Citation Nr: 1308842 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 07-09 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to increased initial ratings for the Veteran's service-connected migraine disability, rated as 10 percent disabling prior to October 20, 2010, and as 30 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Diliberto, Counsel INTRODUCTION The Veteran had active service from September 1989 to January 1990, from August 1990 to July 1991 and from February 2003 to February 2006. The record indicates that the Veteran also had additional unverified reserve component service. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In the appealed rating decision, service connection was granted and an initial rating was assigned. The Veteran appealed that rating and the case was referred to the Board for appellate review. The Veteran's claim first came before the Board in July 2010, at which time it was remanded for further development. The development requested in that remand has now been completed, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Following that remand the RO, in a November 2011 rating decision, granted entitlement to a 30 percent rating effective from October 20, 2010. However, because this is only a partial grant of the benefit sought on appeal for this issue, the matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence FINDINGS OF FACT 1. Prior to May 15, 2009, the evidence of record does not demonstrate that the Veteran's service-connected migraine disorder was manifested by characteristic prostrating attacks averaging a frequency no higher than one in two months. 2. Beginning on May 15, 2009, the evidence of record is in relative equipoise as to whether or not the Veteran's service-connected migraine disorder was manifested by characteristic prostrating attacks occurring an average of once a month. 3. At no point during the appeal period has the Veteran's service-connected migraine disorder been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. For the time period prior to May 15, 2009, the criteria for a disability rating in excess of 10 percent for a migraine disorder were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, 4.27, Diagnostic Code 8100 (2012). 2. The criteria for an initial disability rating of 30 percent for a migraine disorder were met beginning on May 15, 2009, but no criterion for an initial rating in excess of 30 percent has been met during the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, 4.27, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has claimed entitlement to increased rating for his service-connected migraine disorder. Essentially, the Veteran contends that the evaluations he has been assigned for this condition do not accurately reflect its severity. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected condition adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ranges. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinksi, 1 Vet. App. 589 (1991). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required by that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1. A claim of entitlement to an increased rating, which was partially granted during the course of the appeal but assigned an effective date subsequent to the date of receipt of the claim, includes that period on appeal prior to the staged grant; therefore the practice of "staged" ratings may apply. That is, separate ratings can be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. Ap. 119 (1999). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all findings specified. 38 C.F.R. § 4.21. The Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran first claimed entitlement to service connection for migraines in August 2005. In a May 2006 rating decision, the RO granted entitlement to service connection for that condition and assigned a 10 percent rating effective from February 11, 2006, the day after the Veteran's separation from service. The Veteran submitted a Notice of Disagreement (NOD) in February 2007. The RO issued a Statement of the Case (SOC) in March 2007 and the Veteran filed a Substantive Appeal (VA Form 9) later that month. The Veteran's claim first came before the Board in July 2010, at which time it was remanded for additional development. The requested development has been completed, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the RO granted entitlement to a 30 rating for the Veteran's migraines in a November 2011 rating decision, with an effective date of October 20, 2010. However, as this increase does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn his claim on that issue, it remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, there are two separate rating periods on appeal: the noncompensable rating assigned for the period prior to October 20, 2010, and the 30 percent rating assigned thereafter. The relevant evidence of record includes service treatment records, VA treatment records and VA examination reports. Service treatment records show that the Veteran suffered a head injury going through a windshield in a rollover motor vehicle accident. Records from April 2005 indicate that the Veteran reported having headaches once or twice a week since 1991. He stated that the headaches were not debilitating and were treated effectively with over-the-counter medication; the Veteran reported use of Motrin. The evaluating provider found that these headaches were non-prostrating. In September 2005, while still on active duty, the Veteran underwent a VA fee-based examination in support of his claim. During that examination the Veteran reported that he had recurring migraine headaches. He described them as a throbbing pain with photophobia. He stated that he is able to go to work while having an attack, but that he must use medication. He reported that the headaches average once every three days and last for approximately four hours. The examiner noted that the Veteran's condition did not result in any time lost from work. Post-service VA treatment records are largely silent regarding the Veteran's headaches. Treatment records from March 2006 do indicate that the Veteran complained of headaches. August 2006 VA and September 2006 VA outpatient treatment records reflect that the Veteran complained of muscle spasms in the neck and back. The Veteran reported that the spasms were causing headaches. He reported that he took Percocet and Flexeril for the muscles spasms, without much relief. However, the Veteran did not seek separate evaluation or treatment for the headaches, and did not report that the muscles spasms or the headaches were incapacitating. The Board finds that these records establish that the Veteran's headaches were not prostrating during this period. VA outpatient treatment records reflect that the Veteran was seen by a social worker, received VA dental treatment, received VA outpatient treatment for posttraumatic stress disorder (PTSD) and traumatic brain injury residuals (TBI) averaging twice monthly throughout the remainder of 2006, and at least monthly during 2007, with a week of intensive therapy in December 2007, but he did not report headaches or migraines to these providers, nor did he seek separate treatment or evaluation of headaches. The Board finds that this evidence establishes that the Veteran did not have prostrating headaches during this period. The Veteran underwent VA examinations of his shoulders, neck, and back in February 2008. He was asked several questions about pain, but did not report that neck, back or shoulder pain resulted in migraine headaches or prostrating headaches. In a VA psychological examination report from March 2009, the examiner observed that the Veteran had migraine headaches, without noting their severity or frequency. VA treatment records dated beginning May 15, 2009 indicate that the Veteran reported that his headaches were worsening. He sought evaluation of his back disability and his neck disability to determine whether those disorders were causing the increased headaches, and whether different treatment for those disorders could relieve his headaches. Several evaluations of the Veteran's complaints were undertaken in May 2009 and June 2009. Records from August 2009 show that the Veteran reported waking up with a headache and that his headaches were worsening. Records from June 2010 indicate that the Veteran reported having headaches 3 times per week. He described those headaches as feeling like his head is going to split open. He stated that over-the-counter Motrin provides some relief. Records from July 2010 include a diagnosis of migraine cephalgia. In October 2010, the Veteran was afforded an additional VA examination in support of his claim. During that examination the Veteran reported that his headaches began after his in-service motor vehicle accident. The Veteran described having three different types of headaches: migraine-like headaches with photosensitivity over global head distribution; stress headaches described as frontal lobe throbbing; sinus headaches with bilateral periorbital pain; and headaches related to his neck pain. He stated that his migraine headaches occur one to two times per month and last for two hours. He reported that his stress headaches occur three to four times per week and last for an hour with oral over-the-counter medication. He stated that his sinus headaches have been occurring daily over the last four months and were related to sinusitis. He stated that his neck-related headaches occur stated occur about once a week. The examiner who conducted the 2010 VA examination confirmed the diagnosis of chronic cephalgia and noted that the Veteran's headaches have a significant effect on his usual occupation due to decreased concentration and pain. The Veteran stated that this had resulted in increased absenteeism and being assigned different duties. The examiner found that the Veteran had characteristic prostrating attacks occurring on average once a month over the last several months based on the clinical history and recent interim history. In a November 2010 written statement the Veteran repeated his assertions that he has several different types of headaches. He reported that he has a headache at least twice a month that he believes is a migraine and that those headaches last about four hours. He stated that he is able to manage most of his daily duties, but that he sometimes works slower and has to take extra breaks. He reported that he has missed work about four or five times because of his headaches. The Veteran stated that, for the most part, he was able to manage his required activities, "but not with ease." This statement by the Veteran is unfavorable to a finding that the Veteran's headaches were completely prostrating with a frequency exceeding once monthly. The Veteran has also submitted several letters from his coworkers. In these letters, those individuals stated that they have observed the Veteran having headaches on a regular basis and that they restrict his ability to work, describing primarily the need to take more frequent or longer breaks. The Veteran's supervisor, TLW, stated that there were "times" when the Veteran had to leave work or not come in because of headaches. TLW did not state the frequency with which that had occurred. The Veteran's service-connected migraine disorder has been rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, migraines are evaluated as follows: a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over the last several months; a 10 percent rating is assigned when characteristic prostrating attacks average one in 2 months over the last several months; and, a noncompensable rating is assigned with less frequent attacks. After a thorough review of the entirety of the evidence of record, the Board has determined that the Veteran's service-connected migraines warrant a 30 percent rating starting on May 15, 2009. However, the Board finds that the Veteran's migraine disorder does not warrant a disability rating in excess of 10 percent for any time prior to May 15, 2009, and does not warrant a rating in excess of 30 percent for any time during the period on appeal. With regard to the period prior to May 15, 2009, the Board notes that the criteria for a rating in excess of 10 percent were not met. In particular, the rating criteria for the 10 percent rating requires evidence of prostrating attacks. The Veteran did not report time lost from work for headaches or migraine headaches, and he did not report that headaches prevented him from performing routine activities or required bed rest during this period. The rating criteria do not define "prostrating," nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (1999), in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack. By way of reference, 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. The Board expects that, if the Veteran had prostrating headaches more frequently than every two months, the headaches would have caused him to lose time from work or to seeks treatment, or to report an increase in symptoms to the treating providers. Without evidence of characteristic prostrating attacks occurring on average once a month over the last several months, there is no basis for a rating in excess of 10 percent for that period. In the absence of reports that headaches were prostrating, and in the absence of actions consistent with prostrating headaches, even with resolution of doubt in the Veteran's favor, the record establishes that the Veteran did not meet the criteria for a 30 percent evaluation during this period. With regard to the period beginning on May 15, 2009, the Board finds that, after weighing the entirety of the evidence and resolving all reasonable doubt in favor of the Veteran, the criteria for a rating of 30 percent have been met. VA treatment records from May 15, 2009, indicate that the Veteran's headaches were worsening. Although there is no explicit statement that Veteran's migraines had become prostrating, that evidence, combined the October 2010 VA opinion that the Veteran had prostrating attacks monthly, indicates that a 30 percent rating is warranted beginning on May 15, 2009. However, for the entirety of the appeal period the Board finds that there is no evidence to support a rating in excess of the 30 percent now assigned. In this regard, the Board observes that nothing in the record shows that the Veteran's migraines are "very frequent," that they are completely prostrating, or prolonged, or that they are productive of severe economic inadaptability. While the evidence does show that the Veteran has had some difficulty at work, there is no evidence that the limitations caused by headaches or time lost from headaches have resulted in severe economic inadapatability. In particular, at the time of the 2010 examination, the Veteran reported that he had lost four or five days of work due to headaches. While this evidence is considered to be in support of a 30 percent evaluation, that extent of time lost from work is not equivalent to "severe economic inadaptability" or "very frequent completely prostrating and prolonged attacks," so as to warrant or approximate a 50 percent evaluation. Moreover, the evidence indicates that any prostrating attacks are not prolonged, as the Veteran has stated that his migraines last between two and four hours. The Board acknowledges that the Veteran reported to the examiner who conducted the 2010 examination that he had prostrating headache attacks twice monthly. However, after conducting the examination, discussing with the Veteran the various types of headaches the Veteran had and the symptoms, the examiner concluded that headaches were prostrating an average of once monthly. While the Veteran is competent to report the frequency and severity of headaches, the examiner's opinion as to the frequency with which headaches are "prostrating" is more probative and persuasive than the Veteran's conclusion in his regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In exceptional cases, extraschedular ratings may be assigned. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). The Board has considered assignment of an extra-schedular evaluation but the record does not show that the Veteran's appealed disability, alone, has required frequent hospitalization, or that manifestations of that disability exceed those contemplated by the schedular criteria. In particular, the Board notes that some of the Veteran's headaches are attributed to and included within the criteria for evaluation of other disabilities for which he had been granted service connection, to include TBI residuals. The evidence does not demonstrate that the Veteran has manifested a symptom of his headache disability which is not included in the schedular criteria. The Veteran has asserted that he manifests any symptom of headaches which is not included in the schedular criteria. Therefore, assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In sum, the evidence indicates that the Veteran's migraines warrant a 30 percent rating beginning on May 15, 2009. Accordingly, a 30 percent rating is assigned beginning on May 15, 2009. However, the 10 percent rating evaluation assigned prior to that date and the 30 percent rating assigned after that date fully contemplate the symptoms shown based on the evidence in the claims file. The symptoms demonstrated do not more nearly approximate the criteria for higher ratings for those periods. Accordingly, the benefit-of-the-doubt doctrine does not apply and an increased rating must be denied for those periods. See 38 U.S.C.A. § 5107(b). Finally, the Board notes that pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability due to service-connected disability (TDIU) is considered part and parcel of an increased-rating claim when the issue of unemployability is raised by the record. In this case, the record reflects that the Veteran was employed at the time of the last VA examination of record, and he has not raised an assertion that he has become unemployed since that examination. Accordingly, further discussion of consideration of a TDIU, or referral of such a claim, is not warranted. Duty to Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The notification obligation in this case was met by way of a letter from the RO to the Veteran dated in August 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Veteran has been afforded several VA examinations during the pendency of the appeal. The reports from those examinations reflect that the examiners reviewed the Veteran's medical records, recorded his current complaints, conducted appropriate physical examinations and rendered diagnoses and opinions consistent with the remainder of the evidence of record and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). An additional examination is unnecessary, and the Board finds that the RO has satisfied the duty to notify and the duty to assist. Additionally, the Board notes that the Veteran has not raised an assertion that his headaches have increased in severity since the October 2010 VA examination, nor has the Veteran's representative raised such an assertion on his behalf. Thus, after a careful review of the file, the Board finds that all necessary development has been accomplished as to the claim addressed below. No further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran is not prejudiced by completion of appellate review. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Entitlement to an initial evaluation in excess of 10 percent for migraines for the period prior to May 15, 2009, is denied. Entitlement to a 30 percent initial evaluation for migraines, effective May 15, 2009, is granted, subject to the laws and regulations governing the payment of monetary benefits, but an evaluation in excess of 30 percent is denied. ____________________________________________ TRESA M. SCHLECHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs