Citation Nr: 1314709 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 08-24 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for posttraumatic headaches. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1954 to March 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in relevant part, granted entitlement to service connection for posttraumatic headaches, claimed as migraine headaches, and assigned a noncompensable disability rating, effective October 18, 2006. Jurisdiction over the Veteran's claim was subsequently transferred to the RO in Oakland, California. In a March 2009 rating decision, the Oakland RO assigned the Veteran a 10 percent disability rating for his service-connected headache disability, also effective October 18, 2006. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2011. A transcript of that hearing is of record. In March 2012, the Board remanded the Veteran's increased rating claim on appeal for further development. The issue of entitlement to service connection for vertigo has been raised by the record. See May 2011 Board hearing transcript. This issue was previously referred to the Agency of Original Jurisdiction (AOJ) in the Board's March 2012 decision; however, it appears that the issue still has not been adjudicated. Therefore, the Board still does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 The Veteran suffers from frequent headaches, identified as posttraumatic and tension headaches, with more severe headaches, which tend to be prostrating, occurring approximately two times per week; his headaches have not, however, been described as completely prostrating, prolonged, or productive of severe economic inadaptability. CONCLUSION OF LAW Throughout the rating period on appeal, the criteria for an initial 30 percent disability rating, but not higher, for chronic posttraumatic headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim of entitlement to a higher disability rating for his service-connected posttraumatic headaches arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted, the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent private treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's VA treatment records and multiple VA examination reports. Additionally, his statements in support of the claim are of record, including testimony provided at his May 2011 hearing before the undersigned. Moreover, as the undersigned elicited testimony designed to help substantiate the claim and identify outstanding evidence, the hearing complied with the duties imposed by the provisions of 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any available outstanding evidence with respect to the Veteran's claim. Although the Veteran indicated in a statement dated in April 2008 that he had applied for benefits administered by the Social Security Administration (SSA) in 1957, he further indicated that his SSA claim had been denied. There is no indication in the record that he applied again for SSA benefits or that SSA benefits had been awarded. In any event, the Board finds that remand to obtain copies of evidentiary material used in his SSA benefits claim is not necessary as attempts to obtain such records would be futile. In this regard, the Board notes the SSA policies of destroying records associated with a disability claim five years after the denial of such claim, and of destroying records at most seven years after the date of adjudication of an awarded claim if the claimant has attained full retirement age. See SSA Privacy Act Systems of Records Notices, SORN# 60-0320 (2003) (available at http://www.ssa.gov/foia/bluebook/60-0320.htm). Here, the Veteran attained full retirement age more than 10 years ago, thus, there is no reason to believe his SSA records would still be in existence, even if SSA disability benefits had been awarded. Moreover, the Board finds that the RO/Appeals Management Center (AMC) substantially complied with the Board's July 2010 and January 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Board remanded the Veteran's claim in March 2012 to afford him a new and contemporaneous VA neurological examination and to obtain his VA treatment records dated since March 2009. The requested examination was performed in May 2012 and relevant VA treatment records dated through October 2012 were obtained. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Disability Rating The Veteran seeks a higher disability rating for his service-connected posttraumatic headaches. He specifically contends that the headaches are worse than as reflected by the currently assigned 10 percent disability rating. A. Governing Law and Regulations Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2012). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2012). Otherwise, the lower rating will be assigned. Id. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. §§ 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). In Fenderson v. West, 12 Vet. App 119 (1999), the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, where a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. In these cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14 (2012). A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." See 38 U.S.C.A. § 1155 (West 2002); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, and the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran bears the burden of presenting and supporting his claims for benefits. 38 U.S.C.A. § 5107(a) (West 2002). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. B. Analysis The Schedule for Rating Disabilities does not include a listed disability specifically for tension headaches. In this case, however, the Board deems that Diagnostic Code 8100, concerning migraine headaches, provides the most appropriate rating criteria. Indeed, while it does not specifically address posttraumatic headaches, it is closely analogous to the anatomical localization and symptomatology of the Veteran's service-connected disability on appeal. See 38 C.F.R. § 4.20 (2012). The Board notes that in the March 2009 rating decision, the RO assigned the Veteran's posttraumatic headache disability a maximum 10 percent disability rating for subjective symptoms under the rating criteria for rating brain diseases due to trauma in effect prior to October 23, 2008. Additionally, in the March 2012 remand, the Board instructed the VA examiner to consider the new rating criteria for rating residuals of a traumatic brain injury (TBI), in effect as of October 23, 2008. However, after a thorough review of the May 2012 VA examination report, additional medical evidence of record, and the circumstances surrounding the onset of the Veteran's headache disability, the Board does not find the new criteria for rating residuals of a TBI to be applicable here given the absence of a clear traumatic injury. Specifically, the Veteran's medical history does not suggest that he incurred a traumatic injury to his brain as contemplated by the TBI rating criteria. Considering the rating criteria for migraine headaches, Diagnostic Code 8100 assigns a 10 percent rating for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. Finally a 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100 (2012). The Board observes that the rating criteria do not define "prostrating." Additionally the Court has not undertaken to define "prostrating." Cf. Fenderson, supra., in which the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what is a prostrating attack. According to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, however, "prostration" is defined as "utter physical exhaustion or helplessness." The rating criteria also do not define "severe economic inadaptability." However, the Court has noted that nothing in Diagnostic Code 8100 requires a claimant to be completely unable to work in order to qualify for a 50 percent disability rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). Turning now to the evidence of record, the Veteran has a history of suffering chronic headaches since approximately the time of his July 1957 surgery to remove a brain tumor. A December 2006 VA neurology consultation report noted that his posttraumatic headaches showed no improvement with treatment using non-steroidal anti-inflammatory drugs (NSAIDS) and Ultram. In a March 2007 VA primary care consultation note, he was instructed to stop taking NSAIDS and Ultram in order to take Nortriptyline. However, this medication caused his eyes to flutter, and he consequently stopped taking it. A March 2007 VA neurological consultation reported his diagnosis as a mixed headache consisting of posttraumatic and tension headaches, associated with a multi-medication withdrawal headache. The Veteran was first afforded a VA examination with respect to his claimed headache disability in February 2007. The VA examiner noted that the Veteran has had constant headaches that are still present on the left side, worse than right, going to the back of the head and back of the neck. His headaches were reportedly worse when he was tired. Although he had tried taking Tramadol and Nortriptyline, these medications did not relieve his symptoms. He preferred to take Aspirin, Tylenol and Motrin to treat his pain. The Veteran also reportedly suffered from dizziness lasting for a few seconds each time whenever he changed position, such as bending over and turning his head quickly. The examiner noted that the dizziness appeared to be positional vertigo. The examiner noted that the Veteran's condition had stabilized. His eyesight was normal, though he did report occasional diplopia especially if he turned his head on one or the other side. He additionally reported having a slight problem with balance, but did not require the use of a cane or walker. Upon examination, fundi, pupils, and eyeball movements were normal; no nystagmus was noted. The face, palate, and tongue were also normal. There was normal strength in both upper and lower extremities but coordination was affected in the right arm and right leg on finger to nose and heel to knee testing. Slight tremors of the right hand were noted upon reaching an object, and this was due to cerebellar dysfunction. No atrophy, fasciculations, or other involuntary movements were noted. Biceps, triceps and supinator reflexes were normal at 2+, and were somewhat more brisk on the right side. Knee and ankle jerks were also 2+ and slightly more brisk on the right side. Plantar reflexes were normal. Normal sensations to pinprick and vibration were noted in all four extremities. Gait was noted to be slightly broad-based. There was a slight problem walking on toes and heels due to ataxia. Tandem walking was more difficult and he had to hold on to the table; however no cane or walker was needed. Romberg testing was negative. During a January 2008 VA neurology consultation, the Veteran reported that his headaches were mostly occipital, with hypersensitivity to the touch. He reported that his headache was constantly at 7-8/10 in intensity, and was not ameliorated by any specific body position. He reported hearing sounds from both ears, as if water was running through plumbing. Further neurological consultation was recommended for his headache, and an otolaryngology (ENT) consultation was recommended for tinnitus. During a later February 2009 VA neurology consultation, the Veteran reported having continuing chronic headaches. He also reported a continuing hissing sound in his ears. His headaches consisted of dull pain in the occipital region moving forward to the frontal area. Headache pain was worse during periods of stress. He reported having vertigo when bending over. No photophobia/phonophobia, or aura or visual symptoms were noted. On physical examination, he was noted to have mild psychomotor retardation. A positive Romberg test was noted and he was unable to do tandem walking. The clinician assessed likely tension headaches with a stress/anxiety component. The neurological examination was also significant for some peripheral ataxia, but was otherwise normal. During the Veteran's May 2011 Board hearing, he credibly reported having daily headaches that frequently reached a 7-8/10 level of pain. He reported that he constantly needed to take Advil, Aspirin, or Motrin. He reported trying other medications, including types of anti-depressants, but that these other medications had not helped much with the pain. He reported experiencing dizzy spells when bending down or turning around fast. Moreover, when his headaches reach a high level of severity, he needed to lie down and rest. He experienced headaches of high severity about two times per week, and that it would take about two hours for the headache to pass. He reported that his speech was not as good during such episodes, and that he sometimes experienced nausea. He additionally reported having some problems with hearing, eyesight, and the use of his limbs. Following the Board's March 2012 remand of this claim, the Veteran was afforded a new VA examination in May 2012. In compliance with the Board's remand instructions, the examination was conducted to also examine residuals of a TBI. The examiner noted that there was no definite incidence of injury to the Veteran's brain to justify the characterization of TBI. The Veteran denied suffering any specific injury to the brain. He described his headaches as occurring on the back of the head and going to the left side up to the front of the head. He felt a dull ache and a pressure-like sensation lasting a whole day. The severity of his headaches was increased by talking too much, walking in the house, or by stressful situations. His medications included a one-half tablet of Vicodin per day and one tablet of Flexeril per week. No nausea, vomiting, photophobia, or phonophobia were noted. The examiner noted that the headaches were not a migraine type, but were considered as tension headaches. The examiner noted the Veteran's complaints of dizziness, in the form of lightheadedness in the head, occurring three to four times on a daily basis, and lasting one to two minutes at a time. The dizziness was usually brought on by sudden changing the position of his head, such as bending or getting up, or moving the head too fast in any direction. He did not feel spinning sensation or vertigo, and did not take any medication for dizziness. The examiner additionally noted that the Veteran's balance was lightly affected, and that his speech was lightly affected because of cerebellar dysarthria. Diplopia was also reportedly to occur spontaneously, with vision immediately returning to normal. This occurred with rapid head movement. The Veteran's symptoms were stable since their onset. Reflexes were equal on both sides, as compared to an increased response on the right side in the past. He had a broad-based gait, and had slight difficulty with tandem walking. Romberg testing was negative. Cerebellar signs were present on finger to nose and heel to knee testing on the right side. No other neurological signs or symptoms were noted. The examiner concluded that there were no subjective symptoms or neurobehavioral effects that interfered with the Veteran's work, daily living or close relationships. He further concluded that the Veteran's neurological status, when compared with prior examination findings in February 2007, had remained stable and unchanged. The examiner finally concluded that the Veteran's headaches consisted of a muscle-tension type and not a migraine type headache, and that there were no prostrating attacks from his headaches. Subsequent VA treatment records dated through October 2012 continue to reflect the Veteran's complaints of severe headache symptoms that reached as high as a level 8 out of 10 in severity. His minor neurological symptoms, including complaints of dizziness and tinnitus, have also been fairly consistently noted. After a thorough review of all the evidence of record, including the Veteran's credible statements made during his May 2011 Board hearing and statements made to VA clinicians and the VA examiner regarding the severity of his headache pain, the Board finds that the symptoms associated with the service-connected posttraumatic headaches most closely approximate the criteria for a 30 percent disability rating under the criteria for rating migraine headaches. Here, the Veteran has indicated that his headaches reach a severity of 8 out of 10 on the pain scale at least twice per week, and he testified during his hearing that with these more severe headaches, he was required to lie down and rest for a couple of hours until the headache subsided. These reports appear to be consistent with a finding that such severe headaches are prostrating. Although the Board finds that a 30 percent disability rating is warranted under Diagnostic Code 8100, the evidence of record does not suggest that the Veteran has had very frequent, completely prostrating and prolonged headache attacks, productive of severe economic inadaptability such as to warrant the highest, 50 percent, disability rating under these rating criteria. While he has been repeatedly noted to have very frequent, daily headaches, his headache attacks have not been noted to reach such a severity as to be considered completely prostrating and prolonged. The Veteran has indicated that he frequently goes about his activities in the presence of headaches and the medical evidence of record would suggest that the Veteran's headaches are not prostrating. As noted, however, the Veteran's testimony would tend to indicate that his headaches are at least one time a week sufficiently severe to be considered somewhat prostrating. The evidence, however, does not further suggest that they are completely prostrating or prolonged. Moreover, the evidence does not suggest that the Veteran's headaches, alone, are productive of severe economic inadaptability. While a total rating based on individual unemployability (TDIU) due to service-connected disability is in effect, the evidence suggests that the TDIU was awarded based on residuals of his brain tumor, not necessarily including headaches. Finally, the Board finds it prudent to note that even if a disability rating were considered under the criteria for rating residuals of a TBI instead of under the criteria for rating migraine headaches, the evidence of record would need to show that the Veteran's subjective symptoms of dizziness, headaches, tinnitus, etc., reach such a severity as to moderately interfere with work, instrumental activities of daily living; or work, family, or other close relationships. Here, while the Veteran's headaches have been noted to reach a moderate degree of severity, his symptoms of dizziness, tinnitus, motor functions etc., have not been described as being so severe as to interfere with work, activities of daily living, or his relationships. Rather, his symptoms have largely been described as minor and of very short duration. Moreover, the May 2012 VA examiner indicated that the Veteran's subjective neurological symptoms did not interfere with work, daily living, or close relationships. As noted previously, despite the instructions to the examiner to consider the TBI criteria, the nature and history of the disability in question is not truly analogous to a TBI and thus consideration of the criteria for TBI residuals is not appropriate. Moreover, the pre-amended regulations for brain disease due to trauma, do not enable a rating in excess of 10 percent for subjective neurological symptoms, such as tinnitus and dizziness, absent evidence of multi-infract dementia. 38 C.F.R. § 8045(2008). In sum, the evidence supports an increased rating of 30 percent, but no higher, under Diagnostic Code 8100 for posttraumatic headaches. See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. Extraschedular Consideration The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2012). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The symptoms associated with the Veteran's service-connected posttraumatic headaches (i.e., daily headaches with prostrating headaches occurring at least one time per week) are not shown to cause any impairment that is not already contemplated by the rating criteria set forth above, and the Board finds that the applied rating criteria reasonably describe this service-connected disability. The applied rating criteria are, therefore, adequate to evaluate the Veteran's service-connected headache disability and referral for consideration of an extraschedular rating is not warranted in this case. ORDER Entitlement to an initial 30 percent disability rating for posttraumatic headaches is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs