Citation Nr: 1313214 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 08-10 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable initial disability evaluation (rating) for migraine headaches for the period prior to October 10, 2012, and in excess of 30 percent for the period thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from August 1997 to December 1997 and from August 2004 to December 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) from September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The September 2005 rating decision granted service connection for migraine headaches and assigned a noncompensable initial disability rating, effective December 6, 2004 (based on date of claim for service connection). A January 2013 rating decision granted a staged 30 percent initial disability rating for migraine headaches for the period from October 10, 2012, thus creating a staged initial rating. The Veteran disagreed with the rating assigned, and the grant of a higher initial rating is not a full grant of the benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the initial rating issue has been characterized to include both rating periods. A January 2007 RO decision denied, in pertinent part, the Veteran's claim of entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). The Veteran has not expressed disagreement with the issue of entitlement to a TDIU, and that issue is not before the Board. It is also noted that in the January 2008 Notice of Disagreement, the Veteran specifically indicated that he did not wish to pursue a claim for "un-employability". The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. This case was most recently before the Board in August 2012, wherein it was remanded for additional development. The record indicates that the RO complied with the Board's request; the Veteran was provided with an additional VA examination for his migraine headaches in October 2012, and VA treatment records were obtained in connection with his claim for an increased disability rating. The Board finds that there has been substantial compliance with the directives of the remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Throughout the rating period on appeal, the Veteran has had migraine headaches characterized by attacks occurring at least once a month over the last several months, but that are not so completely prostrating and prolonged as to be productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a disability rating of 30 percent, but no higher, migraine headaches have been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in December 2005 and April 2008, to the Veteran. The December 2005 letter explained the evidence necessary to substantiate a service connection claim. The April 2008 letter explained the evidence necessary to substantiate the Veteran's claims for an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. Additionally, the April 2008 letter from VA to the Veteran explained how a disability rating is determined for a service-connected disability and the basis for determining an effective date upon the grant of any benefit sought. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the CAVC have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). Any defect as to the timing of the notice was cured because the RO readjudicated the claim in the January 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment, as well as the Veteran's own statements in support of his claim. The Veteran was examined by VA in connection with his claim for an increased rating for migraine headaches in 2012. The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the issue on appeal. The examination report contains all the findings needed to rate the Veteran's disability, including his history and clinical evaluation. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. The Veteran's appeal for higher evaluations is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2012 VA examination, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his disabilities have worsened since the October 2012 VA examination; he merely asserts entitlement to higher disability evaluations. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that the disability on appeal has worsened since the last VA examination and VA treatment records in 2012. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded an adequate examination on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Rating Migraine Headaches Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, evaluations may be "staged." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). This, in turn, will compensate the veteran for times since the effective date of the award when his disability may have been more severe than at other times during the course of his appeal. The Veteran's migraine headaches are rated as noncompensable for the initial rating period prior to October 10, 2010 and as 30 percent disabling for the period since October 10, 2012 pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 10 percent disability evaluation is assigned for prostrating attacks averaging one in 2 months over the last several months. For the next higher 30 percent disability evaluation, there must be characteristic prostrating attacks occurring on average once a month over the last several months. For a higher, 50 percent disability evaluation to be warranted, there must be migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Analysis of Initial Rating for Migraine Headaches The Veteran contends that an initial compensable disability rating, and a higher disability rating than 30 percent from October 10, 2012, for migraine headaches is warranted. In multiple statements, the Veteran asserted that he experiences headaches once or twice a week, lasting up to a day, which cannot always be alleviated by medication. After a review of all the evidence, lay and medical, the Board finds that for the entire rating period on appeal, since December 6, 2004, the Veteran's service-connected migraine headaches more nearly approximates the criteria for a 30 percent disability evaluation under Diagnostic Code 8100. The Board finds that the Veteran's symptoms due to his migraine headaches have been relatively consistent and that the 30 percent evaluation takes into account the frequency and severity of the Veteran's headaches for the entire rating period. Throughout the rating period on appeal, the Veteran's migraine headaches have been characterized by characteristic prostrating attacks occurring on an average of once a month over the last several months. The evidence also shows that the Veteran does not experience very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Additionally, the schedular diagnostic criteria adequately describe the severity of impairment and symptomatology of the Veteran's migraine headaches. Upon treatment and at the October 2012 VA examination, the Veteran reported that he required medication for his migraine headaches, for both prevention and stopping of migraines, but he has not reported that he has not been unable to work due to his headaches. January 2005 and October 2012 VA examiners and his treating providers at VA assessed that the Veteran's migraine headaches caused nausea, vomiting, photophobia, and phonophobia, and that medication relieves most of his headaches. Upon VA examination for his peripheral nerves in January 2005, he reported that he experiences headaches approximately once per week, lasting up to 2 hours, with throbbing pain and changes in papillary size. At the October 2012 VA examination, he described his migraine headaches as throbbing, occurring 1-2 times per week, some lasting up to a full day, temporarily relieved by medication, and not impacting his ability to work. VA neurological evaluations showed intact cranial nerves and normal motor strength. In conclusion, the evidence of record reveals manifestations consistent with a 30 percent evaluation, but no more, for the entire rating period on appeal, for migraine headaches. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted for migraine headaches. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." See 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's migraine headaches is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 8100, specifically provides for disability ratings based on a combination of history and clinical findings such as the severity and frequency of attacks, as well as consideration of economic inadaptability. The schedular rating criteria specifically contemplate the extent of the migraine headaches and clinical findings. In this case, considering the lay and medical evidence, the Veteran's migraine headaches include symptoms such as nausea, photophobia, vomiting, and phonophobia and the Veteran reported at the October 2012 VA examination that he can work despite the nausea, vomiting, and throbbing pain of his migraine headaches. These symptoms are part of the schedular rating criteria, or otherwise "like or similar to" the rating criteria. See 38 C.F.R. § 4.124a. The disability rating schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. See 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with migraine headaches, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability rating of 30 percent for migraine headaches, but no higher, during the entire appeal period is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs