Citation Nr: 1330041 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 11-20 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Snyder, William T. INTRODUCTION The Veteran served on active duty from January 1969 to January 1973. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina, that granted service connection for migraine headaches and assigned an initial 10 percent rating, effective in May 2007. The Veteran appeared at a Board hearing at the Board's Central Office in Washington, DC, in November 2011 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is in the claims file and has been reviewed. The Veteran has a Virtual VA paperless claims file, which is a highly secured electronic repository, associated with his appeal. The Board has considered the documents in both files in the review of this appeal. FINDING OF FACT Throughout the rating period on appeal, the Veteran's headaches have manifested as characteristically prostrating, and have occurred at least once a month; there is no showing of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The requirements for an initial evaluation of 30 percent, and no higher, for migraine headaches are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.6, 4.10, 4.124a, Diagnostic Code (DC) 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. Regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues; and, the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the hearing, the undersigned identified the issue before the Board, and asked questions of the Veteran that ensured his testimony addressed the relevant rating criteria. Neither the Veteran nor his representative voiced any disagreement with the manner the hearing was conducted. Hence, the Board finds the Bryant requirements were complied with. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The RO obtained the Veteran's VA outpatient records. The private records identified by the Veteran, due to their timeframe, primarily related to the issue of service connection rather than the current level of his disability. Neither he nor his representative asserts that there are additional records to be obtained. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). Applicable Law and Regulation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA must resolve any reasonable doubt regarding the degree of disability in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7, see also 38 C.F.R. § 4.21. The Board will consider entitlement to staged ratings to compensate for times since the effective date for grant of service connection when either disability may have been more severe than at other times during the course of the claim on appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). VA must also evaluate functional impairment on the basis of the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's disability has been evaluated under 38 C.F.R. § 4.124a, DC 8100. Those criteria provide a 10 percent rating for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is provided for migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is provided for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Significantly, the use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Here, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Neither the rating criteria nor the Court has defined "prostrating." By way of reference, according to Webster's New World Dictionary of American English, Third College Edition (p. 1080, 3rd College Ed. (1986)), "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary (p. 1554, 31st Ed. (2007)), in which "prostration" is defined as "extreme exhaustion or powerlessness." The term "productive of severe economic inadaptability" is also not defined in VA law. The Court, however, has held that it is not synonymous with unable to work, and VA has conceded that the phrase "productive of" could be read to mean either "producing" or "capable of producing." See Pierce v. Principi, 18 Vet. App. 440, 446-7 (2004). Lay evidence is competent to describe the frequency, severity, and duration of migraine headaches, including whether they are severe enough to cause prostration. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 471. Therefore, the Board finds that the Veteran's statements about his headache symptoms constitute competent evidence for rating purposes. Further, the undersigned deemed the Veteran and his wife entirely credible at the hearing. Analysis As noted in the Introduction, the effective date of the Veteran's award is May 2007. The private records in the claims file dated from May 2007 do not address the Veteran's headaches. An August 2007 VA outpatient entry notes the Veteran reported daily head and neck pain. At an April 2009 VA examination, the Veteran reported that he had been self-employed in the heating and air conditioning business, and that he had recently sold the business and obtained employment with the City of Charlotte, North Carolina (NC), in order to have access to health care benefits. The purpose of the examination was primarily to address the question of service connection. The examiner diagnosed the Veteran's headaches as tension-type and opined that they were not prostrating of disabling. At a May 2009 neurological examination, the Veteran reported that he had daily headaches, as he had over the past 40 years. He reported further that they never went away, and they were not associated with neurological or visual disturbances. Further, he was able to continue normal activity during the headaches. He denied nausea, photophobia, or phonophobia. He currently took Oxaprozin, and sometimes his headaches woke him during the night. He had tried several medications over the years, without satisfactory relief. The Veteran reported that, when at work "I have to hide every now and then" because of the pain. He also reported four past sinus surgeries, as well as occipital nerve blocks. The Veteran related the nerve blocks alleviated his pain for 7 to 10 days. He declined occipital neurectomies. Other than diminished reflexes in the upper extremities, physical examination revealed no abnormalities. The examiner diagnosed occipital neuralgia. The examiner noted, however, that the claims file was not available for review and declined to opine further. A July 2009 addendum to the May 2009 examination report reflects that after review of the claims file, the examiner opined the Veteran had migraine headaches that started during his active service. A March 2010 CT of the head was interpreted as having provided no explanation for the Veteran's headaches, and an April 2010 entry notes an examiner opined the headaches did not appear to be migraine. A December 2010 VA entry notes neurological examination revealed no abnormalities, and the examiner diagnosed chronic nonspecific daily headaches since 1969. In November 2010, the Veteran reported that his headaches awoke him during the night, and he awoke in the morning with a headache which eased up as the day went on. At the hearing, the Veteran testified that his headache symptoms had always been with him and he was just then explaining them because no one had previously asked him. At least once to twice a month he had headaches where he had to get away from noise and light, and they lasted on average one to one and one-half hour. See Transcript, pp. 5-6. In answer to a question from the undersigned, the Veteran testified that while he had headaches daily, to include experiencing one during the hearing, he functioned with those. Id., p. 7. He had been taught exercises he called Biofeedback, which the undersigned compared to a type of meditation. The Veteran testified that when he did not have time to practice it, his headaches were worse. Id., pp. 13-14. The Veteran's wife testified that at least once or twice a week he had to lay down for a while when he returned home from work before he could face everyone for dinner and what not. Id., p. 16. The Board finds the Veteran's and his wife's testimony show that his headaches meet the criteria for a 30 percent rating. 38 C.F.R. §§ 3.159(2), 4.124a, DC 8100. In light of the fact the undersigned deems the Veteran credible, the Board also finds the Veteran's headaches have manifested at the 30 percent rate throughout the entire rating period. See 38 C.F.R. § 3.400. The Veteran noted on his substantive appeal, VA Form 9, that he was seeking a 30 percent rating, which the Board has just allowed. At the hearing, however, the Veteran's representative asserted that the criteria for economic inadaptability had been met. See Transcript, p. 3. The Board, however, finds the preponderance of the evidence, to include the Veteran's credible testimony, is against the higher, maximum, rating of 50 percent. As noted earlier in the discussion of the legal requirements, the rating criteria for the 50-percent rating are in the conjunctive, which means that all of the criteria must be met. See Tatum, 23 Vet. App. at 156. The Board finds all are not met. The Board first notes the 50-percent criteria require the headaches to be completely prostrating, while the lower ratings require only prostrating headaches; and, they must occur very frequently. As noted earlier, the rating criteria define neither "prostrating" nor "completely prostrating." Using the earlier dictionary definition of prostrating as a guide, however, the Board deems it a fair interpretation to apply "completely prostrating" to mean that the Veteran is incapable of functioning for any part of a day when experiencing a completely prostrating headache. Similarly, an attack that lasts all day may be viewed as a prolonged attack. The Veteran is employed at the Charlotte, NC, Airport. A March 2011 letter from an administrative office of the airport notes that he started work at there in February 2008. The Aviation Department's records reflect that the Veteran had used 286.75 sick hours since the inception of his employment. The actual breakout provided, however, labels very little of the recorded leave hours as sick hours. Although the Veteran was not directly asked if all of the listed time was used because of his headaches, he implied as much. See Transcript, p. 10. He also testified he used a lot of comp time so he would not have to call in sick, and he used no sick leave at all during the first year of his employment. This may explain why hardly any of the entries are labeled "sick." The Board affords the Veteran the benefit of the doubt that he was not able to function during those days or parts of days noted in the Leave Record. Inferring an eight-hour work day, 286.75 hours equals almost 39 total days. The airport sick leave report shows that the Veteran on average took at least three to four days of leave a month, which approximates to an average of once per week. The report also shows the Veteran did not always take leave for an entire day, though there are several entries of eight-hour absences, especially beginning in late December 2010. Thus, the question for consideration is whether weekly completely prostrating attacks constitute "very frequent" attacks as contemplated under Diagnostic Code 8100. In the absence of a regulatory or judicial definition of the term, the Board looks to the ordinary meaning of the key words. One dictionary definition of "frequent" is occurring often; happening repeatedly at brief intervals; constant; habitual. Webster's New World Dictionary, (Third College Edition), p. 539. Weekly completely prostrating headaches probably approximates that definition of "frequent." Nonetheless, the Board finds weekly completely prostrating attacks do not approximate "very frequent." When compared to the definition of "frequent," very frequent reasonably would point to more often than weekly. In making this finding, the Board has not compared the number of the Veteran's completely prostrating attacks to the number of other type but has analyzed the completely prostrating attacks independently. See Pierce, 18 Vet. App. at 446-47. It must also be considered whether the headache attacks are productive of severe economic inadaptability. In this regard, "adaptable" means the ability to adapt oneself to new or changed circumstances. Webster's New World Dictionary, (Third College Edition), p. 15. "Inadaptable," of course, would mean the absence of that ability. The evidence of record shows that the Veteran's completely prostrating headaches are not productive of severe economic inadaptability. Rather, he has demonstrated the ability to adapt to the family and work circumstances imposed by his disability- moreover, there is nothing to suggest that the average person, faced with similar symptoms, would respond less favorably. He has worked for the Charlotte, NC, airport since 2008, and managed to complete his daily work on a consistent basis. The Board notes the 39 days of absence from work due to his headaches, but finds that this number does not signify severe economic inadaptability, nor have his headaches actually caused severe economic inadaptability, for the reasons already discussed. In light of these factors, the Board finds the Veteran's headaches disability has not met or approximated the criteria for the maximum, 50-percent, rating during the initial reporting period. 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8100. As just discussed in the decision above, the rating criteria describe the Veteran's headaches disability and its severity, which means they anticipate the Veteran's disability, and that the Veteran's disability picture is not exceptional. See Thun v. Peake, 22 Vet. App. 111 (2008). In the absence of an exceptional disability picture, there is no factual basis for referral for consideration of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). In light of the fact the evidence of record shows the Veteran is employed, there is no basis for a total rating on the basis of individual unemployability. See 38 C.F.R. § 4.16. The Board noted earlier that the Veteran is entitled to a staged rating for any period where his headaches disability manifested at a greater degree of severity than others. As discussed above, however, the Board finds the Veteran's headaches have manifested at the 30-percent rate throughout the entire period. Hence, there is no factual basis for a staged rating for any part of the initial rating period. In reaching this decision, the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim for a higher rating, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an initial evaluation not to exceed 30 percent for migraine headaches is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs