Citation Nr: 1322896 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-43 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from June 1986 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted the Veteran's claim of service connection for migraines and assigned an initial disability rating of 10 percent, effective from September 1, 2007. In a subsequent decision dated in August 2009, the RO increased the rating to 30 percent, effective from September 1, 2007. FINDING OF FACT The Veteran's headache disorder is manifested by characteristic prostrating attacks occurring on average once a month, but not by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for migraine headaches are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.27, 4.124a, Diagnostic Code (DC) 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. Here, the Veteran's claim for an increased rating arises from an appeal of the initial grant of service connection for migraine headaches. Because service connection was granted, the claim is substantiated and no additional notice is required as to the downstream issue involving entitlement to an increased rating. In any event, an August 2009 Statement of the Case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating and readjudicated the matter. 38 U.S.C.A. § 7105 (West 2002); see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Moreover, the Veteran has had ample opportunity to respond and supplement the record and he has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). VA also has a duty to assist the Veteran in the development of the 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 available service treatment records and VA treatment records have been obtained. The Veteran has not indicated that there are any additional records that VA should seek to obtain on his behalf. The Veteran also was provided with VA examinations in January 2008 and April 2010. The Veteran has not alleged that these examinations are inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected migraine headaches disability as they include an interview with the Veteran, a review of the record, and a full physical examination addressing the relevant rating criteria. Further, the Veteran has not alleged, nor does the record show, that his service-connected migraines headaches disability has 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). Thus, the Board finds that VA has fully satisfied the duty to assist. VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis As noted above, the Veteran's claim arises from his disagreement with the initial rating assigned following the granting of service connection. The Court of Appeals for Veterans Claims (Court) has noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case, as here, in which the Veteran expresses dissatisfaction with the assignment of the initial disability evaluations where the disabilities in question have just been service connected. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In the former situation, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance. In the Fenderson scenario, however, where, as here, the Veteran has expressed dissatisfaction with the assignment of an initial rating, 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 "staged" rating. Fenderson, 12 Vet. App. 125-126. The Court since has extended this practice, however, even to claims that do not involve initial ratings. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, this doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran is seeking a higher initial rating for his service-connected migraine headaches. He is currently in receipt of a 30 percent disability rating, effective from September 1, 2007, the day after his separation from service. 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, provides 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. 50 percent is the highest schedular rating available under this diagnostic code. The rating criteria do not define "prostrating", nor has the Court. Fenderson v. West, 12 Vet. App. 119 (1999) (wherein the Court quotes DC 8100 verbatim but does not specifically address the matter of what is a prostrating attack). But by way of reference, according to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "prostration" is defined as "complete physical or mental exhaustion." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." With these definitions and requirements in mind, and in considering the evidence in the claims file, for the reasons below, the Board finds the Veteran's migraines do not warrant a higher initial rating of 50 percent under DC 8100. The Veteran's VA treatment records dated since September 2006 note his continuous complaints of pain and the recurrence of the migraines consistently throughout this entire appeal period. The report of a November 2006 MRI showed a partially empty sella turcica, which is known to be associated with headaches. Other than that finding, the results were a normal, non-contrast MRI of the brain. In February 2007, the Veteran was admitted to Bethesda Naval Hospital for five days for treatment for his migraines. His treatment for migraines continued through April 2010 on a fairly consistent basis, including the use of prescription medications in an attempt to manage the headaches. However, at no point were the headaches described as completely prostrating. Additionally, the VA treatment records fail to indicate that the Veteran's occupation as an electrician is significantly impaired as a result of his migraines, despite the need for fairly regular medical treatment. During his initial VA compensation examination in connection with his claim of entitlement to service connection in January 2008, the Veteran reported that he suffered from migraine headaches occurring three to four times a month, ranging in severity between 2 out of 10 and 10 out of 10. The Veteran uses Topamax and Zomig to help with the symptoms of his migraines. The examiner provided a diagnosis of migraine headaches, controlled on treatment. However, the examiner did not characterize the headaches as prostrating at any point during the examination. In April 2010, the Veteran was reevaluated to determine the severity of his migraine headaches disability. The April 2010 VA examiner noted the Veteran's history of headaches, including his 2007 hospitalization for 5 days. The Veteran reported a pain level of 9 out of 10, with nausea and vomiting, phonophobia and photophobia. The Veteran also stated that he suffered from severe headaches 3 to 4 times a week, and 2 to 3 times a month. The examiner subsequently confirmed the diagnosis of migraine headaches with phonophobia or photophobia, and determined a quarter of the Veteran's headaches are prostrating, which averages out to approximately one prostrating migraine a month. The examiner also noted that the Veteran was currently employed as an electrician without loss of work time in 2010. Importantly, however, the Board notes that nowhere in either the January 2008 or the April 2010 VA examination reports is there any refutation of the Veteran's lay assertions as to the frequency or extent of the pain associated with his headaches, therefore suggesting the examiners both accepted this reported history as credible. Thus, the evidence supports the notion that the Veteran was having migraines with characteristic prostrating attacks occurring on average once a month. This is consistent with his currently assigned 30 percent disability rating. However, the evidence does not suggest that the Veteran's migraine disability more closely approximates the criteria for a 50 percent rating, or, in other words, very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. This is evidenced by the finding of the April 2010 VA examiner that the Veteran was gainfully employed as an electrician without loss of work, not only refuting severe economic inadaptability, but also indicating that the Veteran's migraines are not completely prostrating and prolonged. In fact, the Veteran's full time employment without loss of work indicates that the headaches result in, at most, only minimal economic inadaptability. As such, the Board finds that the Veteran's migraine symptoms do not more closely approximate the criteria for a 50 percent disability rating. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2012), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture 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." Id. The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the Board notes the Veteran was previously hospitalized for 5 days in 2007 as a result of his migraine headaches disability. Further, he has sought treatment on a fairly consistent basis, as described above. Nevertheless, there is no showing that the Veteran's overall symptomatology results in marked interference with employment or frequent periods of hospitalization. Therefore, the Board finds that referral for consideration of an extraschedular rating is not warranted. Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Neither the Veteran nor the record raises the issue that the Veteran cannot obtain and retain substantially gainful employment because of his service-connected migraine headaches disability. In fact, according to the April 2010 VA examiner, the Veteran is gainfully employed as an electrician. As such, a claim for TDIU has not been raised. In sum, as the preponderance of the evidence is against the claim for increased ratings, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim of entitlement to a schedular disability rating in excess of 30 percent for migraine headaches is denied. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs