Citation Nr: 1318149	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  06-38 435	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an initial rating greater than 30 percent for headaches, as a residual of a head injury.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel



INTRODUCTION

The Veteran served on active duty from October 1966 to September 1968.  He is a Purple Heart recipient.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas where the RO granted service connection for recurrent headaches as a residual of an in-service head injury and assigned an initial compensable rating. 

Thereafter, the Veteran was ultimately granted an increased rating to 30 percent in April 2007 and February 2011 rating decisions.  After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993).  Accordingly, the issue is still properly before the Board here and the issue has been appropriately rephrased above.

The case was brought before the Board in December 2009, April 2011, and August 2012, at which times the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include affording him a VA examination. The requested development having been completed, the case is once again before the Board for appellate consideration of the issues on appeal.  

The Veteran was afforded a DRO hearing in June 2008 and the transcript is of record, but according to a September 2009 statement, the Veteran does not want a hearing before the Board.


FINDING OF FACT

During the pendency of this appeal, the Veteran's headaches are manifested by frequent, recurrent headaches of varying severity, to include characteristic prostrating attacks on an average more than once per month, but his headaches are not productive of severe economic inadaptability.


CONCLUSION OF LAW

The criteria of entitlement to an initial rating greater than 30 percent for headaches, as a residual of a head injury, have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107(a) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a Diagnostic Code 8100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Assist and Notify

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  

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.  Those five elements include:  (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  

The Board finds that the duty to notify was satisfied by a pre-adjudication letter sent to the Veteran in August 2004 as well as a later December 2009 letter, which specifically addressed how disability ratings and effective dates are determined.  Together, the letters addressed all of the notice elements and the issue has since been readjudicated many times, most recently in a January 2013 Supplemental Statement of the Case (SSOC).  

The duty to assist was also met in this case.  The Veteran's service treatment records are in the claims folder.  All pertinent VA treatment records and identified private treatment records have been obtained and associated with the file to the extent possible.  VA examinations with respect to the issue on appeal were obtained in August 2005, April 2007, April 2010, June 2011, and November 2012.  38 C.F.R. § 3.159(c)(4).  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 examinations and opinions obtained in this case adequate.  The examiners thoroughly examined the Veteran, offered diagnosis opinions, and reviewed the claims file.  The 2012 examiner more specifically addressed the manifestations of the Veteran's service-connected disability, the varying descriptions of the manifestations throughout the appellate time frame, the Veteran's credibility, and any found occupational impairment.

Thus, the Board finds that VA has satisfied the duty to assist the Veteran and may proceed to consider the merits of the claim.

Increased Rating (Headaches)

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1.  When the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may be assigned.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The appeal stems from the RO's grant of service connection and initial assignment of a rating for the Veteran's migraine headaches.  As explained below, the Board finds the Veteran's recurrent headaches were manifested by consistent symptoms throughout the appellate time frame and, therefore, staged ratings are not appropriate. 

The Veteran's headaches are rated analogously under Diagnostic Code (DC) 8100, for migraines.  Under DC 8100, a 10 percent rating is warranted for migraine headaches manifested by characteristic prostrating attacks averaging one in two months over the last several months.  38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100.

A 30 percent rating is warranted for migraine headaches manifested by characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability.  Id.  50 percent is the highest rating provided under DC 8100.

The rating criteria do not define "prostrating;" nor has the Court.  Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does 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, "prostration" is defined as "utter physical exhaustion or helplessness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), defines "prostration" as "extreme exhaustion or powerlessness."

The Veteran claims his headaches are more severe than currently rated.  He has submitted various statements describing recurring headaches that require him to lie down in a dark room for anywhere from 30 minutes to 24 hours.  His described symptoms have varied.  At times, he indicates his headaches do not cause nausea or vomiting (see, e.g. August 2005 VA examination report) and at other times he describes nausea, vomiting, and debilitating symptoms to include a period of almost "hangover" type qualities the next day (see, e.g. April 2010 VA examination report; June 2008 RO hearing transcript; December 2006 spouse statement).  

The claim was remanded several times to afford the Veteran VA examinations to clarify the discrepancies of symptoms and also clarify whether all reported symptoms were attributable to his service-connected headaches versus some other medical condition, such as hypoglycemia or caffeine withdrawal.

As will be explained below, the medical evidence consistently shows the Veteran is describing two different "types" of headaches:  recurring, "routine" headaches and severe, debilitating headaches.  The severe headaches, associated with nausea, vomiting, light sensitivity, and other debilitating symptoms lasting up to 24 hours, more closely resemble "characteristic prostrating attacks" as indicated in the diagnostic criteria.  

VA outpatient treatment records are largely silent for any ongoing treatment specifically for headaches.  Records from 2004 to 2011 only sporadically note a history of headaches since a Vietnam explosion causing a head injury.  For example, in February 2007, the Veteran reported headaches several times a month with nausea, but no vomiting.  Chronic headaches that "come and go" are also noted in April 2007 and August 2008 records.

The Veteran was first afforded a VA examination in August 2005 where he was diagnosed with recurrent headaches starting at the back of head without radiation.  At that time, the Veteran reported approximately two headaches per month without nausea or vomiting with occasional sensitivity to light with some blurred vision.  

In April 2007, the Veteran was afforded a new VA examination where the examiner explained the Veteran chronically suffered from two different "types" of headaches.  The Veteran complained of routine headaches since 1967 and, according to a log he kept from January through March, he suffered 11 headaches over the course of three months.  Among those 11 headaches, only one could be described as very severe lasting 12 to 24 hours with frequent vomiting and sensitivity to light and sound.  The other 10 headaches lasted between one to two hours with nausea, and in two instances, also vomiting.  The examiner diagnosed the Veteran with post traumatic headaches.

During his hearing before a Decision Review Officer (DRO) at the RO in June 2008, the Veteran again explained his headaches had varying levels.  

The Veteran was afforded another VA examination in April 2010 where the examiner indicated the Veteran suffered with severe headaches once every two to three weeks whereas he suffered less severe headaches two to three times per week.  The intensity of the "severe" headaches was described as including nausea, vomiting, light sensitivity, and an inability to do any of his activities.  He has to go to a dark room and lie down for approximately 4 to 5 hours.  He takes up to four Excedrin during those times.  He also gets cold and clammy the next day with residual headache.  The less severe headaches do not have any nausea or vomiting associated with it.  The Veteran denied any alcohol, tobacco, or drug use and denied any particular triggers for his headaches.  The examiner at that time diagnosed the Veteran with migraine headaches which are still ongoing and prostrating.  The less severe headaches, however, were described as still ongoing, but with the ability to function through them with over-the-counter medication.  

In June 2011, the Veteran was yet again afforded an additional VA examination.  The Veteran at that time described his headaches as "comes in groups."  That is, the Veteran explained he could go a few weeks without any headaches, but once he gets one, many others follow thereafter.  His headaches ranged in severity from lasting two hours to lasting one day.  He indicated incapacitating headaches occurring one to two times a month with sensitivity to light, sound, and smell and nausea/vomiting and blurred vision.  The Veteran also noted he last worked in 2001, but at that time he did not miss any days of work because of headache, but he left work early four or five times that year.  

The Board remanded the claim a final time in August 2012 seeking a VA examiner to resolve the varying descriptions of the Veteran's headaches, his credibility, and whether any other non-service connected factor was partially responsible for the headaches.

The Veteran was most recently afforded a VA examination in November 2012.  The examiner indicated that the claims folder was reviewed in detail, to include the Board's remand and the discrepancies pointed out in the Board's prior remand.  The examiner, however, found that the Veteran's reported headache history has been consistent.  In fact, the examiner found that the Veteran's headache pattern has remained stable over the years, occurring approximately three days out of two weeks, with more severe headaches 1 to 2 times per month.  "Naturally the headaches vary in intensity, which explains some of the historical discrepancies flagged in the remand request."  

The examiner further found the Veteran's other medical history and social habits unremarkable.   Specifically, the examiner found "no historical or documentary evidence of hypoglycemia" and "it is doubtful that caffeine plays a role in this Veteran's headaches."  The Veteran denied significant alcohol consumption, and the examiner found the Veteran overall credible.  

The severe headaches, occurring 1 to 2 times per month, were described as including symptoms of nausea, vomiting, and sensitivity to light.  These headaches were found to be "characteristic prostrating attacks" occurring "more frequently than once per month," specifically, 1 to 2 times per month.  In contrast, the 2012 examiner did not find that the Veteran ever has "very frequent prostrating and prolonged attacks" nor did the examiner find any occupational impairment due to his headaches.  The examiner overall found the Veteran's headaches are post-traumatic and solely due to the concussive blast in service in 1967.  The examiner found nothing significant that would raise doubt to the Veteran's credibility or memory.  

In short, the medical evidence shows the Veteran's headaches have been recurring since service and have not progressed over time, but rather stayed stable.  The medical evidence also shows these headaches occur frequently, but of varying degrees.  With regard to true "prostrating attacks," the medical evidence indicates the Veteran has severe headaches once to twice a month.  No medical examiner has ever found, however, that the Veteran's headaches cause severe economic inadaptability.   

A 30 percent rating is warranted where characteristic prostrating attacks occur on an average of once a month over the last several months.  A 50 percent rating is warranted with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  See 38 C.F.R. §. 4.124a, DC 8100. 

Here, although the Veteran's characteristic prostrating attacks can occur more than once a month (averaging one to two times per month), no medical professional has ever found the Veteran's headaches cause him severe economic inadaptability.  In fact, there is medical evidence to the contrary.  Accordingly, the Board finds the manifestations of his headaches do not support a rating greater than 30 percent. 

The rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected headaches.  There are higher ratings available under the diagnostic codes for other manifestations, but those manifestations are not present.  Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).

The Board considered whether a claim of total disability based on individual unemployability (TDIU) was inferred in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran stopped working in 2001 for unknown reasons, but has never claimed his headaches render him unemployable.  In fact, the Veteran explained to the June 2011 VA examiner that in the year 2001, he never missed work due to headaches, although he did leave early four to five times.  The November 2012 VA examiner, moreover, concluded the Veteran's recurrent headaches do not impact his ability to work.  For these reasons, the Board finds TDIU was not reasonably raised here.  Cf. Rice, 22 Vet. App. 447.


ORDER

Entitlement to an initial rating greater than 30 percent for headaches, as a residual of a head injury is denied.



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs