Citation Nr: 1308940 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 04-28 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an extraschedular evaluation in excess of 50 percent for migraine headaches. 2. Entitlement to a total disability evaluation based upon individual unemployability (TDIU) due to service-connected disabilities prior to June 4, 2012. REPRESENTATION Appellant represented by: Naomi E. Farve, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from September 1982 to October 1986, October 1989 to March 1990, April 1990 to September 1990 and a period of active duty for training (ACDUTRA) from July 20, 1992, to July 31, 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before the Board at an August 2005 hearing conducted at the RO. A transcript of the hearing is of record. This case was brought before the Board in June 2012, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of her claim. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. Following the June 2012 Board remand, the Veteran was awarded TDIU effective June 4, 2012. See December 2012 rating decision. For the reasons discussed below, the issue of entitlement to TDIU prior to June 4, 2012, remains in appellate status. This issue is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The Veteran's migraine headache disability by itself does not result in marked interference with employment or frequent hospitalization; manifestations of the disability, including severe economic inadaptability, are contemplated by the applicable schedular rating criteria. CONCLUSION OF LAW The criteria for an evaluation greater than 50 percent on an extraschedular basis for migraine headaches have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 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). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through a number of letters sent to the appellant in June 2004, March and September 2009, February 2010 and June 2012 that fully addressed all notice elements. These letters informed the appellant of what evidence was required to substantiate her claim, and of the appellant's and VA's respective duties for obtaining evidence. The appellant been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained, as have partial records from the National Personnel Records Center (NPRC) regarding the Veteran's federal civilian employment. While these records appear to be incomplete, VA made several attempts to obtain these records, and has determined that additional attempts would be futile. The Veteran was notified of VA's inability to obtain these records, and has been requested to submit any additional records she may have in her possession. She has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations in July 2004, April 2010 and August 2012 to address the severity of her migraine headaches. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). These VA examinations are adequate for the purposes of evaluating the Veteran's disability, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, the instant claim was previously remanded by the Board in June 2012. Specifically, the Board instructed that the Veteran be requested to submit any records in her possession related to her civilian employment, that she be provided a VA examination to address the severity of her migraine headaches, and that her claim be forwarded for extraschedular consideration. Each of these actions have been accomplished. As such, there has been substantial compliance with the prior remand, and adjudication of the Veteran's claim may proceed. See generally Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis The Veteran asserts entitlement to an evaluation in excess of 50 percent for her service-connected migraine headaches. Initially, the Board observes that, at 50 percent, the Veteran's migraine headaches have been awarded the maximum schedular evaluation possible under applicable rating criteria. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). However, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization so as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). VA, to include the Board, cannot assign an evaluation on an extraschedular basis in the first instance. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). However, VA, to include the Board, may decide the propriety of an extraschedular evaluation if VA's Under Secretary for Benefits or Director of Compensation and Pension (C&P) Service reaches a negative determination. Floyd, 9 Vet. App. at 88; see also Anderson v. Shinseki, 22 Vet. App. 423 (2009). In the June 2012 remand, the Board instructed that the Veteran's claim be forwarded to the Director of VA's C&P Service for consideration of an extraschedular evaluation. Following a review of the claims file, including the Veteran's pertinent medical history and multiple VA examination reports, the Director of C&P Service determined that an extraschedular evaluation is not warranted. Given this threshold determination, the Board may now properly consider entitlement to an extraschedular evaluation on the merits. The Board must consider all of the pertinent medical evidence as well as the Veteran's individual circumstances in the determination of whether an extraschedular rating is warranted. In considering the medical evidence of record, the Board observes the Veteran's reports of headaches are somewhat varied over the course of the appeal. For example, at an October 2003 VA annual physical, the Veteran did not complain of headaches, though she also did not specifically deny them. At a July 2004 VA examination, she reported throbbing and severe headaches five to seven days per week, with associated nausea, vomiting, photophobia and photophobia. Likewise, an August 2004 VA treatment note indicates the Veteran reported headaches four to five times per week, starting in the back of the neck and radiating to the bilateral temples. In September 2008, the Veteran denied headaches. At a July 2010 VA examination, she reported headaches approximately once per week, lasting two to three days. Effects of these headaches were reported to be memory loss, decreased concentration, inappropriate behavior, poor social interactions, vision difficulty, weakness and pain. A November 2010 VA treatment record notes the Veteran reported a headache once per week. Likewise, a February 2012 VA treatment record notes the Veteran reported weekly headaches. Finally, an August 2012 VA examination indicates the Veteran reported nearly constant headaches, with pain of 7/10, and completely prostrating headaches occurring three to four times per week. The pain occurred on both sides of the head and worsened with physical activity, and resulted in symptoms of nausea, vomiting, sensitivity to light and sound, and changes in vision. The VA examiner noted the Veteran was on VA disability for her migraines and back disability, and that the Veteran reported she could not work, drive a car or see at times due to headaches. The Board has also considered the Veteran's employment history in evaluating whether an extraschedular evaluation is warranted. In this regard, the Board observes the Veteran retired from federal civilian service in September 1996 due to medical disability; however, the type of disability was not specified. In an April 1996 RO hearing, the Veteran testified being tardy and missing days at work due to her headaches, reporting experiencing migraine headaches on average once per week. At the time of filing the instant claim in October 2004, the Veteran was not employed. However, she was pursuing an Associate's degree at Delgato Community College, successfully completing courses in the spring and fall 2005 semesters. VA vocational rehabilitation records indicate the Veteran began to receive employment assistance in approximately February 2005. She was accepted into a six-month training program at the New Orleans East Job Center. However, the Veteran did not complete this program, as she and her husband instead established a private personal health care business. A September 2005 Job Ready Assessment finds the Veteran was able to be punctual and was medically stable to participate in job search activities and retain employment. A November 2005 vocational rehabilitation record finds the Veteran was job-ready. In December 2005, the Veteran had obtained a position as an office manager with Smart Financial Intax Services. However, by February 2006, the Veteran indicated that she did not like this job, and wanted to open her own child daycare business. In March 2006, the Veteran reported that she was still employed as an office manager, as she was unsuccessful in setting up a childcare business. At this time, she reported having some personal difficulties, including health problems, which were affecting her job performance. A September 2006 vocational rehabilitation record indicates that, while the Veteran initially thought she needed a job right away after relocating from New Orleans to Atlanta, her ties to New Orleans, including issues with friends and family remaining in New Orleans, demanded too much of her attention and time to allow her to seek employment. At this time, the Veteran's VA vocational rehabilitation case was closed. The Veteran's employment history after September 2006 is somewhat unclear. For example, an April 2010 VA examination indicates the Veteran was then unemployed, though it appears she reported not having worked since September 1996. However, in conjunction with an August 2012 mental health examination, the Veteran reported that she and her daughter had opened a personal care agency in 2008, which she had to close in October 2011 due to new state regulations and an inability to make a profit. It is unclear from the record how long the Veteran's business had been in operation or what role she played in setting up and operating the business. Ultimately, the Board must determine whether the Veteran's migraine headache disability 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). As noted, the Board observes the Veteran has been assigned the maximum schedular evaluation for migraine headaches of 50 percent, which contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. As discussed above, the Veteran has reported headaches in varying frequency, from once per week to as many as five to seven per week. The Board acknowledges the Veteran's reported headaches affect her ability to work, resulting in increased tardiness and absenteeism. However, the Board again observes the schedular criteria contemplates "severe economic inadaptability" as a result of frequent prostrating headaches. Further, the Board notes the record indicates the Veteran successfully attended community college during the course of the instant appeal. While she did not complete a training program nor maintain employment as an office manager, the record does not support a finding that such inability to maintain employment was due solely to her migraine headaches. In this regard, the Veteran did not complete the training program because she set up her own business, and appears to have quit her position as an office manager due to forced relocation from Hurricane Katrina. Records indicate she did not seek employment after relocation, at least in part, due to issues with friends and family who remained in New Orleans. Finally, later records indicate the Veteran again established a private business, recently closing it due to changes in regulations and an inability to make a profit. As a final note, to the extent the August 2012 VA examination report indicates the Veteran "could not work" due to her headaches, the Board observes this is a recitation of the Veteran's report of unemployability. Further, records indicate the Veteran is unemployed due to not only her migraine headaches, but also her service-connected lumbar spine disability with associated radiculopathy, and depressive disorder. To this point, the Board observes the Veteran has been awarded a total disability evaluation based on individual unemployability (TDIU). See December 2012 rating decision. Based on the evidence in its entirety, the Board in its capacity as a finder of fact finds that the manifestations of the Veteran's migraine headache disability are adequately contemplated by the applicable rating criteria. See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("[f]act-finding in veterans cases is to be done by the expert BVA [Board]..."). The diagnostic criteria discussed above consider the Veteran's subjective complaints of very frequent, completely prostrating and prolonged headaches. Further, the schedular criteria specifically contemplates that such symptomatology would result in "severe economic inadaptability." See 38 C.F.R. § 4.124a, Diagnostic Code 8100. As such, the Board has determined that an extraschedular evaluation pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER An extraschedular evaluation in excess of 50 percent for migraine headaches is denied. REMAND In the June 2012 remand, the Board noted that the issue of entitlement to TDIU had been raised by the record and determined the issue was properly before the Board for appellate consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim for TDIU is part of an increased rating claim when such claim is raised by the record). Following the June 2012 remand, the AOJ issued a December 2012 rating decision awarding TDIU benefits as of June 4, 2012, the date the Board remand was issued. This decision represents a full grant of benefit sought as of June 4, 2012, resolving the Veteran's appeal as of this date. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In reviewing the December 2012 rating decision, it appears the AOJ assigned an effective date of June 4, 2012, based on a determination that the date the Board remand was issued represents the date on which the issue of TDIU was first raised. However, such a determination is incorrect. As previously noted by the Board, a claim for TDIU benefits is part of an increased rating claim when the appellant (or the record) raises the issue of TDIU. See Rice, 22 Vet. App. 447. As the Veteran's claim for an increased evaluation was received on May 13, 2004, and the issue of entitlement to TDIU has been raised by the record, pursuant to Rice, the Veteran's claim for TDIU benefits must be considered as of one year earlier than this date. In this regard, it should be noted that VA regulations allow for the assignment of an increased rating up to one year prior to the receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. See e.g., 38 C.F.R. §§ 3.157, 3.400(o)(2) (2012). Considering whether TDIU benefits are warranted prior to June 4, 2012, the Board observes the record is unclear regarding the Veteran's employment during this timeframe. In particular, she reported at an August 2012 VA psychiatric examination that she and her daughter had owned and operated a personal care agency, which she continued to operate until approximately October 2011. Despite being requested in June 2012 to complete and submit an application for increased compensation based on unemployability, which in pertinent part solicits the Veteran's employment history, to date the Veteran has not submitted this form. Given the unclear record, a remand is necessary to further develop the Veteran's claim prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran VA Form 21-8940 and request she provide details regarding her employment history, in particular for the period from May 2003 to June 2012. An appropriate period of time should be allowed for response. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim for entitlement to TDIU prior to June 4, 2012, based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court (Continued On Next Page) of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs