Citation Nr: 1317484 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 11-08 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a compensable rating for ocular headaches prior to September 3, 2010, and to a rating in excess of 10 percent for the disability from that date. REPRESENTATION Appellant represented by: Jaya Shurtliff, Attorney at Law ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This case was previously before the Board in June 2011, at which time the Board denied the claim on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2012 Memorandum Decision, the Court vacated the June 2011 Board decision and remanded this matter to the Board for action consistent with the Memorandum Decision. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). REMAND The Board's review of the record reveals that further development is warranted. In this case, a remand is required in order to comply with the September 2012 Memorandum Decision. In that decision, the Court noted that the Board had provided an inadequate statement of reasons or bases for its decision to deny a higher rating for the Veteran's service-connected ocular headaches. The Court instructed the Board to adequately address whether the Veteran's headaches were prostrating. In addition, it referenced the VA examiner's notes that the Veteran's headaches were constant in the September 2010 VA examination report, musing that it was not clear how the rating schedule, specifically Diagnostic Code 8100 for migraine headaches, adequately contemplates the Veteran's disability. The Veteran's service-connected ocular headaches are analogously rated under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8100 for migraine headaches. 38 C.F.R. § 4.20 (2012). A rating of 10 percent is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A rating of 30 percent is warranted for characteristic prostrating attacks occurring on an average once per month over the last several months, and a rating of 50 percent is warranted for very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). A longitudinal review of the record revealed that the Veteran submitted a statement in September 2010, asserting entitlement to increased rating due to chronic headaches daily treated by aspirin. In an additional statement during the same month, he asserted that he would wake up with pain and go to sleep with pain, indicating that although the headache would vary in intensity, the headache was actually continuous. According to a September 2010 VA neurological examination report, the Veteran endorsed using Oxycodone with acetaminophen in the evening to sleep, commenting that the relief was only temporary but did help him to sleep. The Veteran's headaches were described as throbbing, bilateral, and located near the eyes. The examiner listed that Veteran's attacks as non-prostrating, noting that ordinary activity was possible. The examiner further indicated that the chart related to frequency, severity, and duration of headaches was not used, as it did not apply and gave an erroneous impression. The Veteran emphasized that his headache was constant and lasted all day. He reported that his eyes were very photosensitive and exposure to light would trigger headaches unless he wore dark glasses. The examiner also noted constant pain on the left side of the face from jaw to temple, associated with Bell's palsy the Veteran had developed three years earlier. In terms of impairment, the Veteran stated that while working he would use up all of his sick time due to problems associated with his eye condition and his headaches. Current impairment was limitation of driving and taking frequent naps to resolve headaches. It was noted that the Veteran had retired in September 1981 due to a herniated disc in the neck consequent to a motor vehicle accident. In a December 2010 statement, the Veteran asserted that his whole head would hurt, especially around the eyes, during his daily headaches. He reported that he would usually have to lie down when headaches occurred, that it was becoming difficult for him to drive, and that he now utilized the shuttle bus to go to VA medical appointments. An additional January 2011 VA treatment record shows complaints of occasional headaches and low back pain. The Veteran endorsed taking one or two tablets of Oxycodone with acetaminophen daily, although not every day. The treatment provider noted a continued prescription of Oxycodone with acetaminophen specifically for chronic back pain. Based on the cumulative evidence of record and the discussion contained in the September 2012 Memorandum Decision from the Court, the Board finds that the Veteran should be afforded another VA examination in order to assess the current level of disability resulting from his service-connected ocular headaches. In addition, the RO should determine whether the Veteran's claim should be submitted to the Director, Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's claim. 2. Then, the RO should arrange for the Veteran to be afforded a VA examination in order to ascertain the current severity of the service-connected ocular headaches. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should determine the nature, frequency, and severity of the Veteran's ocular headaches. The examiner should specifically determine if the Veteran's ocular headache symptomatology constitutes headaches with prostrating attacks, and if so, the frequency of any characteristic prostrating attacks. If the headaches are not found to be prostrating, the examiner must provide an explanation for such determination. The examiner should further comment as to whether the Veteran's actions of laying down or napping to alleviate his service-connected headaches constitutes a prostrating attack or makes ordinary activity impossible. The examiner should be informed that the rating criteria do not define "prostrating," nor has the Court. By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." The examiner should provide an opinion concerning the degree of industrial impairment resulting from the service-connected ocular headaches, to include whether the disability is productive of severe economic inadaptability. The rationale for all opinions expressed must also be provided. 3. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the record if the Veteran fails to report for any scheduled examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 4. The RO should also undertake any other development it determines to be warranted. 5. After completion of the above development, the RO should make a determination as to whether the Veteran's claim should be submitted to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 3.321(b). 6. Then, the RO should readjudicate the issue on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).