Citation Nr: 1317709 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 06-18 981 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased rating for tension headaches, evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The matter was later transferred to the jurisdiction of the Seattle RO. By a January 2011 decision, the Appeals Management Center (AMC) awarded a 10 percent rating, and by a March 2013 decision, the AMC awarded a 30 percent rating for the service-connected headaches. This matter was previously remanded in August 2009, March 2012 and September 2012 to address developmental and due process concerns. The requested development has been completed. The Board notes that initially the headaches were adjudicated as part and parcel of a service-connected cervical spine disorder in adjudications from the June 2005 rating to the August 2009 Board's initial remand. However this was classified as a separate rating as per rating decision of January 2011 by the AMC, and since then has been adjudicated as such by the Board. The issue of entitlement to an increased rating for a cervical spine disability was separately addressed by the Board in March 2012. FINDING OF FACT The Veteran's headaches are intermittent in nature, are manifested by subjective complaints of pain and episodes of nausea and vomiting occasionally requiring bedrest about 4 times a month, with more frequent non prostrating headaches; very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability have not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for tension headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353 -56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification and development action needed to render a decision as to the claim on appeal has been accomplished. Through a January 2005 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claim for an increased rating for the cervical spine (during which time the headaches were an intertwined symptom but were not mentioned). By notice letters dated in September 2009 and November 2009, the AMC addressed the cervical spine disorder to include headaches, and provided the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A March 2012 post-remand letter requested the Veteran submit evidence showing his service-connected tension headaches have worsened, and included VA Form 21-4142, Authorization and Consent to Release Information. Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claim, the claim was properly re-adjudicated in April 2013, which followed the notice letters. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board also finds that the January 2005 notice letter issued prior to the June 2005 rating satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that the RO would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter requested the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. Consequently, a remand of this issue for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records (STRs) have been obtained and associated with the claims file. VA and private medical records have been obtained. The Board has reviewed the Veteran's Virtual VA claims file. Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claim on appeal that need to be obtained. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. Additionally, in February 2013, the Veteran was afforded a VA examination in connection with this claim, the report of which is of record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is sufficient as it is predicated on consideration of the private and VA medical records in the Veteran's claims file, as well as examination findings. It considers the statements of the Veteran, and provides a rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is required. Fenderson v. West, 12 Vet. App. 119 (1999). A decision of the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited different symptoms meeting the criteria for different ratings during the course of the claim, the assignment of staged ratings would be necessary. The Veteran's headaches have been evaluated under Diagnostic Code 8100 for "migraine headaches." That diagnostic code provides, in particular, that a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a Diagnostic Code 8100. The report of a February 2005 VA examination addressed the cervical spine disorder with headaches. Pertinent findings regarding this included flare-ups of pain at least 3 times a week radiating to the head, causing severe headaches, which improved when the cervical spine pain improved. His treatment included Vicodin. Headaches were mostly over the posterior head causing some nausea and vomiting. The pain improved with rest and medication used to treat his spine. The onset of pain could occur without reason but it was aggravated if he hyperextended his neck or turned to the side and rotated his head accidentally or with fast movement. He had no incapacitating episodes in the past 12 months. Examination was focused on the cervical spine with tenderness on palpation over the C5-6 area. He had pain and grimacing on range of motion. The diagnosis was multi-level degenerative disc disease (DDD) of the cervical spine, with intermittent headaches. VA treatment records from 2005 to 2006 primarily address other medical problems including a service-connected lumbar spine disorder. In May 2005, the Veteran was treated further for his lumbar spine problems following a work injury, and was prescribed Vicodin for his back. He also intended to transfer care from the VA to Workers Compensation. No mention of headache problems was made and neurological findings were unremarkable. In a June 2005 new patient primary care note the review of symptoms was positive for severe headache with steady pain in the neck and forehead. This was relieved by going back to bed. He had no blurred vision or other findings or diagnosis regarding the headache. By August 2005 he denied severe headaches or blurred vision. A primary care interim note shows that he was on gabapentin. VA treatment records from 2006 to 2007 reveal that in February 2006 the Veteran was taking methadone with improvement in back pain. He did report headaches once a week, described as steady pain with nausea. Review of systems was positive for severe headaches. In March 2006 he denied headaches on review of systems and was noted to be taking gabapentin and methadone for back pain. He was noted to want to return to work. At a February 2007 follow-up he denied severe headaches or blurred vision. The rest of the records from 2007 through 2008 are silent for any issues regarding headaches. No subsequent records are associated with the claims file or electronic record pertaining to headaches. The report of a June 2008 VA QTC examination noted the history of headaches associated with cervical spine DDD and DJD since 1990. The Veteran reported headaches originating from his neck pain. When headaches occurred he was able to go to work but required medication. He experienced headaches an average of 2 times per week that lasted for 3 days. The symptoms were that the headaches got so bad that he became nauseous. The symptoms occurred intermittently as much as 2-3 times a month lasting 1-2 days during each occurrence. The ability to perform activities of daily living during flare-ups was limited depending on severity. The current treatment was gabapentin. He did not experience any functional impairment from this condition. Examination of the cranial nerves revealed normal finding with normal coordination. His cervical spine revealed tenderness with no evidence of radiating pain on movement. The rest of the cervical spine findings focused on musculoskeletal findings not pertinent to the headache condition. The report of a June 2010 VA neurological examination addressed his headache disorder, present since 1990, with headaches about once every other month. They started in his left shoulder blade and radiated up the thoracic and cervical spine to his head, to the occiput in the midline and over the top of his head just above his left eye. They lasted from 2 hours to an entire day. If he was able to turn his neck to the left and pop his neck, it relieved the pain enough to continue working. Otherwise, the pain progressed to nausea and vomiting and he would not be well or able to work until the next day. His time lost in the previous 12 months from headaches was 3 days. He used no assistive devices on his neck or any other joint. His current medications included Gabapentin, Niacin and Omprazole. There was no particular activity, food or other trigger for his headaches. Examination of the cervical spine in pertinent part revealed normal neurologic and muscular tests with no pathologic reflexes elicited. Cranial nerves II through XII were intact and symmetrical. Again no pathological reflexes were elicited. The diagnosis was tension headaches secondary to DDD of the spine. There was no evidence of isolated neuropathy, neuritis or neural involvement in the brachial plexus. His tension headaches were incapacitating once every other month and this past 12 months he missed work 3 times due to them. No other testing was indicated. The report of a February 2013 VA examination revealed a diagnosis of migraine and tension headaches. His headaches occurred randomly during the week, usually 4 times a month. These lasted from 6 to 24 hours and were severe enough to make him need to go to bed. On occasion he had photophobia, nausea and hyperacusis with the headaches. The only warning he had of onset was posterior cervical neck pain associated with grinding of his cervical joints when turning his neck. The headaches quickly intensified and became throbbing over the entire head. He then had to go to bed. He took no prophylactic medications for the headaches, but opted to use Excedrin Migraine tablets (1-2) when the headaches occurred. He also took Neurontin for his spine conditions but this also helped his headaches. In the recent past in 2010 the headaches were classified as tension headaches. He said all his headaches were currently throbbing over the entire head and that he had to sleep them off in a darkened room due to photophobia. He was resistant to taking narcotics for his pain, as such medication did not help his pain and he needed increased doses. Functionally he worked full time as a building inspector, and was successful at this. He was working at a new company since October 2012 and said the reason for leaving previous jobs were unrelated to health reasons. Symptoms were described as pulsating or throbbing head pain on both sides of his head. His pain worsened with physical activity. On rare occasions he had scintillations and scotoma. Non-headache symptoms associated with the headaches included nausea, vomiting, sensitivity to light and sound, and changes in vision. The typical duration was less than 1 day. He had characteristic very frequent prostrating and prolonged attacks of migraine headache pain more frequently than once per month. He did not have non migraine pain. Findings from a brain MRI done in March 2012 were noted to be normal. His headache condition did not impact his ability to work. The diagnosis was common migraine triggered by posterior cervical arthritis. The examiner remarked that the Veteran was successfully working full time as a building inspector 40 hours a week. The only accommodations were for his employer to let him go home if he had a headache. So far this current employer has been accommodating but he has not needed to leave work to go home except on rare occasions. His headaches were not completely helped by neurontin, but the examiner suggested he might be a candidate for another medication (Lyrica). The examiner suggested that a trial of this might be considered for 4-6 weeks to reduce the possibility that his employer would not let the Veteran off work, as the Veteran feared the possibility that he could lose his job in the event that his headaches were to increase in frequency. Based on a review of the evidence the Board finds that the evidence does not support an increased rating to 50 percent for the headache disorder. The disorder is clearly not shown to produce severe economic inadaptability, as the Veteran is working full time, and is not shown to have missed work more than a few days per year due to his headaches. Although he expressed concern at the February 2013 VA examination that the headaches could potentially increase and disrupt his employability, this has not been shown to be the case, as his headache condition did not impact his ability to work and his employer accommodated him on the few occasions that a headache occurred at work. Generally he is shown to have prostrating headaches (requiring bedrest) about 4 times a month according to the February 2013 VA examination. More frequent non-prostrating headaches are reported in the February 2005 VA examination, and less frequency of headaches was reported in the June 2010 VA neurological examination, which described them happening every other month, and potentially could be relieved by manipulation of his neck before they became prostrating. The June 2008 QTC examination also showed frequent non-prostrating headaches occurring about 2 times per week and intermittent prostrating symptoms sometimes as much as 2-3 times a month. These earlier examinations also do not reflect economic harm from the headaches as the June 2010 examination described only 3 days of missed work due to the headaches. Regarding the VA treatment records, they are either mostly silent for headaches, or reflect intermittent shifting from complaints of severe headaches on review of systems or general complaints, to no evidence of severe headaches reported. In sum the evidence overall reveals the headache condition to remain consistent with the criteria for a 30 percent rating: with symptoms no worse than characteristic prostrating attacks averaging about once a month over the past several months, with no evidence of economic inadaptability. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's headache disorder is so exceptional or unusual as to warrant consideration of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The symptoms of his disability, including episodes of pain, nausea, vomiting and other symptoms, have been reflected by the schedular criteria. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. As such, it cannot be said that the available schedular evaluation for the disability is inadequate. Further inquiry into extraschedular consideration is consequently not required. See Thun, supra. For all the foregoing reasons, the Board finds that the claim for a higher rating for service-connected headache disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a higher rating for tension headaches is denied. _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs