Citation Nr: 1303574	
Decision Date: 02/01/13    Archive Date: 02/08/13

DOCKET NO.  09-08 901	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska




THE ISSUE

Entitlement to an effective date earlier than August 27, 2007, for the grant of a 30 percent rating for migraine headaches with overlying tension headaches. 




REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States




ATTORNEY FOR THE BOARD

D. M. Casula, Counsel 
INTRODUCTION

The Veteran had active service from January 1984 to January 1987, and from October 1990 to July 1991.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision in which the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, DC, granted service connection for migraine headaches with overlying tension headaches, and assigned a disability rating of 10 percent effective from September 13, 2003.  [The AMC issued the September 2008 rating decision after a September 2006 Board Remand of the issue of service connection for headaches.]  In a subsequent supplemental statement of the case (SSOC), the Regional Office (RO) in Lincoln, Nebraska increased the disability rating for the service-connected migraine headaches with overlying tension headaches, to 30 percent, effective from June 28, 2008.

In a February 2011 decision, the Board denied an initial rating in excess of 10 percent, prior to August 27, 2007, and granted a 30 percent rating, effective from August 27, 2007, for migraine headaches with overlying tension headaches.  

The Veteran appealed the Board's February 2011 decision to the United States Court of Appeals for Veterans Claims (Court).  By an April 2012 memorandum decision, the Court vacated and remanded, in part, the Board's February 2011 decision, as to an effective date earlier than August 27, 2007, for the assignment of a 30 percent rating, for migraine headaches with overlying tension headaches.  The Board notes that, in the memorandum decision, the Court specifically concluded that the part of the Board's February 2011 decision denying entitlement to a rating in excess of 30 percent for migraine headaches was supported by a plausible basis in the record of the proceedings, and found that the evidence did not reflect that the Veteran was entitled to a 50 percent disability rating for the service-connected migraine headaches with overlying tension headaches.  In light of the Court's specific findings in this regard, the Board has framed the issue on appeal as a claim for entitlement to an earlier effective date rather than as a claim for entitlement to a higher initial rating.  
FINDING OF FACT

Resolving any doubt in the Veteran's favor, the earliest evidence currently of record of a worsening of his migraine headaches with overlying tension headaches, to an extent consistent with the criteria for a 30 percent rating consists of a VA neurological clinic note dated July 17, 2006.


CONCLUSION OF LAW

The criteria for an effective date of July 17, 2006, but no earlier, for the grant of a 30 percent for migraine headaches with overlying tension headaches have been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.124a, DC 8100 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  Timberlake v. Gober, 14 Vet. App. 122 (2000).

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008).  This notice must be provided prior to an initial decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The VCAA notice requirements apply to all five elements of a service connection claim:  (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Importantly, however, the earlier effective date claim adjudicated herein arises from the Veteran's disagreement with the assignment of a disability rating and effective date for his service-connected headache disability.  Courts have held that, once the benefit sought is granted, the claim is substantiated, and additional notice is not required.  Thus, no further VCAA notice relevant to the downstream effective date issue is required.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm.  Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007).  However, the United States Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2).  The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis.   Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

Here, the Veteran has had ample opportunity to respond and supplement the record, and he is not prejudiced by this process; notably, he does not allege that notice in this case was less than adequate or that he is prejudiced by any notice deficiency.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Goodwin v. Peake, 22 Vet. App. 128 (2008).  He has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case.  Sanders v. Nicholson, supra.  

The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim.  The RO has obtained the Veteran's VA and private treatment records in this matter.  Additionally, because of the nature of the issue on appeal - entitlement to an earlier effective date - the Board notes that this claim is essentially considered based on the evidence of record, and does not require further evidentiary development, to include obtaining a VA examination.  It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal.  It is therefore the Board's conclusion that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra.

The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA.  No useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran.  The Court has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II. Factual Background

In a statement dated in November 2003, the Veteran indicated he experienced continuous headaches, usually migraine type, which might be low level continuously or heavy migraine type, where he could hardly function.  

On a January 2005 VA general medical examination, the Veteran's main complaint was headaches, since returning from the Gulf.  He described regular headaches about once a week and migraine headaches about once a year.  He indicated that the duration of the migraine headaches was as long as two to three weeks, that he used ice and took Advil and Tylenol, and that he would have to stay home in a dark room and limit his activities.  The diagnoses included migraine headaches.  

In a statement received in February 2005, the Veteran reported he was having "these ungodly migraine headaches."  

An April 2005 VA treatment record shows that the Veteran was seen for follow-up and that he had no new complaints.  He still complained of some headaches, but stated that Motrin helped.  The assessment included migraine history.  

In a statement received in July 2006, the Veteran reported he had severe migraine headaches ever since he was in Kuwait and that his headaches had continued to get worse since he returned to the States.  

According to a VA neurology clinic note dated July 17, 2006, the Veteran was seen for chronic headaches of the past 15 years, right after he came back from Desert Storm.  He described the headaches as throbbing and squeezing pain, that usually started in the left temporal and could occasionally spread to both sides and less often to the right side alone.  He reported that his headaches built up gradually to a maximum of eight on a pain scale of one to ten (8/10), and that his headaches could prevent him from sleeping and occasionally woke him up.  It was noted that there was no clear aura, although the Veteran sometimes had a throbbing sensation in the left side of his head before the headaches began.  It was also noted that the headaches were occasionally accompanied by pain on eye movement and occasional mild nausea, but no vomiting, and that frequently he complained of blurry vision and light and noise sensitivity.  The headaches could last from one hour to all day long, and usually occurred three to four times a week.  He reported that most often he would lie down in a dark room and use OTC pain killers like Tylenol, which was usually slightly helpful, but also noted that ibuprofen and naproxyn were more helpful.  The assessment included chronic headaches, probably migraine, with superimposed tension headaches.

Private treatment records from Bergan Mercy Medical, showed that the Veteran was admitted on October 3, 2006, with complaints of myalgias, headache, fever, nausea and vomiting.  It was noted that on the morning of the admitting examination, the Veteran appeared to be photophobic and complained of headaches.  Two days later, he was discharged home in stable medication condition.  

Private treatment records from Immanuel Medical Center, showed that the Veteran was admitted on October 10, 2006, and presented with a three day history of intractable headaches, some nausea and vomiting, but no diarrhea.  He had recently been treated for pneumonia, and it was noted that he had a history of occasional headaches, but not to this severity.  The diagnoses included intractable headaches, rule out meningitis versus encephalitis, and resolving pneumonia.  Thereafter, he underwent an infectious disease consultation, at which time it was noted that the Veteran still complained of a headaches when he stood up, but that all other symptoms had resolved.  He reported that his headaches was more severe when he stood up, and was able to sit up, but did not wish to because of his headache.  The assessment included "headache, question, secondary to a spinal lumbar puncture".  

In a VA neurology clinic note dated in January 2007, the Veteran was seen for follow up for his headaches, and he reported that he continued to have the same headaches in the same frequency.  He stated that Amitriptyline did not make any difference and only caused drowsiness.  He stated he went to Bergan Mercy in October because of headaches and fever, and an LP (lumbar puncture) was done, and he developed post-LP headaches, but that after that he was back to his usual headache.  The assessment was headaches, probably migraine with superimposed tension headaches, and concern that sleep apnea can contribute to the headache.  

In a VA neurology clinic note dated in August 2007, the Veteran reported that the headaches occurred three to four times per week; they were associated with nausea, photophobia, and phonophobia.  The headaches could last for a few hours.  

III. Analysis

In this case, the Veteran has been diagnosed with migraine headaches with overlying tension headaches, which has been rated as 10 percent disabling prior to August 27, 2007, and as 30 percent disabling from August 27, 2007, under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, which provides the criteria for rating migraine headaches.  

Pursuant to DC 8100, very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are assigned a 50 percent rating.  38 C.F.R. § 4.124a, DC 8100.  Characteristic prostrating attacks occurring on an average once a month, over the last several months, are assigned a 30 percent rating.  Id.  Characteristic prostrating attacks averaging one in two months over last several months are assigned a 10 percent rating.  Id. 

The rating criteria do not define "prostrating," nor has the Court. The Board notes, however, that DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), defines "prostration" as "extreme exhaustion or powerlessness."  Similarly, WEBSTER'S II NEW COLLEGE DICTIONARY 889 (3rd Ed. 2001), defines the term as "physically or emotionally exhausted; incapacitated." 

The issue to be addressed, as set out by the Court in the April 2012 memorandum decision, is whether the Veteran is entitled to an effective date earlier than August 27, 2007, for the grant of a 30 percent rating for migraine headaches with overlying tension headaches.  The Veteran essentially contends that his award of a 30 percent rating for the service-connected migraine headaches with overlying tension headaches, should be made effective prior to August 27, 2007, and his representative indicated, in the informal hearing presentation dated in December 2012, that the proper effective date for the 30 percent rating should be July 17, 2006.  

The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  The statute and regulation provide, in pertinent part, that the effective date of an evaluation and award of compensation based a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). 

Section 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) provide an exception to the general rule for increased rating claims by stating that the effective date of an increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise, date of claim.  See also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992).  

Basically, the Court has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies.  See Harper v. Brown, 10 Vet App 125, 126 (1997).  Thus, three possible dates may be assigned depending on the facts of the case:  (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim).  38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, supra.  
The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates.  A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  The record reflects, and there appears to be no dispute, that the Veteran filed his initial claim for service connection for migraine headaches on September 19, 2003.  [This document is date-stamped multiple times as having been received at the RO on that day.]  In this regard, the Board acknowledges that, according to the September 2008 rating action in which the AMC granted service connection for a headache disorder and awarded the 10 percent rating for this disability, the AMC assigned an effective date of September 13, 2003, as that was purportedly the day that the Veteran's claim was received.  Accordingly, the Board will conclude that September 13, 2003 is the day of receipt of the Veteran's claim. 

Regarding when a factually ascertainable increase in disability occurs-or when entitlement arose, the Board notes that disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4, which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7. 

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The term "increase" means increase to the next disability level.  Hazan v. Gober, supra.  Further, the severity of the Veteran's migraine headaches with overlying tension headaches is ascertained pursuant to VA's rating schedule, and to determine whether an earlier effective date for a 30 percent rating is warranted, the Board must consider whether the criteria under DC 8100, for a 30 percent rating, were ever met prior to August 27, 2007.  

In this regard, the medical evidence of record dated prior to August 27, 2007 basically shows that the Veteran was experiencing migraine headaches on a somewhat regular basis, although the severity and frequency varied.  In November 2003, he complained of continuous headaches, usually migraine type, where he could hardly function.  In January 2005, he complained of regular headaches once a week and migraine headaches about once a year.  In April 2005, he complained of some headaches, but explained that Motrin helped, and the assessment was migraine history.  Initially, in July 2006, he reported having severe migraine headaches since service, and noted that his headaches continued to get worse.  He did not describe, however, the frequency of these headaches.  Thus, although the Veteran was clearly experiencing migraine headaches, the severity of such headaches did not approximate a finding of "prostrating attacks occurring on an average once a month, over the last several months," as required for the assignment of a 30 percent rating under DC 8100.  

However, at a VA neurology clinic session on July 17, 2006, the Veteran described headaches as throbbing and squeezing; that built up gradually to a maximum of eight out of ten; that could last from one hour to all day long and usually occurred three to four times a week; and that caused him to lie down in a dark room and use OTC pain killers, which were slightly helpful.  The Board notes that the VA neurological clinic note does not classify the Veteran's headaches as "prostrating."  However, in light of the depth and severity his associated complaints and symptomatology and the frequency and duration of these headaches, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that, effective since July 17, 2006, his migraine headaches with overlying tension headaches more nearly approximated the criteria of characteristic prostrating attacks occurring on an average of once a month over the last several months.  38 C.F.R. §§ 4.7, 4.124a, DC 8100.  Thus, the Board finds that it entitlement to a 30 percent rating for the service-connected headache disability first occurred on July 17, 2006.  

In summary, resolving all reasonable doubt in the Veteran's favor, entitlement to a 30 percent rating arose July 17, 2006, the date of the VA neurology clinic note.  Thus, an effective date of July 17, 2006 is warranted for the assignment of a 30 percent evaluation for migraine headaches, with underlying tension headaches, but no earlier, and, to this extent, the appeal is granted.


ORDER

An effective date of July 17, 2006, for the award of a 30 percent rating for migraine headaches with underlying tension headaches is granted, subject to the law and regulations governing payment of monetary benefits.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs