Citation Nr: 1306565	
Decision Date: 02/26/13    Archive Date: 03/01/13

DOCKET NO.  08-09 782	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to a compensable rating for headaches.


REPRESENTATION

Appellant represented by:	James Fausone, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran and GB 


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel


INTRODUCTION

The Veteran served on active duty from November 1942 to December 1945.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont on behalf of the RO in Detroit, Michigan.  Jurisdiction of this case belongs to the RO in Detroit, Michigan.  This case was previously before the Board in November 2009 and July 2011.

In September 2009 the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO.  A transcript of the hearing is of record.

The July 2011 Board decision granted a 60 percent rating for bilateral defective hearing, for the period from May 22, 2006 to April 26, 2010, denied a rating in excess of 60 percent for bilateral defective hearing, for the period from April 27, 2010, denied entitlement to a compensable disability rating for headaches, and granted entitlement to a TDIU.  The Veteran thereafter appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  An April 2012 Joint Motion For Partial Remand requested that the Court vacate that part of the Board's decision that denied entitlement to a compensable disability rating for headaches.  On April 13, 2012 the Court promulgated an Order that granted the Joint Motion.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Throughout the rating period on appeal, the Veteran has complained of daily headaches that sometimes last for hours; the Veteran does not take prescription medications for his headaches and does not seek regular treatment for headaches disability.


CONCLUSION OF LAW

The criteria for entitlement to a separate 10 percent rating for headaches have been met during the entire rating period on appeal.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

                                                      VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA applies in the instant case.

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 VCAA notice 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).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

By correspondence, including that dated in August 2006 and March 2009 the Veteran was informed of the evidence and information necessary to substantiate the increased rating claim, the information required to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence.  38 U.S.C. § 5103(a).  The Veteran has been informed of the need for evidence demonstrating an increase in the severity of his disability and the effect that his service-connected disability has on his employment.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010).  In April 2006 the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice was completed prior to the initial AOJ adjudication of the claim.  Pelegrini.  Importantly, the Board notes that the Veteran is represented in this appeal.  Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the increased rating claim such that the essential fairness of the adjudication is not affected.

Duty to Assist

The Veteran's service treatment records are associated with the claims file, as are VA medical records.  The Veteran has undergone a VA examination that addressed the medical matters presented by this appeal.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the March 2010 VA examination obtained in this case is adequate, as it included an examination of the Veteran and elicited his subjective complaints.  The VA examination described the Veteran's disability on appeal in sufficient detail so that the Board is able to fully evaluate the claimed disability.  In short, the Board finds that VA's duty to assist in obtaining a VA examination has been met.

The Board finds that there has been substantial compliance with its November 2009 remand instructions.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding.  VA's duties to notify and assist are met, and the Board will address the merits of the claim.

Analysis

Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Thus, the Board must consider whether the Veteran's disability on appeal is entitled to staged ratings for any time during the appeal period.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the applicable rating period on appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran's claim for an increased rating for service-connected tinnitus and headaches disability was received on April 20, 2007.

Under Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months warrants a 10 percent disability rating; with characteristic prostrating attacks occurring on an average once a month over last several months warrants a 30 percent disability rating; and with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent disability rating.  The rating criteria do not define prostrating.  Dorland's Illustrated Medical Dictionary defines "prostration" as "extreme exhaustion or powerlessness."  Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007).

At the July 2009 Board hearing the Veteran indicated that he had headaches "all the time."  The Veteran stated that the headaches were incapacitating and required that he lay down with a heating pad.  The Veteran and his wife reiterated that the headaches would occur every day and would often last several hours.

A November 2009 VA record indicates that the Veteran complained of a pain in the back of the head.

At the March 2010 VA neurological examination the Veteran indicated that he would take Tylenol or Aleve for his headaches pain.  He indicated that he had weekly migraine headaches that would last hours; the headaches were not prostrating and ordinary activity was possible during the attacks.  Physical examination revealed a normal cerebellar examination.  A CT head scan revealed no acute intracranial abnormality.  The diagnosis was cephalgia by history, unsubstantiated by any evidence of record or clinical or radiological findings.  The examiner noted that the Veteran's headaches had no significant effects on the Veteran's usual occupation, and further stated that the Veteran's headaches had no effects on the Veteran's usual daily activities.  The examiner also noted that the Veteran gave no history of any incapacitating episodes related to headaches.

Based on the testimony of the Veteran and his wife, and resolving doubt in the Veteran's favor, the Board finds that the Veteran's headaches disability, while not productive of prostrating attacks, does seem to warrant a compensable rating under Diagnostic Code 8100.  Accordingly, the Board finds that the Veteran meets the criteria for a 10 percent rating for his headaches throughout the entire rating period on appeal.

The Board finds that a rating in excess of 10 percent for headaches disability is not warranted.  First, as noted by the March 2010 VA examiner, the Veteran's diagnosis of cephalgia was by history only, unsubstantiated by any evidence of record or clinical or radiological findings.  Significantly, the Veteran does not take any prescription medications for his headaches, and instead relies on over the counter medications such as Tylenol.  Moreover, there is no indication that the Veteran seeks any routine treatment for his headaches disability.  Further, the Veteran has not been entirely consistent in the reports of his headaches symptoms, as his testimony at the September 2009 Board hearing concerning his headaches type and frequency was quite different than his report to the March 2010 VA examiner wherein he reported that his headaches were not prostrating and did not preclude ordinary activity.  As for objective findings, the March 2010 VA examiner noted that the Veteran's headaches had no significant effects on the Veteran's usual occupation, and further stated that the Veteran's headaches had no effects on the Veteran's usual daily activities.

In adjudicating a claim the Board must assess the competence and credibility of the Veteran and his spouse.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his headaches.  See Layno v. Brown, 6 Vet. App. 465 (1994).  In fact, the Board has, in large part, relied upon the Veteran's own statements in awarding a 10 percent rating in this case.  The Veteran is not, however, competent to identify a specific level of disability of his headaches according to the appropriate diagnostic code.
Such competent evidence concerning the nature and extent of the Veteran's headaches has been provided by the medical personnel who examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation.  The medical findings directly address the criteria under which headaches are evaluated.  In this regard, the March 2010 VA examiner specifically stated that the Veteran's headaches had no effects on the Veteran's usual daily activities and also noted that the Veteran gave no history of any incapacitating episodes related to headaches.  As such, the Board finds these records to be the most probative evidence with regard to whether a rating in excess of 10 percent is warranted at any time during the rating period on appeal.
In conclusion, the evidence supports a separate 10 percent evaluation for headaches.  The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit an even more favorable determination.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops.  If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization.  Id.  At 116.  If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating.  Id.

The evidence of record does not reveal that the Veteran's headaches disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate.  The Veteran's disability on appeal has been evaluated under the applicable Diagnostic Code that has specifically contemplated the level of occupational and social impairment caused by service-connected headaches disability.  The Veteran's symptoms such as frequency of headaches are specifically enumerated under the applicable Diagnostic Code.  Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order.  Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996).


ORDER

A separate 10 percent rating for headaches is granted, through the entire rating period on appeal, subject to the applicable law governing the award of monetary benefits.




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs