Citation Nr: 1326076 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-13 385 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for migraine headaches. 2. Entitlement to a rating in excess of 50 percent for migraine headaches. ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from January 2004 to January 2009. He deployed in support of Operation Iraqi Freedom from May to October 2005. This matter came to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the RO. FINDINGS OF FACT 1. Since service connection became effective January 21, 2009, the Veteran's migraine headaches have occurred, on average, more than once a month, have been completely prostrating in nature, and have been productive of severe economic inadaptability. 2. The Veteran is currently receiving a 50 percent rating for her service-connected migraine headaches, the maximum schedular rating allowed under the applicable VA rating criteria. CONCLUSIONS OF LAW 1. Since service connection became effective January 21, 2009, the criteria for a 50 percent rating for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012) 2. The criteria for the assignment of a rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of his claim of entitlement to an increased rating for his service-connected migraine headaches. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In January 2009, VA received the Veteran's claim of entitlement to service connection for migraine headaches. Later that month, the RO notified the Veteran of the information and evidence necessary to substantiate that claim, including the evidence to be provided by him and the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and assigning effective dates, should service connection be granted. See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In its September 2009 rating action, the RO granted the Veteran's claim of entitlement to service connection for migraine headaches and assigned a 10 percent schedular rating, effective January 21, 2009. The Veteran disagreed with that rating percentage, and this appeal ensued. In January 2013, the RO raised the Veteran's rating for migraine headaches to 50 percent, effective January 4, 2010. However, that rating did not represent a full grant of benefits on appeal; and, therefore, the case was transferred to the Board for appellate consideration. Inasmuch as it is derived from the initial service connection claim, the issue of entitlement to an increase rating is considered a "downstream" issue. Grantham v. Brown, 114 F.3d 1156 (1997). Although VA has not specifically notified the Veteran of the information and evidence necessary to substantiate the increased rating claim, such notice is not required in this case. In December 2003, VA General Counsel issued a precedential opinion stating that, if VA received a notice of disagreement (NOD) in response to a decision on a claim for which VA had already sent the veteran a duty to assist letter, and the NOD raised a new issue, the duty to assist the veteran did not require VA to provide notice of the information and evidence necessary to substantiate the newly raised "downstream" issue. See VAOGCPREC 8-03, 69 Fed. Reg. 25180 (2004). The Board is bound by that opinion. 38 U.S.C.A. § 7104(c) (West 2002). Hence, VA has essentially complied with its duty to assist the Veteran in the development of his claim of entitlement to an increased rating for his service-connected migraine headaches. In developing the record, VA obtained or ensured the presence of the Veteran's service treatment and personnel records; records reflecting private medical treatment during service from April 2006 through October 2008, records reflecting the Veteran's VA treatment from November 2009 to January 2010. In April 2009, April 2010, and November 2011, VA examined the Veteran to determine the nature and etiology of any headaches found to be present as well as the extent of impairment caused by those headaches. Generally, the VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. However, to date, he has declined that offer. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal Initially, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of VA's Schedule For Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. Migraine headaches are rated in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Where there is a question as to which of two evaluations shall be applied, 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (When service connection is granted and an initial rating award is at issue (as in this case) separate ratings can be assigned for separate periods from the time service connection became effective.). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran contends that the ratings for his service-connected migraine headaches do not adequately reflect the level of impairment caused by that disorder. He states that he has multiple attacks per month and that he medication he takes for it is not always effective. Therefore, he maintains that a rating in excess of 10 percent is warranted for migraine headaches for the period from January 21, 2009 through January 3, 2010. He also maintains that a rating in excess of 50 percent is also warranted since January 4, 2010. After carefully considering the claim in light of the record and the applicable law, the Board agrees in part. Accordingly, the appeal is granted to the extent indicated. The evidence, such as the reports of the Veteran's VA examinations, shows that his migraine headaches had their onset in service following a head injury sustained in a 2006 accident on an all-terrain vehicle. Since service connection became effective the day after his separation from service, he has consistently reported that his headaches have occurred on a random basis but always more than once a month. As a layman, the Veteran is competent to report the frequency of his headaches. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). In addition, he notes that they have been, consistently, prostrating in nature and have been aggravated by noise and light. Indeed, when he gets a headache, he states that he must generally lie down in a dark room. Although the April 2009 VA examiner stated that the Veteran's headaches were controlled by medication, the Veteran notes that that is not always the case. He states that the medication is most effective if taken at the early stages of the headache, but that even then, it is not always effective. If taken after the early stages of the headache, the Veteran states that the effect of the medication is much more variable. When the medication is not effective, the headache may last as long as 72 hours. Again, the Veteran is competent to report the effectiveness of his medication. Jandreau. The Veteran further reports that his headaches have caused severe economic inadaptability. As he noted during his April 2010 VA examination, his headaches caused him to miss so much time from work that he was terminated from his job. Since that time, he states that he has obtained a real estate license which will allow him greater flexibility in his work schedule. On balance, the foregoing findings more nearly reflect the schedular criteria for a 50 percent rating for migraine headaches, since service connection became effective January 21, 2009. In comparing the severity and frequency of the Veteran's headaches, the Board finds no discernible difference for the period from January 21, 2009 through January 3, 2010 from the period which became effective January 4, 2010. At the very least, there is an approximate balance of evidence both for and against the claim that his migraine headaches met or more nearly approximated the criteria for a 50 percent rating the date service connection became effective January 21, 2009. Under such circumstances, all reasonable doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 4.3. However, the evidence of record does not warrant an initial disability rating higher than 50 percent. As noted above, 50 percent is the maximum rating schedular rating available for migraine headaches. 38 C.F.R. § 4.124a, Diagnostic Code 8100. There is no other appropriate diagnostic code under which alternative criteria could be applied. In this regard, the Board considered the possibility of rating the Veteran's headaches as a residual of a traumatic brain injury. In its September 2009 rating action, the RO specifically denied service connection for a traumatic brain injury. The Veteran was notified of that decision, as well as his appellate rights; but a notice of disagreement was not received with which to initiate an appeal. Therefore, that decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2009). Under such circumstances, the Veteran may only receive a higher rating for migraine headaches on an extra-schedular basis. 38 C.F.R. § 3.321(b)(1) (2012). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue 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. 38 C.F.R. § 3.321(b)(1). There is a three-step inquiry for determining whether a claimant is entitled to an extraschedular rating. Thun, 22 Vet. App. at 115. 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. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular evaluation is found to be inadequate, the Board must determine whether the Veteran'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 claimant's disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. In this case, neither the Veteran nor his representative have expressly raised the matter of entitlement to an extraschedular rating. The Veteran's contentions have been limited to those discussed above, i.e., that his disability is more severe than is reflected by the currently assigned schedular rating. See Brannon v. West, 12 Vet. App. 32 (1998) (while the Board must interpret a claimant's submissions broadly, the Board is not required to conjure up issues that were not raised by the claimant). The criteria for rating migraine headaches specifically contemplate the frequency of the headaches, the prostrating nature of the headaches, and the effects on the Veteran's economic adaptability. 38 C.F.R. §§ 4.124a, Diagnostic Code 8100. In short, the Veteran does not have symptoms associated with his migraine headaches that have been left uncompensated or unaccounted for by the assignment of a schedular rating. Thun, 22 Vet. App. at 115. Therefore, the preponderance of the evidence is against a finding that the Veteran's migraine headaches present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Accordingly, further action is not warranted under 38 C.F.R. § 3.321 (b)(1). ORDER Since service connection became effective, January 21, 2009, an initial rating of 50 percent is granted for the Veteran's migraine headaches. A rating in excess of 50 percent is denied for the Veteran's migraine headaches. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs