Citation Nr: 1308444 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 08-26 409A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for migraine headaches. 2. Entitlement to an evaluation in excess of 10 percent for allergic rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which continued the noncompensable rating for allergic rhinitis and the 10 percent rating for migraine headaches. In April 2010, the RO awarded an increased rating for allergic rhinitis from noncompensable to 10 percent, effective January 30, 2006. As will be discussed below, the Veteran has withdrawn this claim from the appeal. In September 2012, the Veteran presented testimony before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Migraine headaches are manifested by symptoms that are analogous to characteristic prostrating attacks occurring on an average once a month over the last several months, but have not been by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. On September 13, 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant at the Board hearing that she wanted to withdraw the claim for increase for allergic rhinitis. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no higher, for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8100 (2012). 2. The criteria for withdrawal of the claim for an evaluation in excess of 10 percent for allergic rhinitis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify & Assist The Board must discuss whether VA has complied with its duties to notify and assist the Veteran in substantiating her claim for an increased rating for migraine headaches. In this respect, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 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 or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1) (2012). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court also made clear that such notice must inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In a claim for increase, VA must issue a generic notice that informs a Veteran of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has satisfied its VCAA duty to notify obligations with respect to the Veteran's claim for a higher rating for headaches. Prior to the June 2006 rating decision, the Veteran was provided with a letter in February 2006 that clearly notified the Veteran of the information and evidence needed to substantiate her increased rating claim. That letter, however, did not inform her of how VA determines the disability rating and effective date. The RO sent the Veteran a letter with that information in December 2008. The fact that this letter was sent after the rating decision on appeal does not prejudice the Veteran, as the RO readjudicated the claim after the December 2008 letter was went. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (issuance of fully compliant VCAA notification followed by readjudication of claim, such as in a statement of the case or supplemental statement of the case is sufficient to cure timing defect). With regard to the duty to assist, VA has obtained the VA treatment records from 2003 to 2012. The Veteran has not indicated having received any private medical treatment during the appeal period. VA has also provided the Veteran with multiple examinations during the appeal period. The VA examinations in this case are collectively adequate for rating purposes. The examiners interviewed the Veteran and prepared a written report that discussed the nature and severity of the Veteran's headaches. Accordingly, these examinations are sufficient so as to facilitate an informed assessment of the Veteran's headaches throughout the appeal period, and there is no duty to obtain yet another VA examination. See 38 C.F.R. §§ 3.327, 4.2 (2012). In September 2012, the Veteran was provided an opportunity to set forth her contentions during the hearing before the undersigned. In this regard, the Court has held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing to fulfill two duties: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at *3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). During the September 2012 hearing, the undersigned identified the issue on appeal as entitlement to an increased rating for migraine headaches. See hearing transcript on page 2. Information was solicited regarding the severity of the headaches, to include a particularized description of her symptoms and functional effects. Under Diagnostic Code 8100 for migraines, 38 C.F.R. § 4.124a, the appropriate rating is assigned based on the duration and prostrating effect of the headaches. Therefore, not only were the issues explained in terms of the scope of the claim for benefits, but the outstanding issues material to substantiating the claim were also fully explained. See Bryant, 23 Vet. App. at 497. The Veteran and her representative have not otherwise identified any other outstanding relevant evidence pertaining to her increased rating claim for headaches. In short, the Board finds that VA has satisfied its duties to notify and assist. Additional development efforts at this time would only result in unnecessary delay. Thus, the Board will proceed with adjudication of the appeal. II. Migraine Headaches The Veteran contends that her service-connected migraine headaches warrant an evaluation in excess of 10 percent. At the September 2012 hearing before the undersigned, the Veteran testified she had been suffering from migraine headaches since 1988. She reported she experienced migraines at least two to three times a week. She stated she was not on medication right now. The Veteran testified that when she would have a headache, she would have to lie down in a dark room with no noise. She described sometimes waking up and having a headache or suddenly feeling sharp pain in her temples. The Veteran stated she was a substitute teacher and noted she was working less now, which she stated was because of the headaches. She confirmed that it was affecting her productivity. She stated that at the hearing, she had a mild headache, which she rated as a level 6/10. The Veteran stated that when she would go lie down with a headache that there were times when she would have to lie down every day. She was asked how long she would lie down when her headaches were at a level 9 or 10. The Veteran testified that she would continue to lie down. She noted that at times, her daughter would call her son and they would take her to the emergency room. She stated she had two to three bad attacks per week. The Veteran noted she had days where she was pain free. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2012). Otherwise, the lower rating will be assigned. Id. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). As is the case here, where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 8100, a 30 percent rating is warranted for migraines (or headaches in this case, which is rated by analogy) with characteristic prostrating attacks occurring on an average once a month over last several months. 38 C.F.R. § 4.124a. A maximum 50 percent rating is warranted for migraines (or headaches) with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. As to the term "productive of economic inadaptability," such term could have either the meaning of "producing" or "capable of producing" economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). After having carefully reviewed the evidence of record, the Board finds that the Veteran's headaches more nearly approximate the criteria for a 30 percent rating. The VA treatment records, including VA examinations, show the Veteran complaining of headaches regularly. For example, at the April 2006 VA examination, the Veteran reported that she had headache attacks averaging two to three times per week and each attack would last for two days. She described the pain as unbearable. She reported that her ability to perform daily functions during flare-ups was impaired. In July 2006, the Veteran reported having increased headaches in the morning. In August 2006, she reported the headaches would occur one to two times per week with sharp pain in the temple. In November 2006, she reported having two the three headaches a week. In January 2007, the examiner described the Veteran's headaches as being stable. In September 2007, the Veteran reported her headaches were intermittent. In January 2008, the Veteran reported she had a headache that lasted 10 days. At a January 2009 VA examination, the Veteran reported she suffered from pain every day and had migraine headaches four to five times per week. In September 2009, the Veteran reported she would have dull headaches in the morning two to three times per week, although now that she was back in school, she would wake up with headaches four times per week. In April 2011, the Veteran reported she was not getting the headaches she used to get. In August 2011, she described heaving headaches one time per week, although this past week, her headaches had worsened. In December 2011, the Veteran reported that she had had a severe headaches three days ago. In February and June 2012, the Veteran reported having three or more headaches per week. Based on the review of the relevant examination reports, VA treatment records, and the Veteran's testimony, the Board finds that the service-connected migraine headaches satisfy the criteria contemplated by the 30 percent rating under Diagnostic Code 8100. The Veteran consistently reported weekly headaches; however, the number of headaches that are truly prostrating is less clear. The Veteran has reported being bedridden and having to go to the emergency room; however, the Board finds such report to be of questionable credibility. Of record are VA treatment records from 2003 to 2012, which show the Veteran was seen very regularly for headaches. At no time did the Veteran report having to go to the emergency room, which fact would have been relevant in her regular follow-up treatment for migraine headaches. The VA treatment records show the Veteran consistently reported having headaches frequently, but she did not report to any of the examiners that she was bedridden or had to lie down all day. Rather, she made those statements only in connection with her claim for increase, which includes the VA examinations conducted in connection with her claim. The Board accords the Veteran's statements while being treated for her migraine headaches more probative value than the statements she has made in connection with her claim, as statements made while seeking treatment tend to be more credible than statements made while seeking increased monetary benefits. See Fed.R.Evid. 803(4) (generally finding reliable statements for the purposes of medical diagnosis or treatment); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). However, giving the benefit of the doubt to the Veteran, the Board finds that the Veteran has sufficiently described characteristic and prostrating and occurring at least once a month. Her symptoms therefore more nearly approximate the next higher 30 percent rating. The next pertinent inquiry is whether the Veteran's symptoms have more nearly approximated the criteria for the next higher, 50 percent rating. After carefully reviewing the evidence of record, the Board finds that they do not. The 50 percent rating contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As indicated above, the Veteran has consistently described persistent weekly headaches. Even if the Board were to consider her headaches to be "very frequent," the evidence does not establish that these headaches are completely prostrating, prolonged, or productive of severe economic inadaptability. At the hearing, the Veteran testified that she was working as a substitute teacher and was working less because of the headaches. She also stated that her headaches had affected her productivity. However, the Veteran did not provide statements that working less or having her productivity affected had caused severe economic inadaptability. At no time in the VA treatment records throughout the appeal did the Veteran report to medical professionals that she was missing school (she was attending college during the appeal period) or missing work because of her headaches (she did not report prostrating headaches while being treated). The Board has considered the Veteran's reported symptoms as well as the documented medical evidence, and the credible evidence does not demonstrate prolonged completely prostrating attacks that are productive of severe economic inadaptability. Thus, throughout the entire appeal period, the Veteran's symptoms have not more nearly approximated the criteria for a 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). The Board has also considered whether staged ratings are appropriate in this case. See Hart v. Mansfield, 21 Vet. App. 505 (2007). However, at no time during the relevant appeal period has the service-connected migraine headaches disability more nearly met or nearly approximated the criteria for greater than a 30 percent rating under Diagnostic Code 8100. In addition, there is no evidence of distinct periods of time where the disability was of less severity than that contemplated by a 30 percent rating, and therefore, staged ratings are not for application in the instant case. The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor 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. Id. "[I]nitially, 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." Id. The Court provided that "if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. Turning to the threshold inquiry, the Board notes that the criteria of 38 C.F.R. § 4.124a expressly contemplate the occurrence of prostrating attacks from headaches. The Veteran's headaches are primary manifested by pain, sensitivity to noise and light, and are sometimes accompanied by vision problems. These headache symptoms were considered by the Board above when ascertaining whether the headache rose to the level of a "prostrating attack." Further, although the Veteran stated that the headaches caused her to miss more work, the rating criteria provide for a higher rating when those attacks are "prolonged" and "very frequent" and "productive of severe economic inadaptability." For the reasons stated above, the Board does not find that the severity of the Veteran's migraine headaches meet those criteria. Accordingly, the Board finds that his symptoms are indeed contemplated by the schedular criteria of Diagnostic Code 8100. As the rating criteria reasonably describe the Veteran's headache disability and symptomatology, the threshold factor for extraschedular consideration under step one of Thun has not been met. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). In addition, the Veteran has not asserted, and the evidence does not indicate that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected migraine headaches. In this case, the Veteran testified that she was working less hours as a substitute teacher because of the headaches. Despite any increased absenteeism, her headaches have not been shown to have resulted in any loss or inability to maintain gainful employment any time during the appeal period, and there is otherwise no indication that her employment is "marginal" as defined in 38 C.F.R. § 4.16(a). As such, the Board finds that it need not further address whether a total disability based on individual unemployability is established. See Rice v. Shinseki, 22 Vet. App. 447 (2009). III. Allergic Rhinitis The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant at the September 2012 hearing before the Board, informed the undersigned that she wanted to withdraw the issue of entitlement to an evaluation in excess of 10 percent for allergic rhinitis. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim for increase for allergic rhinitis, and it is dismissed. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a 30 percent rating for migraine headaches is granted, subject to the controlling regulations applicable to the payment of monetary benefits. The claim for entitlement to an evaluation in excess of 10 percent for allergic rhinitis is dismissed. ________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs