Citation Nr: 1307170 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-14 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a higher initial evaluation for migraine headaches, currently evaluated as 30 percent disabling. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2002 to October 2006. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in pertinent part, granted service connection for headaches, status post head trauma, with an evaluation of 30 percent effective October 5, 2006. A January 2012 rating decision continued the 30 percent rating. During the course of the appeal, the case was transferred to the RO in Portland, Oregon. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal, to include an October 2011 VA examination, Portland VA treatment records, and a January 2012 rating decision. In the February 2013 brief, the Veteran's representative raised the issue of entitlement to special monthly compensation (SMC) due to the Veteran's service-connected disabilities. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ) and the Board currently does not have jurisdiction over it. Therefore, the SMC issue is referred to the AOJ for appropriate action. The issues of entitlement to a higher initial rating for migraines on an extraschedular basis and entitlement to TDIU are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. and are addressed in the REMAND portion of this decision. The Veteran will be advised if further action is required on his part. FINDING OF FACT Resolving the benefit of the doubt in the Veteran's favor, migraine headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are shown. CONCLUSION OF LAW The criteria for a 50 percent schedular rating for migraines are met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify 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); 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. Rating Criteria In this case, the Board is not concerned with service connection, as that has already been established. Rather, it is the level of disability that is of concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Still, each disability must be viewed in relation to its history, so examination reports and treatment records dating back at least to the date of the claim are considered. 38 C.F.R. § 4.1. The history of disability is even more important where, as here, the Veteran disagrees with the initial evaluation assigned upon the grant of service connection. In such a case, separate ratings can be assigned for separate periods of time, based on the levels of disability manifested during each separate period of time, from the effective date of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be 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 RO has evaluated the Veteran's headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100, for migraines. Under Diagnostic Code 8100, migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation. Migraines with characteristic prostrating attacks occurring on an average once a month warrant a 30 percent disability evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Analysis The evidence shows that the Veteran has consistently complained of daily migraine headaches throughout the appeal period, and for the most part, he continues to experience prostrating headaches about two to three times per week. His disability affects his ability to do schoolwork and has an impact on his daily life. Thus, the evidence shows that the Veteran's disability picture is more closely approximated to the 50 percent rating criteria, characterized by migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. VA treatment records since separation from service in 2006 reveal that the Veteran has experienced chronic migraine headaches with varying intensity since his return from deployment in Iraq. In December 2006, the Veteran reported a history of migraine headaches since service with light sensitivity. Private treatment records from November 2006 through March 2007 reveal complaints of chronic migraines as noted in psychiatric therapy sessions. The Veteran was afforded a VA examination in January 2007. He reported that his headaches are triggered by bright lights and loud noises. He experiences nausea even without the headaches. He stated that he experiences daily headaches that are moderate to severe in intensity even though the duration of the headaches has improved over time. The frequency of the headaches was reported to occur on a daily basis and lasts for up to four hours. The Veteran explained that he endures the headaches and continues to work 60 to 70 percent of the time, but sometimes he has to lie down in a dark and quiet room to relieve his headaches. He avoids nighttime driving and loud noises. The examiner recorded a diagnosis of chronic headaches occurring daily, mostly non-prostrating. The VA treatment records, in sum, reveal consistent symptomatology associated with the Veteran's daily migraine headaches, to include symptoms such as pulsating and throbbing in the head, sensitivity to light and sound, nausea, frontal pain of the head, and headaches in varying forms of intensity (sometimes milder with improvement, sometimes described as more intense). For instance, in a neurological examination in July 2008, the Veteran indicated that he has daily headaches that develop in the morning, and once or twice per week, the pain level can reach 8 out of 10, and laying down would help. In an April 2009 statement, the Veteran contends that he still has migraine headaches everyday, and about two to three times per week, they get severe enough to keep laying down at home. He reports that sometimes they get bad enough that he seeks medical attention. His migraine headaches prevent him from being able to hold a steady job, therefore, he opted to go to school instead. He states that his migraines also affect his ability to do schoolwork as well. An August 2011 VA examination was provided to evaluate for traumatic brain injury. The examiner noted that the Veteran was currently service-connected for headaches and that he reported headaches occurred most days and were non-prostrating. An October 2011 DBQ completed by a VA examiner noted that the Veteran's headaches began after an injury in service in 2004, and that the Veteran is currently being treated with medications. The examiner considered the Veteran's symptomatology, which is characterized by pulsating or throbbing head pain on both sides of his head, stiff neck, eyelids twitch, and throbbing at the base of neck and front/sides of head. There were also non-headache symptoms, such as nausea, sensitivity to light and sound, and sensory changes (pins and needles). The Veteran's head pain was reported to last less than one day, typically, and the pain was generally located on the front and sides of the head, and neck. The examiner noted that the Veteran has characteristic prostrating attacks of migraine headache pain, on average of more frequently than once per month (over the course of the last several months). The examiner indicated that the Veteran did not have very frequent prostrating and prolonged attacks of migraine headache pain. However, the examiner noted that the Veteran's headache condition functionally impacts his ability to do work. She elaborated that the Veteran is currently a student and attains lower grades due to absenteeism and that he has trouble concentrating. The examiner also noted that the Veteran experiences headaches daily but these are not typically prostrating. Based on the foregoing, the Board has determined that a 50 percent evaluation is warranted because the overall evidence of record reflects that the Veteran's migraines are characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In so finding, the Board has also considered the lay statements of record. VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, the Board has carefully considered the lay correspondence to VA in which the Veteran alleges that his migraines are present on a daily basis (takes preventative medication daily), and two to three times per week they keep him at home laying down. The Veteran alleges that sometimes he needs to be taken to the hospital. He stated that he has light sensitivity and that he is unable to drive at night. The Veteran's statements are seemingly credible and are not contradicted. See Barr v. Nicholson, 21 Vet. App. at 307-08; Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran's statements and the medical treatment and examination reports indicate that he has generally been experiencing significant attacks at least on a weekly basis. These attacks have not all been described in great detail, but they have been significant enough that they have forced the Veteran to miss school or have trouble performing academic tasks. The Veteran has daily migraine headaches, with nausea and photosensitivity, that result in incapacitating episodes for which he would lay down, i.e., completely prostrating and prolonged attacks. In sum, the Veteran's symptomatology exceeds that contemplated in the criteria for a 30 percent 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 migraines effective from the date of service connection. 38 C.F.R. § 4.124a, DC 8100. This is the highest schedular rating available for migraines or headaches unrelated to traumatic brain injury. Cf. 38 C.F.R. § 4.124a, DC 8045. The Board recognizes the Veteran's complaints of daily headaches and how they impact his ability to function as a student and in daily life. Therefore, the question of whether an extraschedular rating is warranted for migraine headaches is appropriately addressed in the remand below. ORDER A maximum 50 percent rating for migraine headaches is granted, effective October 5, 2006. REMAND The Board finds that the issue of entitlement to a higher initial rating for migraines on an extraschedular basis and entitlement to TDIU must be remanded for further development. In light of the Veteran's award of a maximum 50 percent rating for migraine headaches, the Board must consider an extraschedular evaluation as the Veteran states that he is missing school and having difficulties keeping up with his academic tasks. Pursuant to § 3.321(b)(1), the 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 initial rating. 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 Court of Appeals for Veterans Claims. Accordingly, the Board is remanding the extraschedular question for adjudication by the appropriate first line authorities at VA. In a February 2013 brief, the Veteran's representative initiated a claim for TDIU. The Veteran is service-connected for the following disorders: migraine headaches (30 percent evaluation), posttraumatic stress disorder (50 percent evaluation), tinnitus (10 percent evaluation), residuals of a scar, a right finger strain, and gastroesophageal reflux disease. The Board finds that further development is necessary to properly adjudicate this matter. At his January 2007 VA psychiatric examination, the Veteran indicated that he has not worked since separation from service mainly due to his physical and psychological problems. He stated that he is not able to work until he resolves some of these issues. In an April 2009 statement, the Veteran contended that his migraine headaches prevent him from being able to hold a steady job, therefore, he opted to go to school instead. He states that his migraines also affect his ability to do schoolwork as well. In an October 2011 DBQ, the examiner noted that the Veteran's headache condition impacts his ability to work and elaborated that the Veteran misses classes as a student and has difficulty concentrating. Although the record suggests that the Veteran is unable to work due to his migraine headaches and psychological problems, they do not contain a formal doctor's opinion regarding whether he is unemployable due to his service-connected conditions on the whole. Likewise, the medical record does not clearly indicate whether he is unemployable from all forms of substantial gainful employment. Upon remand, the Board finds that an appropriate VA examiner or vocational rehabilitation specialist should opine as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of the Veteran's currently service-connected disabilities on his ability to work. Prior to issuing a new evaluation, the Board finds that the RO should attempt to obtain any and all VA and/or private medical records that are relevant to the TDIU claim. See 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran identify the names, addresses, and dates of treatment for all medical care providers, VA and non-VA, inpatient and outpatient, who may possess additional records referable to diagnosis and treatment for his service connected disorders. The Veteran should provide all necessary written releases for these records. If any of the identified records cannot be obtained, the AOJ should notify the Veteran of such and describe the efforts used in requesting these records. 2. After the development outlined above, obtain an opinion from a vocational rehabilitation specialist or appropriate VA physician to assess the impact of his service-connected disabilities on his ability to obtain and maintain employment. The specialist must review the record in its entirety and must comment on the effect of each of the Veteran's service-connected disabilities on his ability to work (disregarding the effects of any disabilities that are not service-connected), indicating what functions/types of employment would be inconsistent with/precluded by each disability, and what types of employment, if any, would remain feasible despite the service-connected disabilities. The specialist should set forth all findings, together with the complete rationale for the comments and opinions expressed, in a printed report. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate TDIU claim, in light of all pertinent evidence and legal authority. 4. The AOJ should refer the Veteran's entitlement to a higher initial rating for migraines 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. If any of the benefits sought on appeal remain denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).