Citation Nr: 1321277 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 08-13 274A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for alopecia. 2. Entitlement to an increased disability rating for service-connected migraine and tension headaches, currently evaluated as 30 percent disabling, to include the issue of a compensable disability rating from May 10, 2005 to May 7, 2008. (The issue of entitlement to a clothing allowance is the subject of a separate decision by the Board of Veterans' Appeals). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1991 to December 1993, June 1994 to June 1998, and from February 2001 to February 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2006 and November 2006 rating decisions by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). The claims file is now in the jurisdiction of the Atlanta, Georgia RO. The case was previously before the Board in March 2011, when they were remanded to afford the Veteran a hearing. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a Travel Board hearing in September 2011; a transcript of the hearing is associated with the Veteran's claims file. The case was again before the Board in April 2012 when, in pertinent part, the matters listed on appeal were remanded for additional development. The matter of service connection for alopecia is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, throughout the appeal period, the Veteran's migraine and tension headaches are manifested by prostrating attacks occurring at least once a month. CONCLUSION OF LAW Throughout the appeal period, the criteria for entitlement to a 30 percent rating, and no higher, for migraine and tension headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this case, the notice requirements were accomplished in a letter sent in July 2005 prior to the initial rating decision. Additional notice was sent in March 2006 and June 2007. Although notification to the Veteran may not have met all of the requirements of the VCAA and related case law, the matter decided below may be addressed at this time, without further remand, because no errors in notice are prejudicial in this case, and the Veteran has been provided all information needed for a reasonable person to prove the claim. He has not contended prejudice due to inadequate notice. VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claim has been obtained. The Veteran's service treatment records and post-service VA and private treatment records have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. He also was provided with VA examinations. The Board finds that the VA examination reports, cumulatively, are adequate for evaluation purposes because the examiners conducted a clinical evaluation, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Specifically, the Board notes that the Veteran was provided several VA examinations. While not all addressed whether the Veteran's headaches were productive of severe economic inadaptability, to the extent they provided the symptomatology of the Veteran's headaches, the Board finds them adequate for rating purposes. Further, the Veteran has not alleged, nor does the record show, that his service-connected migraine and tension headaches have worsened in severity since the most recent examination. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Veteran was also provided with a hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ did not note the elements that were lacking to substantiate the claim. However, the VLJ solicited information from the Veteran so that he was able to clarify his contentions. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). B. Legal Criteria, Factual Background, and Analysis The Veteran seeks a higher rating for his service-connected migraine and tension headaches. Historically, a May 2004 rating decision granted service connection for migraine and tension headaches, rated noncompensable, effective February 23, 2004. He did not appeal that decision, and it is final. 38 U.S.C.A. § 7105. The instant claim for an increased rating was received on May 10, 2005. A November 2006 rating decision continued a noncompensable rating. An interim September 2009 rating decision granted an increased, 30 percent disability rating, effective August 19, 2009. A July 2010 rating decision granted an earlier effective date of May 8, 2008 for the assignment of the 30 percent disability rating for the Veteran's service-connected migraine and tension headaches. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, 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). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Migraine headaches are rated under Diagnostic Code 8100, which provides that migraines resulting in characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating; migraines with less frequent attacks warrant a 0 percent rating. Migraines resulting in characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. As indicated above, the Veteran has been assigned a noncompensable rating for his service-connected migraine and tension headaches for the period from May 10, 2005 to May 7, 2008, and a 30 percent disability rating since May 8, 2008. After a review of the evidence of record, resolving all reasonable doubt in the Veteran's favor, the Board finds that a 30 percent disability rating is warranted throughout the appeal period for the Veteran's migraine and tension headaches. On May 2006 VA examination, the Veteran complained of headaches four to five times per day, lasting one to two hours. They are manifested by sharp, throbbing pain, and somewhat aggravated by light. He further reported that they are relieved by relaxing in a dark, quiet room. He related that he did not miss work because of his headaches. VA treatment records from the period from May 2004 to May 2006 include the Veteran's complaints of both constant and off and on headaches. The headaches become more severe over time. There was no clear precipitating factors for the headaches, and they are relieved by a cold towel, dark room, and sleep. March 2008 lay statements also report the Veteran has one to two headaches per week and leave him helpless, causing him to leave work early or preventing him from completing his duties. On April 2009 VA examination, the Veteran complained of three to four headaches per month, lasting 16 to 18 hours, with two to three prostrating headaches per month. There is no known aggravating factor for the headaches, and the pain is described as sharp and steady. The Veteran related he has an aura of seeing a spot before his eyes and associated nausea. VA treatment records for the period from May 2006 to April 2009 include the Veteran's complaint of chronic headaches. The frequency of the headaches ranges from one to two per week, to four to five per week, lasting at least several hours, and up to a day or more. He also reported associated nausea, vomiting, and photophobia. The Veteran further related he usually relieves his symptoms by lying in a quiet, dark room until his pain subsides, and that his medication (which is frequently changed and elevated during the period) does not help relieve his symptoms. On March 2010 VA examination, the Veteran complained of five to six headaches per month, lasting 18 hours. He stated that a light starts in one eye and it grows in size. He has associated nausea and vomiting, and must lie down in a dark room for hours. When the headaches occur, he must stay in bed and he is unable to do anything. At the September 2011 Travel Board hearing, the Veteran testified that he has headaches four to five times per month, with associated sensitivity to light, an aura within his vision, and nausea and vomiting. He further testified that he only occasionally has to go home because of his symptoms. He also testified that his headache symptoms have been constant over the last several years. VA treatment records from April 2009 to June 2012 include the Veteran's complaint of three to five headaches per month, lasting one to two hours, with associated nausea, vomiting, and photophobia. They also note his complaint that his headaches are worse when he is stressed. Based on the foregoing, the Board finds that a 30 percent rating is warranted throughout the appeal period as the evidence is at least in equipoise whether the Veteran's service-connected migraine and tension headaches equate to characteristic prostrating attacks occurring on an average once a month. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that it does. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Accordingly, the Board finds that the Veteran met the criteria for a 30 percent disability rating for his migraine and tension headaches. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. As to a rating in excess of 30 percent for his service-connected migraine and tension headaches, the Board finds that the evidence does not support a finding that his headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Significantly, on April 2012 VA examination, the Veteran reported he has headaches three to four times per month, and that when he has the headaches at work, his supervisor lets him go to his car to relieve his symptoms. The examiner found that the Veteran has characteristic prostrating attacks of migraine headache pain more frequently than once per month. However, the examiner found that the Veteran does not have very frequent prostrating and prolonged attacks of migraine headache pain. In addition, the record is otherwise negative for any objective evidence that the headaches are productive of severe economic inadaptability. Further, the Board finds that neither the Veteran nor his friends are competent to provide an opinion that the headaches are productive of severe economic inadaptability because such an opinion requires medical training which they do not have. See Jandreau, 492 F.3d at 1376-77. The Board acknowledges the frequency of the Veteran's headaches. However, based on the evidence above, the Board finds that the Veteran's migraine and tension headaches do not meet the criteria for a rating in excess of 30 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. This is true at all times during the pendency of the appeal. Extraschedular Evaluation The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. 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. 38 C.F.R. § 3.321(b)(1); 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 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, thus, 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 the veteran's disability picture requires the assignment of an extraschedular rating. In this case, the rating criteria for the Veteran's service-connected migraine and tension headaches reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms, which have not been shown. The medical evidence does not show that the Veteran's service-connected migraine and tension headaches cause unusual factors such as frequent hospitalizations or marked interference with employment beyond that contemplated by the rating schedule. The rating criteria are therefore adequate to evaluate the Veteran's migraine and tension headaches. Consequently, referral for extraschedular consideration is not warranted. Finally, the Court has held that entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, the Board notes that entitlement to TDIU was denied in a July 2009 rating decision. The Veteran did not appeal the decision. Moreover, the Veteran appears to be employed full-time working in a warehouse with VA. Therefore, the Board finds that a claim for TDIU is not raised by the Veteran or reasonably raised by the record and, as such, need not be further addressed. ORDER Subject to the laws and regulations governing payment of monetary benefits, a 30 percent disability rating for migraine and tension headaches, but no higher, is granted throughout the appeal period. REMAND The Veteran also seeks service connection for alopecia. As noted in the April 2012 Board remand, a November 2003 VA examination conducted prior to the Veteran's discharge in February 2004 noted his history of losing hair since 2001, and objective evidence of patchy alopecia on the front of the scalp. The examiner diagnosed alopecia, but did not provide any opinion as to its etiology. However, subsequent VA examination found no evidence of either scarring alopecia or alopecia areata, and there are no other treatment records indicating a diagnosis of alopecia. Notably, the Veteran alleges that during his active duty service in Kuwait/Iraq, he was under constant chemical alarms that required putting on his gas mask, and this constant on and off process caused his hair line to recede. See, e.g., February 2008 VA Form 9. Accordingly, the Board remanded the matter for an appropriate examination to determine whether he currently has alopecia etiologically related to his service. On April 2012 VA examination, it was found the Veteran has alopecia areata with hair loss limited to the scalp and face and an unusual hairloss pattern (i.e., triangular shaped). However, the examiner opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by service. The examiner based his conclusion on the fact that the Veteran's service treatment records are silent for complaint or evaluation for alopecia. However, there is no evidence that the examiner considered the above-noted November 2003 VA examination conducted prior to the Veteran's discharge that also found objective evidence of patchy alopecia on the front of the scalp. As the significance of the November 2003 VA examination on the formulation of the examiner's opinion is not clear, the Board finds that there needs to be clarification. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a physician's opinion based on an inaccurate factual premise has no probative value). Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to the physician who conducted the April 2012 VA examination, if available, to obtain an addendum to her prior opinion. If the examiner determines additional examination and/or testing is required to respond to the question presented, such should be scheduled. In the April 2012 examination report, the examiner noted that the Veteran's service treatment records were silent for complaint or evaluation for alopecia. The examiner did not address the November 2003 VA examination conducted prior to the Veteran's discharge that found evidence of patchy alopecia on the front of the scalp. Following review of the claims file, the examiner should indicate whether the finding of patchy alopecia on the front of the scalp on November 2003 VA examination prior to the Veteran's discharge from active duty service changes her conclusion that the Veteran's alopecia areata is less likely than not incurred in or caused by service. The examiner should provide a complete explanation for her opinion. 2. After the development requested above, as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board, if in order, for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs