Citation Nr: 1307853	
Decision Date: 03/08/13    Archive Date: 03/11/13

DOCKET NO. 07-27 361	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. Entitlement to an initial rating in excess of 30 percent for carpal tunnel syndrome of the right wrist.

2. Entitlement to an initial rating in excess of 20 percent for carpal tunnel syndrome of the left wrist.

3. Entitlement to an initial rating in excess of 50 percent for a migraine headache disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Finn, Counsel

INTRODUCTION

The Veteran served on active duty from August 1997 to December 2003. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in Columbia, South Carolina and Roanoke, Virginia. 

In July 2006, the RO in Columbia, South Carolina granted service connection for a migraine headache disorder, bilateral carpal tunnel syndrome, and a bilateral left flank scar and assigned a disability evaluation of 0 percent for each disorder. The RO also denied service connection for a low back disability, insomnia, and yeast infections.

In a May 2007 rating decision, the RO in Roanoke, Virginia granted an initial compensable disability rating of 10 percent for bilateral carpal tunnel syndrome, effective December 21, 2003. 

In an August 2009 rating decision, the RO granted a disability rating of 30 percent for a migraine headache disorder, effective June 18, 2009, and a disability rating of 10 percent for a left flank scar, effective June 18, 2009. In February 2011, the Board remanded the Veteran's claims for further development.

A September 2012 rating decision increased the disability rating for a migraine headache disorder to 50 percent disabling, effective December 21, 2003; increased the rating for carpal tunnel syndrome of the right wrist to 30 percent disabling, effective December 21, 2003; and increased the rating for carpal tunnel syndrome of the left wrist to 20 percent disabling, effective December 21, 2003. 

Applicable law mandates that when a Veteran seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). The Veteran's claims for an increased evaluation therefore remains on appeal.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDINGS OF FACT

1. The Veteran's carpal tunnel syndrome of the right wrist is not manifested by severe incomplete paralysis of the median nerve.

2. The Veteran's carpal tunnel syndrome of the left wrist is not manifested by severe incomplete paralysis of the median nerve.

3. The Veteran's migraine headaches have been assigned an initial 50 percent rating the maximum schedular rating authorized for this disability under VA's rating schedule; there is no indication that migraine headaches involve additional disability warranting evaluation under any different or separate diagnostic code(s); and, at no point pertinent to this appeal have migraine headaches been shown to be so exceptional or unusual as to render impractical the application of the regular schedular standards for rating the disability.


CONCLUSIONS OF LAW

1. The criteria for an evaluation greater than 30 percent for carpal tunnel syndrome of the right wrist are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8515 (2012). 

2. The criteria for an evaluation greater than 20 percent for carpal tunnel syndrome of the left wrist are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8515 (2012).

3. The criteria for a rating in excess of 50 percent for migraine headaches are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.124a, Diagnostic Code 8100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

Duties to Notify and Assist

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

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

The Veteran was provided VCAA notice in October 2004, June 2005, August 2005, January 2006, and March 2006 prior to the initial adjudication of her claims for a higher initial rating for bilateral carpal tunnel syndrome and a migraine headache disorder in a July 2006 rating decision. An additional VCAA letter was sent in May 2008. The letters indicated the types of evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain both her private and VA medical treatment records. The March 2006 VCAA letter explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006).

After awarding the Veteran service connection and assigning an initial disability rating, she filed a notice of disagreement (NOD) contesting the initial rating determinations. 38 C.F.R. § 3.159(b)(3). The RO furnished the Veteran a Statement of the Case (SOC) in May 2007 that addressed the initial ratings assigned, included notice of the criteria for a higher rating, and provided the Veteran with further opportunity to identify and submit additional information and/or argument, which the Veteran has done by perfecting her appeal. See 38 U.S.C.A. §§ 5103A, 5104(a), 7105 (West 2002).

The Veteran was afforded VA examinations in June 2009, July 2012 and in September 2012, an addendum was obtained. These examinations were thorough and adequate for the purposes of deciding these claims. The reports reflect that the examiner reviewed the Veteran's past medical history, recorded her current complaints, conducted an appropriate physical examination and rendered an appropriate diagnosis and opinion consistent with the evidence of record. Neither the Veteran nor her representative has raised questions about the adequacy of these examinations.

Further, the RO substantially complied with the February 2011 remand by conducting the necessary procedures to obtain all VA and Non-VA health treatment records and obtaining multiple VA examinations, which considered service treatment records (STRs), lay testimony, performed all indicated tests, and provided an opinion as to the current and past levels of disability.

All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes STRs, VA medical records, VA examination reports, and statements from the Veteran and her representative. The Veteran has not indicated that she has any further evidence to submit to VA, or which VA must obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran has been accorded ample opportunity to present evidence and argument in support of her appeal. All pertinent due process requirements have been met.

Higher Initial Ratings-In General

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012).

Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). 
Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of her disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Bilateral Carpal Tunnel Syndrome

The RO evaluated the Veteran's bilateral carpal tunnel syndrome as 30 percent disabling for the right wrist, and 20 percent disabling for the left pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8515, which addresses paralysis of the median nerve. The effective date for both ratings was December 21, 2003 - the effective date of the Veteran's separation from active service. Diagnostic Code 8515 addresses Paralysis of the Median Nerve. It provides the following levels of impairment and disability ratings: 

Complete; the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. Major - 70 percent Minor - 60 percent

Incomplete:

Severe Major - 50 percent Minor - 40 percent

Moderate Major - 30 percent Minor - 20 percent

Mild Major - 10 percent Minor - 10 percent

When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (Note preceding Diagnostic Code 8515 (2012).

Normal ranges of motion of the wrist are dorsiflexion (forward elevation) from 0 degrees to 70 degrees, palmar flexion (forward depression) from 0 degrees to 80 degrees, ulnar deviation from 0 degrees to 45 degrees, and radial deviation from 0 degrees to 20 degrees. 38 C.F.R. § 4.71, Plate I.

The Veteran is right handed and thus, her right upper extremity is considered the major extremity. 38 C.F.R. § 4.69 (2012).

A September 2002 STR noted hand pain for two weeks. Palms and back of hands had constant dull pain. Fingers ached and were numb and did not fully extend at times. She was diagnosed with carpal tunnel syndrome. In October 2002, she was given a brace to wear because of increased pain, tingling, and numbness. She was assessed with carpal tunnel syndrome, which was not then responding to splints or non-steroidal anti-inflammatory medications (NSAIDs). 

A February 2006 VA examination reflects that grip strength was 4+/5 bilaterally. She had negative Tinel's sign, positive Phalen's sign bilaterally and mild tenderness to deep palpation over the wrist. She had no sensory abnormalities noted with pinprick or light touch of either hand. She wore splints during the day. The Veteran did not report for scheduled x-rays, but was diagnosed with bilateral carpal tunnel syndrome. 

However, when the Veteran reported for rescheduled x-rays in May 2006, her right wrist was unremarkable and the left wrist was normal.

April 2007 and July 2009 VA treatment records reflect that the Veteran was referred to occupational therapy for numbness and tingling of both hands and decreased hand strength of the right hand. She reported pain, fatigue, weakness, and tingling. She reported that she was able to independently perform activities of daily living (ADLs). She was able to manipulate fasteners with no difficulty. She had difficulty opening jar and small bottles with right hand.

A June 2009 VA examination report reflects that the Veteran has a history of carpal tunnel syndrome for the previous 6 years. She reported tingling and numbness of the fingers and aching wrists with shooting pain to the elbows. She had these symptoms daily with any writing, typing, or gripping. Treatment consisted of Motrin, Naproxen, and physical therapy (PT). She stated that her carpal tunnel syndrome disrupted her daily performance and productivity as the pain hinders the ability to function normally on a day to day basis.

Upon physical examination, she was right hand dominant. Her range of motion for both wrists was dorsiflexion of 70 degrees with pain; palmar flexion of 80 degrees with pain; radial deviation of 20 degrees with pain; and ulnar deviation of 45 degrees with pain. Her joint function was additionally limited by pain following  repetitive use, but not fatigue, lack of endurance, and incoordination. She could tie her shoelaces, fasten buttons, and tear a piece of paper without difficulty. On examination of bilateral hand dexterity, the fingertips could approximate the proximal transverse crease of the palm. Her right and left hand strength was within normal limits. The measurement between tip of the thumb and the tip of the fingers for both hands with the thumb attempting to oppose the fingers were normal, the measurement between the tip of the thumb and the tip of the fingers was as follows: index finger 0 cm, long finger 0 cm, ring finger 0 cm, and little finger 0 cm. The neurological examination of the hands and wrists reflect a positive Phalen's sign with a Tinel's sign present. The effect of the disorder on usual occupation was assessed as numbness of hand while using the computer. She had no effects on daily activity.

In a July 2012 report (supplemented in September 2012 by confirmation that the examiner had reviewed the claims folder), the examiner noted that the Veteran used wrist splints at night. She again showed a positive Phalen's and Tinel's signs and her symptoms were slightly worse on the right. She complained of pain, weakness, and numbness. She reported moderate constant pain of the right and left upper extremity; severe intermittent pain of the right and left upper extremity, mild numbness, paresthesias, and/or dysesthesias of the upper extremity. 

However, on clinical examination, her elbow extension, elbow flexion, wrist extension, wrist flexion, grip, and pinch were noted to be of normal strength. Biceps and triceps deep tendon reflexes were normal. Sensory testing for light touch of the shoulder area, inner/outer forearm, and hand/fingers were normal. The Veteran had normal radial nerve (i.e., no paralysis). Median, musculocutaneous, circumflex, long thoracic, upper radicular, middle radicular group, low radicular group, and ulnar nerve were normal (i.e., no complete paralysis). Electromyography studies were performed and were normal. There were no other significant diagnostic test findings. 

The examiner stated that the Veteran had clinically moderate carpal tunnel syndrome and that she had frequent pain which was moderate in intensity. Symptoms were slightly worse on the right. There was no limitation of motion 
per se, but she had to reduce activity if pain worsened. There were no associated neurologic abnormalities. The level of disability was moderate.

The Veteran's principal assertion is that she has pain and difficulty opening household items such as jars and small bottles. She had numbness, tingling, and severe pain in both wrists. She wore a wrist brace. She has been fitted with an ergonomic workstation and voice activated software to accommodate with work. (See July 2007 Form 9 and Appellant's Brief dated December 2010).

The Veteran's disability picture approximates no more than moderate incomplete paralysis of the median nerve and that evaluations greater than 30 percent for the right wrist and 20 percent for the left wrist are not warranted. 

In making this determination, the Board has considered the July 2012 examiner's comments that the Veteran's carpal tunnel was clinically moderate. This is consistent with VA examinations. Objective evidence does not show difficulties with fine motor activities or grip. Range of motion of the index fingers and the longer fingers were all "normal." Range of motion of the ring and little finger was normal. Finally, range of motion of the thumbs and both wrists were normal. To the extent that the Veteran asserts she drops items or has pain, it does not support the proposition that the median nerve is so damaged that she is incapable of holding items - i.e., that she has complete paralysis as that term is defined in 38 C.F.R. § 4.124, Diagnostic Code 8515.

The Board has considered the Veteran's complaints but does not find the overall disability severe because she had no paralysis and elbow extension, elbow flexion, wrist extension, wrist flexion, grip, and pinch were normal strength. She could tie her shoelaces, fasten buttons, and tear a piece of paper without difficulty, albeit, she has difficulty opening jars.

Here, rating the disability under another diagnostic code, by analogy, is not appropriate. See 38 C.F.R. § 4.20 (2012). There is no indication that the Veteran's carpal tunnel syndrome involves additional disability warranting evaluation under any different or separate diagnostic code(s). Accordingly, there is no basis for assigning a higher rating under any provision of VA's rating schedule.

At no time during the appeal period has the Veteran's carpal tunnel syndrome been more than 30 percent disabling in the right wrist or more than 20 percent disabling in the left wrist and staged ratings are not warranted. See Fenderson.

There is no showing that, at any point since the effective date of the award of service connection, the Veteran's carpal tunnel syndrome has reflected so exceptional or so unusual a picture as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(2012).

There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) governing norms include marked interference with employment and frequent periods of hospitalizations). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116.

Here, the schedular criteria are adequate to rate the Veteran's carpal tunnel syndrome at all times pertinent to this appeal. Competent medical and lay evidence indicates that the Veteran's predominant subjective and objective symptoms consist of pain, weakness, and numbness. A comparison between the Veteran's symptoms and the criteria of the rating schedule (which provides for a 30 percent rating when there is evidence of severe incomplete paralysis for the major extremity and 20 percent rating for the minor extremity) indicates that the rating criteria reasonably describe her level of impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).  
The preponderance of the evidence is against the claims and there is no doubt to resolved. Consequently, the benefit sought on appeal is denied.


Migraine Headache Disorder

The Veteran's migraine headache disorder is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100 as 50 percent disabling, effective December 21, 2003. 
The diagnostic code provides for a maximum schedular rating of 50 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). As a higher rating is not assignable under this diagnostic code, a higher rating may be assigned only pursuant to an alternative diagnostic code, or on an extra-schedular basis.

STRs reflect diagnosis of and treatment for migraines. (See April 2000 Emergency Nursing Assessment/History). A March 2001 STR noted headaches once per day and a history of a migraine headache disorder. She took Midrid to relieve the pain. She also reported that her eyes were sensitive to light. She denied nausea. (See also April 2000 and May 2002 STRs). An April 2003 STR noted migraines with nausea for 4 hours and light sensitivity. She reported no vision problems or blurs. She stated that the headaches began from the temple and extended to the top of the head. She was diagnosed with a migraine headache disorder. 

A February 2006 VA examination reflects that the Veteran had migraines twice per month. They were alleviated with over-the-counter medication and rest. She had lost no work due to migraines. She denied weakness, fatigue, or functional loss, but had mild nausea. She responded well to Excedrin with her migraines improving within several hours. She reported that she had a normal computed tomography scan while in the military.

In a November 2006 NOD, the Veteran stated that she had migraine headaches several times a month and had to take sick leave from work. She takes Midrin for her migraine headaches. (See also April 2007 VA treatment record).

A March 2009 VA treatment record reflects that the Veteran was prescribed Zolmitriptan 5 mg for headaches.

A June 2009 VA examination reflects complaints of headaches described as pounding, throbbing, nausea, vomiting, and sensitivity to light. She experienced headaches on average of 6 times per month which lasted for 8 hours. The symptoms  were nausea, vomiting, dizziness, and loss of appetite. Her ability to perform daily functions during a flare-up was impaired. She was currently on Zomig. 

A July 2012 VA examination report noted that the Veteran's headaches occurred 8 to 10 times a month and more frequently during her menstrual periods. She had severe pain, nausea, dizziness, and blurred vision with photophobia and phonophobia. Her headaches could last up to 10 hours. Duration was less than a day and pain was on both sides of her head. The Veteran reported frequent prostrating headaches that required her to take medication approximately 4 times per month. The Veteran was again prescribed Zomig. 

A February 2011 MRI of the brain was normal. Her headache condition impacted her ability to work in that she took medication and had to leave work approximately 4 times per month. The examiner concluded that the Veteran had moderate level of disability due to a migraine headache disorder, which occurred 8 to 10 times a month with 4 prostrating attacks. He further stated that between 2004 and 2009 the Veteran had 3 to 4 migraines, 2 to 3 prostrating attacks. The examiner stated that the headaches resulted in a mild to moderate level of disability during that time period.

In a July 2007 Form 9, the Veteran stated that she had migraines 3 to 4 times per month that lasted for 8 hours continuously with residual effects for the next 4 hours. She also had nausea and vomiting because of her headaches. 

Migraine headache disorders are evaluated under a specific diagnostic code and rating the disability under another diagnostic code, by analogy, is not appropriate. See 38 C.F.R. § 4.20 (2012). There is no indication that the Veteran's migraine headaches involve additional disability warranting evaluation under any different or separate diagnostic code(s). Under the specified diagnostic code, the Veteran is in receipt of the maximum schedular rating for the entirety of the period since her discharge from active service and there is no basis for assigning a higher rating under any provision of VA's rating schedule.

There is no showing that, at any point since the effective date of the award of service connection, the Veteran's migraine headaches have reflected so exceptional or so unusual a picture as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(2012).

There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, supra. First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) governing norms include marked interference with employment and frequent periods of hospitalizations). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116.

Here, the schedular criteria are adequate to rate the Veteran's migraine headaches at all times pertinent to this appeal. Competent medical and lay evidence indicates that the Veteran's predominant subjective and objective symptoms consist of frequent headaches which have severely impacted her general functioning. A comparison between the Veteran's symptoms and the criteria of the rating schedule (which provides for a 50 percent rating when there is evidence of frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability) indicates that the rating criteria reasonably describe her level of impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, supra.

For the entire appeal period, the Veteran has been assigned the maximum schedular rating available for migraine headaches and that there is no circumstance under which a higher rating, to include on an extra-schedular basis, is warranted. See Fenderson, supra. Therefore, the claim for higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating for migraine headaches, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55-56.

ORDER

An initial rating in excess of 30 percent for carpal tunnel syndrome of the right wrist is denied.

An initial rating in excess of 20 percent for carpal tunnel syndrome of the left wrist is denied.

An initial rating in excess of 50 percent for a migraine headache disorder is denied.



______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs