Citation Nr: 1308989 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 09-00 125A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased evaluation for cluster headaches, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty in the Navy from December 1992 to April 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Cleveland, Ohio. In that action, the RO awarded a 30 percent disability rating for cluster headaches and the appellant has appealed that action, asking that a higher rating be assigned. Although the Veteran's headaches have been shown to impact his employment he has remained employed throughout the rating period on appeal, with no lost time from work. Accordingly, a claim of total disability based on individual unemployability has not been raised by the record here. Rice v. Shinseki, 22 Vet. App. 447 (2009) FINDINGS OF FACT The appellant's headaches are productive of very frequent, prolonged and prostrating attacks, resulting in economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent rating, but no higher, for a headache disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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. 2010); 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. 38 C.F.R. § 3.159 (2012). VCAA notice 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), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). In this case, the record reflects that the appellant has been informed of the evidence he was to provide to VA and which evidence VA would attempt to obtain on his behalf. In this regard, the VA sent the appellant notice of the VCAA in May 2007, which explained the requirements of the VCAA and what the VA would do to assist the appellant. The VA informed the appellant that it would request records and other evidence, but that it was the appellant's responsibility to ensure that the VA received the records. The appellant was told that he should inform the VA of any additional records or evidence necessary for his claim involving an increased rating. In March 2006, the United States Court of Appeals for Veterans Claims, hereinafter the Court, issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) appellant status; 2) existence of a disability; (3) a connection between the appellant's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the appellant was provided with Dingess notice via the May 2007 VCAA letter concerning how disability ratings and effective dates are assigned. Because VCAA compliant notice has been provided, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). VA also fulfilled its duty to assist. In this instance, VA obtained the appellant's available medical treatment records, including requesting any treatment records from the facilities where the appellant had been treated, and those other records that the VA was made aware thereof. Given the foregoing, the Board finds that the RO has complied with the duty to procure the necessary medical and other records. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. In this respect, the record reflects that over the course of this appeal, the appellant has undergone examinations with respect to his headache disability. The results of those examinations have been included in the claims folder for review. These reports involved a review of the medical history and the results of any testing accomplished during those exams and provided sufficient information so the Board can render an informed determination. Therefore, the Board finds that these reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. Also, the appellant was given notice that the VA would help him obtain evidence but that it was up to him to inform the VA of that evidence. During the course of this appeal, the appellant has proffered documents and statements in support of his claim. It seems clear that the VA has given the appellant every opportunity to express his opinions with respect to the issue now before the Board and the VA has obtained all known documents that would substantiate the appellant's assertions. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2012) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2012) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.7 (2012) provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). While the evaluation of a service-connected disability requires a review of the appellant's medical history with regard to that disorder, the Court has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Id.; Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2 (2012). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, staged ratings must be considered. An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Throughout the rating period on appeal, the appellant has been assigned a 30 percent disability rating for cluster headaches. A noncompensable evaluation is warranted for migraine headaches with attacks less often than the frequency of attacks required for a 10 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 8100 (2012). A 10 percent evaluation requires characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation requires characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent evaluation requires very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. Part 4, Diagnostic Code 8100 (2012). After the appellant submitted his request for an increased evaluation in April 2007, he underwent a VA examination for headaches in June 2007. Prior to the examination, the appellant told the examiner that he was experiencing a headache "nearly every day." He claimed that the pain started in the left temple causing uncontrolled tearing in the left eye with pain. He also had pain around the left side of his head, and in his jaw and teeth on the left side. During a headache he became light sensitive and unbalanced on his feet. The headaches lasted anywhere from 30 minutes to four hours, and he felt fatigued and shaky, with hangover-like effects once they had ended. Although he did not have to leave work per se when he was experiencing a headache. However, he also intimated that his work was such that he could sit at his workstation and quietly wait for the headache to resolve. The examiner noted the appellant's history, to include the prescription of multiple medications for the treatment and control of the headaches. Objectively, the appellant's speech was clear. He had no aphasia and did not exhibit any signs of dysarthria. While the appellant was not suffering from tremors during the examination, he did state that after a headache occurred, he experienced tremors for a short period of time. Upon completion of the examination, the appellant was diagnosed with chronic, uncontrolled cluster headaches. Private medical records show treatment for headaches in 2007, 2008, and 2009. A review of those documents indicates that the appellant has been prescribed a host of medications for his headaches. Those records do not address the impact of the headaches on his ability to work. The appellant underwent another VA headaches examination in June 2012. He described the location and intensity of the headaches, stating that they would start in the left temporal region and then extend to the left side of head, with vice-like pressure on his head and a stabbing pain in the left eye. He further informed the examiner that he had headaches 25 out of 30 days a month. The examiner noted that the appellant did have prostrating attacks and that they occurred "more frequently than once per month." The VA examiner found that the appellant's headache disorder impacted his ability to work, as at least 10 times a month he had to leave his work station as a result of the intense head pain. He would typically be away from his work station for approximately 30 minutes to an hour. By that time, Excedrin would have reduced the intensity of the headache and he was able to return to performing his job. While the appellant had not missed days of work due to his headaches, his daily head pain did interfere with his ability to work effectively. The examiner further remarked that the appellant's chronic cluster headaches were not completely controlled or resolved with his current treatment. Numerous other treatment records have been associated with the claims folder, in connection with the appellant's claim that are consistent with the findings noted above and, at the very minimum, corroborate the appellant's account of severity, frequency, and the need of treatment. Moreover, the appellant's statements concerning the frequency of the headaches, the severity of the pain produced by the headaches, and the incapacity that he experiences are credible when compared to the medical evidence of record. The Board considers these statements credible and probative, and they are consistent and plausible with the other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); and Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). After considering the evidence of record, the Board finds that the criteria for a 50 percent evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012), have been approximated. The evidence dated within the claim period shows that the appellant reports having on average headaches five or six out of seven days each week. Because these headaches occur frequently, some lasting for long periods of time, and result in him having to stop working for periods of time, economic hardship has resulted. In other words, the headaches are productive of severe economic inadaptability. Throughout the appeal period, the appellant's headaches have occurred much more frequently than once per month. Comparing the reported twenty-five headaches per month, along with the time lost during each work day that the appellant must physically stop working so he can recover, it is clear that the criteria for the next-higher 50 percent rating are more nearly approximated. Even if all elements specified in the rating criteria are not shown, they need not be. 38 C.F.R. § 4.21 (2012). The Board must resolve any remaining doubt in favor of the appellant and find that the 50 percent criteria are more nearly approximated throughout the period of time covered by this claim. In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, supra. The veteran is thus entitled to a 50 percent disability rating for the entire period of time that is covered by his claim. After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002 & Supp. 2010). A 50 percent schedular rating for migraine headaches is granted. Concerning the appeal for a schedular rating in excess of 50 percent, Diagnostic Code 8100 does not offer an evaluation in excess of that amount. 38 C.F.R. Part 4 (2012). Moreover, there are no alternate diagnostic codes that would be appropriate for consideration on the facts of this case. The Board has also considered whether the appellant is entitled to an extraschedular evaluation for the disability discussed above. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, 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. See 38 C.F.R. § 3.321(b)(1) (2011). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether an appellant is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a appellant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the appellant's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected headaches is inadequate. A comparison between the level of severity and symptomatology of the appellant's disability with the established criteria found in the rating schedule for the condition shows that the rating criteria reasonably describes the appellant's disability level and symptomatology; as discussed above. The Board further observes that, even if the available schedular evaluation for the disability is inadequate, the appellant does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the appellant has required frequent hospitalizations for his headaches. Indeed, it does not appear from the record that he has been hospitalized at all for the disorder. Additionally, there is not shown to be evidence of marked interference with employment solely due to the disability. There is nothing in the record which suggests that the disorder markedly impacts his ability to perform a job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) (2012) is not warranted. ORDER Entitlement to a 50 percent disability rating for cluster headaches is granted, subject to the governing laws and regulations pertaining to the payment of monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs