Citation Nr: 1319823 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 04-40 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial compensable rating for migraine headaches from October 31, 2002, to June 11, 2003; in excess of 30 percent from June 12, 2003, to May 27, 2004; and in excess of 50 percent on and after May 28, 2004. (The issues of entitlement to service connection for a low back disorder, hearing loss, and tinnitus, as well as issues of higher initial disability ratings for diabetes mellitus and residuals of prostate cancer, will be addressed in a decisional document to be issued at a later date.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in May 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, granting service connection for migraine headaches and assigning a rating of 0 percent therefor, effective from October 31, 2002. By subsequent rating action, the RO in August 2007 increased the rating from 0 percent to 30 percent, effective from June 12, 2003. By its decision of November 10, 2010, the Board denied entitlement to an initial rating in excess of 0 percent prior to June 12, 2003, for migraine headaches and to more than a 30 percent rating therefor on and after June 12, 2003. The Board also granted an initial rating of 50 percent for migraine headaches for the period on and after May 28, 2004. By that decision, the Board also remanded various other issues then before it to the VA's Appeals Management Center (AMC) so that additional actions relating to claims of entitlement to service connection for a low back disorder, hearing loss, and tinnitus, as well as issues of higher initial disability ratings for diabetes mellitus and residuals of prostate cancer, could be undertaken. The AMC has not completed its actions as to those matters and they are not herein otherwise addressed, but will be the subject of a subsequent Board decision. Following entry of the Board's decision in November 2010, the Veteran appealed the question of the initial ratings to be assigned for migraine headaches to the U.S. Court of Appeals for Veterans Claims (Court). The parties to that appeal jointly moved the Court in June 2011 to vacate the Board's decision of November 2010 solely as to higher initial ratings denied for migraine headaches and remand the matter to the Board for further actions. The Court granted the parties' motion by its June 2011 order and the case was returned to the Board for further review. In April 2012, the Board remanded the matter to the AMC to undertake certain development actions and following the AMC's attempts to complete those actions, the case was again returned to the Board for additional review. In his December 2012 submission to VA, the Veteran raised the issues of his entitlement to service connection for a traumatic brain injury and to an increased rating for his posttraumatic stress disorder, but which have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. Additional remand action by the Board was entered in February 2013 to permit the AMC to obtain VA medical treatment records referenced by the Veteran which were not then on file. Upon the completion of the actions sought by the AMC, the case was returned to the Board for further review. FINDINGS OF FACT 1. From October 31, 2002, to June 11, 2003, the competent and credible evidence reflects no more than occasional migraine attacks relieved by prescription medication. 2. From June 12, 2003, to May 27, 2004, the competent and credible evidence reflects the occurrence of migraine attacks at a rate well in excess of one monthly, but reported inconsistently in the range from two or more monthly to two episodes weekly; some headaches are relieved by prescription medication with attempts to prevent future attacks through the use of prophylactic medication. 3. As of May 28, 2004, the competent and credible evidence reflects migraine attacks occurring more than once per month despite the use of prophylactic medication and which are of such severity that they are at times relieved only through isolation from noise, light, and movement. 4. The schedular criteria for evaluation of the Veteran's headaches are adequate for the evaluation of the resulting level of disablement. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for migraine headaches have not been met for the period of the appeal prior to June 12, 2003. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8100 (2012). 2. The criteria for an initial disability rating of 50 percent, but none higher, for migraine headaches for the for the period from June 12, 2003, to May 27, 2004, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8100 (2012). 3. The criteria for an initial disability rating of more than 50 percent for migraine headaches for the period on and after May 28, 2004, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). A review of the claims file reveals that letters sent to the Veteran in March 2003 and April 2008 satisfied VA's duty to notify requirements. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Ideally, both of these letters should have been provided to the Veteran prior to the adjudication of his claim and assignment of an initial disability rating in May 2003. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). However, VA may proceed with adjudication of a claim if errors in the timing or content of the notice are, as in this case, not prejudicial to the claimant. Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, the Veteran was provided ample opportunity to participate meaningfully in the adjudicatory process following the issuance of the aforementioned VCAA letters and the entire record was reviewed and the claim was readjudicated in supplemental statements of the case dated in a supplemental statement of the case in March 2010. As such, there is no prejudice in the Board proceeding with the current appeal. Id.; see also Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006).Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication). Turning to VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the claim decided herein and providing adequate VA examinations, when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159(c), 4.2 (2012). The Veteran's service treatment records are associated with the claims folder, as well as all relevant and available VA and non-VA treatment records. Many efforts were in fact made by the Board, AMC, and the RO to ensure that all available records were obtained and made a part of the claims folder. Complete records from the Social Security Administration (SSA) are not associated with the claims file and notice is taken that the AMC in August 2012 determined through its formal determination that the entirety of the Veteran's SSA records were unavailable for review. It, too, is noted that the criteria used to rate migraine headaches rely, for the most part, on the competent lay evidence of the Veteran regarding the frequency, duration, and severity of his migraine headaches. As discussed below, the current record contains lay evidence dated throughout this appeal which is sufficient upon which to rate the Veteran's disability. Thus, remanding this appeal to obtain medical evidence which likely contains duplicative statements regarding his headaches would only unnecessarily delay this claim further with no obvious benefit flowing to the Veteran. Additionally, the Board observes that the Veteran was given an opportunity in April 2008 to submit any relevant evidence and/or release information such that VA might obtain any outstanding relevant evidence. In September 2008, the VA received a large amount of medical records from the Veteran that were accompanied by a statement that the attached evidence constituted that "missing records" as requested by the VA. In light of the Veteran's statement, and the fact that he has had plenty of opportunity to provide the VA with lay and/or medical evidence in support of his appeal, the Board is satisfied that VA has fulfilled its duty to assist him in obtaining any outstanding, relevant evidence as it pertains to this claim. In addition to the above development, the Veteran was afforded a VA-contract examination in January 2006, as well as subsequent VA evaluations, which the Board finds adequate for rating purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Specifically, those examination reports contain clinical findings that are relevant to the diagnostic criteria used to evaluate the Veteran's migraine headaches and, as explained in more detail below, there is sufficient discussion as to the functional impact of this disability and its related symptoms on the Veteran's daily life and employment. The Board acknowledges that the fee-basis examiner in 2006 was not given an opportunity to review the Veteran's claims file in conjunction with the examination. However, the rating criteria pertain to symptoms which the Veteran, as a lay person, is competent to report. As such, the Board finds the fact that the January 2006 VA-contract examiner obtained a medical history from the Veteran to be sufficient. Also, the claims file was made available and reviewed during the course of other subsequent evaluations. Under the circumstances of this case, "the record has been fully developed," and it is difficult to discern what additional guidance VA could have provided to the appellant regarding what further evidence he should submit to substantiate his claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Compliance with Prior Board Remand(s) As noted in the Introduction above, the Board previously remanded this appeal in 2008, 2012, and 2013. In each instance, one or more reasons necessitated additional development of the issue presented. When the case was returned to the Board, it was determined whether there had been substantial compliance with the terms of the remand, and appropriate action followed. Most recently, the Board returned the file to the AMC to associate and consider all pertinent VA medical treatment records and once those actions were completed and the claims folder was returned to the Board. All of the actions sought by the Board through its prior development requests as to the matter herein addressed on its merits now appear to have been completed as directed, and it is of note that neither the Veteran, nor his representative, contends otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Analysis Service connection for migraine headaches was granted by RO through its rating decision of May 2003. An initial disability rating of zero percent (noncompensable) was assigned effective from October 31, 2002, the date of receipt of the Veteran's claim for compensation. The Veteran notified the RO of his disagreement with the initial disability rating assigned and perfected an appeal as to this issue. In August 2007, the RO increased the Veteran's assigned disability rating from noncompensable to 30 percent, effective from June 12, 2003, and by prior Board action in November 2010, a 50 percent rating was assigned from May 28, 2004. The Veteran did not withdraw his appeal; thus, it is now before the Board for appellate review. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes parenthetically that by prior rating action during the appeal period herein at issue the Veteran was found to be entitled to a total disability rating for compensation based on individual unemployability (TDIU), effective from June 9, 2004. No timely appeal from that determination was undertaken and the question of TDIU entitlement or the effective date of the prior grant is not now within the Board's appellate jurisdiction for review in the context of this matter. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service treatment records and all other evidence of record pertaining to the history of the Veteran's service-connected disability. It has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Finally, this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue. By way of background, disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (hereinafter "Rating Schedule"), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10 (2012). If, when a evaluating a disability, there is a question as to which of two evaluations shall be applied, pertinent VA law provides that the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Further, when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of a veteran. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012). As noted above, the issue before the Board is entitlement to higher initial disability ratings for migraine headaches. That disability is evaluated pursuant to Diagnostic Code 8100. Under this diagnostic code, a noncompensable rating is warranted with less frequent attacks. A 10 percent rating is warranted when the disability picture shows characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted when the disability picture shows characteristic prostrating attacks occurring on an average once a month over the last several months. Finally, a maximum 50 percent rating is warranted when the disability picture shows very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). In the present case, the competent and credible lay and medical evidence of record supports no more than a noncompensable disability rating prior to June 12, 2003. In this regard, there is no indication that the Veteran was prescribed any prophylactic medications to prevent frequent migraine headaches, and, in fact, he reported a history of no more than one migraine attack every few months at a September 2002 VA primary care appointment less than two months prior to the date he filed his claim for VA compensation benefits. The Board acknowledges that the Veteran has asserted entitlement to a compensable disability rating prior to June 12, 2003. However, in weighing the Veteran's current assertions regarding the severity and frequency of his headaches for this period of the appeal against the contemporaneous statements of record regarding his headaches, the Board finds the latter to be more probative as to the state of his disability at that time. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that it is permissible for the Board to apply reasoning found in the Federal Rules of Evidence, such as the rule that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Since the Veteran's statements do not reflect a history of migraine attacks averaging one in two months over the last several months or any greater degree of severity, prior to June 12, 2003, a preponderance of the evidence is against granting any higher initial rating for this stage of the appeal. As for the period from June 12, 2003, to May 27, 2008, there is evidence both supportive and contraindicative of an increased level of severity of the Veteran's headaches. In his February 2004 statement submitted to VA, the Veteran reported experiencing two or more headaches in a one-month period, but reported to medical professionals on separate occasions they were occurring at rate of once or twice weekly. The Veteran's account of the frequency of his headaches is inconsistently reported by him, which impairs his credibility as to that question, but, in the Board's view, his account nonetheless reflects an increased frequency of headaches. Evidence on file reflects also that the Veteran was prescribed the prophylactic medication, propranolol, on June 12, 2003, by his primary care physician. Although the primary care note does not make any specific reference to an increase in the Veteran's headaches, the Board is satisfied that the introduction of preventative medicine is sufficient to indicate some increase in the severity of his headaches. On the basis of the foregoing, the Board resolves reasonable doubt in the Veteran's favor and assigns the maximum schedular evaluation of 50 percent for the period from June 12, 2003, to May 27, 2004. There is no indication that any higher evaluation than 50 percent is for assignment under any alternate rating criteria. For the period on and after May 28, 2004, a 50 percent rating under Diagnostic Code 8100 has already been assigned and it is again noted that the 50 percent evaluation is the highest available under that code. During that period, the Veteran's VA treatment records show continued use of propranolol, and, in fact, reflect that the Veteran's dosage of propranolol was doubled. Thereafter, on August 31, 2004, the Veteran complained to his neurologist that while there had been some decrease in the severity of his headaches, he had recently experienced an eight-day migraine attack. He indicated that it was not uncommon for his migraine attacks to last two or three days. Medication records reflect that the VA neurologist again doubled the Veteran's dosage and added zolmitriptan for acute relief. Thereafter, the Veteran continued to be followed by neurology on a fairly regular basis. In April 2005, zolmitriptan was discontinued per the Veteran's preference, but, relevant to the current appeal, he denied any worsening (or improvement) in his migraine headaches. Written statements of record during this period of the appeal, including the Veteran's substantive appeal, indicate that his migraine attacks required him to isolate himself in a quiet, dark, still environment for relief. In January 2006, the Veteran was examined by a VA-fee basis physician for the purpose of evaluating his migraine headaches and their impact on his occupational functioning. The examination report reflects that the Veteran continued to report very frequent migraine attacks in which he was "unable to do anything." It was noted that his migraine attacks could occur as often as twice per week and sometimes lasted up to three days. It was the examiner's opinion that the Veteran should avoid unprotected heights, hazards, operating machinery, and moving machinery while experiencing an attack. The Board notes that it does not find the January 2006 examiner's list to be exhaustive of what the Veteran cannot do during an attack, but rather, indicative of the difficulty he faces doing anything requiring a high level of concentration during a migraine attack. In sum, the evidence, as discussed above, demonstrates a picture in which the Veteran is experiencing migraine attacks more than once per month despite taking prophylactic medications. Furthermore, such attacks last anywhere from two days to three days, and require the Veteran at times to isolate himself to gain relief. Finally, during his attacks he is unable to perform higher functions which require concentration. Clearly, such symptoms are productive of severe economic inadaptability. The Board notes that it considered whether the evidence demonstrates entitlement to a disability rating in excess of 0 percent prior to June 12, 2003, and in excess of 50 percent on and after June 12, 2003. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the criteria for the assignment of a compensable evaluation are not met prior to June 12, 2003, nor is there a basis for the assignment of a rating in excess of 50 percent under Diagnostic Code 8100 or any alternate rating criteria for the period on and after June 12, 2003. The Board has also considered the Veteran's own lay assertions that he is entitled to a higher disability ratings for the entire appeal period. However, as previously noted, the Board finds the contemporaneous accounts of his migraines (as told to his physicians) to be more probative than the statements made in conjunction with this appeal. Therefore, the Board has focused most of its analysis on the evidence as reported in the medical record. See Rucker, 10 Vet. App. at 73; see also Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). And, as discussed above, the lay and medical evidence supports no more than a noncompensable disability rating prior to June 12, 2003, or more than a 50 percent for the period thereafter. In reaching these conclusions, the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The above determination is based upon application of the pertinent provisions of VA's Rating Schedule. The purpose of the Rating Schedule is to compensate a veteran for the average impairment in earning capacity resulting from his service-connected disability. 38 C.F.R. §4.1 (2012). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the disability. Id. However, in some cases a disability may present exceptional or unusual circumstances 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) (2012). In these cases, a referral for consideration of an extra-schedular rating is warranted. Id. The Board has considered whether a referral for extra-schedular consideration is warranted in the present claim, especially in light the fact that the Veteran has not been working throughout this appeal. However, pertinent to its decision not to refer this claim, the Veteran has not presented any evidence that would suggest that the 0 and 50 percent ratings do not adequately compensate for the earning impairment caused by his migraine headaches. In this regard, the ratings assigned are based on the nature and frequency of the headaches experienced and the resulting economic inadaptability and the record does not identify symptoms or manifestations beyond those contemplated by the rating criteria. It therefore appears that the criteria used to evaluate the Veteran's symptomatology adequately compensate for any loss in earning capacity, and, thus, referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). ORDER An initial compensable disability rating for migraine headaches for the period from October 31, 2002, to June 11, 2003, is denied. An initial rating of 50 percent, but none greater, for migraine headaches for the period from June 12, 2003, to May 27, 2004, is granted, subject to those provisions governing the payment of monetary benefits. An initial rating in excess of 50 percent for migraine headaches for the period on and after May 28, 2004, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs