Citation Nr: 1312078 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 06-37 098A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Entitlement to increased disability ratings for migraine headaches, currently assigned "staged" ratings of 0 percent prior to December 19, 2006, and 30 percent from that date. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to December 1983 and from October 1986 to June 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Baltimore, Maryland RO which, in pertinent part, continued a noncompensable evaluation for migraine headaches. In January 2010, a Decision Review Officer decision granted a 30 percent rating for migraine headaches effective December 19, 2006. In April 2011 and August 2012, the Board remanded the matter for additional development. The requested actions have been completed, and the case is now ready for appellate review. FINDING OF FACT 1. Prior to December 19, 2006, the Veteran's service-connected migraine headaches are not shown to be manifested by characteristic prostrating attacks averaging one in 2 months over a period of several months. 2. From December 19, 2006, the Veteran's service-connected migraine headaches are not shown to be manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for entitlement to increased disability ratings from those currently assigned for the Veteran's service-connected migraine headache disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code (Code) 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. An April 2004 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A March 2006 letter also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in December 2005, October 2011, and September 2012, which will be discussed in greater detail below, though the Board finds these examinations to be adequate as they included both a review of the Veteran's history and a physical examination that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Veteran's migraine headache disability is rated under Code 8100. 38 C.F.R. § 4.124a. Under the Schedule of Ratings for neurological conditions and convulsive disorders, a noncompensable evaluation is warranted for migraine headaches with less frequent attacks. A 10 percent evaluation is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent evaluation is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran's claim seeking an increased rating for his migraine headache disability was received in April 2004. The relevant period for appeal is therefore from April 2003. There is no medical evidence available for this disability from April 2003 to May 2004. On May 2004 emergency room treatment, the Veteran complained of a typical migraine headache, left-sided, with extension to the left neck into the top of the shoulder. He also reported sensitivity to light and nausea without vomiting. He denied any fever, chills, or recent infection. The past medical history was noted to include migraines. The Veteran was prescribed Oxycodone and discharged after three hours. On December 2005 VA examination, the Veteran reported having mild headaches on a daily basis. He reported that he would then develop clusters of severe headaches occurring roughly every six months and lasting for about three weeks, occurring daily and lasting for the better part of every day. He denied any aura symptoms. The headaches were frontal, usually unilateral but occasionally bilateral. He described the pain as like a truck resting on his head. He reported tearing in his eyes and runny nose on the side of the headache, as well as photophobia, nausea, vomiting, and phonophobia. He described the severity of the headaches as 10/10, frequently awakening him from sleep in the middle of the night. He had used Demerol in the past with some relief, and he took Imitrex at home with good results. He had also used Excedrin Migraine with somewhat lessened effect. He had 3 to 4 emergency room visits in the previous year when Imitrex was insufficient treatment at home. He had never tried prophylactic medication, and he had not seen a neurologist recently about his headaches. He reported being completely debilitated during this three week period of headaches. He reported being unable to work and he did little by way of outside activities. On physical examination, a neurological examination was largely normal, with the cranial nerves intact. The diagnoses included migraine headaches, though the examiner noted that the Veteran's description was more consistent with cluster headaches. On June 2008 emergency room treatment, the Veteran complained of right sided frontal migraine headache pain for three days. He denied any symptoms of aura, photophobia, nausea or vomiting. He was prescribed Toradol and then left without talking further to medical personnel. On later June 2008 treatment, the Veteran complained of migraine headaches for the previous three weeks. He stated that he had had a chronic headache that had not gone away, describing the pain as sharp and tension-like over the right frontal area. He reported nausea and vomiting with intermittent photophobia. He had tried multiple medications that had not helped. It was noted that he was seen at a private hospital multiple times, and a CT or MRI scan of his head was negative. He had been started on Toradol which decreased, but did not alleviate, the pain, although he was no longer able to take the medication due to vomiting. He had taken approximately 30 tablets of various main medications in the previous few days. A new CT scan of the head was unremarkable. The assessments included acute exacerbation of migraine headache with possible component of analgesic rebound headache. The headache pain resolved with treatment by that same evening. On June 2009 treatment, the Veteran complained of headaches, often migraine in type, which had resulted in numerous visits to the emergency room. The diagnoses included headaches largely migraine but with a component of cervical disc disease. The treating physician opined that the Veteran's significant cervical disc disease is a contributing factor to his rather disabling migraine type headaches, as they have a vascular component and were probably initiated by and aggravated by his underlying cervical stenosis. The Veteran submitted a weekly headache log from January 2008 through August 2009, documenting the frequency and severity of his headaches. The reports indicate headaches an average of once to twice per week, lasting anywhere from 1.5 hours to 8 hours, and on rare occasion up to 2 days. The Veteran took medications including Demerol, Imitrex, Toradol, Zomig, and Excedrin, with little to no relief. At an August 2009 Decision Review Officer hearing, the Veteran testified that he had last sought hospital treatment for his migraines in July 2008; at that time, he was given shots of Toradol and prescribed Demerol. He testified that he had tried Imitrex and a nasal treatment, neither of which worked well to relieve the migraines. He testified that he could have migraines wake him up from being asleep and come full force. He testified that the migraines were incapacitating and included symptoms of vomiting and noise and light sensitivity. He testified that the symptoms occurred almost daily. Based on these results, a January 2010 rating decision granted a 30 percent rating from December 19, 2006, the date of receipt of the Veteran's VA Form 9 substantive appeal, finding that no objective medical evidence of record prior to that date demonstrated that the Veteran's migraine headaches met the criteria for a higher evaluation. In April 2011, the Board remanded the matter to afford the Veteran a new VA examination and to obtain updated VA treatment records. On October 2011 VA examination, the Veteran reported that in the previous year he had experienced headaches on an "almost daily" basis. He described the headaches as severe and incapacitating about 2 to 3 times a week, associated with dizziness, nausea, blurred vision, photophobia, and phonophobia. He also indicated that less than half of the attacks were prostrating. Regarding employment, the Veteran reported that he had lost 5 weeks of work in the previous 12 months due to his migraine headaches disability. In an August 2012 remand, the Board noted the findings on October 2011 examination yet found that no corroborating evidence had been presented from the Veteran's employer regarding the amount of time lost from work due to the migraines. The Board found the October 2011 examination to be inadequate. The Board also noted that the Veteran had previously submitted a statement dated in March 2010 in which he attributed his lost time at work to a cervical spine disability, rather than to his headaches. The Board remanded the matter to obtain information from the Veteran's employer reflecting time lost due solely to the migraine disability, to secure updated VA treatment records, and to afford the Veteran a new VA examination. On September 2012 VA examination, the Veteran's diagnosis was migraine including migraine variants. The examiner noted that, earlier in the Veteran's experience with headaches, they occurred twice weekly, and over time they had increased in frequency; they had occurred nearly daily for about three years. He had both hospital admissions and emergency room visits for migraine treatment. He reported that the migraines tended to awaken him from sleep and caused him to take abortive treatment such as Sumatriptan, Tramadol, or Promethazine. He was taking Topiramate as a prophylactic drug, his first such medication, and it did not seem to be helping. The Veteran reported that he had lost approximately 1.5 weeks of work time in the past year due to headaches; he felt that his work efficiency had diminished due to his headache problem but he had not received a poor performance report. The reported symptoms included pulsating or throbbing head pain, pain localized to one side of the head, nausea, vomiting, sensitivity to light, and change in vision (such as scotoma, flashes of light, or tunnel vision). The typical head pain lasted for less than one day and would typically occur on one side of the head or the other. The examiner noted characteristic prostrating attacks of migraine headache pain occurring more frequently than once per month, including very frequent prostrating and prolonged attacks of migraine headache pain. CAT scan and MRI scan of the brain were both normal, as were EEG, carotid Doppler, and transcranial Doppler. Regarding functional impact, the examiner opined that the Veteran's headache condition impacted his ability to work by causing him to be less efficient. The examiner further opined that the Veteran's migraines are "aggressive in nature" and are "prostrating" in that they cause him to lose time from work, leave work early or not be functional at various times during the day. VA treatment records through September 2012 reflect largely similar symptomatology as reflected above. The Veteran submitted a VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits signed in September 2012 by his supervisor, indicating the time lost during the preceding 12 months of employment due to disability as "132". The supervisor also noted as a concession made to the employee by reason of disability that the Veteran "has also utilized Annual and Compensatory Leave for his absence or either when Sick Leave had been exhausted." The form reflected that the Veteran remained employed. The Board notes the Veteran's representative's contention that it is unclear whether the Veteran's employer intended to state 132 hours or 132 days lost from work over the previous year. The representative asserted that the matter should be remanded for clarification. However, the Board also notes the Veteran's self report on September 2012 VA examination that he had lost approximately 1.5 weeks of work time in the past year due to headaches. Given that the VA Form 21-4192 indicated the Veteran's work schedule as 8 hours per day and 40 hours per week, it is quite clear that the "132" refers to hours lost, for a total of just over 3 work weeks. Based on the foregoing, the Board finds that the Veteran's service-connected migraine headache disability did not include characteristic prostrating attacks averaging one in 2 months over several months prior to December 19, 2006, and thus warrants a noncompensable rating for that period under Code 8100. The only significant treatment record from that period is the May 2004 emergency room record. On the VA exam in December 2005, he indicated only that he experienced a cluster of headaches every 6 months, and had only three to four emergency room visits in the previous year. The Veteran clearly had recurring migraine headaches at that time; however, there was no evidence that "prostrating" headaches occurred with the necessary frequency to merit a compensable rating. A preponderance of the evidence is against the Veteran's claim for a compensable rating for migraine headaches prior to December 19, 2006, and it must be denied. Regarding the current rating since December 19, 2006, the Board finds that the disability has not been shown to cause very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, and thus warrants no more than a 30 percent rating under Code 8100. As noted, while the Veteran clearly has characteristic prostrating attacks of migraine headache pain occurring more frequently than once per month, including very frequent prostrating and prolonged attacks of migraine headache pain (as noted on September 2012 VA examination), there is no credible evidence that the disability results in severe economic inadaptability, as is contemplated for a 50 percent rating. The September 2012 statement from the Veteran's employer indicates that he remains employed and that, although he lost approximately 3 weeks of work in the previous year due to disability, he used sick leave, annual leave, and compensatory time to accommodate his absences. Further, there is no indication that this time lost from work is solely due to the migraine headache disability, as opposed to the Veteran's other service-connected disabilities, or a non-service connected disability. A preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for migraine headaches and it must be denied. The Board also has considered whether the Veteran is entitled to a greater level of compensation for his migraine disability on an extraschedular basis. 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); 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 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 the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability and associated impairment of function throughout the entire appeal period under consideration is contemplated by the rating schedule and the assigned rating is therefore adequate, and no referral for an extraschedular rating is required. The Veteran's complaints of prostrating headaches are contemplated by the rating schedule. Moreover, his compensable disability rating reflects the existing degree of industrial impairment. Marked interference with employment is not shown based on the levels of time lost from work which are discussed above. Finally, the record shows that the Veteran is employed. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Shinseki v. Rice, 22 Vet. App. 447 (2009). ORDER A compensable rating prior to December 19, 2006 for migraine headaches is denied. A rating higher than 30 percent at any time for migraine headaches is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs