Citation Nr: 1303301 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 12-07 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a disability rating in excess of 30 percent for service-connected occipital neuralgia with migraine headaches. REPRESENTATION Appellant represented by: John Dorrity, Agent WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from October 1951 to September 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Newark, New Jersey, that denied the above claim. In December 2012, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of his testimony has been associated with the claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the December 2012 hearing, the undersigned clarified the issue on appeal and inquired as to the nature and severity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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). However, in this case the record does not suggest that the Veteran is unemployable due to his service-connected occipital neuralgia with migraine headaches. During his December 2012 hearing, he indicated that he had retired from his employment in 1982, and that he had since been engaged in intermittent part time work since that time. 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). FINDING OF FACT The Veteran's occipital neuralgia with migraine headaches is manifested by moderately severe headaches that are not prostrating in nature. CONCLUSION OF LAW The criteria for a disability rating greater than 30 percent for service-connected occipital neuralgia with migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five 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). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letter dated in September 2010 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased-rating claims, 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, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. During his December 2012 hearing, the Veteran indicated that he was being treated by S. Singh, M.D., and requested that the record be held open for 30 days so that treatment records from Dr. Singh could be obtained. Two days later, the Veteran's representative submitted a one page letter from Dr. Singh, dated in November 2012 (accompanied by a waiver of consideration by the agency of original jurisdiction). No additional records from Dr. Singh were identified or submitted. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2012). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). Service connection for occipital neuralgia with migraine headaches was granted in July 2004, wherein an initial 10 percent disability rating was assigned, effective as of April 26, 2004. In April 2007, the Board determined that the Veteran's disability warranted an initial 30 percent disability rating. This disability rating was implemented by the RO by rating action dated in May 2007. By rating action dated in January 2009, the RO continued the 30 percent disability rating. In September 2010, the Veteran requested that he be awarded an increased disability rating for his service-connected occipital neuralgia with migraine headaches. By rating action dated in November 2010, the 30 percent disability rating was again continued. In Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (Court) held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A review of the Veteran's claims file reveals that following the issuance of the January 2009 rating decision, there is no evidence received within one year which relates to the service-connected headache disability. Thus, with respect to the Veteran's claim seeking an increased disability rating, the November 2010 rating action is the proper rating decision on appeal. The Veteran's service-connected occipital neuralgia with migraine headaches have been rated 30 percent disabling by analogy under the provisions of Diagnostic Code 8100. 38 C.F.R. §§ 4.20, 4.27, 4.124a (2012). Under this diagnostic code section, migraine headaches with characteristic prostrating attacks occurring on an average once a month warrant a 30 percent disability rating. The maximum 50 percent disability rating is warranted where the migraine headaches are with very frequent, completely prostrating, and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a , Diagnostic Code 8100 (2012). The rating criteria do not define "prostrating;" nor has the Court. See 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." A letter from Dr. C. M. Quinones, dated in August 2010 shows that the Veteran had been a patient at the Pain Institute of New Jersey since June 2009. He was said to be undergoing bilateral greater occipital nerve blocks due to his chronic occipital neuralgia and headaches. His pain was said to be constant and to radiate to the parietal region bilaterally. He was to undergo a series of five greater occipital nerve blocks consecutively for five weeks. A lay statement from the Veteran's spouse dated in September 2010 shows that he was said to experience severe head pain which seemed increasingly worse. He was noted to have several episodes weekly, which left him unable to go about his daily activities. Due to these episodes he was said to have had to stop working and enjoy other activities in which he had participated. He was also noted to have depression and a diminished quality of life. A VA examination report dated in October 2010 shows that the Veteran was said to have a history of moderately severe occipital neuralgia pain which started following head trauma and fall in service in Germany in 1952. There were no stitches, bleeding, or fracture. He had been treated locally for pain. He was still getting occipital neuralgia pain which would come and go, occurring two to three times per week. The pain was described as usually sharp and electric shock-like, starting from the upper cervical region to the upper occipital region, lasting from 15 to 20 minutes. H was taking prescription pain medication and would also get pain management from the Pain Institute of New Jersey, where he was receiving an occipital nerve block, which had been helping. The Veteran indicated that although the pain injections helped, the effect would last only temporarily and he would still get recurrent pain. He was also having throbbing headaches for the last two years on the back of his head, which could last for half a day and would be associated with nausea and dizziness. At times he would have blurred vision, photophobia and phonophobia during the headaches, which would occur about two to three times per week. He added that he had a magnetic resonance imaging (MRI) study of the brain done in the past, which turned out to be normal. Physical examination revealed that the Veteran appeared to be apprehensive and anxious. He was alert, oriented time three, and cooperative. Speech was coherent and intact. He indicated that he had already started to get headaches before he came in for the examination and was still having a headache. Examination of the head and neck was normocephalic atraumatic. There was positive tenderness noted in the upper cervical and occipital junction, and some trigger point was elicited in that area. There was no temporal artery tenderness. There was also no cervical spine tenderness on cervical spine range of motion. The cranial nerves were all intact. Pupils were three millimeters in size and reacted normally to light and accommodation. Fundoscopic examination was benign. Motor strength was 5/5. Tone and bulk were normal. Deep tendon reflexes were 2+ symmetrical in the upper extremities on biceps and brachial radialis. Triceps were 1+ symmetrical. On the lower extremities knee jerks were 2+ and ankle jerks were 1+. Plantars were flexor. Cerebellar coordination testing showed finger-to-nose and heel-to-shin were intact. Gait was normal. Sensory evaluation was intact to pinprick and light touch sensation all over, except there were areas of hyperesthesia elicited on the occipital nerve region on the back of the head. The diagnoses were occipital neuralgia and migraine headaches. The examiner explained that occipital neuralgia pain was recurrent from time to time, and the Veteran reported worsening of the symptoms. Subjectively, the pain was moderately severe to severe and was recurrent. He was currently under pain management, but reported worsening of the pain symptoms. Also, he started to get migraine headaches about two years ago. He was currently having moderately severe migraine headaches, in addition to occipital neuralgia pain, which he already had before. The migraine headaches were moderately severe and not prostrating in nature. The Veteran did not have to visit any hospital or emergency room for the migraine headaches or occipital neuralgia pain. The condition was recurrent and chronically present. A letter from S. Singh, M.D., dated in November 2012, shows that the Veteran was said to currently be on multiple pain medications for underlying neuropathy and hence unable to drive long distances. He would drive only short distances in and around his community. In December 2012, the Veteran submitted a copy of his calendar in which he noted the severity of his daily head pain, apparently ranging between an eight and a 10 on a scale of 10. Regular appointments were also noted with his physician. During his December 2012 hearing, the Veteran reported he would experience headaches almost four to five times daily. He added that he also experienced sleep impairment as a result of his headaches. He also described having photosensitivity with the headaches. He was being treated with pain medication and medication to help with his sleep. He noted that he had worked in a commissary, but that he retired 20 years earlier in 1982. Since then, he would work part time intermittently until about three or four years ago. Having carefully considered the competent medical evidence of record, the Board concludes that a disability rating greater than 30 percent for the Veteran's occipital neuralgia with migraine headaches is not warranted for any time covered by this appeal. In considering the Veteran's headaches under the provisions of Diagnostic Code 8100, which provides the rating criteria for migraine headaches, the competent medical evidence of record does not show that the Veteran experiences very frequent, completely prostrating, and prolonged headaches that are productive of severe economic inadaptability. The Veteran has reported that he experiences severe daily headaches. However, on examination in October 2010, while the Veteran was said to experienced moderately severe to severe headaches, the examiner specified that the headaches were not prostrating in nature. As such, the headaches, while frequent, are not completely prostrating as required by the rating criteria for the next higher 50 percent disability rating under Diagnostic Code 8100. As such, a disability rating greater than 30 percent under Diagnostic Code 8100 is not warranted. Indeed, there is no showing of completely prostrating attacks, and there is no showing of economic inadaptability as the Veteran had retired 20 years earlier and had engaged in intermittent part time employment. The statements of the Veteran and his spouse as to the frequency and severity of his symptoms have been considered. They are certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). Though they describe headache pathology that disrupts daily activity, truly prostrating attacks have not been described. The headaches have not required recent hospitalization or the need for frequent outpatient treatment. To the extent that the Veteran argues or suggests that the clinical data supports an increased disability rating or that the rating criteria should not be employed, they are not competent to make such an assertion. Based upon the guidance of the Court in Hart, the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms remained constant throughout the course of the period on appeal and, as such, staged ratings are not warranted. After reviewing all pertinent provisions, the Board can find no basis on which to assign a higher or separate disability rating. The preponderance of the evidence is against a disability rating greater than 30 percent for the Veteran's occipital neuralgia with migraine headaches, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-schedular Consideration Finally, the Board finds that the Veteran's occipital neuralgia with migraine headaches do not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's occipital neuralgia with migraine headaches is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER A disability rating in excess of 30 percent for service-connected occipital neuralgia with migraine headaches is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs