Citation Nr: 1304880 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-36 101A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 30 percent for migraine headaches on a schedular basis. 2. Entitlement to a rating in excess of 30 percent for migraine headaches on an extraschedular basis. 3. Entitlement to a total rating based upon unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from April 1981 to April 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that denied the Veteran's claim for a rating in excess of 30 percent for migraine headaches. Jurisdiction of the Veteran's case is currently with the VA RO in Atlanta, Georgia. The Board notes that, in his August 2010 substantive appeal, the Veteran requested to testify during a hearing at the RO before a Veterans Law Judge (Board hearing). However, in signed response to the RO's August 20, 2011 letter, he withdrew his Board hearing request. The Board concludes that all due process requirements were met regarding the Veteran's hearing request. With respect to the TDIU issue on appeal, during the pendency of his appeal, the Veteran has also alleged unemployability due to his migraine headache disability (and his other service-connected disabilities). See e.g., May 2009 notice of disagreement (NOD). See 38 C.F.R. § 3.156(b) (2011); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (to the effect that a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial rating for a disability). See also Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001). As such, the matter of entitlement to a TDIU is also on appeal in the present case. The matters of entitlement to an increased rating for migraine headaches, on an extra schedular basis, and a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The probative evidence of record is at least in equipoise as to whether the service-connected migraine headaches have been manifested throughout the course of this appeal by very frequent prostrating and prolonged attacks causing severe economic inadaptability. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the schedular criteria for a 50 percent rating for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5103, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.21, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). The Board is granting the maximum schedular rating for migraine headaches. The remaining questions and issues are being remanded. In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. II. Factual Background and Legal Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The instant claim was received in November 2008. Throughout the rating period on appeal, a 30 percent evaluation has been in effect pursuant to Diagnostic Code 8100. Under Diagnostic Code 8100, migraine headaches are rated as 30 percent disabling where there are characteristic prostrating attacks occurring on an average of once a month over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant the maximum rating of 50 percent. Id. The rating criteria do not define "prostrating," as used in Diagnostic Code 8100. According to Dorland's Illustrated Medical Dictionary, 28th Edition (1994), p. 1367, "prostration" is defined as "extreme exhaustion or powerlessness." VA and non-VA medical records dated from January 2008 to January 2010 include the Veteran's complaints of migraine headaches that were treated with prescribed medications. A September 2008 VA primary care record reveals the Veteran's complaint of a recent increase in frequency of his migraine headaches. Results of a computed tomography (CT) of his head were negative. His prescribed headache medication included amitriptyline HCL to prevent headaches and caffeine 100/ergotamine, as needed. He also took Verapamil. The prescribed medications were adjusted and the Veteran was referred for an eye examination to determine if his increased headache frequency was related to a need to wear glasses. An October 2008 VA ophthalmology consultation record shows no apparent intraocular cause for the Veteran's headaches. He was seeing very well with his glasses, did not associate wearing them with the headaches, and reported that sometimes he awoke in the night with a headache. The examining physician advised to continue pursuing other causes for the increase in the Veteran's headaches. In February 2009, VA afforded the Veteran a fee basis medical examination performed by a private practitioner. The Veteran reported having headaches that were nausea, light, and sound sensitive. When the headaches occurred, he had to stay in bed and was unable to do anything. The Veteran experienced headaches on the average of twice per week that lasted for two hours and caused nausea, and light and sound sensitivity. His symtoms occurred as often as two times per week with each occurrence and lasted two hours. The VA examiner reported that the Veteran's ability to perform daily functions during flare-ups was "complete bed rest." Treatment was amitriptyline, cafergot, and atenolol. The Veteran's functional impairment included work loss. Objectively, neurological examination of the Veteran's cranial nerves was essentially normal, as was his coordination and motor and sensory function. The VA examiner reiterated that the Veteran experienced headaches twice a week on average for which he took prescribed medications. The effect of the headaches on his usual occupation was unknown and they had no effect on his daily activity. With his May 2009 notice of disagreement, the Veteran submitted an April 2009 signed statement from the Veteran's treating VA physician. That individual reported that he had treated the Veteran at the Augusta VA (medical facility) for the past seven years. This VA doctor stated that the Veteran currently averaged three to four headaches per week and, during these episodes, had to stop working and lay down in an effort to relieve the pain. Such episodes could, at times, last one to two days. The Veteran also submitted a May 2009 signed statement from M.A.B.P., his supervisor, regarding hours missed from work due to his headache disability. In the period from February 2008 to February 2009, Ms. P. reported that the Veteran requested a total of 76 hours of sick leave due to migraine headaches. She noted that, during his time of duty, "he has often stopped working and turned the office lights out to combat recurring headaches...[and] [s]ometimes he was forced to leave work because the headaches were too severe to continue working." In October 2009, the Veteran was seen in the VA outpatient clinic. It was noted that he continued to have weekly migraines that were improved from previous experience. The assessment includes migraine headaches occurring approximately every one to two weeks, that had improved with Calan and Elavil. A June 2010 VA examination report for neurological disorders includes the Veteran's report of experiencing an average of three headaches per week with each headache lasting approximately two days. He had an incapacitating headache on average of once per week with each episode of incapacitation lasting several hours. The Veteran said other headaches, while troublesome, were not incapacitating. He described his headaches as a sharp throbbing pain located on the left side of his head. The headaches were accompanied by photosensitivity, phonosensitivity, and nausea. He had only occasional vomiting. The Veteran currently took Caffeine 100 milligrams/Ergotamine 1 milligram as needed for headaches when they occurred. He said this medication was partially effective in aborting a headache when it occurred. The Veteran experienced an upset stomach as an adverse side effect from this medication. He also currently took two medications as prophylaxis in an effort to reduce the frequency of these headaches. These were Amitriptyline 50 mg. and Verapamil taken daily. The Veteran noticed some decrease in frequency of his headaches since starting these medications. Prior to taking such prophylactic medications, he experienced daily incapacitating headaches. Further, the Veteran said that, if he developed a migraine headache at work, he did not have to leave work to go home. He explained that had an office to himself and was able to shut the door, turn off the light, and lay his head on the desk until the headache lessened. If he was at home when a headache developed, he had to lie down in a dark room until it abated. Objectively, neurological examination findings were essentially normal. In his August 2010 substantive appeal, the Veteran asserted that he had to take "numerous days off" from work due to his headache disability and having to lay down some times at work, that was "preferential treatment." He also noted his submission of statements from two physicians in support of his claim. (The Board observes, parenthetically, that only the statement from his VA physician was received.) The Veteran is competent to report his migraine and headache symptoms, and their frequency and severity. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's statements are seemingly credible and are not contradicted. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Additionally, the Veteran has indicated that his headaches caused him to leave or miss a significant amount of work. The Veteran's statements and the medical treatment and examination reports indicate that he has generally been experiencing significant attacks more than once a month. These attacks have not all been described in great detail, but they have been significant enough that they have forced the Veteran to miss or leave work. The Veteran has frequent migraines, i.e., one to three times a week or two to four days per month, with nausea, and photo and phono sensitivity, that result in incapacitating episodes for which he would lay down in isolation and was unable to function for hours or up to one to two days, i.e., completely prostrating and prolonged attacks. As reported by the June 2010 VA examiner, the Veteran had daily incapacitating migraine headaches before he started taking prophylactic medications. Some treatment records noted a reduction in the frequency and intensity of the headaches. However, such reports appeared to be temporary. Also, the Veteran reported in October 2009 that he had weekly headaches that were improved with prescribed medication. Overall, the Board finds that throughout the appeal period, the level of symptomatology has been consistent with a finding of very frequent and prolonged prostrating migraines. Additionally, medical treatment reports, as well as the Veteran's statements, reflect that the headaches resulted in severe occupational impairment. At his February 2009 fee basis examination, he reported work loss associated with his migraine headache disability. In May 2009, the Veteran's supervisor reported that his headache disability required him to use 76 hours of sick leave in the past year. She stated that he often stopped working and turned out his office lights to combat the recurring headaches although sometimes they were too severe to continue working. On June 2010 VA examination for neurological disorders, the VA examiner noted that the Veteran's headaches did not result in his need to leave work as he was in an office by himself and was able to shut the door, turn off the light, and lay his head on the desk until it lessened. However, in his August 2010 substantive appeal, the Veteran stated that he had to take numerous days off from work and time for laying his head on the desk due to his headaches that was "preferential treatment" In sum, the Board concludes that the symptomatology associated with the Veteran's service-connected migraine headaches exceeds that contemplated in the schedular criteria for the currently assigned 30 percent disability rating, and most nearly approximates that for the 50 percent rating. 38 C.F.R. § 4.7. Applying all reasonable doubt in favor of the Veteran, the Board concludes that a rating of 50 percent is warranted for his service-connected migraine headaches effective from the date he file his current claim for an increased rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. This is the highest schedular rating available for migraines or headaches unrelated to traumatic brain injury. Cf. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012). The Board recognizes the Veteran's complaints of severe headaches and how they caused him to miss a significant amount of work as well as ongoing treatment for his headaches. Therefore, the question of whether an extraschedular rating is warranted for migraine headaches is appropriately addressed in the remand below. Finally, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. at 505. However, the evidence reflects that the Veteran's symptoms have remained constant throughout the course of the period on appeal and, as such, staged ratings are not warranted. ORDER A maximum 50 percent rating for migraine and tension headaches is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). In his increased rating claim received by VA in November 2008, the Veteran reported treatment for his headache disability at the VA medical center (VAMC) in Augusta and at the "DDEAMC" (Department of Defense Eisenhower Army Medical Center) at Ft Gordon, Georgia. VA treatment records, dated to January 2010, were obtained. Records from the DDEAMC, dated from January to May 2008, are in the claims file, but do not refer to treatment for headaches. It does not appear that the RO requested the Veteran's treatment records from the DDEAMC in conjunction with his current claim on appeal. Thus, because VA has been put on notice that there are potential federal government records available, such records should be requested until a negative response is received. 38 U.S.C. § 5103A(b)(3) requires that VA continue any attempts to get federal records "until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." In light of the outstanding treatment records regarding the Veteran's service-connected migraine headache disability, the Board will defer consideration of whether the Veteran is entitled to a higher rating for migraine headaches on an extraschedular basis. Pursuant to § 3.321(b)(1) (2012), the VA Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of the adjudication of an increased rating claim. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The finding of "severe economic inadaptability" implicit in the grant of a 50 percent rating for migraines, could be construed as evidence of "marked interference with employment" as used in 38 C.F.R. § 3.321(b); and VA's General Counsel has, at times, taken this position in joint motions for remands from the United States Court of Appeals for Veterans Claims (Court). Accordingly, the Board is remanding the extraschedular question for adjudication by the appropriate first line authorities at VA. Also, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a total rating based upon individual unemployability due to service-connected disabilities (TDIU) claim is part of an increased rating claim when such claim is raised by the record. In this case, the issue is raised by the record. In his May 2009 NOD, the Veteran reported that "the combination of all my medical service connected problems had continued to minimize my ability to work." Further, as noted above, in his August 2010 substantive appeal, he said that his headache disability affected his ability to work. To date, this issue has not been considered by VA and it is referred to the RO for appropriate action Accordingly, the case is REMANDED for the following action: 1. Obtain all records regarding the Veteran's treatment at the Department of Defense Eisenhower Army Medical Center at Ft Gordon, Georgia, for the period from May 2008 to the present, and from the Augusta VAMC, for the period from January 2010 to the present. If any records are unavailable, a memorandum detailing all efforts to obtain them should be placed in the claims file, and the Veteran so notified in writing. 2. The agency of original jurisdiction (AOJ) should ask the Veteran to clarify whether there were any periods since November 2008 when he was not gainfully employed (i.e. earning less than the poverty rate for one person); if so, he should be asked to complete a formal application for a TDIU and report his education and employment history and his earnings history since his current increased rating claim was received in November 2008. 3. If the Veteran reports any periods since November 2008, when he was not gainfully employed, then schedule him for VA examination(s) to evaluate the current severity of all his service-connected disabilities (migraine headaches, gastroesophageal reflux disease, glaucoma, right shoulder injury, hemorrhoids, status post vagotomy, abdominal keloids, and dermatitis). All indicated tests and studies should be conducted and all clinical findings reported in detail. a. The examiner(s) should opine, as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (migraine headaches, gastroesophageal reflux disease, glaucoma, right shoulder injury, hemorrhoids, status post vagotomy, abdominal keloids, and dermatitis) would, in combination, be sufficient to preclude him from securing and following gainful employment for which his education and occupational experience would otherwise qualify him. b. The examiner(s) must provide reasons for each opinion. c. If the examiner(s) is(are) unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. d. The examiner(s) is(are) advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. e. If the examiner(s) reject(s) the Veteran's reports, the examiner(s) must provide a reason for doing so. 4. Next, the AOJ should refer the Veteran's claim for entitlement to an increased rating for migraine headaches, on an extraschedular basis, to VA's Under Secretary for Benefits or Director of Compensation and Pension for adjudication in accordance with 38 C.F.R. § 3.321(b). 5. Thereafter, readjudicate the Veteran's claim for an increased rating in excess of 50 percent for migraine headaches, on an extra-schedular basis, and adjudicate the matter of entitlement to a TDIU (see Rice v. Shinseki, supra) in light of any evidence added to the record. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Then, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs