Citation Nr: 1313428 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-46 365 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 30 percent for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from November 1954 to October 1956. This matter came to the Board of Veterans' Appeals (Board) on appeal from an June 2010 rating decision by the RO. In September 2011, during the course of the appeal, the Veteran had a hearing before the Acting Veterans Law Judge, whose signature appears at the end of this decision. 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). FINDING OF FACT Since service connection became effective January 4, 2007, the Veteran's service-connected headaches have been manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability CONCLUSION OF LAW The criteria have been met for an initial 50 percent rating for headaches. 38 U.S.C.A. § 1155, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to an initial rating in excess of 30 percent for headaches. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Generally, VA must notify the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA must also inform him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. VA must then fulfill its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. In this case, it appears that VA has fulfilled those duties. Moreover, any further discussion of the duty to assist the Veteran would be superfluous, as the Board is granting the maximum schedular rating available for headaches. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal The Veteran contends that the initial 30 percent rating for his service-connected headaches does not adequately reflect the level of impairment caused by that disorder. He has consistently stated that since service connection became effective January 4, 2007, he has had as many as 3 headaches a month which are completely prostrating in nature and often last an entire day. Therefore, he maintains that an increased rating is warranted. After carefully considering the claim in light of the record and the applicable law, the Board agrees. Accordingly, the appeal will be allowed to the extent indicated. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2012). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. Migraine headaches are rated in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran does need not prove his claim with absolute certainty. However, in order to prevail, he must support each claim. 38 U.S.C.A. § 5103, 5103A; 38 C.F.R. § 3.159. At the very least, he must present competent evidence, which when weighed and evaluated, is in relative equipoise; that is, an approximate balance of evidence both for and against the claim. Although such evidence may not satisfactorily prove or disprove the claim, the Board may be able to grant the claim, after resolving all reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. In the appealed June 2010 rating decision, the RO granted service connection for a headaches and assigned a 10 percent evaluation, effective January 4, 2007, the date the RO received the Veteran's claim. 38 C.F.R. § 3.400(b)(2)(i), o(1). The Veteran disagreed with the amount of that rating, and this appeal ensued. In January 2013, the RO raised the Veteran's rating to 30 percent; however, it retained the original effective date of January 4, 2007. In view of this effective date, the Board has considered all relevant subsequent medical records in this decision. 38 C.F.R. § 3.400(b)(2)(i), o(1). In this case, the preponderance of the evidence, including his VA examinations in October 2007, February 2009, and December 2011 and the transcript of his September 2011 hearing before the undersigned Acting Veterans Law Judge show that the Veteran has had as many as 3 headaches a month which often last a full day and send him to bed in a dark room for as many as 7 hours. In addition to light sensitivity, he frequently experiences nausea and vomiting. The Veteran's wife also testified that the room had to be very cold. In a December 2012 statement, the Veteran's ex-wife reported that the Veteran's headaches rendered him grouchy and irritable. She noted that he would go into a deep sleep and that after he awoke, the headache could be gone, but he would appear to be in a state as if hungover. Although the Veteran does not seek regular treatment from a health care provider, he has been prescribed narcotic medication, in part, for his headache pain. While the Veteran is retired and such headaches do not affect his employment, the frequency and duration of his headaches suggest that if was still employed, he could miss as many as 36 work days a year, almost a month and a half. Such extensive time off suggests a significant impact on his economic adaptability. In light of the foregoing discussion, the Board finds that since service connection became effective January 4, 2007, the Veteran has met or more nearly approximated the criteria for a 50 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100. At the very least, there is an approximate balance of evidence both for and against the claim that the Veteran's headaches are productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. Accordingly, the maximum schedular 50 percent rating is warranted. To that extent, the appeal is allowed. In arriving at this decision, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating for the Veteran's service-connected PTSD. 38 C.F.R. § 3.321(b)(1) (2012). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. 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. In this regard, the Board must compare 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. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran'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 claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. In this case, neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned schedular rating. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). In this regard, the applicable diagnostic code contemplates the frequency and severity of the Veteran's headaches and associated symptoms, such as nausea and vomiting, light sensitivity and irritability. They also contemplate the economic impact on his life. As such, the Veteran does not have symptoms associated with his service-connected headaches which have been left uncompensated or unaccounted for by the assignment of a schedular rating. Thun, 22 Vet. App. at 115 .Accordingly, the evidence does not support the proposition that the Veteran's headaches present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Therefore, further action is not warranted under 38 C.F.R. § 3.321 (b)(1) (2012). ORDER Entitlement to an initial 50 percent rating for headaches is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs