Citation Nr: 1309494 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 03-05- 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for service-connected vascular headaches on an extraschedular basis. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to April 1988. This case originally came before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO). A March 2006 Board decision denied a rating in excess of 50 percent for service-connected headaches and a total disability rating based on individual unemployability due to service-connected disability. The March 2006 denial was vacated and remanded to the Board by the Court of Appeals for Veterans Claims (Court) in March 2007 based on a March 2007 Joint Motion For Remand (Joint Motion) because the Veteran's vocational rehabilitation records had not been obtained. The Board remanded this case in October 2007 to obtain the Veteran's vocational rehabilitation records. The case was subsequently remanded in September 2009 and March 2011 for additional development. It was most recently remanded to the RO in November 2011 for extraschedular consideration and in March 2012 for further evidentiary development. The Board has reviewed the file and finds that the requested development has been satisfactorily accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The current 50 percent evaluation is the highest schedular rating possible for the service-connected headaches. 2. The Veteran's service-connected headaches do not encompass symptoms outside the rating criteria and have not resulted in marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular scheme. 3. The most probative evidence shows that the Veteran is not precluded from performing all forms of substantially gainful employment solely as a result of his service connected headache disability. CONCLUSIONS OF LAW 1. The criteria for the assignment of an extraschedular rating for service-connected headaches have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4, to include §§ 3.321, 4.1, 4.2, 4.7, Diagnostic Code 8100 (2012). 2. The criteria for the assignment of a total disability rating based on individual unemployability due to service-connected disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In numerous letters, issued prior to and subsequent to the rating decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for an extraschedular rating and a total disability rating based on individual unemployability due to service-connected disability, as well as what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the need to advise VA of, or submit any further medical evidence relevant to, the claims. He was also advised of how disability ratings and effective dates are assigned. The Board finds that any deficiency with respect to the timing of the notice provided is harmless. The notice discussed above fully complied with the requirements of 38 U.S.C.A. § 5103, 5103A and 38 C.F.R. § 3.159, and the Veteran was fully informed of the evidence that was needed to support his claims. Moreover, following the notices, the RO readjudicated the appeal, most recently in the October 2012 supplemental statement of the case. Thus, the Board concludes that there is no prejudice to the Veteran due to any defect in the timing of the notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or a supplemental statement of the case is sufficient to cure a timing defect). Accordingly, the Board finds that the duty to notify provisions have been satisfactorily met, and the Veteran has not pointed out any specific deficiency to be corrected. Duty to Assist The information and evidence that have been associated with the claims file includes a formal finding that the Veteran's service treatment records, information pertaining to vocational rehabilitation, VA and private medical records, VA examination reports and opinions, a social and industrial survey report, a memorandum from VA's Direction of Compensation Service, and the Veteran's statements. An April 2011 VA opinion report reflects that the examiner reviewed the Veteran's past medical history, documented his current medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board therefore concludes that the April 2011 VA medical opinion is adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Additionally, the Veteran's file was referred to VA's Director of Compensation Service for consideration of the assignment of an extraschedular rating. Consequently, the Board finds that VA's duty to assist has also been met in this case. Analysis Extraschedular Rating for Headaches Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Ordinarily, VA's 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). 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) (2012). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service-connected headaches are currently rated 50 percent under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Diagnostic Code 8100 provides that a 50 percent rating is warranted for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As previously concluded, since the 50 percent evaluation is the highest rating possible under Diagnostic Code 8100, there is no basis for the assignment of a higher schedular rating. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must 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 Veteran'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 Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's file was referred to VA's Director of Compensation Service in August 2012. However, based on a review of the file, including the medical evidence and the Veteran's contentions, VA's Director of Compensation Service concluded that the Veteran's disability picture did not warrant the assignment of an extraschedular rating. The Board agrees. The rating criteria outlined in Diagnostic Code 8100 reasonably describe the Veteran's symptom type and frequency due to his service-connected headache disability (i.e., frequent prostrating and prolonged headaches); and the competent medical evidence did not demonstrate the presence of symptoms attributable to the headache disability that are not contemplated in the rating criteria. As outlined above, a 50 percent rating requires very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. The medical reports in the file comport with the symptoms reported and this level of disability due to headaches. Moreover, the most probative medical evidence (the April 2011 VA examination report and opinion and the memorandum from VA's Director of Compensation Service) shows the Veteran's service-connected headaches are not productive of marked interference with employment that would render the schedular rating impractical, i.e., interference in employment beyond that contemplated by the 50 percent rating assigned for the disability. The medical evidence in the file that suggests that the Veteran is not employable includes specific reference to non service-connected disabilities - notably, the PTSD and other psychiatric impairment that has been clearly attributed to the post-service injuries sustained when he was shot by a co-worker while employed with the United States Postal Service (and for which he has been awarded Workers' Compensation Benefits). For example, in a typed note, Elaine Thomopoulos, Ph.D., recommended that the Veteran not return to work due to nightmares, flashbacks, persistent insomnia, difficulty concentrating, fearfulness, and depression that resulted from his workplace incident. She also noted that his headaches had worsened since the incident and he now experienced them several days at a time. She did not provide any specific information to show that the Veteran's headaches were outside the norm or that interfered with his employability beyond that contemplated by the award of the maximum schedular rating available. As such, the Board has accorded it limited probative value. For these reasons, the Board concludes that the preponderance of the evidence is against the Veteran's claim for an extraschedular rating for the service-connected headaches. As such, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Individual Unemployability Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a service-connected disabilities: Provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2012). In reaching such a determination, the central inquiry is whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15 (2012). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2012). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a) (2012). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b) (2012). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran is service-connected for headaches, rated as 50 percent disabling. Thus, he did not meet the schedular criteria listed in 38 C.F.R. § 4.16(a) at any time during the rating period on appeal. However, consideration to such benefits on an extraschedular basis may be given. In such an instance, the question then becomes whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage") consistent with his education and occupational experience. Moore v. Derwinski, 1 Vet. App. 356 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes this case outside the norm. The sole fact that a claimant is unemployed, is employed only part-time, or has difficulty obtaining employment, is not enough. A rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board finds that the most probative evidence of record does not establish that the Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected headache disability. The evidence reflects that the Veteran has one year of college education. His employment history includes working as a supervisor with the post office, a clerk supervisor at a distribution center, and limited experience as a gardener. There is no indication that he has ever been awarded Social Security Administration disability benefits because of an inability to maintain employment. The evidence also reflects that he last worked on a full-time basis in 1996 and on a part-time basis in September 2001. He was involved in a shooting incident at the post office that occurred while he was working. Several VA examiners have offered opinions as to the Veteran's employability. On VA examination in September 2002, a VA physician opined that the Veteran was employable despite his headaches because he would be able to perform desk type work. Upon evaluation in November 2004, a different VA physician noted that the Veteran suffered from mild headaches and opined that the Veteran was fully employable as he was able to perform desk type work. A VA social worker concluded in November 2004 that the Veteran suffered from significant industrial inadaptability due to headaches and non-service connected PTSD and depression which had resulted from the work-related shooting incident. The social worker did not conclude that the service connected headaches alone caused unemployability. In fact, the social worker noted that the Veteran's daily routine included caring for his children, working out twice a week, and performing his own household chores. A statement from the Veteran's girlfriend indicated that he suffered from severe headaches to include two occasions in just over a year when he was incapacitated by headaches. This lay statement is congruent with opinions offered by VA physicians as it demonstrates the presence of severe chronic headaches that interfere with but do not preclude employment. The Veteran's rather extensive VA outpatient records almost exclusively concern treatment for non-service connected psychiatric disability, which resulted from the work-related shooting incident. These records, therefore, underscore and support the opinions provided by VA physicians that the Veteran was not unemployable due to his service-connected headaches and he would be able to perform desk type employment that was consistent with his work history. The Veteran's vocational rehabilitation and education file showed that he was active in training in 2002 but that his case was discontinued in September 2004. Records from the Employment Standards Administration Office of Workers' Compensation Programs indicate that the Veteran was injured in August 1995 when he witnessed a workplace shooting incident. He had PTSD as a result of the incident which was noted to cause significant impairment in his ability maintain employment. In an August 2002 assessment, Richard S. Abrams, M.D., concluded that the Veteran was not able to return to employment at that time due to his PTSD that resulted from the work-place shooting incident, but he believed that he could return in approximately three months time with appropriate treatment and therapy. Private treatment and counseling records from Diversified Behavioral Services, Inc., dated in 2005 through 2007 reflect that the Veteran was treated for PTSD that stemmed from a violent work-related shooting event. His symptoms were reported to be unremitting despite medication and included nightmares, flashbacks, headaches, insomnia, anxiety and depression. These symptoms caused him to be unable to work or function under ordinary circumstances. In an April 2010 examination and opinion, a VA physician stated that if the Veteran's work put him at risk for migraines, it would interfere with his work-related activities. The Veteran's file was reviewed in conjunction with the report. In a follow-up statement dated in April 2011, the physician remarked that it was less likely that the Veteran's service-connected headaches solely would impair him in his ability to secure or maintain substantially gainful employment. The Veteran's file was referred to VA's Director of Compensation Service in August 2012. Based on a review of the file, including the medical evidence and the Veteran's contentions, VA's Director of Compensation Service concluded that the Veteran's disability picture did not warrant the assignment of a total disability rating based on individual unemployability due to service-connected disability on an extraschedular basis because the evidence did not demonstrate that the Veteran was unable to secure and maintain substantial employment solely as a result of his service-connected headaches. In view of the foregoing, to the extent that his service-connected headache disability causes occupational impairment, the Board finds that the Veteran is appropriately compensated by the current, maximum rating of 50 percent; and his situation does not present such an exceptional or unusual disability picture as to warrant entitlement to a total disability rating based on individual unemployability due to service-connected disability on an extraschedular basis. The medical reports and evaluations discussed above, conclude that the Veteran's inability to maintain employment stems from PTSD and other impairments that resulted from the work-place shooting incident and for which he receives Workers' Compensation benefits. It has not been demonstrated by the competent medical evidence of record that the Veteran is unable to engage in substantially gainful employment solely as a result of his service-connected headaches. As such, the record fails to demonstrate the presence of some factor that takes this case outside the norm - which is required for the award of a total disability rating based on individual unemployability due to service-connected disability on an extraschedular basis. The Board is aware of the Veteran's contentions that he cannot work due to his service-connected disability. The Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for VA benefits. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that the competent clinical evidence of record that shows that the Veteran's service-connected disability does not prevent him from performing sedentary employment, outweigh his assertions, particularly in light of the fact that he had a serious work-place injury that resulted in significant psychological impairment and that he only stopped working after this incident. He was able to work despite his service-connected headache disability for many years - and his unemployability resulted directly from a separate intercurrent injury for which he is being compensated. For the reasons stated above, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a total disability rating based on individual unemployability due to service-connected disability, including on an extraschedular basis, and, as such, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to an extraschedular rating for service-connected headaches is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability is denied. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs