Citation Nr: 1124643 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 10-36 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for migraine headaches. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from July 1987 to December 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. An October 2008 decision granted service connection for migraine headaches and assigned an initial 10 percent disability rating and a January 2009 rating decision confirmed and continued that evaluation. The Board observes that, in the July 2010 statement of the case, the RO noted that it had reviewed the Veteran's electronic Virtual VA records that did not reveal any evidence pertinent to his appeal. The Board has also reviewed the contents of the Veteran's Virtual VA records file and found that it only contained copies of rating decisions and a letter to the Veteran, but contained no evidence relevant to the claim on appeal. FINDING OF FACT The Veteran experiences migraine headaches, approximately once every two to three weeks and less than half of which are prostrating, essentially commensurate with symptoms of characteristic prostrating attacks averaging one in two months over a period of several months. CONCLUSION OF LAW The schedular criteria for an initial rating in excess of 10 percent for migraine headaches are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Sup. 2010); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8100 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist In a June 2008 letter, the Agency of Original Jurisdiction (AOJ) satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The AOJ notified the Veteran of information and evidence necessary to substantiate his service connection claim. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In the June 2008 letter, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran's increased rating claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records and VA and non-VA records have been associated with the claims file. All reasonably identified and available medical records have been secured. The Veteran was afforded a VA examination in October 2008 in conjunction with his claim and the examination report is of record. These records satisfy 38 C.F.R. § 3.326 (2010). The Board finds the duties to notify and assist have been met. II. Factual Background and Legal Analysis The Board has reviewed all the evidence in the Veteran's claims file that includes his written contentions, service treatment and personnel records, private and VA medical records and examination reports, dated from 2000 to 2008, and a lay statement. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran asserts that a higher initial rating is warranted for his service-connected headache disability. In his January 2010 notice of disagreement and August 2010 substantive appeal, the Veteran said that an increased rating was warranted in light of "consideration of cost of copays from office visits and cost of medication", "missing time from work [and] frequency of headaches". The present appeal involves the Veteran's claim that the severity of his service-connected headache disability warrants a higher disability rating. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Fenderson v. West, 12 Vet. App. 119, 126 (1999), the United States Court of Appeals for Veterans Claims (Court) noted that where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Id. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Regulations require that where there is a question as to which of two evaluations is to 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. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2010). As noted, the Veteran's service-connected migraine headaches were initially assigned a 10 rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran contends that his migraines are more severe than what is represented by that disability rating. Under Diagnostic Code 8100, a 10 percent rating is warranted if the Veteran has migraines with characteristic prostrating attacks averaging one in two months over the last several months. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 30 percent rating is warranted if the Veteran has migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. The highest rating available, 50 percent, is warranted if the Veteran has migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating." The Board additionally observes that the Court has not undertaken to define "prostrating." See Fenderson v. West, 12 Vet. App. at 119, in which the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what was a prostrating attack. 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." Service treatment records reflect the Veteran's complaints of, and treatment for, headaches. Post service, private medical records from Dr. N.P., dated from April 2000 to January 2005, are not referable to complaints or diagnosis of, or treatment for, migraine headaches. Private medical records from Baptist Primary Care, dated from September 2007 to July 2008, include an April 2008 record reflecting the Veteran's report of having persistent pounding headaches that started a few months earlier. His headaches were located in the frontal area, lasted a few hours, were associated with photophobia, and were worsening. Stress and sunlight triggered the headaches that were relieved by rest. The Veteran did not want to take medication for them. Results of a computed tomography (CT) of his head, performed in April 2008, were within normal limits. When seen in July 2008, the Veteran reported having moderately severe pounding headaches every two weeks with photophobia that were triggered by stress. He treated his headaches with Tylenol, non-steroidal anti-inflammatory drugs (NSAIDs) and rest. The assessment included tension and migraine headaches. In a September 2008 statement by a service acquaintance, it was indicated that the Veteran had headaches in service and continued to be privately treated for them after service. In October 2008, the Veteran underwent VA neurological examination. According to the examination report, the examiner reviewed the Veteran's medical records, discussed above. It was noted that the Veteran experienced his initial headache with syncope in 1989 in service that continued. He was evaluated for glaucoma that was ruled out. After service, the Veteran continued to have headaches for which he saw his primary care physician. The Veteran said that he had headaches that typically occurred in the bifrontal region and were throbbing with photophobia. He said that the course of his headaches improved since their initial onset and he treated them with rest and Ibuprofen that provided a good result. Further, as to the frequency and severity of his headaches, the Veteran said that he had one headache every two to three weeks, that resolved in 1 1/2 hours with medication and in several hours without medication. Less than half of the Veteran's attacks were prostrating. Objectively, results of motor and sensory examinations were normal and the normal results of the April 2008 CT were also noted. The diagnosis was migraine headaches that had significant effects on the Veteran's usual occupation, identified as decreased concentration and pain. The examiner noted that the Veteran was unable to perform his job during a headache but was usually able to get work done after the headache resolved. The Veteran's headaches prevented him from participating in sports, had a severe effect on his ability to shop, do chores, travel, and participate in recreational activities, and had a mild effect on his activities of daily life. In view of the above, the Board finds that no more than the currently assigned initial 10 percent rating is warranted for the Veteran's service-connected migraine headaches. This is so because, under 38 C.F.R. § 4.124a, Diagnostic Code 8100, a 10 percent evaluation contemplates migraines with characteristic prostrating attacks on average once every two months. The October 2008 VA examination report reflects that the Veteran had one headache every two to three weeks, that resolved in 1 1/2 hours, and that less than half of the attacks were prostrating in nature. Here there is simply no evidence of the Veteran having migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. The Board has considered the Veteran's written statements regarding his headache disability. In this regard, the Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307- 08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Additionally, the Veteran has indicated that he missed time from work due to the migraine headaches, although he provided no evidence to document this assertion. In any event, there is no evidence of record to support a rating of 30 percent because, although the Veteran experienced frequent migraines, they were not characteristic prostrating attacks occurring on an average of once a month over the last several months. In his August 2010 substantive appeal, he said that he lost time from work due to his headaches. However, he provided no objective evidence to corroborate his income loss, e.g., employers' statements, wage statements, sick leave records, etc. The Board has contemplated whether any other Diagnostic Code will permit for an increased rating. However, as the Veteran is diagnosed with migraine headaches, the Board finds that Diagnostic Code 8100, for migraines, is most appropriate. Moreover, as the preponderance of the probative medical and other evidence of record is against the claim for an increased initial rating for migraine headaches, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). The Board also finds that there is no evidence of an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating under 38 C.F.R. § 3.321(b)(1). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provides for greater evaluations for additional or more severe symptoms; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran continues to work and is not unemployable. Finally, in view of the holding in Fenderson, the Board has considered whether the Veteran is entitled to a "staged" rating for his service-connected migraine headaches, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time since the Veteran filed his original claim for service connection has the disability on appeal been more disabling than as currently rated under the present decision of the Board. ORDER An initial rating in excess of 10 percent for migraine headaches is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs