Citation Nr: 1307751 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-14 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a disability rating in excess of 10 percent for tension headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from October 1986 through August 1993. This matter comes to the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia which, among other issues, denied the Veteran's claim for a disability rating in excess of 10 percent for tension headaches. A timely Notice of Disagreement (NOD) was received from the Veteran in October 2008. After a Statement of the Case (SOC) was issued in March 2009, the Veteran perfected her appeal in April 2009, via VA Form 9 substantive appeal. In January 2013, the Veteran testified during a Central Office hearing that was held before the undersigned Veterans Law Judge at the Board's offices in Washington, D.C. A transcript of those proceedings is associated with the record. FINDINGS OF FACT 1. The Veteran's service-connected tension headaches are not manifestations of a traumatic brain injury (TBI). 2. For all periods relevant to this appeal, the Veteran's tension headaches have been manifested by headaches, nausea, photophobia, and phonophobia that have occurred at least twice per week, lasted periods from four hours to overnight per episode, required the Veteran to lie down, and prior to her retirement in 2010, required her to miss approximately one or two days of work per month. CONCLUSION OF LAW The criteria for a disability rating of 50 percent, and no more, for tension headaches have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Such notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). An August 2007 pre-rating letter provided the Veteran with notice of the information and evidence needed to substantiate her claim for an increased disability rating for her service-connected tension headaches. Consistent with Dingess, this letter included notice of the process in which VA assigns disability evaluations and effective dates. Subsequently, the Veteran's claim for a higher disability rating was adjudicated in the RO's October 2007 rating decision. Thus, because the VCAA notice in this case was legally sufficient, VA's duty to notify in this case has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. Her service treatment records, claims submissions, lay statements, and identified and relevant private treatment records have been obtained and associated with the record. VA examinations for the Veteran's headaches were afforded September 2007 and April 2012. Moreover, VA has not received any additional evidence since the most recent April 2012 examination which indicates that the Veteran's condition has changed such as to warrant the scheduling of a new VA examination to reassess the symptoms and severity of her tension headaches. Hence, these examinations, along with the other evidence of record, are fully adequate for the purposes of determining the extent of the Veteran's disabilities in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Increased Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, 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 order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). By way of history, service connection for tension headaches was originally granted to the Veteran, effective August 2, 1993, by a March 1994 rating decision. At that time, the Veteran's tension headaches were rated as being 10 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, which provides the rating criteria for migraine headaches and which was applied by analogy to rate the Veteran's tension headaches. The Veteran's claim for an increased disability rating for tension headaches was received by VA in June 2007. Although there is no evidence in the claims file, and the Veteran did not contend, that her tension headaches are the result of a TBI, the RO denied the Veteran's claim in an October 2007 rating decision by applying the rating criteria for TBIs under DC 8045. Subsequent notice letters mailed to the Veteran in March and September of 2009 continued to characterize the service-connected tension headaches as being a TBI. Finally, in an April 2012 letter, the RO notified the Veteran that the rating criteria for TBI had been applied erroneously in rating her tension headaches. This letter notified the Veteran that she was to notify the RO in the event that she wished to seek compensation for a TBI. To date, the Veteran has not indicated any intention of pursuing compensation benefits in connection with a TBI. Indeed, during her January 2013 hearing, the Veteran, appears to acknowledge that DC 8045 was erroneously applied as she specifically requests through her representative "that consideration [be made] under Diagnostic Code 8100." In view of the foregoing history, the rating criteria for TBI under DC 8045 are not applicable in this case. Consistent with the Court's holding in Schafrath, the Board has also considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, the Board finds that there are no other criteria that may be applied in rating the Veteran's migraines. Accordingly, the Veteran's tension headaches will be rated according to the rating criteria under DC 8100. Under DC 8100, migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months are assigned a 10 percent disability rating. A 30 percent disability rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A schedular maximum 50 percent disability rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In September 2007, the Veteran provided a series of lay statements in support of her claim for a higher disability rating. In a statement prepared by her, she reported that she was experiencing four to five headaches per week and that each episode lasted for hours at a time. She described her headaches as being marked by tightness in her forehead and in the back of her neck, and that these headaches caused difficulties with concentration and focus, which in turn, caused difficulty with work and caring for herself and her family. A September 2007 statement from the Veteran's spouse reports that the Veteran was having three to four tension headaches per week and was often required to lie down. The Veteran's spouse related that the Veteran was unable to care for her children and perform household tasks such as cooking and cleaning due to her headaches. A statement from the Veteran's relative, also received in September 2007, indicates that the Veteran was having frequent tension headaches that prevented her from performing daily tasks such as caring for her children and running errands. The Veteran's relative also stated that the Veteran was required to lie down during her headaches. A September 2007 letter from the Veteran's private physician, Dr. H.E.C., Jr., expressed that the Veteran was experiencing severe tension headaches that were treated by Elavil and Fioricet. Dr. H.E.C., Jr. reported that, on average, the Veteran was having three headaches per week. During a VA examination, also performed in September 2007, the Veteran reported that her headaches occurred on an average of four or five times per week and lasted for periods of three to four hours. In describing the severity of her headaches, she stated that they were so severe that she was required her to stay in bed because she was unable to do anything else; however, she acknowledged that she was able to go to work as long as she took her medication. Despite her report that she was required to stay in bed during her headaches, she denied experiencing any functional impairment due to her headaches. A neurological examination revealed decreased reflexes in her ankles bilaterally, but was otherwise normal. There is no indication that the neurological findings in the ankles are associated in any way with the Veteran's headaches. In February 2008, the Veteran was privately referred to Dr. T.T.U. for neurological evaluation and treatment of her headaches. At that time, she reported that her headaches were occurring twice a week and were accompanied by nausea, phonophobia, and photophobia. She indicated that she was still taking Elavil and Fioricet to manage her headaches, and denied noticing any side effects from her medications. An accompanying February 2008 letter from Dr. T.T.U. expresses that the Veteran was diagnosed with tension headaches mixed with common migraine headaches. An MRI of the brain performed in March 2008 was normal. The following month, the Veteran returned to Dr. T.T.U. complaining of ongoing headaches that were occurring two or three times per week. At that time, a neurological examination did not reveal any abnormalities In an April 2009 statement, the Veteran reported that her headaches were occurring four or five times per week and lasting for "hours and hours" at a time. She continued to report difficulty working and caring for her children during episodes. A June 2009 private report from Dr. S.M.B. reflects that the Veteran reported that she was having two or three headaches per week. Once again, a neurological examination was grossly normal. Dr. S.M.B. diagnosed tension type migraine headaches. Ongoing private treatment records from Dr. H.E.C., Jr. dated through October 2009 continue to document ongoing headaches. There is no indication from these records, however, as to the frequency of the reported headaches. At most, Dr. H.E.C., Jr. opines in an October 2009 letter that the Veteran's headaches appeared to be worsening. In an October 2009 statement, the Veteran also reported that her headaches were increasing in severity and duration. Once again, she stated that her headaches were confining her to her bed and that she was unable to perform "family duties." She continued to report that her headaches were causing problems with concentrating and were also causing difficulty sleeping. According to the Veteran, she was taking Vicodin for pain management. Based upon the Veteran's allegations that her headaches were worsening, she was afforded a new VA examination in April 2012. At that time, she described her headaches as a pulsating or throbbing pain that was worsened with physical activity and accompanied by nausea, sensitivity to light and sound. She stated that her headaches typically lasted for periods of less than a day. The VA examination report reflects that the Veteran was not having any prostrating attacks due to her headaches. It is unclear from the report as to whether this reflects the examiner's opinion or whether it is based upon history provided by the Veteran. In a July 2012 statement, the Veteran reported that she told the VA examiner during the April 2012 examination that her headaches were worsening and were occurring frequently. Regarding the frequency of her headaches, she stated that her headaches were occurring almost every day. During her January 2013 Board hearing, the Veteran testified that she was most recently employed in 2010, when she worked for the United States Postal Service (USPS). She stated that she left her employment due to a work-related injury, and not due to her headaches. She stated that in 2010, she was having three to five headaches per week and that she had to occasionally miss work or leave work early. In that regard, she estimated that she missed approximately eight to 16 hours of work per month. Regarding her current symptoms, she reported ongoing headaches that occurred three to five times per week, was accompanied by sensitivity to light and sound, and lasted from four hours to all day, sometimes persisting into the following morning. The Veteran continued to report that her headaches caused her to lie down in a room by herself. Upon careful review and consideration of the evidence, the Board finds that the symptomatology associated with the Veteran's tension headaches are consistent with a 50 percent disability rating under DC 8100. In that regard, the Veteran, her spouse, and relative credibly assert that the Veteran's headaches are of such severity that she is required to lie down during episodes. Although information concerning the frequency of the Veteran's headaches varies over the course of the appeal period, the evidence is consistent in that it shows that the Veteran experienced no fewer than two episodes of headaches per week and frequently more. The Board notes that although the criteria under DC 8100 contemplate the frequency of prostrating attacks, the rating criteria do not define the term "prostrating." Similarly, the Court has not endeavored to provide a definition of that term. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (quoting DC 8100 verbatim, but declining to specifically address the question of what constitutes a prostrating attack). 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." Given the nature and frequency of the Veteran's headaches, the Veteran's consistent assertions that her headaches often require her to lie down, and on some occasions, to miss work, the Board finds that the symptomatology associated with the Veteran's tension headaches have been consistent throughout the course of this appeal with a disability picture that more closely approximates frequent prostrating and prolonged attacks productive of severe economic inadaptability. In particular, the Board relies on the Veteran's lay report that her headaches come several times a week, often require her to lie down, and can last anywhere from a few hours to the following day. In addition, she reported that they had become so severe as to force her to miss one or two days of work per month prior to leaving her job. Accordingly, the criteria for a 50 percent disability rating pursuant to DC 8100 are met. As noted, this is the maximum rating available under that code. The Board has also considered the merits of a possible extra-schedular disability rating for the Veteran's tension headaches under 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that either the Veteran's tension headaches are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As such, it cannot be said that the available schedular evaluation for the Veteran's disability is inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected headaches under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered whether further "staged" disability ratings are warranted by the evidence. The symptomatology shown upon examination and treatment, however, has been essentially consistent and fully contemplated by the disability rating provided by this decision. As such, there is no basis for further staged disability ratings in this case. In short, the overall evidence supports the assignment of a 30 percent disability rating, and no more, for the Veteran's tension headaches. To that extent, this appeal is granted. 38 C.F.R. §§ 4.3, 4.7. In closing, the Board also recognizes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is therefore part of the claim for an increased rating. In this case, assertions raised in the lay statements received from the Veteran, her spouse, and relative, and the medical history reflected in the treatment records clearly show that the Veteran has alleged some degree of impairment in her occupation and in various activities of daily living due to her tension headaches. However, the Veteran has never alleged that her headaches render her totally unable to secure or maintain substantially employment, and in fact, during her hearing it was made clear that it was not her intent to pursue a claim for a TDIU at this time. Under the circumstances, the Board does not find that the evidence expressly or implicitly raises a TDIU claim in this case. ORDER An increased disability rating of 50 percent for tension headaches is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs