Citation Nr: 1325131	
Decision Date: 08/07/13    Archive Date: 08/13/13

DOCKET NO.  10-11 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to an initial rating for migraines in excess of 10 percent prior to November 10, 2012, and in excess of 30 percent since that date.  

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Evan M. Deichert, Counsel



INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran served on active duty from March 1943 to November 1945.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of June 2008 and September 2008 of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO); the June 2008 rating decision denied the claim for a TDIU, while the September 2008 decision granted service connection for migraines and assigned a 10 percent rating.  

In October 2012, the Board remanded the case for further development, which has been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The issue of entitlement to a TDIU 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

Over the course of the entire appeals period, the Veteran's migraines have resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  


CONCLUSION OF LAW

The criteria for an initial 50 percent rating for migraines have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.655, 4.1-4.14, 4.124a, Diagnostic Code (DC) 8100 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA 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.  

The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  VA contacted the Social Security Administration to determine whether he was in receipt of disability benefits from that agency; in March 2009, that agency responded that it had no records, as the Veteran had not filed for disability benefits.  38 C.F.R. § 3.159(c)(2).  VA examinations were conducted in August 2008 and November 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  These examinations contain sufficient information to decide the Veteran's claim under the applicable diagnostic code.  

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009);

II.  Increased Rating for Migraines

Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.  Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7.

The Veteran's migraines are evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100.  Under Code 8100, characteristic prostrating attacks averaging one in 2 months over the last several months is assigned a 10 percent rating.  Characteristic prostrating attacks occurring on an average once a month over the last several months is assigned a 30 percent rating.  Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are assigned the highest schedular rating, 50 percent.

While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  As the Veteran's rating is already staged, the Board must analyze the propriety of both the dates of the staging and the ratings assigned.  

When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

A March 2008 VA treatment record reflects that the Veteran complained of more frequent and more severe migraines, and he questioned whether they were related to medication he was taking.  

In his June 2008 claim, the Veteran stated that he has suffered from headaches since his active service.  He stated that he has three to four headaches per week, and that they are relieved by medication.  

The Veteran underwent a VA examination in August 2008.  The Veteran again stated that he has suffered from headaches since his active service.  He described his headaches as beginning as discomfort in his neck then radiating to his head.  He stated that he has several headaches per month and can suffer from multiple headaches in one day.  The examiner stated that these did not appear to be prostrating in nature.  

In his October 2008 notice of disagreement, the Veteran stated that his headaches occur at least twice per week.  He stated that while medication usually alleviated his pain after a couple of hours, he was incapacitated until the point that his medication began working.  

An October 2008 VA treatment note reflects that the Veteran complained of headaches that started in his neck then traveled upwards.  He described them as throbbing in nature.  The Veteran stated that his headaches last for one to one-and-a-half hours, and that he gets them two to three times per week.  The Veteran complained of photophobia during his migraines.  

In his March 2010 substantive appeal, the Veteran stated that he suffers from migraines three to four times per week, and sometimes more.  He stated that when a migraine occurs, he takes medication, sits down, and waits for the pain to subside, which normally takes up to two hours.  

VA treatment records from July 2010 reflect that the Veteran's headaches were controlled with medication, and that he was having fewer when using his CPAP machine.  In August 2010, the Veteran complained of more frequent migraines.  A December 2011 record reflects that the Veteran complained of suffering from migraines two to three times per week.  

The Veteran underwent a VA examination in November 2012.  The Veteran's headache related symptoms were described as constant head pain, pulsating or throbbing head pain, pain on both sides of the head, and pain worsening with physical activity.  His non-headache symptoms included nausea and sensitivity to light and sound.  His headaches were noted to last for one to two days.  After examining the Veteran, the examiner wrote that the Veteran has very frequent prostrating and prolonged attacks of migraine headache pain.  

The Veteran meets the criteria for a 50 percent rating over the course of the entire appeals period.  Such a rating is assigned with "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability."  38 C.F.R. § 4.124a, DC 8100.  The evidence shows that the Veteran suffers from two to four migraines per week.  While the examiner from the Veteran's August 2008 VA examination concluded that his headaches were not prostrating in nature, the examiner from the latter VA examination concluded the opposite.  Further, in describing his headaches, the Veteran has stated that at the onset of his headaches, he takes medication then waits for up to two hours for his pain to subside.  While there is no medical evidence establishing that the Veteran's migraines result in "severe economic inadaptability," common sense dictates that the frequency and severity of the Veteran's migraines would result in severe economic inadaptability.  A 50 percent rating for migraines is thus warranted.  


Extraschedular Consideration 

The evidence shows that the Veteran's service-connected migraines results in multiple prostrating headaches each week; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms.  The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected migraines is adequate, and extraschedular referral is not required.  Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1).


ORDER

Entitlement to a 50 percent rating for migraines over the course of the entire appeals period is granted.  


REMAND

In its October 2012 remand, the Board directed that the Veteran be provided with a VA examination to determine whether his service-connected disabilities prevented him from securing or following a substantially gainful occupation.  Though the Veteran underwent an examination in November 2012, the opinion provided is inadequate.  The claim must be remanded for a new examination to be provided.  

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination for his TDIU claim by an appropriate medical professional, but not the examiner who performed the November 2012 examination.  The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review.

After examining the Veteran, the examiner must identify each impairment or symptom found as a result of the service-connected disabilities (including migraines; bilateral hearing loss; radiculitis of the fifth and sixth cervical radial on the right; amputation of the left index finger with circulatory disturbance of the left hand, residuals of gunshot wound; tinnitus; external hemorrhoids; shrapnel wounds to the left cheek; left knee scar; shrapnel wounds to the right posterior thigh; and scars, residuals of shrapnel wounds to the left mid-arm) and state the occupational impact that each impairment or symptom has on the Veteran's ability to secure or follow substantially gainful employment.  The examiner must state the functions which would be difficult or impossible to do as a result of the associated service-connected symptom or impairment.  Further, the examiner must state the impact that the Veteran's service-connected impairments and symptoms both individually and as a whole have on his ability to accomplish sedentary and manual employment.  

In offering this opinion, the examiner must also take into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities.

2.  Then, readjudicate the appeal.  If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board.  

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).




______________________________________________
RONALD W. SCHOLZ 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs