Citation Nr: 1304433 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-14 209 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (VA) in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 10 percent for migraine headaches, prior to February 7, 2012. 2. Entitlement to a rating in excess of 30 percent for migraine headaches, from February 7, 2012. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant. S.M., and D.S. ATTORNEY FOR THE BOARD A. Novak, Associate Counsel INTRODUCTION The Veteran had active military service from October 2001 to October 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2009 rating decision in which the RO, inter alia, granted service connection and assigned an initial 10 percent rating for migraine headaches, effective February 17, 2009. The Veteran perfected an appeal as to the initial rating assigned. In March 2012 Decision Review Officer decision, the RO assigned a 30 percent rating for migraine headaches, from February 7, 2012. However, as, pertinent to this appeal, higher ratings are available for the disability at issue before and after this date, and the Veteran is presumed to seek the maximum available benefit for a disability, the appeal now encompasses both matters set forth on the title page. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also AB v. Brown, 6 Vet. App. 35, 38 1993), In June 2012, the Veteran and two of his co-workers, S.M. and D.S., testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record. During the hearing, the Veteran withdrew from appeal claims for higher ratings following the awards of service connection for a right knee disability and a plantar wart of the left foot. The record remained open for a period of thirty (30) days following the fate of the hearing for the submission of additional evidence. In August 2012,,the Veteran submitted a year's worth of pay stubs, along with a signed waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). The Board's decision denying a rating in excess of 10 percent prior to August 21, 2009, but awarding a rating of 30 percent as of that date is set forth below. For the reasons discussed below, the issue of a rating in excess of 30 percent is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action. VA will notify the Veteran when further action, on his part, is required on his part. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matters herein decided have been accomplished. 2. Prior to August 21, 2009, the Veteran suffered from prostrating headaches about once every other month. 3. As of August 21, 2009, the Veteran suffered from prostrating migraine headaches at least once per month. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for migraine headaches, for the period from February 17, 2009 through August 20, 2009, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). 2. The criteria for 30 percent rating for migraine headaches, from August 21, 2009, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 ; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g. Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) that the VA must ask the claimant to provide if in the claimant's possession that pertains to the claim(s), in accordance with C.F.R. § 3.159(b)(1). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also, Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a February 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate what was then a claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. After the award of service connection and the Veteran's disagreement with the initial rating assigned, the SOC set forth the criteria for higher ratings for migraine headaches (the timing and form of which suffices, in part, for Dingess/Hartman). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent evidence associated with the claims file consists of complete service treatment records from the Veteran's period of active service, VA and private treatment records, and the reports of May 2009 and February 2012 VA examinations.. Also of record and considered in connection with the appeal is the transcript of the June 2012 Board hearing, along with various written statements by the Veteran, and by his representative, on his behalf. The Board finds that no further action on these matters, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim for higher rating, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the matters herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of these matters, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by comparing a veteran's symptoms with the criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established and 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, where the question for consideration is propriety of an initial rating assigned, evaluation of the medical evidence since the award of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 119 (1999). As the RO has already awarded staged ratings for the Veteran's migraine headaches, the Board will consider the propriety of the rating at each stage, as well as whether any further, or other, staged rating is warranted. Migraine headaches are evaluated under Diagnostic Code (DC) 8100. Under that diagnostic code, a 10 percent rating is assigned when a veteran has characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is assigned when a veteran has characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum, 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. On separation examination in October 2005, the Veteran reported having "frequent and severe headaches" during active military service and indicated that they had recurred frequently over the previous two years. On VA compensation examination in May 2009, the Veteran reported that his migraine headaches began about August 2003, and were characterized by sharp pain behind the eyes with nausea, breathing problems, neck stiffness, and photophobia. The frequency was about one per month with fewer than half the attacks considered prostrating. The usual duration was about one to two days, and they led to increased absenteeism from work, with "significant effects" on his usual occupation. The examiner concluded that the headaches were "permanently aggravated" by military service due to his other conditions and service-related stress. The examiner determined that it was at least as likely as not caused by the result of military service. An August 2009 physician's note from the VA Community-Based Outpatient Clinic (CBOC) in La Grande, Oregon, reflects the Veteran's statement that he had migraines for about five years. Within the last two months, however, the headaches increased in frequency from one or two per month to three or four per week. The migraines were behind his eyes and ran down into his neck. They were accompanied by nausea and sensitivity to light and sound. He stated that they felt "like an ice pick is stuck into his head." The Veteran had a second VA compensation examination for his migraine headaches in February 2012. The Veteran's migraine headache pain was characterized by pulsating or throbbing head pain on both sides of the head, and he reported nausea, sensitivity to light and sound, and changes in vision as a result of the migraines. The typical duration of the pain was less than one day. He also reported prostrating attacks of migraine headache pain more frequently than one per month. However, he was reported not to have "very frequent prostrating and prolonged attacks of headache pain." In addition, the examiner noted that the migraine headaches did not impact his ability to work. In a March 2012 Decision Review Officer decision following this examination, the disability rating was increased to 30 percent effective February 7, 2012, the date of the second VA examination. During the June 2012 Board hearing, the Veteran testified that he had been prescribed Propranolol for his headaches, which caused the non-prostrating headaches to decrease in severity though not in frequency, but did not reduce the prostrating headaches. Even while taking the medication, he had three to four headaches per week. He testified about the impact the headaches were having on his job. Because he had to make appointments with his clients in advance, his frequent headaches caused him to schedule fewer clients. According to the Veteran's coworker D.S. , the Veteran experienced a dramatic change when he would have a sudden onset headache, and he became very sensitive to noise and lights. D.S. also noted that the Veteran had a three year old son, who was difficult to be around during a migraine episode. S.M. testified that the Veteran's headaches had worsened over the previous year and a half, and on days that the Veteran had a headache, he would shut down and have to cancel all of his plans. The Veteran submitted a year's worth of pay stubs and time sheets from his employer. Generally speaking, the pay stubs show a sharp decrease in the number of hours that the Veteran worked. From May 2011 to September 2011, he worked the following hours in each respective pay period: 42, 58, 54, 46, 51, 43, and 52.5. The average number of hours for these periods is 49.5 hours per pay period. From September 2011 to May 2012, his pay stubs show the following hours per pay period: 28, 21, 20, 11, 15, 26, 32.5, 38, 30, 27, 19, 9, 23, 17.5, and 13. The average number of hours worked for this span of time is 22 hours per pay period. His rate of pay did not change during the year, and he was paid hourly. The Veteran testified that this decrease in the number of hours worked was a consequence of his debilitating migraine headaches, which forced him to schedule fewer clients. During the Board hearing, the also Veteran testified that his worsened symptoms existed for several years, but he was unable to receive a second VA compensation examination before February 7, 2012. In particular, he pointed to a physician's note dated August 21, 2009, which shows that the headaches worsened "[w]ithin the last two months" from "once to twice a month to 3 to 4 a week." He described the worsened headaches as feeling like an "ice pick is stuck into his head." These symptoms are significantly worsened from the May 2009 VA compensation examination in which the Veteran was reported to have about one migraine per month, with fewer than half determined to be prostrating attacks, or about one every other month. Because the May 2009 examination showed that the Veteran had a prostrating migraine attack about once every other month, he was properly rated at a 10 percent rating. The Board acknowledges that, in the August 2009 note, the examiner did not differentiate between prostrating attacks and less serious non-prostrating attacks. However, using the same "fewer than half" ratio of the May 2009 examination, the number of prostrating attacks likely exceeds an average of once per month and thus clearly fulfills the criteria for a 30 percent rating. This accords with the Veteran's testimony that his prescribed medication did not reduce the frequency of the prostrating attacks. As a consequence, it is clear that the Veteran began experiencing more serious symptoms much earlier than February 2012, when a second VA examination confirmed the change in condition. Accordingly, the Board finds that the record contains sufficient information to identify August 21, 2009, as the date upon which the Veteran's headache disability was first noted to approximate the frequency and severity contemplated in the 30 percent rating. This is because the record confirms a significant change for the worse during the summer of 2009 that was documented after the May 2009 examination. Because the May 2009 examination showed headaches once per month and prostrating attacks about once every two months, a 10 percent rating was proper for this period. However, the August 2009 physician's note reflects significantly worsened migraine symptoms. While the note states that the worsening symptoms began "[w]ithin [the] last two months," this notation is too imprecise to set an effective date between May and August 2009. For all the forgoing reasons, the Board finds that, while an initial rating in excess of 10 percent for migraine headaches for the period from the February 1, 2009 effective date of the award of service connection through August 20, 2009, must be denied, entitlement to a 30 percent rating from August 21, 2009 is established. In reaching the decision to award the 30 percent rating from August 21, 2009, the Board has favorably applied the benefit-of-the-doubt doctrine, but finds that the preponderance of the evidence is against assigning the 30 percent rating from an earlier date. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for migraine headaches, for the period from February 17, 2009, through August 20, 2009, .is denied. A 30 percent rating for migraine headaches, from August 21, 2009, is granted, subject to the legal authority governing the payment of compensation benefits. REMAND The Board finds that further RO action on the claim for a rating in excess of 30 percent for migraine headaches is warranted. As indicated above, the RO awarded the 30 percent rating for migraine headaches on the basis of the February 2012 VA compensation examination. In the report, the examiner noted that the Veteran experienced prostrating migraine attacks "more frequently than once per month", a finding which meets the criterion for a 30 percent rating of a prostrating migraine attacks "on average once a month." See 38 C.F.R. § 4.124a, DC 8100. The examiner stated that the frequency of the headaches was about one to four times per week, but he also noted that the Veteran did not have "very frequent prostrating and prolonged attacks of migraine headache pain," which is required for a 50 percent disability rating. The physician further noted that the Veteran's headaches did not impact his ability to work. However, following the February 2012 examination, the Veteran submitted a year's worth of pay stubs dated between May 2011 and May 2012 to show that his total hours worked, and therefore his income, substantially declined over the course of the year. His testimony during the June 2012 hearing indicates that his increasingly frequent headaches were to blame for this decline. The February 2012 VA examiner did not have the benefit of these records when he determined that the Veteran's headache condition did not impact his ability to work. As the disability benefits questionnaire does not include a narrative medical opinion, the physician did not indicate how many of the weekly headaches were prostrating, nor did he explain his finding that the Veteran did not have "frequent prostrating and prolonged attacks" of migraine pain. Under these circumstances, the Board finds that the record raises questions as to whether the Veteran meets the criteria for the maximum, 50 percent rating for migraine headaches, and, if so, the approximate date of the change in the severity of his disability. Accordingly, the Board finds that further examination of the Veteran to medical findings and opinion-based on full consideration of all relevant evidence (to include the pay stubs referenced above), along with all pertinent lay and medical evidence, and supported by clearly-stated rationale-is needed to resolve the claim for a rating in excess 30 percent for migraine headaches. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. The RO's adjudication of the claim should include consideration of whether further staged rating of the disability, pursuant to Fenderson (cited above), is appropriate. Accordingly, this matter is hereby REMANDED for the following actions: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide the names and contact information of any treatment provider that he has seen for his migraine headaches since August 2009;. 2. Request records from any provider identified by the Veteran. If these records are unavailable or the search for these records yields negative results and further attempts to obtain these records would be futile, then this must be clearly documented in the claims file and the Veteran appropriately notified. See 38 C.F.R. § 3.159(c)(1)-(e)(1). 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or the time period for the Veteran's response has expired, forward the entire claims file, to include a complete copy of this REMAND, to the physician who examined the Veteran in February 2012, for an addendum opinion. Based on full consideration of the record, to include the Veteran's hearing testimony and the pay stubs submitted after the hearing, the physician should provide additional findings as to the frequency and severity of the Veteran's recurring headaches and indicate whether he has "very frequent completely prostrating and prolonged attacks" characteristic of a 50 percent disability rating. The physician should also indicate whether, at any point since August 2009, the Veteran's migraine headaches have impacted his work performance to the point where they have produced "severe economic inadaptability." If the physician determines that a change in the severity of the Veteran's headaches has occurred at any point since August 2009, he should also indicate the approximate date of the change, The examiner should set forth complete rationale for the conclusions reached, in a printed (typewritten) report. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matters remaining on appeal in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs