Citation Nr: 1320258 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-03 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial rating in excess of 30 percent for cervicogenic trigeminovascular headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from November 1981 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for cervicogenic trigeminovascular headaches and assigned a 10 percent rating effective November 9, 2006. In an April 2008 rating decision, the RO increased the Veteran's assigned rating to 30 percent effective November 9, 2006. The Veteran's Virtual VA file has also been reviewed as part of his appeal. FINDING OF FACT The Veteran's cervicogenic trigeminovascular headaches are manifested by prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial 50 percent rating for cervicogenic trigeminovascular headaches have been approximated. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In this case, the Board is granting in full the benefit sought on appeal. Assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. 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 a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran's cervicogenic trigeminovascular headaches are rated as 30 percent disabling under Diagnostic Code 8199-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits. Id. Under 38 C.F.R. § 4.124a, Diagnostic Code 8100, a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months. The maximum 50 percent rating may be assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. VA treatment records dated April 2007 show the Veteran complained of right-sided headaches. He denied any associated auras, photopsiae, nausea, or vomiting, but experienced some associated tearing of the right eye. He reported having a throbbing baseline headache which was present 90 percent of the time and was exacerbated 3 to 4 times per day. These exacerbations lasted between 20 minutes and 4 hours. It was aggravated by light and relieved by heat and massage. His longest period without a headache was 2 to 3 days. He had tried different treatments without significant relief. The Veteran underwent a VA examination in May 2007. He reported that with severe headaches, he felt better moving around rather than lying down. Some headaches were accompanied by neck stiffness or other discomfort. He had unsuccessfully treated his condition with Topiramate. On examination, the Veteran had an active headache. It caused considerable discomfort and was accompanied by sweating, and conjunctival redness and tearing. The episode lasted a few minutes. VA records dated July 2007 show the Veteran sometimes went in to dark rooms for his headaches, but he also experienced headaches while sleeping. He received Imitrex injections which relieved his headaches for about ten minutes. He experienced multiple episodes per day, including one or two "really bad ones." In September 2007, the Veteran's treating physician noted that the Veteran had been on most of the medicines to treat headaches, and he was not sure that any other medicine would work. Records from February 2008 show the Veteran denied any change in the character, duration, or frequency of his headaches. He continued to deny any photophobia, phonophobia, nausea or vomiting, but still experienced lacrimation and conjunctival injection. He only experienced relief from Imitrex injections, but the frequency of dosing limited its benefits. In December 2008, the Veteran complained that his headaches woke him up at night on a regular basis. Most recently, he was awakened at 3 a.m. by a headache which lasted until 7 a.m., and he was forced to call in sick from work. In June 2009, the Veteran went to the emergency room for a severe headache which he had been unable to break for two days. He had run out of Imitrex and used Vicodin without favorable results. Additional records show the Veteran reported multiple mild headaches each day with 4 to 5 episodes of more severe headaches each week. In September 2009, the Veteran also began treating his condition with Migrainol nasal spray. However, he used this and his Imitrex injections only for protracted headaches. He also used positioning, hot showers, a massager, a cool fan, and distractions to treat his condition. Severe headaches occurred intermittently throughout the day, typically lasting between 2 and 4 hours. However, some lasted more than 24 hours. He was also awakened at night by headaches with relative frequency. These occurrences affected his ability to work as an apartment complex maintenance person. The treating physician noted that the Veteran was not in pain when he arrived, but experienced waxing and waning symptoms for about 15 minutes during the visit. In January 2010, the Veteran submitted four statements from various co-workers in support of his claim. These witnesses had worked with the Veteran at various points from 2003 through 2009. Collectively, these statements describe how the Veteran's headaches reduced his efficiency on the job by causing him to miss appointments, leave work early or call in sick. VA records dated January 2010 reflect a diagnosis of chronic daily headache, likely migraines. Records from February 2010 include a notation from a social worker, who stated that the Veteran experienced 3 to 5 headaches per week that brought him to tears. The Veteran underwent a VA examination in May 2010. He described his headaches as occurring only on the right side. They involved significant intensity above the right eye and the temple. He experienced redness and tearing in his right eye. He also experienced some nausea but denied any vomiting. When experiencing a severe headache, he found it difficult to lie down, and preferred pacing. He also obtained some relief by placing himself in front of a fan or air conditioner. If he is driving a car, he would pull over and stop. He had done this about 20 times since 1990. He had treated his condition with various medications, oxygen, and alternative therapies such as acupuncture. Aside from Imitrex injections, none provided significant relief. He reported going to the emergency room 4 times in the past several years for headaches, and noted that the headache usually resolved by the time he got there. The Veteran and his wife submitted statements dated May 2010. He stated that whenever he experience severe headaches, he had to stop what he was doing, whether it was working, driving, or even eating. He also stated that he did not lie down when he had headaches because he was unable to sit still. He just held his head, massaged it, or did other small things to obtain some relief. His wife stated that his condition interfered with daily activities such as household projects. Sometimes he slept in an upright position to try and prevent headaches. A 50 percent rating is warranted for the Veteran's cervicogenic trigeminovascular headaches. Under Diagnostic Code 8100, a 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Here, the evidence does not specifically show that the Veteran's condition caused "prostrating" attacks. That is, he did not immediately lie down and rest in response to his severe headaches. In his own statements, he described responding to his headaches by massaging his head, taking hot showers, standing in front of a fan or air conditioner, and other actions. However, while the Veteran's headaches were not prostrating, the overall level of impairment resulting from his condition is nonetheless approximated by the 50 percent rating. He experienced frequent headaches, as often as 4 or 5 severe episodes a week, and his headaches were active during his May 2007 VA examination and September 2009 outpatient visit. The only treatment that provided regular relief for his condition was injections of Imitrex, and his VA physician noted that the frequency of the Veteran's dosing limited its benefits. The condition also resulted in economic inadaptability. The Veteran reported missing work in December 2008, and the January 2010 statements from his former co-workers detail a history of missed time at work and overall decreased occupational functioning due to headaches. Therefore, when viewed in its entirety, the evidence reflects an overall disability picture that approximates the 50 percent rating under Diagnostic Code 8100. The competence and credibility of the Veteran and other lay witnesses must be assessed in adjudicating a claim. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran and other laywitnesses in this case are competent to give evidence about what they observe or experience. For example, they are competent to report their observations of his headache symptoms, as well as the impact of these symptoms on his daily activities and occupational functioning. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). These statements are also credible, as they are consistent with each other and with the medical evidence of record. A 50 percent rating is the maximum schedular rating available under Diagnostic Code 8100. In evaluating the Veteran's claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998) have been considered. This case holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected condition in considering if the Veteran is entitled to an extraschedular rating. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's service-connected headaches with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The severity, frequency and duration of the Veteran's headaches are contemplated by the 50 percent rating, which allows for very frequent and severe episodes. The evidence also demonstrates interference with the Veteran's employment. However, there is no persuasive evidence in the record to indicate that the service-connected headaches on appeal would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. The assigned 50 percent disability rating under Diagnostic Code 8100 expressly contemplates severe economic inadaptability. Finally, an extraschedular rating may also be appropriate when a condition results in frequent hospitalizations. In this case, however, the evidence shows that the Veteran visited the emergency room for treatment, but does not show that he had been hospitalized at any time for his headaches. Therefore, referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER An initial 50 percent rating for cervicogenic trigeminovascular headaches is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs