Citation Nr: 1123301 Decision Date: 06/17/11 Archive Date: 06/28/11 DOCKET NO. 04-11 831A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to a rating in excess of 30 percent for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from January 1988 to June 1988 and from March 1989 to September 1992 with additional service in the Army Reserve from 1993 to 2003 with periods of active duty for training and inactive duty training. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board by videoconference from the RO in Little Rock, Arkansas, in March 2011. A transcript of the hearing is associated with the claims file. FINDING OF FACT The Veteran's migraine headaches are manifested by at least weekly prostrating and occasionally prolonged attacks that are not productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for migraine headaches have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 of any 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. See 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For increased-compensation claims, VA must notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. However, the Court of Appeals for the Federal Circuit (Federal Circuit) vacated that portion of the lower court decision that required notification of alternate diagnostic codes or potential daily life evidence. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed.Cir., 2009) In March 2010, the RO provided correspondence that met the requirements. The notice informed the Veteran that evidence was necessary to show that her disability had become more severe and it explained the types of evidence that would be considered including evidence showing how the disability affected employment and daily life. The notice informed the Veteran of VA's and the Veteran's respective responsibilities to obtain relevant evidence. Although the notice did not provide the specific criteria relevant to the economic impact of the disability, the Board concludes that the Veteran had actual knowledge that economic impact was a factor for consideration. The Board notes that the Veteran is employed at a Veterans Benefits Administration Regional Office with responsibilities for adjudicating claims for veterans benefits including increased rating claims. Knowledge of the relevant criteria is reasonably expected of an employee in that position. Moreover, in many written statements and in testimony before the Board, the Veteran discussed her symptoms in detail and how they impacted her employment and economic position. Therefore, any notice error was not prejudicial. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. VA has also obtained medical examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The Veteran served in U.S. Army Signal units completing Army Reserve service at the rank of Sergeant First Class. She contends that her migraine headaches are more severe than are contemplated by the current rating. Service treatment records showed that the Veteran sought treatment on several occasions in service for recurrent headaches. Clinicians associated the headaches with tension, temporomandibular joint (TMJ) disease, and sinusitis. The RO granted separate service connection and staged ratings for TMJ and sinusitis symptoms and associated discomfort. In August 2003, the RO granted service connection and a noncompensable rating for headaches effective in March 2002, the date of receipt of a claim for service connection. The Veteran expressed timely disagreement, and the RO granted an initial rating of 10 percent and a staged rating of 30 percent, the latter effective in June 2006. The ratings were assigned under Diagnostic Code 8100 for migraine headaches. Following a September 2007 statement of the case, the Veteran perfected a timely appeal of the ratings but withdrew the appeal in writing in December 2008. In the same correspondence, the Veteran requested that the claim for an increased rating for migraine headaches be "reopened." In April 2009, the RO denied a rating in excess of 30 percent. The Veteran expressed timely disagreement and provided testimony at a hearing before the RO in July 2009. The RO issued an August 2009 statement of the case. The Veteran perfected a timely appeal in September 2009. In correspondence in January 2010, the Veteran withdrew the appeal in writing but requested reconsideration of additional evidence. In June 2010, the RO denied a rating in excess of 30 percent. In July 2010, the Veteran expressed timely disagreement, and following an October 2010 statement of the case, perfected a timely appeal in January 2011. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Migraine headaches warrant a 30 percent rating if there are characteristic prostrating attacks occurring on an average of once per month over the last several months. A 50 percent rating is warranted if there are very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. There is no higher schedular rating. In statements in May 2002 and December 2002, the Veteran's parents and spouse noted that the Veteran experienced headaches of varying severity up to three to four times per week. In December 2002, a Veterans Service Representative coworker noted that the Veteran took leave one or two times per week with complaints of headache. In January 2003, a VA medical student and supervising physician noted the Veteran's report of headaches for most of her life, occurring once or twice per week, primarily in the mornings, and associated with stress and emotions. The Veteran reported nausea and sensitivity to light and noise but no blurred vision. Oral medication was not effective, but she obtained some relief by sleeping in a dark room. In May 2004, the Veteran's supervisor noted that the Veteran was employed as a Veterans Service Representative and had to leave work in the early afternoon two or three times per month complaining of headaches. In a January 2005 statement, the Veteran reported that she missed time at work because of daily pain that started with a morning headache associated with TMJ and escalated to a migraine headache three to four times per month. In August 2005, a VA neurologist noted that daily dull headaches were attributable to TMJ but that more intense headaches occurring once or twice per week lasting 24 to 48 hours involved vision deficits, nausea, and photophobia. The neurologist noted that a magnetic resonance image obtained in 2002 or 203 showed no abnormalities. Nevertheless, the neurologist confirmed a diagnosis of migraine headaches and prescribed medication. In December 2005, the Veteran reported daily tension headaches with five to six migraine headaches per month for which she was prescribed four medications. In March 2006, a VA physician noted that the Veteran continued to work full time but missed two days in the past twelve months for headache related symptoms. The migraine headaches with nausea and blurred vision occurred twice per week and resolved in two hours with medication. In correspondence in June 2006, the Veteran noted that she was employed full time but missed work because of the headaches. The Veteran noted that she wished to continue working because she learned to deal with her tension headaches but that the migraines were more debilitating and impeded her ability to function at work during an episode. The migraine headaches occurred two or more times per week and required her to leave work early or miss work entirely one or two days per month. In October 2006, a VA neurologist noted the Veteran's reports of clenching her teeth at night that caused daily morning headaches which resolved by the time she arrived at work. However, migraine headaches occurred one to two times per week lasting one to two hours and were triggered by stress at times. The headaches included nausea, photophobia, and the need to lie down to rest. The Veteran reported missing work once per month. On examination, the neurologist noted TMJ deficits but no other neurological signs. The neurologist diagnosed migraine headaches with an element of TMJ dysfunction. In March 2007, a VA physician examined the Veteran's mandibular joint and cervical spine and noted that the failure of the migraine headaches to respond to medication could indicate that the headaches were associated with TMJ and stress that caused "mouth clinching," an aggravation of TMJ. In April 2007, a private neurologist noted the Veteran's report of headaches with nausea and blurred vision three to four times per week and daily muscle tension headaches. The neurologist ordered a new magnetic resonance image and electroencephalogram studies that were negative. The neurologist prescribed different medication. In September 2007, a VA neurologist noted that the headaches were one to two times per week and that the Veteran reported fatigue and a lack of concentration while taking the medications. In correspondence in October 2008, the Veteran's parents reported that they frequently cared for the Veteran's children because the headaches required debilitating medication and the need to rest in a quiet dark room. In March 2008, the Veteran's spouse noted that she experienced daily jaw pain and migraine headaches three or more times per week, more often in the evenings, and was tired and sluggish because of the medication. In a May 2008 statement, the Veteran cited Pierce v. Principi, 18 Vet. App. 440 (2004), for the proposition that a veteran need not be completely unable to work in order to meet the criteria of Diagnostic Code 8100 for severe economic inadaptability. The Veteran also noted that certain provisions of 38 C.F.R. Part 4 were applicable but not applied in her case. Specifically, the Veteran cited provisions for the application of reasonable doubt, for assignment of a higher rating if the disability picture more nearly approximates that rating, and for the proposition that not all elements of a higher rating must be met in all instances. See 38 C.F.R. § 4.3, 4.7, 4.21 (2010). In undated correspondence received in August 2008, the Veteran's spouse noted that the Veteran worked all the time in order not to have to deal with him or their children. The spouse noted that the Veteran experienced headaches and jaw pain and that prescribed medication was not effective or not taken because it made it hard for the Veteran to work. In correspondence to her work supervisor in August 2008, the Veteran indicated that she was filling a position as a work-team "coach" but requested reassignment to her previous position as a Veterans Service Representative. The Veteran noted that the well being of her family and personal health impeded her ability to manage both areas and that the reassignment would afford more latitude to handle the demands of daily life with respect to family obligations and management of her health. In November 2008, the Veteran received treatment in the form of injectable medication for a two day migraine headache at a VA Medical Center emergency room. In January 2009, the Veteran's pastor noted that headache episodes and symptoms of posttraumatic stress disorder (PTSD) interfered with her abilities to participate in church activities. In a personal statement in support of a PTSD claim the same month, the Veteran noted, Although I sometimes don't like the people I work with and the work environment, I do like what I do. My little part helps fellow veterans. When I am at work, I don't have to deal with people on a continuing basis. Essentially my job is self driven or paced. I can talk only when necessary and still perform my job satisfactorily. However, some days I don't feel like coming and it's hard to make myself go. I sometimes have trouble concentrating. Everynow [sic] and then, when thing [sic] get to be at their worst, I take a stress day. In March 2009, a VA neurologist noted the Veteran's reports of two migraine headaches per week lasting four hours with nausea, vomiting, photophobia, and blurred vision. The headaches usually occurred in the evening and were relieved with sleep. However, the Veteran reported seeking emergency room care for headaches twice in the previous six months and having to leave work four times in the previous six months because of the prostrating nature of the attacks. The Veteran reported taking four medications for migraine headaches and for daily tension headaches, the latter not causing functional loss. In a July 2009 hearing before the RO, the Veteran stated that she had accepted a lateral promotion to a supervisory position but missed work because of headaches and could not do the job effectively. The Veteran stated that her previous position afforded flexible work hours that allowed her to compensate for her headache episodes. She reported that the supervisory position did not change her income but took her out of contention for future promotions. The Veteran stated that the migraine headaches occurred two to three times per week but did not always occur at work. In correspondence in November 2009, the Veteran's work supervisor noted that she observed the Veteran's migraine headache episodes on a weekly basis. Although the Veteran tried hard to work through the discomfort and remain at work, the supervisor noted that the Veteran did have to take hours and even days of sick leave because of the severity of the headaches. In March 2010, a VA physician performed an examination for fibromyalgia. The physician noted the Veteran's reports of neck, back, shoulder, arm, and leg pain with whole body aches every day with two to three flare-up episodes per month that lasted for a few days. The Veteran was prescribed medication that was not effective. The Veteran also was diagnosed with migraine headaches, irritable bowel syndrome, and PTSD. The physician noted that all symptoms affected her quality of life and caused the loss of three to four work days per year. In April 2010, a VA nurse practitioner (NP) in a neurology clinic noted the Veteran's report of no changes in the migraine headache symptoms since the March 2009 examination. The NP reviewed a magnetic resonance image obtained in January 2009 that was normal. The NP noted the Veteran's reports of weekly episodes that were prostrating and lasted one to two days. The NP noted that the impact of the headache symptoms did not affect most activities of daily living but imposed a severe impact on chores, recreation, traveling and exercise. Also in April 2010, the Veteran was evaluated in a VA mental health clinic. A social worker noted that the Veteran was working as a Decision Review Officer. The Veteran reported having to leave work on one occasion to control multiple psychiatric stressors. In March 2011, the Veteran's supervisor on an appeals team noted that he observed the Veteran experience migraine headache episodes on a weekly basis. He noted that the Veteran tried to work through the episodes but had to take sick leave when the attacks were severe. In a March 2011 Board hearing, the Veteran stated that she continued to experience weekly migraine headaches that included nausea, photophobia, and blurred vision and required her to go home and rest in a dark room. The Veteran stated that she continued to receive VA treatment but had not visited an emergency room in the past twelve months because she could deal with the symptoms without injected medication. The Veteran stated that the medications made her sleepy and that she modified the dosage to reduce the effect. The Veteran reported having to use 32 hours of sick leave since January and over 90 hours in the past year. The Veteran stated that she had to step down from a management position because it did not afford flexible working hours. The Veteran acknowledged her representative's statement that the inability to assume a management position would affect "where her monies would be in the end." However, the Veteran also acknowledged that he had assumed a position as a Decision Review Officer which did allow work in a quiet and dark setting on flexible hours. The Veteran stated that she submitted copies of leave and earnings statements to show her use of sick leave. These documents are not associated with the claims file. The Board concludes that a rating in excess of 30 percent for migraine headaches is not warranted at any time during the period covered by this appeal. The Veteran is competent to report the nature, severity, and frequency of her observed headache symptoms. The Board concludes that her reports are credible because they are generally confirmed by her work supervisors and family members and have been accepted by medical clinicians. The Board notes that no pathology has been identified as a cause for the migraine headaches but that clinicians have suggested causes such as stress and a progression of symptoms related to TMJ disease. The Board concludes that the Veteran does experience very frequent, prostrating, and occasionally prolonged migraine headaches. The Board also acknowledges that the Veteran experiences daily tension headaches that have been attributed to teeth clenching at night associated with jaw disease. The Veteran acknowledges that these latter headaches do not interfere with function. The Veteran has been granted separate service connection and ratings for TMJ disease with myofacial pain and for fibromyalgia. Although there is lay and medical evidence that the Veteran also experienced symptoms of fibromyalgia, irritable bowel syndrome, and PTSD that occasionally caused her to leave work, the Board concludes that the headache episodes are very frequent and on occasion occurred during the workday and required the use of flexible work hours or sick leave. The lay and medical evidence showed that the nature, frequency, and severity of the headaches were stable during the appeal period and were on occasion affected by the Veteran choice of medication use and dosage. The Board concludes that a higher schedular rating of 50 percent for migraine headaches is not warranted because the disorder is not productive of severe economic inadaptability. As noted by the Court of Appeals for Veterans Claims (Court), the term "economic inadaptability" is not defined in Diagnostic Code 8100 or elsewhere in statutes and regulations. However, the term does not require that that a veteran must be unemployed or unemployable to meet the criteria. Pierce, 18 Vet. App. at 446. In its analysis, the Court noted that the only other use of the term "inadaptability" in the regulations (now deleted) was in the context of "social inadaptability" which was defined as "abnormalities of conduct, judgment, and emotional reactions which affect economic adjustment; i.e. which produce impairment of working capacity." Id. In this case, the Veteran is employed full time and commendably desires to remain so. The Veteran contends that a 50 percent rating under Diagnostic Code 8100 is warranted because not all elements of a higher rating need be met before that rating is assigned. 38 C.F.R. § 4.7, 4.21. However, this provision is not applicable to diagnostic codes such as Diagnostic Code 8100 that apply successive rating criteria, where "the evaluation for each higher disability rating include[s] the criteria of each lower disability rating, such that if a component [i]s not met at any one level, the veteran could only be rated at the level that did not require the missing component." Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Where that is the case, to permit a rating at the higher percentage, "where only two out of the three criteria were met, would eviscerate the need for [a lower rating percentage] since the symptoms established for either rating might be the same." Id. (citing Camacho v. Nicholson, 21 Vet. App. 366-67 (2007)). In contrast, in diagnostic codes that do not employ successive rating criteria, "a veteran could potentially establish all of the criteria required for [ ] a [higher] disability rating, without establishing any of the criteria for a lesser disability rating." Id. Therefore, the Board concludes that demonstrating severe economic inadaptability which involves economic adjustment and impairment of working capacity is required to substantiate a higher rating. In this case, notwithstanding the frequency and discomfort associated with the Veteran's headache attacks, the Board concludes that the Veteran's economic inadaptability is not severe but rather both mild and speculative. The Veteran reported that she experienced migraine headaches for many years. The records show that the Veteran had a very successful career in the Army Reserve, rising to the rank of Sergeant First Class with above average evaluations and awards through 2004. The Veteran has been successfully employed at VA for more than ten years in the adjudication of veterans' claims. During the period covered by this appeal, the Veteran was promoted from a position involving initial ratings to that of a Decision Review Officer, a position that requires presiding at hearings and adjudicating claims on appeal. The Veteran did not submit information on her specific pay grades and income. However, this promotion can be associated with a significant pay increase. The Veteran notes that she had to withdraw from a lateral position as a supervisor, prior to promotion to Decision Review Officer, because the supervisory position required fixed vice flexible hours. Although the Veteran correctly contends that a supervisory or management position would enhance future opportunities, the Veteran was assigned a position of greater responsibility. Her individual work skills and production have never been criticized by her supervisors. The Veteran and her supervisors reported that the headache episodes required early departure from work or missed workdays. As a federal employee, the Veteran earned 104 sick leave hours per year and did not exceed the hours earned in the last year. Moreover, the use of flexible work hours and the cooperation of her supervisors accommodated her need to leave work on occasion to treat the disorder. It is highly credible that the VA work environment is flexible for employees and especially veterans with disabilities without imposing discipline or economic impairment. It is commendable that the Veteran is able to work through a constellation of symptoms associated with migraine headaches and several other service- and non-service connected disabilities. However, the weight of lay and medical evidence shows that the Veteran performed satisfactorily at increasing levels of responsibility and has incurred no severe economic inadaptability. Even if the potential for future promotion is at risk, that potential is speculative and not currently demonstrated as an economic impairment. Moreover, an increase in responsibility from Veterans Service Representative to Decision Review Officer, even if not associated with a pay grade increase, demonstrates highly satisfactory performance with no economic impairment. The Board finds that there is no basis for referral for consideration of an extra-schedular rating in this case. 38 C.F.R. § 3.321(b)(1). The Veteran has not presented any evidence that his particular service-connected migraine headache disorder results in a unique disability that is not addressed by the rating criteria. Specifically, there is no evidence of frequent hospitalization. The Board has addressed the impairment of employment and finds that the regular schedular standards are applicable, establish a clear standard, and adequately contemplate the degree of impairment. Thus, there is no basis for referral of the case for consideration of an extraschedular disability evaluation. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also Bagwell v. Brown, 9 Vet. App. 337 (1996). As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 30 percent for migraine headaches is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs