Citation Nr: 1237314 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 10-19 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable disability rating for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from October 1995 to September 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the claim was subsequently transferred to the St. Petersburg RO. In connection with his appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the St. Petersburg RO in January 2012. A transcript of the hearing is associated with the claims file. The issue of entitlement to a disability rating in excess of 50 percent for the Veteran's service-connected psychiatric disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Throughout the period of the claim, the Veteran's migraines were manifested by characteristic prostrating attacks averaging one in two months over the last several months; completely prostrating attacks productive of severe economic inadaptability have not occurred during the period of this claim. CONCLUSION OF LAW The criteria for a rating of 30 percent, but no higher, for migraine headaches have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8100 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), 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 timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice by a letter mailed in October 2007, prior to the initial adjudication of the claim. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim. Service treatment records and pertinent post-service medical records have been obtained, and the Veteran has been afforded an appropriate VA examination. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim. Accordingly, the Board will address the merits of the claim. General Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2011). 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 (2011). 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2011). 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 v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2011); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2011) 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 which would lead to the conclusion that 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 which would warrant an exposition of remote clinical histories and findings pertaining to the disability. The Veteran's service-connected headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraine headaches. The maximum schedular disability rating of 50 percent is warranted for migraine headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable disability rating is warranted for migraine headaches with less frequent attacks. The rating criteria do not define "prostrating," nor has the United States Court of Appeals for Veterans Claims (Court). Cf. 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." During the Veteran's April 2008 VA fee-basis examination, the examiner noted that the Veteran had experienced one migraine headache a week on average for the previous six years. The Veteran rated the headache pain as an average of 7 on a 0 (low) to 10 (high) pain scale. He indicated that three times during the previous four years his headaches rated a 10 on the same scale. The report reflects that the Veteran would experience photophobia and left-sided throbbing headaches. The headaches would last one to two hours, although his longest headache lasted for six hours. The Veteran said he experienced nausea. VA treatment records from November 2008, July 2009, and November 2009 show treatment for chronic headaches. The Veteran was prescribed Fioricet for severe headaches. Sometimes the Veteran would take Butalbital. The notes reflect that the Veteran additionally controlled his headaches with ibuprofen, caffeine, and water. On VA examination in April 2010, the examiner wrote that the Veteran experienced headaches that would occur two to three times per year, but they would sometimes last for three to seven days. It was noted that if the Veteran felt that his headaches rated less than a 5 on a 0 (low) to 10 (high) pain scale, he would self medicate with caffeine and NSAIDs. The examiner opined that the headaches had a significant effect on the Veteran's occupation, as they caused increased absenteeism. They caused decreased concentration, poor social interactions, difficulty following instructions, lack of stamina, weakness, fatigue, and pain. During his January 2012 Board hearing, the Veteran remarked that he experienced headaches every day. He stated that he could not drive at night. He said that he would lie in bed. He self-medicated with Aleve. He also had been prescribed Butalbital. He said that his headaches would rate between a 3 and a 10 on the aforementioned pain scale. He said that when his headaches rated a 10 he would lay down in bed. He stated that he left his previous job due to a combination of problems, one of which was his headaches. He said that he was working part time and attending college. After finishing college, he wanted to get a job. He said that his headaches did not cause him to go to bed every day, but they did a few times per week. He related that he was sensitive to noise and light when he experienced his headaches. He said that he gets really nervous during examinations and consequently misrepresented himself at the April 2010 VA examination. He stated that he received medical treatment for his headaches once every six months. Upon review of the evidence as outlined above, the Board finds that the Veteran is entitled to an initial 30 percent rating, but no more, for his migraine headaches throughout the period of the claim. The evidence clearly shows that the Veteran experiences frequent migraine headaches. The Board finds, however, that the Veteran is not entitled to a rating in excess of 30 percent for his service-connected migraines. The symptoms he experiences do not more nearly approximate those described under the criteria for a 50 percent rating. Namely, while the evidence shows that the Veteran has frequent migraines, the evidence does not show that the frequent migraines are consistently completely prostrating and create prolonged attacks productive of severe economic inadaptability. Although he said that he experiences multiple headaches per week, the Veteran testified that generally his headaches would vary in intensity from a 3 to a 10. As these attacks are variable in intensity, the Board finds that on average these are not "completely prostrating" as required pursuant to Diagnostic Code 8100. Finally, the Board recognizes that the Veteran left his prior job and is now working part time and attending college. However, the Veteran clarified during his Board hearing that his migraines were just one of several disabilities which caused him to leave his prior job. In sum, the evidence pertinent to the period on appeal establishes that the impairment from the Veteran's headache disability has more nearly approximated the symptomatology contemplated by a 30 percent rating throughout the period of appeal. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the 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 (2008). In the case at hand, the record reflects that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. The Court has recently held that a request for a total disability evaluation based upon individual unemployability (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). Although the Veteran stated during his Board hearing that his headaches contributed to his difficulties working, he did not assert that he was unemployable. In fact, his accredited representative clarified during the hearing that she was not implying that the Veteran sought a TDIU. Additionally, the Board notes that the Veteran works part time and is attending college. Accordingly, the Board need not further consider whether a TDIU is warranted. ORDER The Board having determined that the Veteran's migraine headaches warrant a 30 percent rating throughout the period of appeal, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs