medical appointments. A VA PCC note dated in January 2011 shows complaints of continuing occasional headaches and low back pain. He endorsed taking one or two tablets of Oxycodone with acetaminophen daily, although not every day. The PCC provider noted continued prescription of Oxycodone with acetaminophen specifically for chronic back pain. On review of the evidence above, the Board finds the Veteran is not shown to have had qualifying prostrating headaches at any time before or after September 3, 2010. Although the Veteran competently and credibly described having to lie down during severe headaches, the simple act of lying down does not constitute a prostrating event in which ordinary activity is impossible. Significantly, all medical entries in which the headaches are characterized utilize the term "non-prostrating;" there is not a single incidence of record in which a medical provider or examiner has characterized the Veteran's headaches as "prostrating." The RO granted a 10 percent rating effective from September 3, 2010, because the VA examiner on that date documented continuous headache, even though the examiner characterized such headache as non-prostrating. The RO did not explain how the 10 percent rating is justified under DC 8100. The Board notes that 10 percent would arguably be an appropriate rating for neuralgia of a cranial nerve; see 38 C.F.R. § 4.124a, DCs 8205 through 8212. However, any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the RO did not show the disability was being rated under any alternative or analogous diagnostic code other than DC 8100. The Veteran's representative argues that the Veteran's symptoms on examination in April 2010 were essentially identical to his symptoms in September 2010, so the 10 percent rating should be applied from the earlier date. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 USCA §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In this case, in the absence of prostrating headaches the Veteran is not entitled to compensable evaluation prior to September 3, 2010, and is certainly not entitled to compensation in excess of 10 percent after that date. Whether he should have been granted a 10 percent evaluation from September 3, 2010, is not a question on appeal before the Board. VA must consider potential applications of Title 38 C.F.R., whether or not raised by claimant. Schafrath, 1 Vet. App. 589, 593. Accordingly, in reviewing the claim for a higher rating, VA must consider which Diagnostic Code or Codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The assignment of a particular Diagnostic Code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Where a particular disability for which the veteran has been service-connected is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical area and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27; Lendenmann v. Principi, 3 Vet. App. 345, 349-50 (1992); Pernorio, 2 Vet. App. 625, 629. In this case, DC 8100 (migraine) as utilized by the RO is a listed diagnostic code that closely describes the symptoms of the Veteran's ocular headache disability on appeal. Accordingly, rating by analogy under a different diagnostic code is not warranted for this disability. The Board notes at this point that the Veteran asserts he takes daily Oxycodone with acetaminophen for the service-connected headache disability. This is contradicted by the medical record, which shows the drug was actually prescribed for the Veteran's nonservice-connected chronic back pain; review of the treatment records shows the Veteran reported taking the medication for back pain, headaches and generalized joint pain. However, the Board is precluded from differentiating between the symptomology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The Board has accordingly accepted the Veteran's account that he takes the prescription pain medication for the headache disability, although the daily taking of pain medication does not demonstrate entitlement to higher rating under the applicable diagnostic code. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence of record including the Veteran's correspondence to VA and his statements to various medical providers. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board notes there is some evidence the Veteran is not a reliable historian; in June 2010 the VA PCC provider noted, "I believe [the Veteran] does not understand the scope of his medical conditions." Although the Veteran appears to be competent to describe the frequency and severity of his headaches, even when assigned full competence and credibility his reports do not show entitlement to increased rating under the appropriate criteria. The criteria for an increased rating for ocular headache disability were not met at any time during the period under review, so staged rating is not warranted. Hart, 21 Vet. App. 505. The Board has considered whether this case, or any component thereof, should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case the manifestations of the service-connected disabilities on appeal are contemplated by the schedular criteria. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. The Court has recently held that a request for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation; there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The Veteran in this case was granted disability benefits by SSA in November 1989 for degenerative arthritis of the lumbar and cervical spine (primary diagnosis) and phlebitis (secondary diagnosis). The Veteran has not asserted, and the evidence of record does not show, that his service-connected ocular headaches on appeal render him unemployable. For these reasons the Board finds the issue of entitlement to a TDIU is not a component of the claim presently on appeal before the Board. In sum, the Board has found the criteria for compensable rating for the service-connected ocular headaches prior to September 3, 2010, and for rating in excess of 10 percent from that date, are not met. Accordingly, the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to increased evaluation for the service-connected ocular headache disability, rated as noncompensable prior to September 3, 2010, and as 10 percent disabling from that date, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs