Citation Nr: 1330644 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 03-37 258 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE 1. Entitlement to a rating in excess of 30 percent for headaches. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) based solely on the Veteran's service connected headache disorder. 3. Entitlement to special monthly compensation based on the need for aid and attendance. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1980 and from December 1982 to October 1986. This case comes before the Board on appeal of a January 2002 rating decision of the Tiger Team at the Department of Veterans Affairs (VA) Regional Office (RO) located in Cleveland, Ohio. Thereafter, the Veteran's claims file was returned to his local RO in Waco, Texas. In June 2006, the Veteran testified at a Travel Board hearing at the RO, before the undersigned Veterans Law Judge. In a decision dated November 2006, the Board denied the Veteran's claim. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a memorandum decision dated September 2008, the Court vacated the Board's decision and remanded the case for further adjudication. Specifically, the Court directed the Board to consider whether staged ratings were appropriate. The Court also directed that VA treatment records be sought and that a VA examination be provided. In September 2009, the Board remanded the Veteran's claim to comply with the directives of the memorandum decision. That development was completed. However, the Veteran subsequently submitted additional evidence, and requested that it be remanded for initial Agency of Original Jurisdiction (AOJ) consideration. The Board accordingly remanded the claim in January 2012 for the issuance of a supplemental statement of the case, which was done in February 2013. As the directed development has been completed, the Board's order was fully complied with, and therefore there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). In the January 2012 remand, the Board noted that the issue of a TDIU as a result solely of the Veteran's service connected headache disorder had been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (issued after the Board's November 2006 decision). The Board also found that a claim for special monthly compensation based on the need for aid and attendance had also been raised. These issues were addressed in the supplemental statement of the case and have been added as issues on the title page of this decision. While on remand, the Appeals Management Center (AMC) granted service connection for cervical spondylosis and spinal canal stenosis (claimed as a neck disability) in an August 2011 rating decision. This constituted a complete grant of the benefit sought on appeal; and because the Veteran did not disagree with disability rating or effective date assigned, the issue has been resolved and is no longer in appellate status. Also in September 2009, the Board issued a decision denying a motion for revision of a 1994 Board decision on the basis of clear and unmistakable error. The September 2009 decision (it appears, though this is not clear) is presently on appeal to the Court; the matter is not presently before the Board and will not be addressed further here. In any event, it is not before the VA at this time. The Board notes that, in argument presented to the Court and by letter received in April 2009, the Veteran raised several claims involving CUE in past RO rating decisions as well as additional service connection claims for consideration. The Board referred these issues to the RO in the September 2009 decision, but it is unclear whether any action has been taken to develop these claims. The Veteran raised a similar set of issues in a November 2011 statement. These issues are again REFERRED to the RO for appropriate action. In this regard, the RO must take into consideration the Board's September 2009 decision finding no CUE in the 1994 Board decision. FINDINGS OF FACT 1. For the entirety of the period on appeal, the Veteran's service connected migraine headaches have been productive of very frequent completely prostrating and prolonged attacks that have been productive of severe economic inadaptability. 2. The Veteran has been in receipt of a TDIU for the entirety of his headache appeal based on the fact that his service connected disabilities in combination have rendered him unemployable. 3. The evidence of record does not show that the Veteran's headaches alone have rendered him unemployable during the course of his appeal. 4. The Veteran is not bedridden, and his service-connected disabilities do not make him unable to care for his daily needs without regular aid and assistance from another person. CONCLUSIONS OF LAW 1. The criteria for a 50 percent rating for headaches are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2 4.7, 4.124a, Diagnostic Code 8100 (2013). 2. The criteria for TDIU based solely on the Veteran's service connected headache disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013); Rice v. Shinseki, 22 Vet. App. 447 (2009). 3. The criteria for special monthly compensation based on the need for aid and attendance have not been met. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. §§ 3.350, 3.352 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The current appeal to the Board arose from a 2002 rating decision which denied a rating in excess of 30 percent for the Veteran's migraine headaches. The Veteran's service-connected headaches are currently, and have been for the duration of his appeal, evaluated as 30 percent disabling under Diagnostic Code 8100. Under the rating schedule, a 30 percent evaluation is warranted for migraine headaches where there are characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent evaluation is warranted if there are very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating." By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." The term "productive of economic inadaptability" is also not defined in the rating criteria. The term "productive of" is consistent with common meaning of "producing" or "capable of producing," and the term "inadaptability" is consistent with the meaning of affecting economic adjustment. See generally Pierce v. Principi, 18 Vet. App. 440 (2004). As noted in the introduction, the Court directed the Board to consider the applicability of staged ratings, but the Board ultimately concludes that for the duration of the Veteran's appeal, there has not been a sufficient change in his migraine headache symptomatology to warrant anything but the highest schedular rating. The Veteran has not disagreed with this conclusion. For example, in his March 2008 reply brief, the Veteran stated that his migraine headaches had remained relatively constant for many years with only slight periods of minimal decrease, providing evidence against this contention. It is simply his contention that his headaches have been of sufficient severity to warrant a 50 percent schedular rating throughout the course of his appeal. Having reviewed the evidence of record in its entirety, as well as the fact that this case has been on appeal for so many years, including, in particular, the heartfelt and sincere letters from the Veteran's wife and daughter, the Board concurs that the Veteran's service connected migraine headache disorder has satisfied the criteria for a 50 percent schedular rating for the entirety of his appeal. During the course of the Veteran's appeal, it has been consistently documented in the VA treatment records that the Veteran had migraine headaches approximately 3-5 times per month, each of which lasted for several days. A number of medications have been prescribed in a effort to control the headaches, but while there has been some limited success, it is apparent that the headaches continue to cause significant impairment. The headaches have been accompanied by photophobia and nausea, and occasionally by vomiting. In June 2010, the Veteran underwent a VA examination at which he reported experiencing 4-5 headaches per month with at least one being prostrating and requiring bed rest for 2-3 days. During the past 12 months, the examiner noted the headaches had occurred weekly but fewer than half had been prostrating. The examiner stated that the Veteran had been unemployable since 1997 on account of his cervical spine and migraine headaches. In July 2011, the examiner provided an addendum after once again reviewing the claims file. He concluded that the "prostrating attacks" of which the Veteran complained were not prostrating according to the defined term found in Dorland's. Accordingly, the examiner asserted that in his opinion the Veteran's migraine headaches would not result in the loss of his ability to obtain and remain secure in gainful employment. In September 2011, the Veteran clarified that he had prostrating attacks at least once a month, but quite often more frequently. The Veteran submitted letters from his wife and daughter, as well as several friends. The Veteran's daughter stated that her dad's headache medications never seemed to be enough. She indicated that he had 3-4 headaches per month, lasting anywhere between 3-5 days each. On average the Veteran had two migraine headaches per month during which he was completely unable to function, drive, and/or think, and he experienced nausea, vomiting and extreme irritability. She reported often missing school, because she had to care for her incapacitated father and her autistic brother, and because no one was able to drive her. The Veteran's wife wrote that she had seen the Veteran experience these headaches 3-4 times per month, and last anywhere from 4-7 days. She noted that his children had to experience their father in too much pain to take them to school, and that they had to watch him incapacitated. As noted, a 50 percent evaluation is warranted if there are very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. As noted, the Veteran has experienced headaches as many as 5 times per month which lasted days at a time. The Board believes that this satisfies the requirement that the headaches are frequent. Additionally, the statements by the Veteran and his family leave little doubt that the attacks are often completely prostrating and prolonged. With regard to the requirement that the headaches be productive of severe economic inadaptability, the Board acknowledges the examiner's conclusion that the Veteran's headaches would not result in the loss of his ability to obtain and remain secure in gainful employment. However, that is not the standard for a 50 percent rating. Here, a review of the VA treatment records and lay statements makes it apparent that the Veteran's migraine headaches have taken a significant economic toll on the family. The Board must note that not all evidence in this case supports the Veteran's claim and that there is significant vagueness in the medical record. However, another remand of this case, in light of the many delays noted above, to obtain more medical evidence (that may not support the Veteran's claim) must be avoided, if at all possible. Given this conclusion, the Board finds that a 50 percent schedular rating is warranted for the Veteran's migraine headache disorder, and to that extent the Veteran's claim is granted. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's migraine headaches that would render the schedular criteria inadequate. The Veteran's main symptoms are prostrating attacks, that are accompanied by pain, photophobia, nausea and vomiting. The schedular rating criteria are based on the frequency of prostrating attacks and thus encapsulate the symptoms which cause the attacks to be prostrating (such as pain, photophobia, nausea and vomiting). Moreover, the schedular rating criteria also contemplate the economic toll which is extracted by the headache symptoms in their entirety. As such, the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Without taking into consideration the Veteran's statements, and those of his family, the current finding could not be justified, let alone a higher rating. Moreover, even if the schedular rating criteria were not found to reasonably describe the Veteran's headache symptoms, and as described in the preceding paragraph the Board does not believe this to be the case, the fact remains that the Veteran's headache disorder has not exhibited other related factors such as those provided by the regulation as "governing norms" of an exceptional disability picture. 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. Here, the Veteran has not been hospitalized for his headaches and in fact has received little treatment beyond medication alterations through the course of his appeal. Additionally, to the extent that interference with employment is shown, this is a factor that is directly considered by the Veteran's schedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. II. TDIU based solely on the Veteran's service connected headache disorder In a January 2012 remand, the Board noted that the Veteran had alleged unemployability due to his service-connected headache disability. The Board acknowledges that the Veteran was in receipt of a total disability rating due to individual unemployability (TDIU), that was granted by the RO in 1998 on the basis of multiple service-connected disabilities; however, TDIU may also be awarded on the basis of a single service-connected disability if that disability is shown to render a Veteran unemployable. See Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008); see also 38 U.S.C.A. § 1114(s). As such, the Board remanded the issue of entitlement to TDIU based solely on the Veteran's service connected migraine headaches for the Agency of Original Jurisdiction (AOJ) to consider in the first instance. A TDIU may be assigned where the schedular rating is less than total when the disabled Veteran is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran's headache disability is rated at 50 percent. As such, he fails to meet the schedular criteria for a TDIU based solely on that disability. Nevertheless, a TDIU may still be available for the migraine headaches if the Veteran is unable to secure and follow a substantially gainful occupation by reason of them. 38 C.F.R. § 4.16(b). The Veteran has on occasion suggested that he is unemployable on account of his headaches, but he most frequently asserts that no one will hire him on account of his multiple disabilities, providing some factual evidence against this self-assessment. The Board does not disagree with the assessment that the Veteran's service connected disabilities render him unemployable, as it is for that specific reason that he was awarded a TDIU. However, having studied the evidence of record, the Board does not believe that the Veteran's headaches alone render him unemployable and therefore the Veteran's claim will not be remanded for extraschedular TDIU consideration. It is not disputed that the Veteran's migraine headaches cause considerable impairment, but the schedular rating that the Veteran's receives is assigned specifically because his headaches are severe, frequent, prostrating, and because they result in severe economic inadaptability. However, while he has severe economic inadaptability this falls short of total unemployability. In this regard, it is important for the Veteran to understand that a 50% disability evaluation is a highly significant disability evaluation, indicating, very generally, a 50% reduction in the ability to work. It the Veteran did not have the problems he has cited there would be no basis for the current evaluation, let alone a higher evaluation. A medical opinion was obtained to address the issue of whether the Veteran's headache disability rendered him unemployable. However, in a July 2011 addendum to a VA examination report, an examiner opined that Veteran's migraine headaches would not result in the loss of his ability to obtain and remain secure in gainful employment. This is the only opinion which directly addresses the issue of the Veteran's employability, and it is uncontradicted by any medical evidence of record. It is therefore afforded significant weight. Moreover, the Veteran has not specifically alleged that his headaches alone render him unemployable. For example, at the June 2010 VA examination, the Veteran informed the examiner that he was unemployed as a result of his migraine headaches and spinal disc condition. In this regard, it is noted that the issue of TDIU arose, not because the Veteran asserted that he was unemployable on account of his headaches, but rather because he was arguing that his headaches should receive at least the maximum schedular rating of 50 percent and more, in full knowledge that 50 percent is the schedular maximum for migraine headaches, which the Board concluded was enough to raise the issue of TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009); Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted above, the Veteran was assigned the 50 percent schedular rating he was seeking. However, as documented, the medical evidence of record is against a finding that the Veteran's headaches alone render him unemployable and the lay testimony does not specifically disagree with such a conclusion. Simply stated, both the Veteran's prior statements, as a whole, and the medical evidence, as a whole, provide evidence against this claim. Therefore, the criteria for an extraschedular TDIU based solely on the Veteran's headaches is denied. III. SMC based on the need for aid and attendance In the January 2012 remand, the Board noted that the Veteran's daughter had indicated that at times the Veteran would become so incapacitated by his headaches that he was unable to care for himself and that she had to care for him during these episodes which occur at least twice a month. The Board found that this statement was sufficient to raise a claim for SMC based on the need for regular aid and attendance. In this regard, it is unclear as to whether the Court's decision in Rice would, by extension, indicate that SMC can be "implicitly raised" by the record. In any event, the Board sees not prejudice to the Veteran in the Board addressing this issue in light of the fact that the issue has been remanded to the RO. The Board will not address the legal issue of whether SMC can be "implicitly raised" by the record under Rice in this decision The Board remanded the issue to the RO for initial consideration. Special monthly compensation is payable to a veteran who is, as a result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). The criteria for determining that a veteran is so helpless as to be in need or regular aid and attendance are contained in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.350(b)(3). The following criteria will be considered in determining whether the veteran is in need of the regular aid and attendance of another person: the inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without such aid; the inability of the veteran to feed himself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or an incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a) . In Turco v. Brown, 9 Vet. App. 222 (1996), the Court held that all of the disabling conditions listed in 38 C.F.R. § 3.352(a) need not exist to establish eligibility for aid and attendance benefits, but that at least one of the listed factors must exist to establish eligibility for such benefits. The Court added that the personal function that the veteran is unable to perform should be considered in connection with his or her condition as a whole, and that it was only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. In this case, it is not in dispute that the Veteran does not have anatomical loss or loss of use of any foot or hand. He is not blind in both eyes, with 5/200 visual acuity or less. He does not contend, nor does the evidence indicate, that he is permanently bedridden. The Veteran's claim thus is based solely on a need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). The Veteran's disabilities for which VA has established service connection are a back disability (60 percent), headaches (50 percent), a neck disability (30 percent); residuals of a right arm injury (20 percent); psoriasis (10 percent); and hearing loss (0 percent). Turning to the criteria enumerated in 38 C.F.R. § 3.352(a), there has been no showing that the Veteran has been unable to dress or undress himself, or to keep himself ordinarily clean and presentable. Likewise, beyond the use of a cane, the Veteran does not use any special prosthetic or orthopedic appliances. There is also no suggestion that the Veteran is unable to feed himself through the loss of coordination of upper extremities or through extreme weakness. The Veteran has experienced some problems periodically with numbness in his extremities, but it does not appear to have ever risen to the point he could not feed himself or attend to the wants of nature. There has been no allegation to the contrary. Likewise, there is no showing that the Veteran requires care or assistance on a regular basis to protect himself from the hazards or dangers incident to his daily environment. Reading the letters that were written by the Veteran's wife and daughter leaves little doubt that his headaches cause great impairment, to the point that the Veteran is unable to for example drive his daughter to school or care for his son. However, even during these times, it does not appear that the Veteran is incapable of caring for himself such that aid and attendance of another person is warranted. Rather the Veteran is forced to lie down in a dark room. In effect, the statements of the Veteran's family, which provided the basis to grant the claim above, provide, overall some evidence against this claim. The Veteran's own statements, overall, also would provide some evidence against this claim, as noted above. Because the Veteran does not meet any of the criteria for aid and attendance, special monthly compensation based on a need for aid and attendance is denied. IV. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided for the Veteran's headaches by a letter dated in July 2001, which informed him of all the elements required by the Pelegrini II Court as stated above. Additionally, he was granted the maximum schedular rating for his headaches by this decision, meaning that any potential failure of VA in fulfilling the notice requirement is at best harmless error. Moreover, from the date of receipt of his claim to the present, the Veteran has been provided with detailed information on numerous occasions advising them of the criteria necessary to substantiate his claims and the reasons his claims were denied. Specifically, in addition to the letter provided in July 2001, the Veteran was also provided with a statement of the case in October 2003 and, in January 2004, he was provided with another letter which advised him of what was needed to substantiate his claims, his responsibilities, and the actions VA would take on his behalf. Thereafter, his claims were readjudicated in a March 2006 supplemental statement of the case which, once again, detailed the requirements for substantiating the Veteran's claims. Overton v. Nicholson, No. 02-1814 (September 22, 2006) (Reviewing the entire record and examining the various predecisional communications, the Court concluded that the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims.) Accordingly, the Board finds that any deficiency in the notice to the veteran or the timing of these notices is harmless error. Additionally, no notice error was argued to the Court when the Veteran appealed his previous denial. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess, 19 Vet. App. at 486. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, as noted above, the Veteran has been provided with notice of what type of information and evidence was needed to substantiate his claims on numerous occasions. However, he did not receive notice of what type of information and evidence was needed to establish an effective date or increased rating for any award based on his claims prior to the January 2002 rating decision. Thereafter, by way of the March 2006 Supplemental Statement of the Case as well as a March 2006 letter, the Veteran was generally provided with notice of what type of information and evidence was needed to substantiate his claims and specifically advised of what type of information and evidence was needed to substantiate any claims for an increased rating as well as the requirements for establishing an effective date. With respect to the duty to assist, the RO has obtained the Veteran's VA and private medical records; he was also afforded a VA examination for his headaches and for his TDIU secondary to his headaches, and he was afforded a hearing before the undersigned Veterans Law Judge. The Veteran has also submitted a number of written communications. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Admittedly, a VA examination was not provided with regard to the issue of aid and attendance. However, as discussed above, there is not insufficient evidence to decide this case. The Board has reviewed the lay statements and the VA treatment records, which provide sufficient information upon which to adjudicate the issue of aid and attendance. Social Security Administration (SSA) records were sought, but a response was received from SSA in August 2010 indication that they had no medical on file or were unable to locate the medical record. A follow-up request was sent, but SSA responded again in November 2010 that they had no medical on file or were unable to locate the medical record. In a March 2011 letter, the Veteran was informed of the unavailability of the SSA records, and he was asked to send any records in his possession. A formal finding of unavailability was made in April 2011. As such, the requirements of 38 C.F.R. § 3.159(e) were met. In April 2011, the Veteran wrote that he did not receive SSA disability as his claim was denied. He reported going to SSA and being told that the requested records had been sent to VA; and he included a print out from SSA as verification of his assertion that records had been sent. However, the printout merely indicated that "replies" had been sent to VA by SSA on two occasions, it does not say that records were sent. As noted, the replies from SSA are specifically of record, but note only that no records are available. Because SSA has specifically indicated that no records are available, the Board concludes any additional search would be futile and a remand is therefore not necessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). As such, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. In this case, VA has made all reasonable efforts to assist the veteran in the development of his claims. While additional attempts to obtain information can always be undertaken, in light of the record, the Board finds that such an additional attempt, in light of the extensive efforts already performed in this case, cannot be justified. A further delay of the case, in light of the delays cited above, does not serve the interests of the Veteran and has been a significant consideration in the granting of the Veteran's claim. Thus, there being no other indication or allegation that additional relevant evidence remains outstanding, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. ORDER A 50 percent rating for migraine headaches is granted, subject to the laws and regulations governing the award of monetary benefits. A TDIU based solely on the Veteran's service connected headache disorder is denied. Special monthly compensation based on the need for aid and attendance is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs