Citation Nr: 1305563 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-27 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to a rating in excess of 10 percent for migraine headaches. 3. Entitlement to a total rating based on individual unemployability (TDIU) rating. 4. Entitlement to a compensable rating for scar of the left leg. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Novak, Associate Counsel INTRODUCTION The Veteran had active military service in the United States Army from July 1991 to December 1991 and May 1999 to May 2002, and active service in the United States Navy from December 1995 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran had a Travel Board hearing before the undersigned judge at the St. Petersburg RO in November 2012. The Veteran and her representative attended the hearing. As explained below, the Veteran will be awarded a disability rating of 50 percent for her daily prostrating migraine headaches, the highest schedular rating available under Diagnostic Code (DC) 8100. 38 C.F.R. § 4.124a (2012). The Veteran has had a full psychiatric evaluation in July 2008 at the VA Medical Center in Tampa, Florida, where she was diagnosed with depression secondary to her service-connected migraine headaches. Because the issue of depression secondary to migraine headaches has not been adjudicated, it must be referred to the Agency of Original Jurisdiction (AOJ) for initial review. The Board has added the issue for a TDIU rating to the cover page of this decision. In this regard, the evidence suggests that the Veteran claims that her service-connected disabilities, namely her headaches, prevents her from being able to work and has caused her to lose jobs. The Veteran is considered to be requesting the maximum rating allowed, as such the issue of a TDIU rating is properly before the Board. Additionally, the Board notes that in March 2008, the RO denied a compensable rating for a scar of the left leg. In a November 2008 statement, the Veteran expressed his disagreement with the March 2008 decision and stated that the scar of the right leg should be rated at 10 percent versus 0 percent. Given the context of the Veteran's notice of disagreement and the fact that he was only service-connected for the left leg and assigned a 0 percent rating, the Board finds it reasonable to conclude that the Veteran was actually referring to his service-connected scar of the left leg. The Board observes that a statement of the case (SOC) was not issued. Such needs to be accomplished and will be further discussed in the Remand section of the decision. The claims of service connection for hypertension, for a TDIU rating and for a compensable rating for a scar of the left leg 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. FINDINGS OF FACT The Veteran's migraine headaches are characterized by completely prostrating and prolonged daily attacks that have severely impacted her ability to hold a job. CONCLUSION OF LAW The criteria for a 50 percent disability rating have been met for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a 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, and 3.326(a) (2012). Because the Board is granting the maximum schedular rating for migraine headaches, referring an additional claim of service-connection for depression secondary to migraine headaches, and remanding claims for service connection for hypertension and TDIU, any failure with respect to the duties to notify or assist is nonprejudicial. Thus, no further discussion of VA's duties to notify and assist is necessary. II. Applicable Law The Veteran claims that she is entitled to a higher disability rating for her migraine headaches, currently rated as 10 percent disabling. 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 has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Migraine headaches are evaluated under 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. Finally, a 50 percent rating is assigned when a veteran has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The schedular criteria do not contemplate a rating higher than 50 percent, but in exceptional cases, an extraschedular rating may be warranted. The rating schedule represents, as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a)-(b) (2012). To afford justice in exceptional situations, an extraschedular rating may be provided. 38 C.F.R. § 3.321(b). In order to establish an extraschedular rating, first the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture also has factors such as marked interference with unemployment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). III. The Facts The Veteran claims that she is entitled to an increased disability rating, currently 10 percent for her prostrating migraine headaches. Her service treatment records (STRs) are positive for complaints of migraine headaches during service, including as early as September 1995. In her initial VA compensation examination dated in January 2003, she indicated that she began having migraine headaches during service, on average about once every two weeks. They were accompanied by nausea, vomiting, and photophobia. She reported that she typically could work through her attacks, but she left work when the attacks became too severe. She would go to bed and try to sleep off the headaches. She used Excedrin Migraine tablets for relief. The examiner concluded that the "headaches are, as likely as not, migraine type." Her migraine condition was service connected at a rating of 0 percent retroactive to her date of separation from the Army in May 2002. She had a second VA examination in January 2008 when she sought an increase for the migraine condition. She reported having progressively worse symptoms, which were unresolved even though she had tried a number of prescription headache medications. She had the headaches weekly over the previous twelve months, with most of the attacks prostrating. The usual duration of the headaches was "hours." A computerized tomography (CT) scan did not show abnormalities. The migraine headaches had "moderate" effects on her chores, shopping, and exercise, and "mild" effects on her recreational activities. Following this examination, her disability rating was increased to 10 percent as of August 17, 2007, the date of her request for a rating increase. In a treatment record dated in May 2008, she reported having stabbing, throbbing pain, 7/10 intensity on average, in the front of her head and behind her eyes. She had nausea, vomiting, photophobia, and phonophobia. She did not notice triggers for the attacks, and medications did not benefit her. She indicated that the headaches prevented her from working and she requested a disability letter. Following that examination, the Veteran began receiving psychiatric treatment for depression secondary to her migraine headaches. In July 2008, she received a psychiatric referral from her treating neurologist, who reported, "not surprisingly she's had significant problems with depression and I think that a psychiatric consult is indicated to help deal with that as it may be influencing the level and frequency [of] pain." The neurologist explained that she was not on any medication as none showed any benefit, and he recommended Botox injections for headache prevention. Following the referral from her treating neurologist, the Veteran had a psychiatric consultation in July 2008 at the Tampa VAMC. The psychiatrist reported that the Veteran had been having daily migraine headaches since 2006, which left her unable to work and resulted in her early leave from training in the Army Reserves. Medications for the migraines have been unsuccessful. She had no previously diagnosed psychiatric history. The Veteran indicated that her mood had worsened along with the headaches, making her feel depressed, irritable, and angry most of the time, both as a result of the actual pain and from the impacts the pain had on her daily life. She spent most of each day at home in bed, barely able to interact with her husband and children, which increased feelings of guilt. She lost two jobs after missing too many days of work, and she reported loss of interest in most activities. She had become socially isolated. "The pain of the migraine headaches decreases her ability to sleep at night and subsequently her energy level." She had crying episodes a few times a week, with poor appetite and concentration. The examiner indicated that she was "unable to work secondary to her chronic headaches." She was given a Global Assessment of Functioning (GAF) score of 60, which refers to "moderate" symptoms or difficulty in social, occupational, or school functioning. In a follow-up psychiatric consultation in September 2008, the Veteran's psychiatrist noted that she was placed on Celexa after her initial evaluation, but had not noticed improvement. Both her depressive symptoms and her migraine pain continued unchanged. She was again diagnosed with a depressive disorder secondary to migraine headaches, with occupational limitations. Her GAF score remained at 60. At her annual physical in March 2009, she also reported that the headaches were impairing her vision. At the hearing in November 2012, the Veteran testified that she has migraine headaches every day. They began when she woke up until late in the evening and repeated the next day. She had the migraines while she was in service, but the severity worsened between 2000 and 2003. Her headaches had been daily since then. She was not taking medication for the headaches, as none of them have worked. When she had an attack, she would have to cancel her plans and lay in bed until the headache subsided. She quit her previous job at Wal-Mart as a result of the headaches. She was considering Botox treatment, but it was still experimental for treating of chronic migraines. As indicated above, the issue of depression secondary to migraine headaches will be referred to the AOJ for initial adjudication. In addition, as explained below, the issue of TDIU will be remanded consistent with the Veteran's testimony and the medical evidence suggesting that she is unemployed as a result of her migraine headaches. IV. Analysis As indicated above, the Veteran claims that her daily prostrating migraine headaches, currently rated as 10 percent disabling, should receive an increased disability rating. The Board agrees, and will grant a rating of 50 percent. As explained above, for a 50 percent disability rating for migraine headaches, DC 8100 requires "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." 38 C.F.R. § 4.124a, DC 8100. In the present case, the Veteran has unquestionably met this standard. The Veteran has shown that her headaches were "very frequent." On a daily basis, with infrequent exceptions, she suffered a migraine attack with sound and light sensitivity, nausea, and vomiting. In July 2008, her treating physician indicated that these headaches "[o]riginally...occurred from time to time but have slowly increased" to daily occurrences. Her hearing testimony is in accord. While the phrase "very frequent" is not defined in the regulation, a daily occurrence would undoubtedly qualify. In addition, she has shown that her headaches were "completely prostrating and prolonged attacks." As early as her initial January 2003 VA examination, her headaches have been diagnosed as migraines. She testified that when she had an attack, she was forced to lie in bed until it subsided. The attacks began when she woke up and could last until late in the evening. She would have to cancel all of her plans. Occasionally the headaches would last for several days. Hours-long, and even days-long attacks that forced her to be bedridden qualify as "completely prostrating and prolonged attacks." Finally, her migraine attacks have produced "severe economic inadaptability." She was forced to resign two jobs from excessive absences due to the prostrating migraine attacks, and she has not been able to secure another. She had returned to school at the time of the hearing, but she did not know whether she would be able to work in her field of study once she finished. The issue of TDIU is discussed in the remand section below, and whether she is "unemployable" is a question that requires additional medical development. But "severe economic inadaptability" does not necessarily require unemployability, and by being forced to resign two jobs, it is clear that her migraine headache attacks have produced severe economic adaptability. For these reasons, the Board finds that she has met the criteria for a 50 percent rating for her migraine headache attacks. The Board has decided not to stage this rating. In her January 2008 VA examination, the Veteran reported weekly attacks, of which "most" were prostrating. This frequency appeared to exceed a 10 percent disability rating, which requires prostrating attacks once every other month, and to meet a 30 percent disability rating, which requires prostrating attacks on average once per month. However, the detailed treatment records from her treating neurologist and her treating psychiatrist indicate that the frequency of her migraine headaches was more frequent than once per week in the months after her January 2008 VA examination. The Veteran reported to her psychiatrist that her migraine headaches had been daily attacks since 2006, and as headaches are an observable condition capable of lay observation, her statements to this effect are credible. In light of the foregoing, her rating will be increased to 50 percent since the date she filed her increased rating claim. An extraschedular rating for migraine headaches may be warranted where a veteran presents an exceptional disability picture such that the rating criteria are inadequate. The Board finds that an extraschedular rating for migraine headaches is not warranted. While the Veteran's migraine headaches are severe, daily, and prostrating, this is contemplated by the rating code. She also has been diagnosed with a psychiatric condition secondary to her service-connected migraine headaches, but this will be referred to the AOJ for adjudication as a secondary disability. In addition, to the extent that her migraine headaches have produced occupational difficulties this is contemplated by DC 8100's requirement of "severe economic inadaptability" for a 50 percent rating. Entitlement to TDIU on the basis of all of her service-connected disabilities will be discussed in the REMAND section below, and remanded to the RO for additional medical development. Because these issues are addressed elsewhere, an extraschedular rating is not currently warranted for her other disability symptoms. ORDER A rating of 50 percent for migraine headaches is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND I. Hypertension The Veteran claims that her hypertension is the result of her active military service. In general, a claim for service connection must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996)(table); Hickson v. Brown, 12 Vet. App. 247, 253 (1999). The Veteran has not yet had a VA compensation examination for her hypertension. The VA must provide an examination when the Veteran presents competent evidence tending to show the existence of a current disability, an incident or event during service, and an indication of a causal connection between the disability and military service, so long as insufficient competent evidence exists in the file to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The third element, the causal connection, only requires that the evidence "indicates" that there "may" be a nexus between the first two elements; it is meant to be a low threshold. Id., citing 38 C.F.R. § 3.159(c)(4)(i)(C). Generally, hypertension is defined as high arterial blood pressure above 140 mm Hg systolic and 90 mm Hg diastolic. Dorland's Illustrated Medical Dictionary (31st ed. 2007), at 909. The regulations define hypertension to mean "that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm." 38 C.F.R. § 4.104, DC 7101, Note (1). For a diagnosis of hypertension under the regulations, it must be confirmed by readings taken two or more times on at least three different days. Id. In the present case, she has shown the existence of a current disability, the first criteria for service connection. In a recent treatment record dated in June 2009, her hypertension was reported to be uncontrolled despite her use of two medications for blood pressure, hydrochlorothiazide and lisinopril. Her blood pressure at home was around 140/94 to 150/100. The first diagnosis of hypertension contained in the record was in December 2003, nineteen months after she left service, when she was provided a trial beta blocker to help control her hypertension. Because she currently has a diagnosis of hypertension, she has shown the existence of a current disability. Similarly, she testified at the hearing that she had high blood pressure readings in service. She showed a number of borderline high blood pressure readings in service, including a November 2001 reading of 156/85. While not technically high blood pressure since her diastolic reading was below 90, a medical examination is warranted to assess whether she had "pre-hypertension" that eventually led to her current condition following military service. A review of the STRs show additional readings of 152/66 (January 2001), 154/78 (August 2000), and 140/80 (March 2000), among others. While she had lower readings in service as well, she has not had a VA examination to assess her blood pressure fluctuations or to determine whether these elevated readings were precursors to hypertension or whether they were part of a non-permanent condition such as pregnancy. With the existence of current hypertension and elevated readings in service, a nexus between the two "may" be "indicated" by the evidence for an additional reason: the temporal proximity between her separation from active military service and her first diagnosis of hypertension, a period of nineteen months. This claim will be remanded for a VA compensation examination to determine whether the Veteran's current hypertension had its origins in her active military service. In addition, the Veteran's treatment records have not been obtained since May 2010, or a period of nearly three years. While the Veteran currently has a diagnosis of hypertension, her current treatment (including any medications) for her hypertension may be of relevance for the examiner. These records will be requested from the Tampa VAMC on remand. II. TDIU Above, the Board increased the Veteran's disability rating for her migraine headaches to 50 percent. She is assigned a 30 percent rating for status post total abdominal hysterectomy associated with history of abnormal PAP and cervical dysplasia and she is assigned noncompensable ratings for scar of the left leg, abdominal scars from laparoscopic surgery, and status post excision of cellular fibrous histiocytoma of the left leg. According to the regulation and corresponding table for combined disability ratings, she possesses a 65 percent disability rating. 38 C.F.R. § 4.25, Table I. Numbers ending in five are rounded to the next highest ten. 38 C.F.R. § 4.25(a). Her combined disability rating is therefore 70 percent. The Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities and is part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that once a claimant: (1) submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a). As the Court explained in Rice, if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. In the present case, the Veteran indicated that she had been terminated from two jobs for excessive absences as a result of her prostrating and prolonged migraine attacks. Her severe headaches occurred daily and could last for the entire day. In January 2010, she had a VA breast examination in which the examiner noted that she was unemployed as a result of her chronic migraine headaches. She had returned to school, but was unsure whether she would ever work in her field of study once she finished unless her migraine headache condition was cured. The Board may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294, 297 (1994); Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Because she has not had an examination to determine her employability and her VA examination for her migraine headaches dates from January 2008, this claim will be remanded for an examination to assess whether she is unable to engage in a substantially gainful occupation, and if so whether it is due to her service-connected migraine headaches and/or any other service-connected disability, including the combination of all service-connected disability. In this respect, the raised claim of service connection for depression as secondary to the service-connected migraine headaches should be adjudicated prior to an adjudication of the claim for a TDIU rating. Accordingly, the case is REMANDED for the following actions: 1. Issue the Veteran a statement of the case concerning the claim for a compensable rating for status post excision of cellular fibrous histiocytoma of the left leg. 2. Request the Veteran's treatment records from the Tampa VAMC since May 2010 and associate them with the claims file. All reasonable attempts should be made to obtain the records. If they cannot be obtained after reasonable effort, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. The Veteran must be notified of the attempts made and allowed an opportunity to provide such records. 38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(e). 3. Once these records have been obtained, the RO should arrange for the Veteran to undergo a VA compensation examination to assess the origins and etiology of her hypertension. The physician should review the entire claims file, including a complete copy of this remand, and consider the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings reported in detail. The examiner, based on history reported by the Veteran, blood pressure readings in service, and sound medical principles, should render an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was incurred in service-- related to service, including to any blood pressure readings in service. The examiner should also address whether it is at least as likely as not (at least a 50-50 probability) that hypertension had its onset within one year following the Veteran discharge from service in December 1991, July 1996, and/or May 2002. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. The Veteran is hereby advised that failure to attend these examinations without good cause could result in an adverse determination. 38 C.F.R. § 3.655(a)-(b) (2012). 4. The RO/AMC should adjudicate the claim of service connection for a psychiatric disorder as secondary to the service-connected migraine headaches, as this issue is inextricably intertwined with the claim for a TDIU rating. 5. Schedule the Veteran for appropriate VA examinations to determine the effect her service-connected disabilities have on her employability, that is, whether they preclude her from obtaining or maintaining a substantially gainful occupation. The claims file must be made available to and thoroughly reviewed by the examiners in connection with the examination for the pertinent medical and occupational history. Based on examination findings and other evidence contained in the claims file, the examiners must address the following: a) Provide an opinion concerning the impact of the service-connected disabilities on the Veteran's ability to work at any occupation (i.e., manual and/or sedentary type). b) Discuss all impairment/symptoms caused by each service-connected disability--(i) status post total abdominal hysterectomy associated with history of abnormal PAP and cervical dysplasia, rated 30 percent; (ii) Migraines, rated 50 percent; (iii) scar of the left leg, rated 0 percent, (iv) abdominal scars from laparoscopic surgery, rated 0 percent; and (v) status post excision of cellular fibrous histiocytoma of the left leg, rated 0 percent. If service connection for a psychiatric disability, as secondary to migraines is granted, such disability should also be discussed. c) Thereafter, state the impact that the symptoms/impairment from each service-connected disability has on the Veteran's ability to work in either sedentary or manual type of positions. d) Discuss how the combination of all of the Veteran's service-connected disabilities and associated symptoms impact the Veteran's ability to obtain and retain a substantially gainful occupation whether sedentary and/or manual. The examiner should include a complete rationale for the findings and opinions expressed in a legible report. This rationale should include a discussion of the Veteran's educational and occupational history. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. The Veteran is hereby advised that failure to attend these examinations without good cause could result in the denial of her claim. 38 C.F.R. § 3.655(a)-(b) (2012). 6. Finally, after completing the above, and any other development as may be indicated by the responses received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs