Citation Nr: 1328729	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  09-04 478	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial compensable disability rating for service-connected headaches. 

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


REPRESENTATION

Veteran represented by:	Cynthia H. Holman, Attorney at Law


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1989 to February 1990 and from October 1990 to November 1995. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in relevant part, granted service connection for headaches and assigned a noncompensable disability rating, effective May 11, 2005.  

In a March 2012 decision, the Board denied the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative joint disease of the cervical spine, and his claim of entitlement to a compensable disability rating for service-connected headaches.  The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  

In a February 2013 Order, the Court granted a Joint Motion for Remand (JMR) and remanded that part of the Board's decision that denied entitlement to a compensable initial evaluation for headaches for action consistent with the terms of the joint motion.  The Veteran's appeal as to the remaining issue was dismissed. 

As a result of contentions made by the Veteran in an August 2013 statement, and as a result of findings reported by the Veteran's private chiropractor in an April 2009 letter, the Board finds that a TDIU claim has been raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board has jurisdiction to consider entitlement to a TDIU in an appealed claim for an increased rating when the issue is raised by assertion or reasonably indicated by the evidence, regardless of whether the RO expressly addressed the issue.  See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  Therefore, this issue has been added for current appellate consideration.

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the Veteran if further action is required on her part.


FINDING OF FACT

The evidence is at least in equipoise as to the question of whether the Veteran experiences very frequent and prolonged headaches that are completely prostrating and likely productive of severe economic inadaptability.  


CONCLUSION OF LAW

The criteria for a 50 percent rating for service-connected headaches have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.21, 4.124a, Diagnostic Code (DC) 8100 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The Veteran's claim of entitlement to a compensable disability rating for his service-connected headaches arises from an appeal of the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted, the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent private treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains, in relevant part, the Veteran's VA and private treatment records and multiple fee basis examination reports.  Additionally, his statements in support of his claim are of record.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any available outstanding evidence with respect to the Veteran's claim.  

Although the record contains a request for Social Security Administration (SSA) disability benefits records, the Veteran indicated in a March 2008 statement that such records pertained to his father and not to himself.  Thus, there is no indication that there are outstanding SSA records pertaining to the Veteran.

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his 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.  Increased Disability Rating

The Veteran seeks a compensable disability rating for his service-connected headaches.  He specifically contends that his headaches are very severe and prostrating, and productive of severe economic inadaptability.  

      A.  Governing Law and Regulations

Disability ratings are based on the average impairment of earning capacity resulting from a disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10 (2012).  Separate diagnostic codes identify the various disabilities.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2012).  Otherwise, the lower rating will be assigned.  Id.

In Fenderson v. West, 12 Vet. App 119 (1999), the United States Court of Appeals for Veterans Claims (Court) emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, where a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected.  In these cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating."  See also Hart v. Mansfield, 21 Vet. App 505 (2007).  

The Veteran bears the burden of presenting and supporting his claims for benefits.  38 U.S.C.A. § 5107(a) (West 2002).  In its evaluation, the Board considers all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b) (West 2002).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.

      B.  Analysis
      
The Schedule for Rating Disabilities includes a listed disability specifically for migraines.  The Veteran's diagnosed headache disability will be rated by analogy using these rating criteria.  See 38 C.F.R. § 4.20 (2012).

Considering the rating criteria for migraine headaches, Diagnostic Code 8100 assigns a 10 percent rating for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on average once a month over the last several months.  Finally, a 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, DC 8100 (2012).  

The Board observes that the rating criteria do not define "prostrating."  Additionally the Court has not undertaken to define "prostrating."  Cf. Fenderson, supra., in which the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what is a prostrating attack.  According to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, however, "prostration" is defined as "utter physical exhaustion or helplessness."

The rating criteria also do not define "severe economic inadaptability."  However, the Court has noted that nothing in Diagnostic Code 8100 requires a claimant to be completely unable to work in order to qualify for a 50 percent disability rating.  See Pierce v. Principi, 18 Vet. App. 440 (2004).

In reviewing the record, it is clear that the Veteran has consistently suffered from frequent and prolonged headache episodes of a severe nature over the last several years.  His VA treatment records and private chiropractic records reveal near constant reports of chronic headaches.  As early as a December 2006 fee basis examination, the Veteran reported having an average of four headache attacks per week, with each attack lasting for as long as 10 hours to a full day.  He reported that these symptoms could flare up to six or seven times per week.  He also reported having a 10 year history of severe headaches.  

The Veteran gave a similar report during a March 2009 fee basis examination.  He then reported having an average of one headache per day lasting as long as 24 hours.  He reported using 3600 milligrams of Motrin to treat his headaches.  

Additionally, during a February 2010 VA neurology consultation, in the course of seeking medical treatment, the Veteran reported that he would get very severe headaches that lasted weeks on end.  

In an August 2013 statement, the Veteran's wife corroborated his reports of having suffered from terrible headaches for several years.  She reported that he had to retire to his bedroom to lay down, with the lights off, two to three times per week as a result of severe headache pain.  She noted that his headaches have had detrimental effects on their family's well being.  

The Veteran described the prostrating nature of his headaches and the impact of his headaches on his economic adaptability in his August 2013 statement by noting that he frequently fell asleep at work, that he was temperamental with coworkers, and that he had difficulty communicating with coworkers and over the telephone due to headache pain and resulting exhaustion.  He noted that he had been verbally reprimanded on multiple occasions as a result of his headache-induced behavior.  

The Veteran is competent to report the severity of his headache symptomatology, including its frequency, and severity.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  The Veteran's statements are credible and consistent, and are not contradicted by other evidence of record.  See Barr v. Nicholson, 21 Vet. App. at 307-08; Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  He has reliably reported daily or nearly daily severe headaches over the last several years, including throughout the pendency of his appeal.  His fee basis examination and VA and private treatment reports show that his headaches are frequently prolonged and prostrating.  While the exact nature of the Veteran's economic inadaptability has been somewhat brought into question by the fact that he resumed employment for many years while suffering from severe headaches, the frequency and duration (multiple headaches per week lasting several hours at a time) of the headaches clearly establishes that his disability is more severe than that contemplated by the criteria for a 30 percent disability rating.  

Thus overall, the Board finds that throughout the entire appeal period, the Veteran's disability picture most nearly approximates the criteria for a 50 percent evaluation under Diagnostic Code 8100.  

      C.  Extraschedular Consideration 

The rating schedule represents as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  See 38 C.F.R. § 3.321(a), (b) (2012).  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2012).  

The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The symptoms associated with the Veteran's service-connected headache disability (i.e., severe, completely prostrating headaches occurring multiple times per week and lasting several hours per episode, resulting in severe economic inadaptability) are contemplated by the rating criteria set forth above, and reasonably describe the Veteran's service-connected disability.  The rating criteria are, therefore, adequate to evaluate the Veteran's service-connected headaches and referral for consideration of an extraschedular rating is not warranted in this case.


ORDER

Entitlement to a 50 percent disability rating for headaches is granted.


REMAND

The Veteran's remaining claim is that of entitlement to a TDIU.  The Board cannot fairly adjudicate that claim, however, without first determining whether he is indeed unemployed, and if so, without obtaining an adequate medical opinion regarding the effects of his service-connected disabilities, together, on his ability to secure or follow substantially gainful employment.  See Friscia v. Brown, 7 Vet. App. 294, 297 (1994); see also Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).  

While the April 2009 chiropractor's letter indicated that the Veteran would soon be unable to continue in his current employment due to his disabilities, and while the Veteran appeared to indicate in his August 2013 statement that he was no longer employed at his prior place of employment, it remains unclear whether his service-connected disabilities, in fact, preclude him from securing or following substantially gainful employment.  Thus, an opinion as to the effect of the service connected disabilities on his ability to secure and follow a substantially gainful occupation is required.

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to complete a formal application for TDIU.

2.  Thereafter, schedule the Veteran for an appropriate VA examination to obtain an opinion as to whether his service-connected disabilities (i.e. degenerative joint disease of the cervical spine, left clavicle fracture, left patellofemoral syndrome with degenerative changes, and headaches), in the aggregate, render him unable to secure or follow a substantially gainful occupation.  

Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered.

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.  

3.  Finally, adjudicate the Veteran's TDIU claim on appeal.  If the claim is denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review.

The Veteran has 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).

 

______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs