Citation Nr: 1126653 Decision Date: 07/15/11 Archive Date: 07/21/11 DOCKET NO. 06-21 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for headaches, currently evaluated as 30 percent disabling. 2. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to July 1992. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals' (Board) from a January 2006 rating decision of the VA Regional Office (RO) in Detroit, Michigan that denied an evaluation in excess of 30 percent for headaches. This case was remanded for further development by Board decision in August 2010. During the pendency of the appeal, the United States Court of Appeals for Veterans Claims (Court) issued a ruling that a total rating for compensation based on individual unemployability (TDIU) was an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The question of entitlement to a TDIU was raised by the Veteran's assertion in June 2006 that his service connected headache disability rendered him unemployable. The issue of entitlement to TDIU is therefore integral to the appeal, as set forth on the title page of this decision. FINDINGS OF FACT 1. The Veteran's headaches do not result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran's only service-connected disability is headaches, evaluated as 30 percent disabling. 3. The Veteran's service-connected disability does not in and of itself render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for headaches are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2010). 2. The criteria for a total rating based on unemployability due to service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.19, 4.25 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that his service-connected migraine headaches have increased two-fold and that medication is ineffective in treating his symptoms. He avers that there are days when he cannot turn on the lights, and that he experiences nausea and vomiting weekly. The Veteran states that going back and forth to the emergency room is a waste of time because he continues to have headaches. It is maintained that he has daily and severe headaches that cause him to be unemployable. Preliminary Considerations - VA's Duty to Assist the Veteran As provided for by the VCAA, the United States Department of Veterans Affairs (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). The notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, neither the Veteran nor his representative has alleged any prejudicial or harmful error in VCAA notice and, as discussed herein, none is shown. Notwithstanding the above, the Veteran was provided VCAA notice prior to the initial unfavorable decision on the claim for an increased rating or headaches in November 2005. This was supplemented by correspondence dated in August 2010 that also provided VCAA notice as to a total rating based on unemployability due to service-connected disability. Those letters informed him of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. Notification that includes information pertaining to a disability rating and an effective date for the award has not been sent to the Veteran. However, in both cases, the claim is denied. Therefore, no rating or effective date will be assigned. Neither the Veteran nor his representative has alleged any deficiency of notice. For these reasons, the Board finds that the Veteran was sent adequate notice with respect to the claims. The Board also finds that all necessary development has been accomplished. Extensive VA treatment records from 2004 to 2010 are included in the claims folder. The Veteran indicates in the record that he has not seen any other providers outside of VA. He was afforded a VA examination in November 2005. The case was remanded for further development in 2010 to include a request for a VA compensation examination that was conducted in September 2010. The Veteran did not respond to a further request for information pursuant to the Board's remand. His statements in the record and the whole of the evidence have been carefully considered. The Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. The Veteran has been provided with ample opportunity to submit evidence and argument in support of his claim and to participate effectively in the processing of his claims during the course of this appeal. As stated above, neither the Veteran nor his representative has alleged any prejudice with respect to the notice, or lack thereof, received for his initial rating claim during the course of this appeal. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Accordingly, the claims are ready to be considered on the merits. Law and Regulations - Headaches Service connection for headaches was granted by rating decision in December 2004. The Veteran was assigned a 30 percent disability evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2010). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. § 4.1 (2010). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. 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. See 38 C.F.R. § 4.7 (2010). The Veteran's headaches are analogously rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100 which addresses migraines. A 30 percent evaluation is warranted when there are characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent evaluation is assigned for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See also 38 C.F.R. §§ 4.20, 4.27 (2010). A 50 percent disability evaluation is the maximum schedular rating for migraine by law. 1. Increased rating for headaches. Factual Background and Legal Analysis The Veteran filed a claim for an increased rating for headaches in October 2005. The focus for adjudicating an increased rating claim is the evidence for the period back to one year before the claim was filed until VA makes a final decision. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran was afforded a VA examination in November 2005. It was noted that the claims folder was not available for review, although there was access to VA computerized records. A history of chronic migraine headaches was noted. The Veteran indicated that he was evaluated for chronic headaches in service and that they had been persistent since that time. He reported daily headaches and said that the frequency of such had increased over the last six to nine months. He noted that previously, headaches occurred one to two times a week. The Veteran described headaches as a frontal throbbing sensation with radiation around the head bilaterally. He denied prodromal symptoms accompanying headaches. He said that he had sound and light sensitivity, and occasional nausea with the headaches, as well as occasional blurring in both eyes. The Veteran stated that when headaches occurred, he had to take Darvocet and Motrin, and occasionally had to repeat the dosage every one to two hours if the headaches did not resolve. The Veteran related that when he had headaches, he had to retreat to a quiet, isolated area and lie down for several hours until the headache subsided. He stated that he felt fatigue with headaches but denied any associated loss of consciousness, seizure activity, focal upper or lower extremity numbness, dizziness, lightheadedness or tingling with headaches. It was noted that the Veteran was not currently on other types of medication that focused on migraine headaches. The Veteran stated that his current medications included Darvocet N-100. He related that when headaches developed, he was unable to engage in any type of significant activity and had to isolate himself for several hours until the pain resolved. The examiner referred to the Veteran's last neurologist's note indicating that his heavy analgesic use with the headaches might be causing an analgesic rebound. and that his might be having a very significant negative effect on the Veteran's recurrent worsening headaches. On physical examination, cranial nerves II-XII were within normal limits. An assessment was rendered of chronic migraine headaches with diagnosis of migraine in the past. VA outpatient records dating from August 2005 reflect that the Veteran was seen regularly for numerous complaints and disorders. It was noted periodically that he continued on Motrin and Darvocet for headache but no specific complaints relative to headache disability are recorded. In October 2007, the Veteran underwent a routine neurology consultation where it was noted that he had complaints of migraine headaches. It was recorded that he had been seen by neurology in February 2005 and had been a "no-show" in March 2005. It was noted that he had cancelled an appointment in the magnetic resonance imaging clinic in February 2005 and had been a "no show" the following month. In a correspondence dated in August 2010, the Veteran stated that the VA neurologist had cancelled his Darvocet prescription and that he still took Motrin daily. He said that he saw his providers approximately every four to five months. Pursuant to Board remand, the Veteran was afforded a VA compensation and pension examination in September 2010. The claims folder and VA computerized records were reviewed. The examiner noted that the Veteran had been a no-show for neurology consultation in October 2007. The Veteran described headaches over both eyes with throbbing-type pain and light sensitively. He related that the intensity of pain was eight on a ten scale, lasted two to three hours, occurred two to three times a week and that half of them were prostrating. It was noted that his clinical course since onset had been stable and that he took 800 milligrams of Motrin as needed for headaches. The examiner reported that response to treatment had been good, and that there were no effects on his usual occupation or daily activities. Cerebellar examination was normal. A CT scan was obtained and no abnormalities were noted. Following examination, a diagnosis of mild migraine headaches on as needed medication with relief of symptoms with medical management. It was noted that Veteran was unemployed one to two years and that the reasons given for unemployment was that he was not able to find a job. In this case, the Board has reviewed the pertinent evidence of record, most notably the VA examination reports from November 2005 and September 2010, as well as VA outpatient records during the interim. The Board observes that the Veteran reports subjective symptoms that include daily throbbing headaches of increasing frequency and duration, photosensitivity, nausea, occasional vomiting, occasional blurred vision, 50 percent of headaches as prostrating attacks, and the necessity to recuperate by spending hours in a dark and quiet room. The evidence nevertheless shows that while the Veteran reported the above symptoms on VA compensation examinations, regular and ongoing VA clinical records over the course of five years during the appeal period fail to show that he reported any untoward symptomatology. Such records indicate that the Veteran received some routine follow up for headaches, but more often than not, it was noted that he cancelled or was a "no show" for neurology appointments and diagnostic work-up for the headache disorder. He has reported receiving relief on his current Motrin drug therapy. Significantly, during the most recent VA examination in September 2010, the headache condition was determined to be no more than mild. In view of this, the evidence does not show that headaches substantially interfere with employment pursuits, or that they have at any point during this appeal so as to support a staged rating. Finally, the Veteran has submitted no evidence showing that this disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. Rather, the noted schedular criteria fully contemplate the reported symptoms. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008). In summary, the Board finds that there is no suggestion that service-connected headaches result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Accordingly, the evidence does not support an evaluation in excess of 30 percent for headaches, and the Veteran's claim for that benefit must be denied. 38 C.F.R. §§ 4.3, 4.7. 2. Total rating based on unemployability. Factual Background and Legal Analysis Under VA laws and regulations, a total disability rating based on individual unemployability may be assigned upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). Consideration may be given to a veteran's level of education, special training, and previous work experience, but age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a) (2010). Furthermore, a total disability rating may be assigned where the combined rating for the a veteran's service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional cases, an extra-schedular rating may be assigned on the basis of a showing of unemployability alone. See 38 C.F.R. § 4.16(b). In this case, the Veteran's sole service-connected disability is headaches, evaluated as 30 percent disabling. The combined disability evaluation is 30 percent. See 38 C.F.R. § 4.16(a). This evaluation does not meet the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a), and the question thus becomes whether there exists an extra-schedular basis for the grant of entitlement to TDIU. In this regard, the Board has considered the November 2005 VA examination report indicating that the Veteran served in the Army from 1974 to 1992 as a painter and boat driver. It was noted that he had not worked for several years, but had previously been employed as a parts assembly person for various automobile manufacturers. No further educational and employment background is available for the Veteran. Upon reviewing the evidence of record, the Board notes that on VA examination in November 2005, the Veteran stated that when his headaches recurred he was unable to perform any type of significant activity and had to isolate himself for several hours until headache pain resolved. When examined for VA compensation and pension purposes in September 2010, he reported that he had daily headaches and that approximately half of them were prostrating. As indicated previously, he reports daily throbbing headaches of increasing frequency and longer duration, photosensitivity, nausea, occasional vomiting, occasional blurred vision, prostrating attacks and the necessity to recuperate by spending hours in a quiet darkened room. He avers that such symptoms cause him to be unable to secure and maintain employment, but none of them is significantly corroborated by ongoing treatment records. The Veteran contends that he has chronic headaches, but no debilitating symptomatology is demonstrated, and it has been reported that he receives a good result from medication. The Board observes that the initial VA examiner did not provide an opinion as to whether headaches precluded substantially gainful employment. However, in September 2010, the examiner clearly noted there were no effects on his usual occupation or daily activities and that his symptoms were mild in degree. There is also no indication that the Veteran is in receipt of Social Security disability because he failed to reply to VA's August 2010 request for information in this regard. There is no suggestion from the record that the Veteran's service-connected disorder, in and of itself, precludes substantially gainful employment. In short, there is simply no evidence of record establishing that the Veteran's service-connected disability picture is the type of exceptional case for which consideration of TDIU under 38 C.F.R. § 4.16(b) is warranted. See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the fact that a veteran is unemployed or has difficulty obtaining employment is insufficient, in and of itself, to establish unemployability; the relevant question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Under the circumstances, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to TDIU and it must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER An evaluation in excess of 30 percent for headaches is denied. TDIU is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs