Citation Nr: 1324757	
Decision Date: 08/05/13    Archive Date: 08/13/13

DOCKET NO.  09-23 840	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
 
 
THE ISSUES
 
1.  Entitlement to a rating in excess of 30 percent for migraine headaches.
 
2.  Entitlement to a total rating based on individual unemployability due to service connected disability.
 
 
REPRESENTATION
 
Appellant represented by:  Paralyzed Veterans of America, Inc.
 
 
WITNESS AT HEARING ON APPEAL
 
Appellant
 
 

ATTORNEY FOR THE BOARD
 
A. Shawkey, Counsel
 
 
INTRODUCTION
 
The Veteran served on active duty from June 1973 to June 1977.
 
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  In September 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing held at the RO.  A transcript of the hearing is of record.  
 
The issue of entitlement to a total rating based on individual unemployability due to service connected disability is being remanded and 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
 
Throughout the appellate term, the Veteran has had frequent headaches of varying severity, with migraine attacks that are characteristically prostrating two or three times per month which can last hours to days, require medication, and have resulted in severe economic inadaptability.
 
 

CONCLUSION OF LAW
 
The criteria for a 50 percent rating for migraine headaches have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2012).
 
 
REASONS AND BASES FOR FINDING AND CONCLUSION
 
I.  Veterans Claims Assistance Act of 2000
 
The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in December 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  He was also advised how disability ratings and effective dates are assigned.  

The Board also finds that all necessary assistance has been provided to the appellant including requesting pertinent VA and private medical records.  In addition, the appellant was afforded a VA examination in January 2008.  The examination findings were based on a thorough examination of the Veteran as well as a review of his claims file, to include his medical history and complaints, and contain adequate findings in which to evaluate his migraine headache disability.  Therefore, the VA examination report is adequate for rating purposes and new examinations and/or opinions are not required.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  The appellant was provided with the opportunity to testify at a Board hearing, and he did so in September 2012. 

Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claim being decided herein and that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant.  See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The appeal is now ready to be considered on the merits.
 
II.  Facts
 
In November 2007, the Veteran claimed entitlement to a rating greater than 30 percent for migraine headaches, as well as entitlement to a total disability evaluation based on individual unemployability due to service connected disorders.
 
VA outpatient neurology records include a November 2007 record noting the Veteran's history of migraines since the 1970s which were typically located in the right temporal area and preceded by a "kaleidoscope" in his right visual field.  The Veteran described them as throbbing and lasting up to three days.  He said that his migraines "[were] worse than ever" and had increased in severity and frequency.
 
At a VA/QTC examination in January 2008, the Veteran reported that when headaches occur, he was able to take care of some household chores, but was unable to go to work.  He reported experiencing headaches on average four times a month which lasted three days.  He described right temporal head pain with right eye disturbances.  He reported having difficulty focusing during flare-ups.  He said that the medication Zomig provided some benefit.  The examiner reported that there had been no change in the Veteran's diagnosis of migraine headaches.  
 
In March 2009, the Veteran said that he had a poor work history due to his record of absenteeism due, in part, to his migraines.
 
VA outpatient records include a May 2008 record noting that the Veteran's migraine headaches were stable and that depakote was resumed by neurology.  They also include a June 2008 record noting that the Veteran had poorly controlled chronic migraines, with likely a component of analgesic overuse headache.  This record also contains the Veteran's report of having one to two severe migraines per month requiring Imitrex which was effective, and two to three milder headaches per week that he did not treat.  A September 2008 neurology clinic record reflects the Veteran's report that he continued to get migraines two to three per month which lasted up to three days with a usual right temporal onset.  He added that his migraines caused dizziness and that he fell the week before which caused pain and bruising to his left lower extremity.  He was noted to be taking Tramadol three times a day.  

At a January 2009 visit with his primary care physician, the Veteran reported having two to three migraines per month.  He said he sometimes woke up with a migraine and that he had been unemployed since 2003.  He also said that it was hard for him to keep a job because of his migraines.  He added that most of the migraine medications have made him nauseous.  
 
In July 2009 the Veteran disagreed with an earlier VA/QTC examination report which noted that he was able to do chores during a migraine.  He said that simply was not possible, and that chores would be the "last thing" he would be doing.  He reported that when having a headache he was in his bedroom lying down with all the lights off trying not to move for as long as he could, which sometimes lasted for hours at a time.  He said about a third of the time he woke up with a headache.  He stated that once a headache began medication was useless.  He went on to say that when his headaches became so violent that he took medication, that he did not eat or sleep for days, and that this in turn rendered him tired and depressed.  He added that he experienced severe economic adaptability based on the fact that the headaches last two to three days, two to three times a month.  He said he was in his room two-thirds of that time and that he had lost several jobs due to his absences.  He requested that he be awarded a 50 percent rating for migraine headaches.
 
At a Board hearing in September 2012, the Veteran testified that he has been taking medication for migraines for ten to twelve years.  He said the headaches caused a "kaleidoscope effect" in the beginning and his vision became cloudy.  He reported that medication helped his headache pain, but did not completely take it away.  He also reported experiencing nausea and vomiting.  He said he worked for VA maintaining patients' data in the computer system and after retiring from that job, he worked in a compensated work therapy program for five years.  He said he lost that job due to absenteeism because of his headaches.  He said the headaches lasted anywhere from one to three days depending on the severity, and whether he took medication early enough to help.  He testified that prominent headaches occurred on average twice a month.  He reported that he was currently working odd jobs and performing temporary day labor which worked for him because he is able to work when he feels good and not work when he did not feel good.    
 
III.  Law and Analysis
 
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which sets forth separate rating codes for various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Evidence to be considered in the appeal of an initial rating is not limited to that reflecting the then current severity of the disorder.  Fenderson v. West, 12 Vet. App. 119 (1999).  A disability must be considered in the context of the whole recorded history.  Consistent with the facts found, the ratings may be higher or lower for different segments of the time, i.e., the ratings may be "staged." Id.  

Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.  

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 considered the potential application of various provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 

Under the Diagnostic Code (Code) for migraine headaches, a 10 percent disability rating is warranted where there are characteristic prostrating attacks averaging one in two months over the last several months.  A 30 percent disability rating for migraines is warranted where there are characteristic prostrating attacks occurring on an average of once a month over the last several months.  Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent evaluation.  38 C.F.R. § 4.124a, Code 8100. 

The rating criteria do not define "prostrating." According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion."
 
At the outset, the Board acknowledges that the appellant is competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observations.  Jandreau v. Nicholson, 492 F.3d 1372 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This includes the statements that he made in writing, to medical personnel, and at the September 2012 Board hearing regarding the severity and frequency of his migraine headaches.  Further, the appellant's reports have been consistent, and the Board finds that he is credible.  
 
Both the lay assertions by the Veteran, as well as the consistent medical evidence, establish that the Veteran has severe migraine attacks which require that he rest for recuperation, that they occur two to three times per month, lasting from several hours to several days, and that they cause has caused him to frequently miss work.  Although the Veteran has reported severe headaches up to four times a month, see January 2008 VA/QTC examination report, and as little as one to two occurrences a month, see June 2008 VA outpatient record, the severe migraines seem to occur on average to two three times a month requiring medication, with more frequent smaller ones that do not require medication.  See September 2008 and January 2009 VA outpatient records, July 2009 statement from the Veteran, and September 2012 hearing Board testimony.  

The Veteran describes his headaches have a right temporal onset causing a throbbing sensation, blurry vision, nausea and vomiting.  He reported in a July 2009 statement that he was not able to do anything except lie down in a dark room and not move.  He said these severe headaches can last from hours to up to three days.  He attributed a high rate of absenteeism from work due to these headaches.  In this regard, he remarked in July 2009 that he experiences severe economic adaptability based on the fact that the headaches last two to three days, two to three times a month.  While medication reportedly lessens, but does not take away, headache pain, the appellant also reports that medication is useless if not taken early enough, such as if he wakes up with a headache.  He also reports that the medication has adverse affects which he described as being unable to eat or sleep for days making him tired and depressed.  
 
In short, the symptoms evidenced by the record establish that the Veteran has, since his November 2007 claim, suffered from very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  Thus, a 50 percent rating is warranted.  38 C.F.R. § 4.124a, Code 8100.  This 50 percent rating is the maximum rating allowed under this diagnostic code.  

The Board has also considered the applicability of other diagnostic codes for rating the disability on appeal, but finds that no other diagnostic code provides a basis for higher rating, as there are no other diagnostic codes with ratings in excess of 50 percent which contemplate headaches or symptoms analogous to headaches.  Moreover, a 50 percent rating is the rating that the Veteran requested that he be awarded in his July 2009 statement.  See AB v. Brown, 6 Vet. App. 35 (1993).
 
Consideration has also been given to an extraschedular rating under 38 C.F.R. § 3.321(b).  The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1) (2011).  If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable.  Thun, citing 38 C.F.R. § 3.321(b)(1).  In the present case, the Board finds no evidence that the Veteran's service-connected migraines present such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) (2012). 

The criteria pertaining to migraines, in the Rating Schedule focus on the severity, frequency and duration of headache episodes.  As discussed above, such symptomatology describes the Veteran's current disability picture.  Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted.  Id. 
 

ORDER
 
Entitlement to a 50 percent rating for migraine headaches is granted, subject to the laws and regulations governing the award of monetary benefits.
 
 
REMAND
 
A total rating based on individual unemployability due to service connected disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 4.16(a) (2012). 

Even if the Veteran does not satisfy these threshold minimum rating requirements of § 4.16(a), it is also possible to receive a total rating based on individual unemployability due to service connected disability on an extra-schedular basis under 38 C.F.R. § 4.16(b) if it is determined he is indeed incapable of securing and maintaining substantially gainful employment on account of his service-connected disabilities.
 
The Veteran is currently service connected for a dysthymic disorder, with barbiturate and darvocet addiction, evaluated as 50 percent disabling; migraine headaches, evaluated as 50 percent disabling; allergic rhinitis, evaluated as 10 percent disabling; and for nonspecific rhinitis, evaluated as noncompensable.  The combined evaluation is 80 percent. 

In the instant case, the medical evidence on file regarding the Veteran's ability to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities is not clear.  Although he underwent a VA/QTC examination in January 2008, as well as earlier VA/QTC examinations in February and March 2007, none of these examination reports contains a medical opinion regarding whether or not the Veteran is able to secure or follow a substantially gainful occupation as a result of his service-connected disabilities alone.  Accordingly, further medical development is required in order to properly decide this appeal.  38 U.S.C.A. § 5103A(d).  More specifically, the Veteran should be afforded a VA examination so that the examiner can address the criteria for a total rating based on individual unemployability due to service connected disability. 

Also, it appears from a review of the Veteran's September 2012 hearing transcript that there may be outstanding records from his treatment at the VA medical facility in Atlanta, Georgia, and from the East Point Community Based Outpatient Center.  Any such records should be obtained.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159. 
 
Accordingly, the case is REMANDED for the following action:
 
1.  Any pertinent and outstanding private and/or VA treatment records, to include any records from the VA medical facilities in Atlanta, Georgia, and the East Point Community Based Outpatient Center should be obtained and added to the claims file.   If the RO cannot locate these records, it must document the attempts that were made to locate them, and explain in writing why further attempts to locate or secure them would be futile.  The RO must then: (a) notify the claimant of the specific records that it is unable to retrieve; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim.  The Veteran must then be given an opportunity to respond. 

2.  Thereafter, the Veteran must be afforded a VA examination by an appropriate examiners.  The claims file, to include the appellant's Virtual VA file, must be made available to the examiners.  Following all necessary examinations, to include studies by a neurologist and a psychiatrist, the examiners must address whether it is at least as likely as not that the Veteran's service-connected disabilities alone combine to prevent him from securing or following substantially gainful employment.  The nature and severity of each service-connected disability should be discussed.  The examiners must provide a well reasoned explanation and rationale for any opinion offered

3.  After undertaking any other development deemed appropriate, the RO/AMC must readjudicate the claim of entitlement to a total rating based on individual unemployability due to service connected disabilities based on all of the evidence of record.  If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond before the claims file is returned to the Board for further appellate review.
 
The appellant and his representative have the right to submit additional evidence and argument on the matter or matters 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).



______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs