Citation Nr: 1307489	
Decision Date: 03/05/13    Archive Date: 03/11/13

DOCKET NO.  07-16 122	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to an initial disability evaluation in excess of 30 percent for migraine headaches associated with residuals, posttraumatic encephalopathy, characterized by atypical headaches. 


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney at Law


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from December 1942 to December 1943.

This matter comes to the Board of Veterans' Appeals ("Board") on appeal from a February 2006 rating decision by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Indianapolis, Indiana, which granted the Veteran's claim for service connection for residuals, post traumatic encephalopathy, characterized by atypical headaches, and assigned a 10 percent evaluation, effective July 25, 2005. 

In a June 2009 decision, the Board denied entitlement to an initial disability evaluation in excess of 10 percent for residuals, posttraumatic encephalopathy, characterized by atypical headaches.  The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court).  In an August 2010 Order pursuant to a Joint Motion for Remand (JMR) filed by the Veteran and the Secretary (parties), the Court vacated and remanded the Board's decision.  In January 2011, the Board remanded this matter for further development.

In a July 2012 decision, the Board granted a 30 percent rating for migraine headaches associated with residuals, posttraumatic encephalopathy, characterized by atypical headaches, granted a separate 30 percent rating for vertigo and granted a separate 10 percent rating for residuals, posttraumatic encephalopathy, characterized by atypical headaches.  

The July 2012 decision also remanded the Veteran's claim for entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU).  This issue is still being developed at the RO and is not currently before the Board.

The Veteran appealed the Board's July 2012 decision to the Court.  In an October 2012 Order pursuant to a Joint Motion for Partial Remand (JMPR) filed by the Veteran and the Secretary (parties), the Court vacated and remanded the Board's decision only as to the issue of entitlement of an initial evaluation in excess of 30 for migraine headaches associated with residuals, posttraumatic encephalopathy, characterized by atypical headaches.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a) (2) (West 2002).


FINDING OF FACT

The Veteran's migraine headaches associated with residuals, posttraumatic encephalopathy, characterized by atypical headaches have not been manifested by prostrating episodes productive of severe economic inadaptability for any period. 


CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 30 percent, for migraine headaches associated with residuals, posttraumatic encephalopathy, characterized by atypical headaches have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code 8045, 8100 (2008, 2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  

In correspondence dated in October 2005, June 2007, and September 2009, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. §5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012).  Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The June 2007 and September 2009 letters also notified the Veteran of the process by which disability ratings and effective dates are established.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Since this claim is the appeal of an initial rating, fully satisfactory notice was delivered after it was adjudicated.  However, the RO subsequently readjudicated the claim based on all the evidence in various supplemental statements of the case.  The Veteran was able to participate effectively in the processing of his claim.  There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete notice been provided at an earlier time. 

VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012).  Service treatment records have been associated with the claims file.  All identified and available treatment records have been secured. 

As the Board will discuss in detail in the analysis below, the Veteran was provided with VA examinations throughout the appeal period.  The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disability since he was last examined in February 2012.  See 38 C.F.R. § 3.327(a) (2012).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95 (April 7, 1995).  The Board finds that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Neither the Veteran nor his representative has contended otherwise.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c) (4) (2012); Barr, 21 Vet. App. at 312.

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has declined the opportunity to present evidence and argument in support of his claim.  

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 

Laws and Regulations

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012). 

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2012).  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  See also Hart v. Mansfield, 21 Vet. App. 505 (2008).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2012).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).

Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2012).

The protocol for traumatic brain injuries (TBIs) was revised during the pendency of this appeal.  See 73 Fed. Reg. 54,693 (Sept. 23, 2008).  The effective date for these revisions is October 23, 2008.  38 C.F.R. § 4.124, Note (5) (2012).  For claims received by VA prior to that effective date, a veteran is to be rated under the old criteria for any periods prior to October 23, 2008, but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008.  The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating.  See VBA Fast Letter 8-36 (October 24, 2008).  However, a veteran whose residuals of TBI were rated by VA under a prior version of 38 C.F.R. 4.124a , Diagnostic Code 8045, will be permitted to request review under the new criteria, irrespective of whether his or her disability has worsened since the last review or whether VA receives any additional evidence.  See 73 Fed. Reg. 54,693 (Sept. 23, 2008).  In this case, while the Veteran filed his claim for service connection in July 2005 and he has not requested that his claim be considered under the revised criteria, the RO has evaluated his disability under both criteria.  See March 2012 supplemental statement of the case.  Therefore, the Board will consider both sets of criteria. 

Prior to October 23, 2008, brain disease due to trauma under Diagnostic Code 8045, purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, was to rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207).  Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated at a maximum of 10 percent under Diagnostic Codes 9304, "Dementia due to head trauma."  This 10 percent rating will not be combined with any other rating for a disability due to brain trauma.  Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Codes 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.  38 C.F.R. Part 4, § 4.124a, Diagnostic Codes 8045 (2008).

Revised Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation.  38 C.F.R. § 4.124a, Diagnostic Code 8045 (2012).

Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain.  Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive.  Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others.  In a given individual, symptoms may fluctuate in severity from day to day.  Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."

Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."  However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table.

Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder.  When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified."

Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions.

The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI.  For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code.  Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition.  The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations.

Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc.  Evaluation of Cognitive Impairment and Subjective Symptoms: the table titled"  Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms.  It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled "total."  However, not every facet has every level of severity.  The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling.  Assign a 100- percent evaluation if "total" is the level of evaluation for one or more facets.  If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent.  For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet.

Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a co-morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, do not assign more than one evaluation based on the same manifestations.  If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  However, if the manifestations are clearly separable, assign a separate evaluation for each condition.

Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation.

Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone.  These activities are distinguished from " Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet.

Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning.  This classification does not affect the rating assigned under Diagnostic Code 8045.

Note (5): A Veteran whose residuals of a TBI are rated under a version of § 4.124a, diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his or her disability has worsened since the last review.  VA will review that Veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under Diagnostic Code 8045.  A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008.  For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. 3.114 , if applicable.  38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008).

Factual Background and Analysis

The relevant evidence includes the Veteran's service treatment records, which reflect that he was hit by a bayonet in the inner corner of the right eye during a drill.  He was seen four weeks after this incident with complaints of continuing headaches and dizziness since the injury.  He described the headaches as being dull in nature and constant.  He also described dizzy spells, but denied any nausea or vomiting.  After being hospitalized, he underwent evaluation of the eye, which revealed normal muscle balance and external examination.  Lens and media were described as clear in each eye, and fundi were normal.  Vision was found to be 20/15 in both eyes.  In the consultation report, it was concluded that his headaches were not ocular in origin. 

After undergoing extensive evaluation, it was determined that there was no demonstrable organic basis for his complaints. In a final summary of the admission, it was noted that the Veteran was tense, introverted, and blushed easily.  He was also described as shy and timid, with a juvenile personality make-up.  The physician indicated that he had complained of numerous sore throats during the hospitalization, but that an ENT consultation did not recommend a tonsillectomy. Physical examination and laboratory tests were all reported to be within normal limits.  He was given a final diagnosis of psychoneurosis, mixed-type, chronic, severe, cause undetermined, manifested by infantile personality make-up, somatic complaints and by feelings of inadequacy, without demonstrable basis.

Shortly following separation, service connection was awarded for psychoneurosis, mixed, mild, and a noncompensable rating was assigned.

A May 2005 brain MRI report, ordered by a private physician, revealed findings consistent with small vessel disease and age-related changes, as well as findings likely related to subacute vascular insult.  In the margins of the report is a handwritten statement (purportedly from the ordering physician, Dr. Brezausek) noting that the Veteran had suffered an in-service injury to the basal ganglion, which could cause hand tremors, memory difficulties and shuffling as he walks (resulting in falls), but may or may not cause headaches.  She further noted that he had a greater than 90 percent blockage of the left carotid artery.  Although Dr. Brezausek added that she wanted the Veteran to been seen by a neurologist, there is no evidence that he ever did so.

In January 2006, the Veteran was afforded a VA brain and spinal cord examination, at which time, he complained of chronic headaches since service, infrequent falls and worsening memory problems and dizziness.  He said that his headaches were only relieved by resting for 30 minutes.  An x-ray of his skull was negative for fractures, lytic, blastic lesions of bony calvarium, significant lesions of paranasal sinuses or other abnormalities, and a physical examination revealed intact cranial nerves.  The examiner noted that during the examination, the Veteran was very pleasant and talkative with normal understanding and affect, and demonstrated no manifestations of psychiatric abnormality.  After noting that she had reviewed the Veteran's complete claims folder, as well as the opinion of his private physician, she diagnosed the Veteran with post traumatic encephalopathy and atypical headaches.  She disagreed with his private physician, however, and concluded that the Veteran's headaches had been present so long that there was probably some psychogenic component, and because he had sustained a "closed" head injury that had not penetrated his skull, the findings noted on the MRI were more likely the result of an age-related process in an 85-year-old gentleman, rather than due to his in-service injury from 1943. 

A June 2006 VA audiological examination report noted that while the Veteran's tinnitus was as likely as not related to posttraumatic encephalopathy, his hearing sensitive was not related to service. 

In November 2006, the Veteran was afforded a second VA examination with the same examiner, who performed various physical and diagnostic tests to determine whether he had any functional impairment of his peripheral and autonomic systems.  The examiner noted that the Veteran was able to walk forward on his toes and had a broad-based gait.  His muscle strength for upper and lower extremities was equal bilaterally, and he appeared to have no abnormal cognitive or psychiatric manifestations.  An eye examination revealed normal findings.  Again, the examiner concluded that the brain changes noted on the 2005 MRI were more likely the result of his advanced age, and not the result of his in-service eye injury.  She further concluded that his claims of memory loss, dizziness and balance, and gait problems were also the result of his age, as well as his carotid artery disease and small vessel brain disease.  Finally, she opined that his atypical headaches were neither caused by, nor the result of his post traumatic encephalopathy.

On VA examination in September 2009, the Veteran reported essentially chronic intermittent headaches occurring about four to six times a week.  These were described as sharp, throbbing pain localized behind/around the right eye with headache pain radiating to the center of the head.  The Veteran rated his pain at about a seven on a scale of zero to ten.  The headaches lasted a few hours and were not accompanied by particular photophobia or hypersensitivity to light, or nausea or vomiting associated with the headaches.  There was some possible phonophobia. The Veteran treated his headaches by lying down for a while but did not take any particular medication for the pain.  The Veteran also complained of chronic daily problems with dizziness and vertigo; he frequently felt as if things were spinning around him and that he was falling forward or sideways when trying to walk.  Although decreased mobility was noted, he ambulated without assistive devices.  There were significant balance issues and the Veteran reported a history of frequent falls.  Additionally, as to memory, the Veteran indicated becoming more and more forgetful with short term memory loss.  Other cognitive problems included some difficulty concentrating at times and mild difficulty with executive functions, and having more difficulty with some tasks, especially unfamiliar tasks.  The Veteran also indicated slowing of speed of information processing, taking longer to analyze problems and coming to a rational solution.  While his judgment was good, it took longer to make decisions than before.  He was frequently easily confused.  Notable problems included a history of glaucoma but no particular issues with blurred vision or double vision.  The Veteran denied any significant problems with weakness or paralysis, sleep disturbance, fatigue, malaise, speech or swallowing, bowel or bladder function, erectile function, sensory changes, sense of taste or smell, seizures, or psychiatric symptoms without significant irritability or restlessness. There were also no symptoms of autonomic dysfunction.

On evaluation, the examiner noted mild to moderate deficits of memory, attention/calculation, concentration, and executive function with objective evidence of mild impairment of memory/recall, attention/calculation, and concentration.  The Veteran was also observed to have mildly impaired judgment as he was slow to identify, understand, weigh alternatives, and eventually come to a rational decision for complex or unfamiliar decisions.  Social interaction was routinely appropriate. As to orientation, there was occasional disorientation to situations as he had difficulty recalling date and day of the week at times.  There were cerebellar deficits demonstrative of dizziness/vertigo and balance issues/ataxia.  There was mildly impaired visual spatial orientation as the Veteran was on rare occasions confused in unfamiliar surroundings.  Subjective symptoms included chronic headaches and chronic dizziness/vertigo with balance issues/ataxias and history of frequent falls, and memory impairment with cognitive deficits.  The Veteran identified three or more subjective symptoms that mildly or moderately interfered with activities of daily living.  The examiner observed that there were no significant neurobehavioral or psychiatric symptoms, and no significant deficits in communication.  The Veteran had normal consciousness.  The examiner concluded that there was mild to moderate (more moderate) disabilities attributed to the Veteran's service-connected residuals, posttraumatic encephalopathy, characterized by atypical headaches. 

The May 2010 VA examination report noted the Veteran's subjective complaints of daily mild to moderate vertigo lasting up to 60 seconds, daily mild weakness lasting one day, moderate to severe daily headaches lasting several hours per episode, and mild daily nausea lasting up to 30 minutes per episode.  The Veteran reported daily moderate memory loss which resulted in difficulty remembering tasks, appointments, and impairment in ability to complete tasks once initiated.  It was also noted that the Veteran did not have difficulty with executive function.  On evaluation, the examiner found that there was objective evidence of mild impairment of memory loss and demonstrated difficulty with both immediate and delayed memory.  The Veteran also had three or more subjective symptoms that mildly interfered with work; instrumental activities of daily living; or work, family or other close relationships.  He also had one or more neurobehavioral effects that did not interfere with work place interaction or social interaction.  He was able to communicate normally.  The examiner gave a diagnosis of cognitive disorder not otherwise specified, and noted that the reported headaches and initial vertigo were likely related to TBI and the significant difficulties with immediate and short term memory were most likely related to the recent TBI.  The examiner also noted that the Veteran's difficulties with immediate and short term memory appeared to interfere with social functioning on a regular basis demonstrated by the Veteran's tendency to repeatedly ask the same questions over and over. 

On VA examination in June 2010, the Veteran reported moderate daily headaches the duration of which varied but could be all day or less.  He had weekly dizziness and moderate fatigue.  There was moderate memory impairment, and difficulty concentrating and with executive functions.  He also had problems with mobility related to his stroke two years before and ambulated with a cane.  These impairments resulted in moderate impairment on his daily activities.  He denied paralysis, sleep disturbance, speech or swallowing difficulties, sensory changes, visual problems, taste or smell problems, seizures, hypersensitivity to sound or light, neurobehavioral changes, autonomic dysfunction, bowel problems, bladder problems, or psychiatric symptoms.  Evaluation showed that motor activity was moderately decreased due to apraxia.  Sensory evaluation of the upper extremity showed decreased proprioception of the entire extremity bilaterally, pinprick was normal bilaterally, vibratory sense was abnormal bilaterally, and two point discrimination was 2 cm on the left and 4 cm on the right.  Sensory evaluation of the lower extremity revealed decreased proprioception of the entire extremity bilaterally, pinprick and vibratory sense was normal bilaterally, position sense was abnormal bilaterally, and two point discrimination was 5 cm on the left and 7 cm on the right.  Gait was abnormal as it was wide with high stepping, there was imbalance as he was not able to perform Romberg, and incoordination was demonstrated by poor gross and fine motor skills.  There was no spasticity or rigidity.  There was no autonomic nervous system impairment and eye examination was normal.  There was cranial nerve impairment, and moderately impaired spatial orientation as the Veteran usually got lost in unfamiliar surroundings, had difficulty reading maps or following directions and judging distance, and had difficulty using assistive devices, e.g. a GPS.  Consciousness and hearing were normal, and there was no endocrine dysfunction or any other abnormal physical findings.  The examiner noted that the Veteran had chronic headaches, fatigue, memory loss, cognitive problems, dizziness, and constant tinnitus secondary to TBI.  These had a moderate-severe effect on the Veteran's usual occupation and daily activities.  It was also noted that it was as likely as not that the Veteran's dizziness and constant tinnitus were secondary to TBI as the type of injury he sustained would cause dizziness and tinnitus. 

The August 2010 VA examination report addendum noted the Veteran's reported headaches and initial vertigo, and found that they were most likely related to TBI sustained during service.  Additionally, the Veteran's significant difficulties with immediate and short term memory were most likely related to recent transient ischemic attack (TIA), which was described by the medical examiner as related to carotid artery disease and small vessel brain disease.  The examiner further indicted that cognitive disorder is not a separate condition from the service-connected psychoneurosis. 

On VA examination in February 2011, the Veteran reported that he continued to have chronic intermittent headaches, which were stable from the September 2009 VA examination.  The frequency of his headaches varied from one a week to several a week, and lasted about two to four hours.  The headaches were manifested by a sharp, throbbing pain behind the right eye and in the right temporal region, and the Veteran rated the pain at a six or seven out of ten.  He continued to deny significant problems with photophobia, phonophobia, nausea, or vomiting associated with the headaches.  He would typically lie down during an episode, and the headaches were not generally prostrating with only minimal to mild functional loss.  The Veteran indicated having right facial pain frequently which he reported that a physician attributed to trigeminal nerve irritation secondary to old trauma during World War II.  The Veteran also reported chronic blurred vision and visual defect in the right eye since injury.  He has a history of glaucoma and was status-post bilateral cataract extraction with implants. 

The Veteran also reported chronic intermittent dizziness and vertigo-like symptoms, which the examiner found affected his balance over the last couple of years.  The Veteran began to use a cane over the last couple of years, and denied recent falls since he started using a cane.  There was mild to moderate functional loss as a result of the dizziness and vertigo.  The Veteran also indicated short term and immediate memory impairments, decreased attention, and difficulty concentrating.  He also had mild difficulty with executive functions, and he reported increased difficulty with unfamiliar tasks and slowness in information processing.  As to other symptoms, while he had a history of benign prostatic enlargement with mild urinary outlet symptoms, he continued to deny significant problems with weakness, loss of strength, or paralysis; ongoing problems with fatigue, lethargy, or malaise; bowel problems or incontinence; or erectile dysfunction.  There were also no sensory changes, numbness, tingling, paresthesias, dysesthesias, seizures, blackouts, decrease in sense of taste or smell, significant irritability or restlessness, psychiatric diagnosis, or tremors. 

On evaluation, the examiner noted that the Veteran presented with appropriate dress, speech, and affect; and his general appearance was well-kept.  He was awake, alert, oriented times three, calm, pleasant, and somewhat informative.  He had difficulty remembering exact details, dates, and time lines when reporting his history.  The examiner found the Veteran to be a fair historian and obtained information from his wife.  On mini-mental status examination, the Veteran scored a 23 out of 30, and the examiner observed that the Veteran had minimal progression from the September 2009 examination but that there were still only mild cognitive deficits apparent.  Cranial nerves were essentially intact; hallpike maneuver was negative; nystagmus was not noted; and pupils were equal, round, and reactive to light with lens implants noted bilaterally.  Head, eyes, ears, nose, and throat were otherwise normocephalic.  There was an old right-sided carotid endarterectomy scar, but there was no lymphadenopathy, goiter, or prominent carotid bruits.  Chest was symmetrical without retractions; lungs were clear to auscultation bilaterally; heart rate and rhythm were regular without gallops, murmurs, or rubs; abdomen was soft and essentially nontender without masses or organomegaly; and bowel sounds were active.  Extremities exhibited symmetrical regular pulses bilaterally without pitting edema.  Musculoskeletal evaluation showed no acute findings. 

Peripheral neurological examination showed 5/5 strength bilaterally in the upper and lower extremities.  There was no muscular atrophy, wasting, or rigidity, and muscular tone was normal.  There were no tremors, diffuse hyporeflexia and deep tendon reflexes were 1/4 bilaterally in the upper and lower extremities, point to point in rapid alternating movements appeared intact, and sensory evaluation was intact in the upper and lower extremities bilaterally without any particular deficits.  Negative Romberg was noted, and the Veteran was not able to tandem walk or heel-toe walk because of balance ataxia.  He demonstrated short unsteady gait with ataxia and mild functional limitation with standing, walking, weight bearing, and propulsion.  He had a normal carriage and used a cane to ambulate.  Neurological evaluation was otherwise normal. 

The examiner noted that although there was apparently a history of carotid artery disease with small vessel ischemic disease and apparent previous TIA/mild CVA in the past, there were no particular residuals of stroke per the Veteran and his wife.  The examiner indicated that there was a possibility that increased problems with dizziness and vertigo could be related to the Veteran's cerebrovascular disease but there was also mention of problems with vertigo at the time of the initial injury in 1943.  He, therefore, concluded that the Veteran's chronic dizziness with vertigo symptoms and balance/gait ataxia were at least as likely as not representative of residuals of service-connected posttraumatic encephalopathy characterized by headaches secondary to head injury during service.  As to tremors, the examiner noted that the Veteran denied any ongoing problems with hand tremors.  With regard to memory loss with mild cognitive deficits, the examiner noted that service treatment records do not indicate any significant problems with memory loss or amnesia at the time of the initial injury.  He opined that the Veteran's memory loss with mild cognitive deficits are less likely as not specific residuals of his service-connected posttraumatic encephalopathy characterized by headaches secondary to head injury during service. 
 
The Veteran underwent a VA examination in February 2012.  At the examination,  the Veteran's wife's reported that the Veteran's headaches had been so bad that he was unable to stay at work and had to come home to lie down.  She also described that the Veteran's ongoing problems with balance and dizziness, and the family's characterization of the Veteran as a klutz.  As to memory problems, she stated that she did not think he had such problems throughout the years since he carried a pocket calendar to remember appointments. 

The examiner addressed the specific criteria for evaluating traumatic brain injuries.  First, as to cognitive impairment and subjective symptoms of traumatic brain injuries, the examiner indicated mild memory loss (e.g. having difficulty following a conversation, recalling recent conversations, remembering names of fellow new acquaintances, finding new words or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing.  He also observed mildly impaired judgment; for complex or unfamiliar decisions, the Veteran was occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision.  Social interaction was routinely appropriate.  He was occasionally disoriented to one of the four aspects (person, time, place, and situation) of orientation.  Motor activity was normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function).  As to visual spatial orientation, the Veteran was mildly impaired.  He occasionally got lost in unfamiliar surroundings, had difficulty readings maps or following directions, and was unable to use assistive devices, such as a GPS. 

The Veteran also had three or more subjective symptoms that mildly interfered with work, instrumental activities of daily living, or work, family, or other close relationships.  Examples of these subjective symptoms included intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, and hypersensitivity to light.  He also exhibited one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. 

Although the Veteran denied ongoing photophobia or phonophobia with headaches, he indicated problems with chronic blurred vision and visual defect in the right eye since his injury.  There was a history of glaucoma over the last several years and he was status-post bilateral cataract extraction with implants.  Right facial pain syndrome representing trigeminal nerve irritation secondary to old trauma during service was noted.  As to communication, comprehension or expression, or both, of either spoken language or written language, it was only occasionally impaired.  He communicated complex ideas.  Also, consciousness was normal.  It was further noted that the Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a TBI.  Additionally, the Veteran had a scar related to the TBI that was not painful and/or unstable, or having a total area greater than 39 square cm.  The remaining impairment was impaired visual acuity in the right eye.  As to functional impact, the examiner determined that the Veteran's residual conditions related to his TBI impacted his ability to work due to a combination of mild memory impairment, visual impairment, and coronary artery disease caused him to be unable to continuously maintain gainful employment.

In February 2013, the Veteran underwent a vocational interview and assessment from Solutions Consulting in order to determine his employability potential.  The consultant noted that he conducted a phone interview with the Veteran.  The Veteran reported experiencing "severe" headaches which resulted in him taking time off of work.  His wife indicated that the he would leave work once or twice a week.  He would also sometimes come home from work, lie down for a while and then go back to work.  He would often work through the headaches but insisted that there were severe.  It was noted that despite the Veteran's debilitating headaches, he was able to work for many years.  During his work years, he was experiencing "significant and intense pain that would have been otherwise prostrating to most individuals".  He was occasionally required to leave his work, return home and lie down during the work day.  The Veteran's wife indicated that the Veteran had a unique ability to work though pain as a result of his feelings of responsibility, dedication and resolve.  The vocational consultant opined that the Veteran's condition worsened to the point where, even in consideration of his high pain thresholds and resolve, he became unable to engage in any form of gainful employment.

After a careful review of the record, the Board finds that the Veteran's disability is more appropriately rated under Diagnostic Code 8100 for migraine headaches for the entire period on appeal than under the prior version of Diagnostic Code 8045 as this contemplates his primary symptoms and would afford the Veteran the greater benefit.  In this regard, the Board notes that the Veteran's disability has been manifested by subjective complaints of chronic headaches, memory loss, dizziness and infrequent falls; but not by objective evidence of impairment of his peripheral and autonomic systems.  Crucially, the medical evidence does not reveal any multi-infarct dementia.  As such, a disability rating in excess of 10 percent is not assignable under the former criteria for purely subjective complaints codified at Diagnostic Code 8045.

As noted above, purely subjective complaints such as headaches, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, were to be rated as 10 percent and no more under Diagnostic Code 9304 for dementia due to head trauma.  This 10 percent rating was not to be combined with any other rating for a disability due to brain trauma.  Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma.  Id.

The Board notes that the prior version of Diagnostic Code 8045 could be construed as prohibiting a rating in excess of 10 percent under Diagnostic Code 8100, because the symptoms are wholly subjective, but the new version of Diagnostic Code 8045 contains no such prohibition, and even the prior version of Diagnostic Code 8045, did not explicitly prohibit ratings under an alternate diagnostic code.  In fact, by indicating that the 10 percent rating provided for under Diagnostic Code 8045 was not to be combined with any other rating for a disability due to brain trauma, the code does appear to acknowledge that rating residuals under alternative diagnostic codes is permissible.

Because both Diagnostic Code 8045 and Diagnostic Code 8100 contemplate manifestations of headaches, however, it would constitute prohibited pyramiding to provide separate ratings.  Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14 (2012).  Furthermore, as noted, the prior version of 8045 specifically indicates that the 10 percent rating provided for therein was not to be combined with any other rating for a disability due to brain trauma.  Thus, the Board concludes that a single 30 percent rating under Diagnostic Code 8100 is warranted.

Under Diagnostic Code 8100, migraines 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 of once a month over the last several months are rated as 30 percent disabling.  Migraines with characteristic prostrating attacks averaging one in two months over last several months are rated 10 percent disabling, and a noncompensable rating is assigned for less frequent attacks.  38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). 

The rating criteria do not define "prostrating," however the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness."  A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness".

VA regulations also do not define "economic inadaptability."  However, the Court has noted that nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating.  See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004).

Based on the evidence of record, the most pertinent of which is discussed above, the Board finds that the Veteran's migraine headaches most closely approximate a 30 percent disability rating for the entire appeal period.

Migraines must be very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability in order to warrant a 50 percent rating under Diagnostic Code 8100.  In this case, the Veteran has demonstrated chronic headaches which have been attributed to his service-connected TBI.  These headaches varied in frequency but have ranged from one week to several weeks and at times resulted in the Veteran having to leave work and lie down at home during an episode.  However, the Board finds that the the headaches were not prostrating and resulted in only minimal to mild functional loss.  

Regarding whether the Veteran's headaches were prostrating, the evidence demonstrates that multiple VA examiners have described the headaches as moderate or mild.  Specifically, at his June 2010 VA examination, the Veteran reported experiencing moderate daily headaches and the VA examiner noted that the Veteran had chronic headaches, fatigue, memory loss, cognitive problems, dizziness, and constant tinnitus secondary to TBI which had a moderate-severe effect on the Veteran's usual occupation and daily activities.  Significantly, the VA examiner in February 2011 specifically noted that the Veteran's headaches were not generally prostrating with only minimal to mild functional loss.  The February 2012 VA examiner also noted only mild to moderate headaches.

Additionally, while the February 2013 vocational consultant noted that the Veteran was experiencing "significant and intense pain that would have been otherwise prostrating to most individuals", the fact is that the Veteran was able to endure the reported pain and continue working which was not characteristic of a prostrating headache that resulted in "extreme exhaustion or powerlessness".

Regarding whether his headaches were prolonged, the Board finds that the Veteran's headaches were not prolonged in that they tend to get better after resting.  Notably, at his January 2006 VA examination, the Veteran noted that his headaches were relieved by resting for 30 minutes and on VA examinations in September 2009 and February 2011, the Veteran reported that he treated his headaches by lying down for a while.  

Even if it were found that the Veteran had prostrating headaches, the Board notes that each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating.  See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009).  Thus, absent a showing of "severe" economic inadaptability due to headaches, there no basis to assign a rating higher than 30 percent under Diagnostic Code 8100.

In this regard, while the evidence indicates that the Veteran experienced headaches throughout the appeal period, there is no persuasive evidence that they resulted in "severe" economic adaptability.  As noted above, the June 2010 VA examiner noted that the Veteran had chronic headaches, fatigue, memory loss, cognitive problems, dizziness, and constant tinnitus secondary to TBI which had a moderate-severe effect on the Veteran's usual occupation and daily activities.  Additionally, the February 2011 VA examiner described only minimal to mild functional loss while the February 2012 VA examiner noted that the Veteran had three or more subjective symptoms that mildly interfered with work, instrumental activities of daily living, or work, family, or other close relationships.  

None of these examinations demonstrated a showing of "severe" economic inadaptability as the examiners described only mild and moderate to severe effect on his occupation.  In addition, the June 2010 VA examiner's assessment of a moderate to severe effect on the Veteran's usual occupation and daily activities took into account his other disabilities in addition to his migraine headaches.

The Board notes that at his most recent VA examination in February 2012, the Veteran's wife's reported that the Veteran's headaches had been so bad that he was unable to stay at work and had to come home to lie down.  Additionally, the February 2013 vocational consultant opined that, even in consideration of his high pain thresholds and resolve, the Veteran became unable to engage in any form of gainful employment.  However, it is noted that while the Veteran reportedly went home to lie down during the day, he was able to maintain a vocation where he was able to return to work as he had flexible hours.  While the February 2013 vocational consultant noted that the Veteran insisted that his headaches were severe, the Veteran still would often work through the headaches and he was able to work for many years until his 1990 retirement.  Also of note, the vocational consultant's opinion took into account the Veteran's other disabilities in addition to his migraine headaches.  Additionally, there is no evidence that these headaches impaired him economically.  

While the Veteran contends that he has severe economic inadaptability as a result of his migraine headaches, the evidence does not show adverse economic impact, other than as contemplated by the assigned 30 percent rating.  Thus, the Board determines that the Veteran's headaches do not result in economic inadaptability as the evidence does not show that the Veteran's headaches alone result in the Veteran's complete inability to work.  

Accordingly, the Veteran has not been shown to have headaches characterized by very frequent completely prostrating and prolonged attacks productive of "severe" economic inadaptability which would warrant an initial 50 percent rating.  Based on the foregoing, the Board finds that a rating in excess of 30 percent for the Veteran's tension headaches is not warranted at any time during the appeal period. 

The Board also notes that the Veteran's dizziness and vertigo have also been attributed to his service-connected disability.  As noted above, the July 2012 Board decision awarded a separate 30 percent evaluation for vertigo and a separate 10 percent evaluation under Diagnostic Code 8045 for his emotional/behavioral disabilities that are a residual of his TBI.  As indicated in the October 2012 JMPR, these findings were not to be disturbed and the Veteran does not contest the portions of the July 2012 Board decision that denied higher ratings for these disabilities.

Furthermore, the Board notes that the Veteran has a scar from his TBI.  However, the Veteran does not claim nor does the evidence show that he has any impairment arising from the scar.  Accordingly, the Board will not consider whether he has any such impairment from his TBI scar.  Also, the Veteran's tinnitus has been attributed to his TBI and he is already in receipt of the maximum disability evaluation for tinnitus.  Thus, the Board will not discuss whether a higher rating is warranted for tinnitus. 

Additionally, the Board notes that while memory problems have been discussed as a possibly residual of the TBI, the weight of the evidence set forth above demonstrates that any memory problems are not likely due to the TBI.  See e.g. August 2010, February 2011, and February 2012 VA examination reports.  The Board acknowledges that the May 2010 VA examination report noted that the Veteran's memory problems were related to the "recent TBI."  However, the Board believes that the examiner was referring to the Veteran's recent TIA and not TBI, as the TBI cannot be considered recent as it occurred over 60 years before the examination.  In any case, the remainder of evidence shows that memory problems are not related to the TBI.  Therefore, the Board will not consider whether a separate evaluation is warranted.

Finally, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b) (1) is warranted for the service-connected brain trauma residuals at any time during the current appeal.  That provision provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, a veteran may be awarded a rating higher than that encompassed by the schedular criteria, as shown by evidence reflecting that the disability at issue causes marked interference with employment or has in the past or continues to require frequent periods of hospitalization, thereby rendering impractical the use of the regular schedular standards.  Id.  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 disorder are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (noting that the "[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). 

Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with his brain trauma residuals and provide for additional or more severe symptoms than currently shown by the evidence.  Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, the Board concludes that referral for extraschedular consideration for this service-connected disability is not warranted. 



ORDER

Entitlement to an initial disability evaluation in excess of 30 percent for migraine headaches associated with residuals, posttraumatic encephalopathy, characterized by atypical headaches is denied.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs