Citation Nr: 1327803 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 11-08 841A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for migraine headaches, for the period prior to prior to July 23, 2011. 2. Entitlement to an initial rating in excess of 30 percent for migraine headaches for the period from July 23, 2011, forward. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1996 to July 2004. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT The competent and credible evidence establishes that the Veteran's migraine headaches have been characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for the entire period on appeal. CONCLUSION OF LAW The criteria for a 50 percent from rating for migraines have been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Sup. 2012); 38 C.F.R. §§ 4.1-4.14, 4.124a, DC 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran filed his service connection claim in March 2008. The Veteran was notified by the RO via letters dated in April 2008 of the criteria for establishing service connection, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. She also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Moreover, the Board observes that the Veteran has appealed the propriety of the initially assigned rating for her migraine headaches from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003. In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson at 490. Here, the Veteran's claim for service connection for her migraine headaches was granted and an initial rating was assigned in the rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled. VA also has a duty to assist a veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO has obtained service treatment records, VA treatment records, and private treatment records. The Veteran submitted multiple written statements and lay statements from friends and co-workers discussing her contentions. Neither the Veteran nor her representative has identified any outstanding pertinent evidence related to her increased rating claim. The Veteran was also provided with VA examinations for her service-connected migraine headaches in September 2008 and July 2011. The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from her, and provided the information necessary to evaluate her service-connected migraine headaches under the applicable rating criteria. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. The Board notes that the Veteran's last VA examination is now over two years old. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no evidence that there has been a change in the Veteran's migraine headaches since she was examined in July 2011. The Veteran does not contend otherwise. No further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits of the Claim Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). The Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). In cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to determine if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). 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 Veteran. 38 C.F.R. § 4.3 (2012). Under Diagnostic Code 8100, migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. As to the term "productive of economic inadaptability", such term could have either the meaning of "producing" or "capable of producing" economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Migraine headaches with characteristic prostrating attacks occurring on average once a month over the last several months warrant a 30 percent rating. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months warrant a 10 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). "Prostration" is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary, (32nd Ed. 2012). In deciding a claim, the Board must consider all information and lay and medical evidence of record. The Board must provide reasons and bases to support its decision. However, the Board need not discuss in detail every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance of positive and negative evidence, i.e., when the evidence is in a state of "equipoise," regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b) (West 2002 & Supp. 2012). In October 2008, the Veteran was granted service connection for migraine headaches with a 10 percent rating, effective March 14, 2008. The Veteran perfected his appeal in April 2011. In August 2011, the RO increased the rating to 30 percent for the period from July 23, 2011, but denied entitlement to a rating higher than 10 percent prior to July 23, 2011. Private treatment record dated in July 2007 and VA treatment records dated from September 2008 to April 2011 reflect ongoing complaints and treatment for migraine headaches. For example, the July 2007 private treatment record shows a diagnosis of migraine headaches that are described as moderately severe. A September 2008 VA treatment note indicates that the Veteran reported a migraine headache that lasted five days and included symptoms of dizziness and nausea. She further reported that she took the headache medication Maxalt. At the compensation and pension (C & P) examination in September 2008, the examination report shows that the examiner diagnosed the Veteran with migraine headaches and noted a frequency of two or three times per month in the previous 12 months. The examiner noted that the usual duration of the migraine headaches was "hours" and stated that less than half of the attacks are prostrating. The examiner found the effect of the migraine headaches on the Veteran's occupation to be "significant," resulting in increased absenteeism from work. The effects of the migraine headaches on occupational activities included decreased concentration and pain. The examiner noted that during a migraine, the Veteran was prevented from engaging in the following daily activities: chores, shopping, exercise, sports, recreation, traveling, feeding, bathing, dressing, toileting, and grooming. A July 2009 VA treatment note indicates that the Veteran reported headaches approximately twice a week and migraines with light sensitivity and dizziness. A separate VA treatment note, also dated in July 2009, indicates that the Veteran reported that her migraines occurred approximately a few times a month. She further reported that Maxalt made her feel nauseous and tired and that Zomig and Naproxen, two other medicines for headaches, worked well, but she took them only at home because they made her sleepy. An August 2011 VA treatment note indicates that the Veteran gets headaches approximately 1.5 times a week. She reported that the medicine Sumatriptan does not work well for her migraines and that sometimes she has to ingest an extra dose of it. She stated that she feels nauseous and that she usually gets vertigo if she turns her head or moves to fast. In her notice of disagreement, following the RO's assignment of a 10 percent rating for migraine headaches, the Veteran took issue with the C & P examiner's description of the frequency and severity of the migraines. The Veteran stated that she, in fact, informed the examiner that she experienced migraines more frequently than two or three times a month and that the pain was unbearable more than, not less than, half the time. In July 2011, the Veteran underwent a VA examination to determine whether a rating higher than 10 percent was warranted. The Veteran reported that she had experienced weekly, prostrating migraines for the previous 12 months and that she took Naproxen and Sumatriptan weekly. The examiner noted that migraines caused the Veteran increased absenteeism from work. The effects of the migraines on usual daily activities included difficulty with fixing meals for her children. The Veteran states that she meets the 50 percent rating criteria because her migraine headaches have occurred, on average, once every seven days or four times a month for the previous eight years. She describes the migraines as completely prostrating and prolonged, lasting hours. She states that during the migraines, she gets sick to her stomach, cannot see well, and suffers vertigo. The Veteran also relates that she misses several days of work per month due to her migraines, that she has been counseled at work about her frequent absences, and that she worries about losing her job because she has to take so much time off work. The Veteran reports that she has used all her sick leave and is now using vacation days to stay home because of her migraine headaches. She states that after she left the military she was not able to work for three years due to the migraines. To support her claim, the Veteran has attached numerous letters from friends and colleagues. These letters are consistent with the Veteran's statements about the severity and frequency of her migraines and the hardships that she endures because of them. For example, in one letter, a friend states that she has known the Veteran since 2008, that she takes care of the Veteran's children when she needs to recover from a migraine, which includes taking the Veteran's children to school at least once a week because the Veteran is unable to because of her migraines. In another letter, a colleague writes that she has witnessed the Veteran's migraine episodes since she started to work with her in December 2008. She also states that she has seen the Veteran sent home due to the severity of her migraines. The file also includes a letter from the Veteran's supervisor who writes that he has supervised the Veteran since March 2008 and that on numerous occasions the Veteran has had to either leave work early or has not show up to work at all because of the excruciating pain the headaches cause. Another letter from someone who identifies herself as a "Lead/QA" manager reveals that the Veteran has been counseled about her excessive absences and that those absences will be continued to be monitored accordingly. The same person in a separate letter, dated in January 2012, states that the migraines cause the Veteran dizzy spells. She also describes an incident in which a colleague had to escort the Veteran to the emergency room because she could not walk without getting dizzy from the migraine pain. The statement seems corroborated by a medical record of emergency treatment, dated in July 2011, that notes a discharge diagnosis of vertigo. Veteran's personal statements concerning the frequency of the headaches, the severity of the pain produced by the headaches, and the incapacity that she experiences are substantially consistent with what she has reported to medical professionals and are corroborated by the numerous letters from person who have known her throughout the appeal period. Under these circumstances, the Board finds the Veteran's statements credible as well as highly probative on the issue before the Board. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); see Caluza v. Brown, 7 Vet. App. 498, 511 (1995). After considering the evidence of record, the Board finds that the criteria for a 50 percent evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8100, are approximated. The evidence throughout the appeal period shows that the Veteran has consistently reported having, on average, weekly migraine headaches. Because these migraines occur frequently, last for long periods of time (several hours to days), are accompanied by pain, nausea, and light sensitivity, require her to lie down for extended periods of time, require her to rely on friends to help care for her children on a weekly basis, and require her to miss work frequently severe economic hardship has resulted. In other words, the Board finds that the migraines are productive of severe economic inadaptability. Comparing these manifestations to the rating criteria, it is clear that the criteria for a 30 percent rating is exceeded, because that rating requires characteristic prostrating attacks that occur only once a month. Throughout the appeal period, the Veteran's migraines have occurred much more frequently than once per month. Moreover, even if all elements specified in the 50 percent rating criteria are not shown, they need not be. 38 C.F.R. § 4.21. The Board must resolve any remaining doubt in favor of the Veteran and find that the 50 percent criteria are more nearly approximated throughout the period of time covered by this claim. This represents the maximum disability rating assignable under Diagnostic Code 8100. In deciding the appeal, the Board has considered whether, but does not find, that separate findings for different periods of time, i.e., staged ratings, are warranted. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether referral for an extraschedular evaluation is warranted. 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." If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between 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. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the rating criteria reasonably describe her disability levels and symptomatology. The rating depends essentially on the frequency of prostrating headaches which necessarily encompasses pain, nausea, and dizziness that result in the prostrating effect. The Veteran's economic hardship due to the migraine headaches is also contemplated in the rating. Her disability picture is essentially contemplated by the Rating Schedule, and the assigned scheduler evaluation is, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. Finally, although the Veteran has submitted evidence that she has frequently missed work and has been counseled for excessive absences, the evidence of record indicates that she remains employed. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability is not raised at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A rating of 50 percent for migraine headaches, for the entire period on appeal, is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs