Citation Nr: 1327851 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 07-34 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for migraine headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service in the U.S. Navy from April 1990 to December 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2007 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota granted service connection for migraine headaches and evaluated the disability as noncompensably disabling. During the pendency of the Veteran's appeal, and specifically in an October 2007 rating action, the RO increased the disability evaluation for the service-connected migraines to 10 percent, effective from December 27, 2006 (date of receipt of claim). See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found). The Veteran has not expressed satisfaction with this grant. Accordingly, the issue of entitlement to an initial increased rating for service-connected migraine headaches remains in appellate status for the entire appeal period. AB v. Brown, 6 Vet. App. 35 (in which the United States Court of Appeals for Veterans Claims (Court) stipulated that, unless a veteran expresses a desire for a specific rating for a service-connected disability, he/she is presumed to be seeking the maximum benefit permitted under the regulations). The Board notes that the Veteran requested a personal hearing before the Decision Review Officer (DRO). An Informal Conference was scheduled in October 2007 at the St. Paul RO, but the Veteran failed to appear. In September 2011, the Board remanded the appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development and adjudicative action. After completing the additional development, the AMC continued to deny the claim (as reflected in a June 2012 supplemental statement of the case (SSOC)), and returned this matter to the Board for further appellate consideration. The Board has reviewed both the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system to ensure complete consideration of all the evidence. FINDING OF FACT The Veteran does not experience prostrating headaches occurring on average once a month over the last several months. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. Where, as here, service connection has been granted and the initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated. It has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (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 any downstream elements). [In any event, 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.] The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. His in-service and pertinent post service treatment reports are of record. He submitted personal statements and representative argument. The Veteran has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. The Board has reviewed both the Veteran's physical claims file and the file on the Virtual VA electronic file system, to ensure a total review of the available evidence. The Board is also satisfied that the AMC has substantially complied with its September 2011 remand directives as they pertain to the increased rating matter decided herein. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). VA medical records, available through the Compensation and Pension Records Interchange (CAPRI), have been uploaded to the Veteran's Virtual (electronic) VA folder, and he was provided a VA examination in October 2011. Also, the October 2011 VA examination is more than adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner elicited from the Veteran his history of complaints and symptoms and provided pertinent clinical findings detailing the results of the examinations to allow for effective evaluation of his service-connected migraine headaches, including a thorough discussion of the effect of his symptoms on his functioning. There is no basis to conclude that the VA medical opinion is inadequate or that a remand for a new examination is required. Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially increased in severity since his October 2011 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence, to support his claim. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. 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); & Quartuccio v. Principi, supra. Law and Analysis The Veteran contends that his service-connected migraine headaches are more disabling than is reflected in the current 10 percent disability rating. In the July 2011 Informal Hearing Presentation (IHP), the Veteran, through his representative, maintains that his migraine headache symptoms "have manifested to the extent that would require a higher rating than the one currently assigned." Specifically, he contends that he now experiences "prostrating headaches about once a week that range from uncomfortable to totally debilitating." Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation [38 C.F.R. §§ 4.2, 4.41], the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). In this case, service connection for migraine headaches was established by the March 2007 rating decision, which assigned a noncompensable disability rating under DC 8100, effective December 27, 2006. The Veteran appealed the initial evaluation assigned. In an October 2007 rating decision, the RO increased the disability rating to 10 percent, also effective December 27, 2006. Under DC 8100, a 10 percent disability rating is warranted for characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent disability rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. Very frequent, completely prostrating and prolonged attacks (of migraine headaches) productive of severe economic inadaptability warrant a 50 percent disability rating. 38 C.F.R. § 4.124a. These criteria have been in effect throughout the appeal period. Although the rating criteria do not define "prostrating," according to Dorland's Illustrated Medical Dictionary, 31st Edition (2007), p. 1554, "prostration" is defined as "extreme exhaustion or powerlessness." The evidence relevant to the severity of the Veteran's migraine headaches includes a March 2007 VA examination report. At that time the examiner reviewed the claims file and noted the Veteran's in-service complaints of headaches. The Veteran described his headaches as sometimes severe and sometimes "just annoying," and after reviewing his prescriptions, he claimed to have taken 48 Imitrex tablets in the past year, which is close to one tablet per week. According to the Veteran, one Imitrex tablet usually helped relieve his symptoms, but there were two occasions a year when he needed to take a second tablet to help alleviate the pain. He stated that his headaches can last for an entire day, but taking Imitrex helped lessen his symptoms within 30 minutes. The Veteran also stated that his headache symptoms were eased through watching his diet, decreasing his caffeine intake, and staying hydrated as his headaches are triggered when he becomes thirsty. According to the Veteran, he becomes incapacitated and unable to perform his regular activities if he experiences a headache for an entire day, and has missed two days of work in the last year due to his headaches. He further reported that his headaches can occur anywhere in his head, but the most frequent location is in the right temporal area. Based on her review of the Veteran's claims file and physical evaluation of the Veteran, the examiner diagnosed the Veteran with migraine headaches. The Veteran was subsequently seen for an annual follow-up at a private treatment facility in September 2007, at which time he reported to be doing well with regard to his migraines so long as he watched his diet. He stated that he usually experienced "a couple of headaches" a month which are generally located in the frontal region, and treats his headaches with Excedrin Migraine medication. The Veteran also added that he has to use 50 milligrams of oral Imitrex twice a month to help relieve the pain. In an October 2007 statement, the Veteran's supervisor, J.M., wrote that the Veteran had been working under his supervision for the past three years, and during those years, he had used approximately 40 hours of sick leave for personal illness reasons, some of which were identified as days when he was incapacitated by migraine headaches. During VA examination in October 2011, the examiner noted review of the claims file, including VA treatment records as well as the Veteran's history and pharmacy records. The Veteran stated that in the last 12 months he has had no hospitalizations for headaches. It was noted that the Veteran's current manifestations of symptoms were headaches averaging 1-2 days a week with intermittent episodes that may cluster with 2-3 days in a row. He also complained of non-headache symptoms including sensitivity to light. The headaches could occur anywhere in the cranium and were migratory. The severity of attacks was variable and on average moderate with pain scale up to 8/10. The headaches usually start in the mornings upon arising and respond to treatment within an hour of taking medications and up to 72 hours without medication. The Veteran had characteristic prostrating attacks occurring less than once every two months. The examiner noted that there was no evidence of impairment in the Veteran's ability to maintain or seek gainful employment. The Veteran reported that he was gainfully employed full time and able to work daily with or without headaches. He only missed 2 or 3 days in the last year for headaches considered prostrating, which is not indicative of severe economic inadaptability. There was also no impact on the Veteran's social or industrial functions at work. The examiner also noted the Veteran's infrequent and irregular requirement for prescribed medications by pharmacy records. These records show that, in the last 12 months, prescribed medication had been dispensed in August 2010, December 2010, February 2011, March 2011 and August 2011. At that time of the examination the Veteran's current supply of 30 days had lasted longer than 70 days. A prior refill was in March 2011 (5 months elapsed) for 30 days supply. There was no escalating of dosing and the very rare refills of over 5 months between 30 day supply of medications do not indicate moderate or severe attacks or a high frequency of debilitating attacks. The examiner concluded that the Veteran's subjective symptoms were not congruent with medication usage or physical examination. A review of the remaining evidence of record shows periodic evaluation of the Veteran's migraine headaches, but do not otherwise indicate a significant worsening or additional symptoms to warrant a higher evaluation. In general these records show the Veteran's migraines were controlled on medication with good response and specifically report that there was no mention of intractable migraines. See VA outpatient treatment record dated August 18, 2009, November 7, 2011, and November 2, 2012. If anything, this supports the conclusion that the Veteran's migraine headaches are relatively stable. Applying the regulations to the facts in the case, the Board finds that the criteria for a rating in excess of 10 percent for the Veteran's migraine headaches are not met. The rating criteria for DC 8100 link the ratings for headaches to two elements: severity and frequency. Thus, it is not enough to demonstrate the existence of a particular frequency of headaches; the headaches must be of a specific prostrating character. In this case, the Veteran's credibility is particularly important in this case as there is little, if any, objective evidence of his migraines; all of the medical conclusions are based on the history and symptoms reported by him. Therefore, the medical conclusions are probative primarily for the purpose of establishing whether the symptoms, as described by the Veteran, are characteristic of a migraine. However, the evidence simply does not show that the Veteran has had chronic prostrating headaches with the specified frequency and duration. Instead, during the course of this appeal, the Veteran has reported headaches 2-3 times a week associated with light sensitivity. Yet, he has also reported that the headaches would resolve in 30 minutes to an hour with medication. Thus, they are not of such severity as to meet the definition of prostrating. So, while the Board does not question the credibility of the Veteran in reporting weekly headaches, the intensity of the headaches has not been shown to rise to the level of characteristic prostrating migraines, such to warrant assignment of a 30 percent evaluation. Also, the remaining evidence of record does not show that the Veteran's headaches are productive of severe economic inadaptability, as is required for a higher rating of 50 percent. Thus, the Board finds that DC 8100 cannot serve as a basis for an increased rating. 38 C.F.R. § 4.124a. The Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1), which stipulate that an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). The schedular evaluations in this case are not inadequate. The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards and the Board has been similarly unsuccessful. In this case, the symptoms described by the Veteran and in the clinical records fit squarely within the criteria found in the relevant diagnostic code (8100) used for evaluating headaches the rating criteria contemplate not only his symptoms but the severity of the condition, and provide an opportunity for the assignment of a still higher evaluation. Moreover, the evidence does not establish that the disability necessitates frequent periods of hospitalization, and the VA examinations are void of any finding of exceptional symptomatology beyond that contemplated by the schedule of ratings. The Veteran's complaints and demonstrated impairment attributable to his migraine headaches are adequately contemplated by the 10 percent rating currently assigned. Accordingly, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) (1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). It is not the Board's intent, in its discussion of the merits of this case, to in any way trivialize the severity of the Veteran's complaints. The Board realizes that he may genuinely believe that the severity of his migraine headaches merits a higher rating, and he is competent to describe readily visible and identifiable symptoms. Full consideration has been given to his assertion that he now experiences "prostrating headaches about once a week that range from uncomfortable to totally debilitating." However, for the reasons stated herein, the Board finds that the criteria for the next higher rating of 30 percent for this service-connected disability have not been met. Consequently, the criteria for the assignment of a higher disability rating for the service-connected migraine headaches are not met. The Board has reviewed the claim mindful of the guidance of Fenderson, supra. The current level of disability shown is encompassed by the current rating assigned, and, with due consideration to the provisions of 38 C.F.R. § 4.7, a higher evaluation is not warranted for this disability for any portion of the time period under consideration. There is no basis for the assignment of staged ratings. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He has not alleged that he is unemployable due to his service-connected migraine headaches. He reported to the October 2011 VA examiner that he remained employed full time and had only missed 2-3 days in the past year due to his migraines. The evidence does not otherwise indicate that his service-connected migraines affect the Veteran's ability to work - nor has the Veteran so contended. Indeed he indicated that ordinarily he has been able to work through them. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to this service-connected disability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). ORDER An initial disability rating in excess of 10 percent for migraine headaches is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs