Citation Nr: 1311632 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-37 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to September 10, 2012 and in excess of 30 percent thereafter for headaches secondary to a head injury. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from February 1951 to March 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2012. A transcript of that hearing has been associated with the claims file. The issue was remanded for further development in August 2012 to obtain VA treatment records and to afford the Veteran with a VA examination regarding the severity of his disability. The Veteran was afforded a VA examination in September 2012. The examiner provided the requested opinion. Additionally, all VA treatment records were associated with the claims file. A review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of information contained in the September 2012 VA examination, the Board notes a claim for TDIU has again been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). For the reasons explained below, the issue of entitlement to a TDIU is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. Prior to May 9, 2012, the Veteran's headaches did not manifest with characteristic prostrating attacks occurring on average once a month over several months. 2. From May 9, 2012, the Veteran's headaches manifested with very frequent completely prostrating and prolonged attacks. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to May 9, 2012 for headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). 2. The criteria for a rating of 50 percent from May 9, 2012 for headaches have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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 a claimant 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). The notice requirements of the VCAA require VA to notify a claimant 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; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). The record shows that through a VCAA letters dated in May 2009, July 2010, January 2011, and August 2011, the Veteran was informed of the information and evidence necessary to substantiate the claim for an increased rating. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. The Veteran was also advised of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was readjudicated in February 2013. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, private treatment records, and VA examination reports. No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded a hearing before a VLJ in which he presented oral argument in support of his increased rating claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing to fully explain the issues and to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the issue on appeal and focused on the elements necessary to substantiate the claim for increased benefits. Both the VLJ and the Veteran's representative asked specific questions directed at identifying the level of severity of the Veteran's disability. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran seeks an increased rating for his service-connected headaches as secondary to head trauma. This claim for an increased disability rating was submitted in March 2009. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's headaches are rated under Diagnostic Code 8100 for migraines. Under that regulation, migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. Migraines with characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraines with less frequent attacks warrant a noncompensable rating. 38 C.F.R. § 4.124a. Prior to September 10, 2012, the Veteran's headaches are rated at 10 percent disabling. A June 2009 neurological VA examination showed a report of daily headaches causing at least one emergency room visit within the last year. VA treatment records support this, showing one emergency room visit in June 2008, another emergency room visit in October 2008, and an additional emergency room visit in December 2009. At this December 2009 visit, the Veteran reported that he ran out of pain medications and needed pain relief. It was noted the pain medication had been on order, but not received. The Veteran noted that the headache is the same as all his other headaches with no new symptoms. He denied blurry vision, double vision, numbness, tingling, or weakness. The pharmacy confirmed that the Veteran's Vicodin had been released but not yet delivered to the Veteran. Delivery was expected the next day. The Veteran was given a one day supply of Vicodin. The October 2008 emergency department note also revealed the Veteran reported being out of medication as necessitating the visit. June 2008 emergency department note indicated the Veteran's headache was 10/10 rather than the usual 9/10. Stated he came to the emergency department hoping they could provide better pain control than the medication he was taking. The other VA treatment records show complaints of daily headaches and frequent headaches, not associated with chronic visual perception problems. The Veteran was afforded a VA examination to evaluate his headaches in July 2010. The examiner noted weekly headaches, but noted that the attacks are not prostrating, finding that ordinary activity is possible. Headaches normally last a matter of hours. The examiner noted no effects on the Veteran's usual occupation with no resulting work problem. He also found no additional affects on the Veteran's usual daily activities. The Board notes that this evidence does not show prostrating attacks occurring on an average once a month. Thus, a disability rating in excess of 10 percent is not warranted during the period prior to May 2012. The Board acknowledges that the Veteran stated in his May 2012 VA Form 9 and testified at his July 2012 Board hearing that his headaches are getting worse and require him to lay down on a daily basis. The Board notes that there is no contradictory evidence present between the May 9, 2012 statement and the September 2012 VA examination, which, as noted below, indicates that the attacks are daily and prostrating. Therefore, the Board finds that the Veteran's higher disability rating should be effective May 9, 2012 as his symptoms remained the same throughout that period. During the September 2012 examination, the Veteran was diagnosed with migraines, including migraine variants. The examiner noted chronic daily headaches on top and left parietal. He noted occasional occipital headaches that seem to go with his neck pain. The Veteran experiences constant head pain, pulsating or throbbing head pain, nausea, sensitivity to light, and sensitivity to sound. The examiner noted that the pain occurs most of the time and results in characteristic prostrating attacks of migraine headache pain more frequently than once per month. The examiner noted that the Veteran has very frequent prostrating and prolonged attacks of migraine headache pain. The examiner noted that the Veteran's headache condition impacts his ability to work by making him irritable, slowing him down, and causing him to sit or rest. Based on the evidence of record, and after resolving all doubt in the Veteran's favor, the Board finds that the Veteran's headaches more nearly approximate the criteria for a 50 percent rating from May 9, 2012. In this regard, the September 2012 VA examiner specifically noted the Veteran experienced very frequent prostrating and prolonged attacks of migraine headache pain. Therefore, the Board finds that a 50 percent disability rating is warranted for the Veteran's headaches from May 9, 2012. This is the maximum disability rating for migraines. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board has also considered whether the Veteran's headache disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, although the examiner noted the Veteran's headaches impact his ability to work, such factor is contemplated in the rating criteria, which considers severe economic inadaptability. The Board further notes that the Veteran has visited the emergency room for his headaches 3 times since 2008. However, the more recent visits were simply because the Veteran had run out of medication. In any event, periodic exacerbations in headaches are also contemplated by the rating criteria, which includes consideration of prostrating attacks of lesser frequency, such as those that would require infrequent emergency room visits. Accordingly, the disability picture for his service-connected headaches is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER Entitlement to a disability rating in excess of 10 percent prior to May 9, 2012 for headaches secondary to a head injury is denied. Entitlement to a disability rating of 50 percent effective May 9, 2012 for headaches secondary to a head injury is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND The Board notes that the Veteran filed a claim for a TDIU which was denied in a November 2011 rating decision. The Veteran did not appeal that decision. However, the September 2012 VA examination noted that the Veteran has not worked for an extended period of time and indicated that his headache disability impacted his ability to work. Such reasonably raises a claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that an appeal for higher rating includes a claim for TDIU, if reasonably raised by the record). In light of the above, the Board finds that remand of the issue of TDIU for development by the RO/AMC, to include providing VCAA notice and obtaining a medical opinion, is warranted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran VCAA notice concerning the claim for entitlement to a TDIU. 2. After the above has been completed, return the claims file to the VA examiner who conducted the September 2012 VA headache examination. Following review of the claims file, the examiner should provide an opinion as to whether the Veteran's service connected headaches render him unable to obtain or retain substantially gainful employment without regard to the Veteran's age or nonservice-connected disabilities. The examiner should explain the reasoning for the opinion provided. If the examiner determines that another examination is necessary, one should be scheduled. 3. After completion of the above and any other development deemed necessary, the RO/AMC should review the expanded record and determine if TDIU is warranted, to include on an extraschedular basis if necessary. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, which includes the pertinent laws concerning TDIU. An appropriate period for response should be provided. The case should thereafter be returned to the Board for appellate review, if otherwise in order. The Veteran 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 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). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs