Citation Nr: 1301629 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-17 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial rating in excess of 30 percent for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from November 1992 to May 1993, from December 1995 to August 1996, and from March 2002 to March 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 Decision Review Officer decision of the Detroit, Michigan regional office (RO) of the Department of Veterans Affairs (VA) which, in part, granted service connection for headaches and assigned a noncompensable (zero percent) disability rating. In a July 2011 rating decision, a 30 percent rating was assigned to the migraine headaches from September 5, 2008. However, as a higher rating is still possible for this disability it remains in appellate status pursuant to AB v. Brown, 6 Vet. App. 35 (1993). The Veteran provided testimony at a hearing before the undersigned Acting Veterans Law Judge (AVLJ) in August 2010. A copy of the hearing transcript has been associated with the claims file. This case was previously before the Board in February and September 2011. In February 2011, this matter was remanded to the RO for additional development. Thereafter, by a September 2011 decision, the Board denied a rating in excess of 30 percent for the Veteran's headaches. The Board also found that the Veteran was entitled to an initial 10 percent rating, but no more, for service-connected sinusitis. The Veteran appealed the Board's September 2011 decision to the United States Court of Appeals for Veterans Claims (Court). By an August 2012 Order, the Court, pursuant to a joint motion, vacated the Board's decision only to the extent it denied a rating in excess of 30 percent for migraine headaches. As detailed in the joint motion, the parties did not wish to vacate the decision to the extent it awarded an initial rating of 10 percent for the Veteran's sinusitis. The Court remanded the case for compliance with the instructions of the joint motion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development necessary for the disposition of the instant case have been completed. 2. The record reflects that the Veteran's service-connected migraine headaches more nearly approximates than not the criteria of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating of 50 percent for service-connected migraine headaches are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board notes that the Veteran was sent VCAA-compliant notification via a September 2008 letter. However, this appeal arises from a disagreement with the initial rating assigned for the Veteran's migraine headaches following the establishment of service connection. In Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, VA's duty to notify in this case is satisfied. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of her migraine headaches claim, to include at the August 2010 Board hearing. Nothing indicates she has identified the existence of any relevant evidence that has not been obtained or requested. For example, she has not indicated that there is outstanding evidence document symptoms of her migraine headaches that are not reflected by the evidence already of record. Moreover, by a statement dated in October 2012 she reported that she did not have anything else to submit regarding this claim. With respect to the aforementioned August 2010 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the AVLJ accurately noted the appellate issues, and asked questions to clarify the Veteran's contentions. The Veteran volunteered her treatment history at this hearing. Although the AVLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the migraines headaches claim, the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate this claim. Finally, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has she identified any prejudice in the conduct of either hearing. As such, the Board finds that, consistent with Bryant The Board further notes that the Veteran was accorded VA medical examinations in January 2009 and March 2011 which included findings as to the symptomatology of her migraine headaches that are consistent with the other evidence of record and relevant rating criteria. The Board acknowledges that the January 2009 examination was previously identified as having occurred in 2008, and this is the initial date of the report. However, other evidence of record identifies the examination as having occurred in January 2009, which is consistent with the fact that the Veteran filed her claim in September 2008. In any event, no inaccuracies or prejudice is demonstrated with respect to these examinations, nor has the Veteran indicated that her headaches have increased in severity since the most recent examination. Accordingly, the Board finds that these examinations are adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board also wishes to note that it previously determined in the September 2011 decision that the duties to notify and assist had been satisfied. Nothing in the joint motion which was the basis for the Court's August 2012 Order in this case challenges that determination. Rather, the joint motion, as detailed below, contended that the Board's decision contained inadequate reasons and bases in not addressing certain evidence of record. The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). The Board is therefore confident that if the Court had any substantive comments concerning the Board's findings regarding the duties to notify and assist, such would have surfaced in the joint motion or the Court Order so that any deficiencies could be corrected. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court held that "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). With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Migraine headaches are evaluated pursuant to 38 C.F.R. § 4.124a , Diagnostic Code 8100. Under this Code, a 0 percent disability rating is assigned for less frequent attacks than for a 10 percent rating. A 10 percent disability evaluation is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define "prostrating," nor has the 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." Analysis In this case, as detailed below, the Board observes that there are multiple records on file, to include the Veteran's own statements, regarding the frequency and severity of her service-connected migraine headaches. The focus of the adjudication is whether this evidence indicates these headaches are of such frequency and severity so as to warrant a rating in excess of 30 percent under Diagnostic Code 8100. VA treatment records dated in 2008 indicate that the Veteran reported having chronic headaches once every two to three days to once a week. See the October 2008 VA treatment records. She reported having a bad headache once or twice a month. In September 2008, she reported having a severe headache. The January 2009 VA examination report indicates that the Veteran reported having headaches from once a week to three to four times a week. At this examination, she reported having no major incapacitating episodes. VA treatment records indicate that in August 2009, the Veteran sought treatment for a severe headache. VA treatment records show that in March 2010, the Veteran reported having a headache every two to three weeks. She stated that she was doing better on medications. However, in September 2010, the Veteran reported having eight to ten headaches a month. She reported stopping her migraine medications. VA treatment records dated in December 2010 indicate that the Veteran went to the emergency room for treatment of a migraine headache. The assessment was headache versus over-medication headache. At the hearing before the Board in August 2010, the Veteran testified that she had frequent "baby headaches" and she had migraine headaches every ten to fourteen days. She stated that when she had her migraines, she had to lie down, she was incapacitated for a half of a day to a day, and she avoided everything including driving and shopping. See also the Veteran's diary of migraine headaches from 2007 to 2010. VA treatment records dated from January 2011 to July 2011 indicate that the Veteran reported having headaches every two weeks and the headaches lasted from two to three days. The March 2011 VA examination report notes that the Veteran reported having headaches every ten to fourteen days or two to three times a month. She stated that most of the attacks were prostrating and they lasted one to two days. In the September 2011 decision, the Board found that the service-connected migraine headaches more closely approximate characteristic prostrating attacks which occur on the average of once a month over the last several months; that the evidence established that once or twice a month, the Veteran has prostrating headaches which cause the Veteran to lie down and stop all activities. The joint motion contended that the Board provided inadequate reasons and bases in support of this finding. In pertinent part, the joint motion stated that the Board did not account for a December 2008 treatment record which noted that the previous month the Veteran "had [eight to ten] debilitating headaches, lasting [two] days each." The Board acknowledges that the aforementioned December 2008 treatment record indicates the type of frequent completely prostrating and prolonged attacks contemplated by the criteria for a 50 percent rating under Diagnostic Code 8100. Further, the Board must also acknowledge that the statements from the Veteran, as well as other lay statements submitted on her behalf, reflect that there have been other months during the pendency of this case where she experienced 2 to 3 or even more episodes of prostrating attacks due to her migraine headaches. Moreover, she also indicated at the March 2011 VA examination that her headaches had become progressively worse during the pendency of this case, and the examiner concurred with this assertion. The Board observes that none of the competent medical evidence of record specifically states that the Veteran experiences severe economic inadaptability due to her service-connected migraine headaches. However, the Veteran's own statements, as well as the statement from her employer, reflect that she is only able to work part-time in her occupation as an electrician due to her headaches. This is also indicated by the March 2011 VA examination. Moreover, the examination noted that she had been assigned different duties, experienced increased absenteeism, and could not do much with the headaches. The Board also reiterates that the law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 In view of the foregoing, the Board finds that the record reflects that the Veteran's service-connected migraine headaches more nearly approximates than not the criteria of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Therefore, she is entitled to a rating of 50 percent under Diagnostic Code 8100. Inasmuch as the Veteran has been found to be entitled to the maximum schedular rating of 50 percent under Diagnostic Code 8100, there does not appear to be any basis to assign a higher "staged" rating during the pendency of this case. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria contemplate the symptomatology of the Veteran's service-connected migraine headaches. As detailed above, the disability is manifested by recurring attacks, to include those prostrating in nature, which affect her economic adaptability. Such manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the this service-connected disability and referral for consideration of extraschedular rating is not warranted. Lastly, the Board notes that notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, the Veteran is employed in a part-time capacity and it does not appear she has contended she is unemployable due solely to her service-connected migraine headaches. Moreover, as detailed above, the 50 percent rating assigned for this disability is reflective of severe economic inadaptability. As such, the Board is of the opinion that such impairment has been adequately compensated by the current schedular rating. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (Noting that the disability rating itself is recognition that industrial capabilities are impaired). Consequently, no further discussion of entitlement to TDIU is warranted based on the facts of this case. ORDER Entitlement to an initial rating of 50 percent for service-connected migraine headaches is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs