Citation Nr: 1330765 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-10 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for residual headaches, status post-craniotomy for frontal sinus infection prior to November 10, 2010, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1997 to August 2008. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs Regional Office (RO), in Waco, Texas, which granted service connection for residual headaches, status post-craniotomy for frontal sinus infection and assigned a noncompensable rating, effective August 10, 2008. Subsequently during the appeal, in a January 2011 statement of the case, the RO granted a 10 percent rating for residual headaches, status post-craniotomy for frontal sinus infection, effective November 10 , 2010. Although the RO granted a 10 percent rating, inasmuch as higher ratings are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the increased rating does not resolve the appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). FINDING OF FACT For the entire initial rating period on appeal, the Veteran's headache disability is manifested by characteristic prostrating attacks occurring over once a month throughout the appeal; however, the Veteran's headaches have not been productive of disability manifested by very frequent and completely prostrating and prolonged attacks that are productive of severe economic inadaptability. CONCLUSION OF LAW For the entire initial rating period on appeal, the criteria for a 30 percent disability evaluation, but no higher, for residual headaches, status post-craniotomy for frontal sinus infection have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8045-8100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The notice obligations of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23, 353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Veteran's increased rating claim arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. In this case, as noted, the Veteran was provided a VCAA letter in June 2008 which informed him of the evidence necessary to substantiate a claim for service connection. Courts have held that once service connection is granted and the claim is substantiated, additional notice is not required and 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). With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, private treatment records, and the Veteran and his wife's statements. The Veteran was also afforded VA examination in November 2010 and June 2012. During the examinations, the Veteran's history was taken and a complete examination was conducted that included specific clinical measures. Conclusions reached were consistent with the examination reports. For these reasons, the Board finds that the Veteran has been afforded an adequate examination on the issue of increased rating for service-connected headaches, status post-craniotomy for frontal sinus infection. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Initial Rating for Headache Disability Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The appeal in regard to the evaluation of migraine headaches stems from the original noncompensable evaluation assigned at the time service connection was granted in the September 2008 rating decision. Upon further review, the Board notes that while the January 2011 statement of the case reflects a 10 percent evaluation assigned for migraine headaches, beginning November 10, 2010, the Board finds that a 30 percent evaluation is warranted throughout the entire appeal period. The record reflects that the Veteran's headaches are residuals of post-craniotomy for frontal sinus infection during service, as reflected in the evaluation under hyphenated Diagnostic Codes 8045-8100. Diagnostic Code 8045 pertains to residuals of traumatic brain injury and Diagnostic Code 8100 pertains to migraine headaches. 38 C.F.R. § 4.124a, Diagnostic Code 8045, 8100. The Veteran's headaches are currently rated under Diagnostic Code 8100. Pursuant to this code, a 50 percent evaluation requires that the disability be manifested by very frequent and prostrating and prolonged attacks that are productive of severe economic inadaptability. A 30 percent rating under this code is warranted when the disability is manifested by headaches, with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent rating requires that the condition be productive of headaches with characteristic prostrating attacks averaging one in two months over last several months. Upon review of all the evidence of record, both lay and medical, the Board finds that for the entire initial rating period on appeal, the Veteran's headaches are manifested by characteristic prostrating attacks occurring over once a month. In a May 2008 Post-Deployment Health Assessment, the Veteran noted that he suffered from "bad headaches." Immediately preceding separation form service, a Report of Medical Examination, dated June 2008, noted that the Veteran had been suffering from headaches for the last eight years which had become more frequent since redeployment. Further, in the June 2008 Report of Medical History, completed by the Veteran, he reported "frequent and severe headaches." In a pre-discharge examination report, dated July 2008, the Veteran reported mild to moderate headaches four days out of the week. The Board finds that this evidence weighs in favor of a finding that the Veteran suffered from prostrating attacks occurring over once a month in-service and upon service separation. Post-service records include a June 2010 VA examination report where the Veteran reported daily headaches which resemble migraines. He stated that they occurred daily, lasting for up to 24 hours, and lasting continually for two to three days. The pain was described as "throbbing" and a "9" on a pain scale from 1 to 10 pain, with 10 being the worse. In the most recent June 2012 VA examination report, the Veteran described headaches occurring three to four times a week, usually located in the bilateral temple area which worsened during spring and summer. The headaches were noted as lasting three to four hours after taking prescription medication. The Veteran also reported that in the last 17 months, he had to leave work twice to go home and rest, otherwise the headaches were noted by the VA examiner as not prostrating. The Veteran also reported mild onset aura, occasional nausea, photophobia, and auditory sensitivity. Also, in a statement dated February 2010, the Veteran's wife reported that she had witnessed the Veteran experiencing pain associated with his headaches every day. According to the Veteran's wife, he was often in pain, his eyes blackened, and he had vomited on several occasions due to pain. On January 7, 2010 and February 10, 2010, the Veteran's wife reported that she took the Veteran to the emergency room because his head had been hurting continuously for three days. A February 2010 treatment note from the Christus Health Center supports the wife's contentions. Upon review of the record, the Board finds that the evidence is in equipoise as to whether a compensable rating is warranted prior to November 10 , 2010 and in excess of 10 percent thereafter. Here, the evidence demonstrates that the Veteran has been suffering from headaches since service and continuously since service separation. The Veteran has consistently and credibly described his headaches as throbbing, and a 9 on a pain scale from 1 to 10, with 10 being the worst. Additionally, in the June 2012 VA examination report, the Veteran stated that in the last 17 months, he had to leave work twice to go home and rest. His wife has credibly reported that she took the Veteran to seek treatment twice in 2010 for headaches lasting for three days, which also caused the Veteran to miss work. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's headache disability more nearly approximates a 30 percent rating under Diagnostic Code 8100 for the entire initial rating period on appeal. The Board further finds that entitlement to a higher rating of 50 percent is not warranted at any point during this appeal. In this regard, although the November 2010 VA examiner reported the Veteran's headaches caused decreased concentration and pain, the Veteran was capable of employment, despite weakness and fatigue during employment. The June 2012 VA examiner also found that the Veteran's headaches did not impact his ability to work. For these reasons, the Board finds that a 50 percent rating for the Veteran's headache disability under Diagnostic Code 8100 is not warranted for any period on appeal. In reaching a determination that a rating in excess of 50 percent is not warranted at any time during the appeal, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a higher rating. III. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's headache disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine 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"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's disability is specifically contemplated by the schedular rating criteria and no referral for extraschedular consideration is required. The schedular rating criteria for the Veteran's disability specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, considering the lay and medical evidence, the Veteran's headaches are manifested by characteristic prostrating attacks occurring over once a month throughout the appeal; however, the Veteran's headaches have not been productive of disability manifested by very frequent and completely prostrating and prolonged attacks that are productive of severe economic inadaptability. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's disability, the Board finds that 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, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Further, a claim for a total rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes, however, that the Veteran indicated in the June 2012 VA examination that he was currently employed. As such, the issue of TDIU is not raised in this case. ORDER For the entire initial rating period, a rating of 30 percent, but no higher, for residual headaches, status post-craniotomy for frontal sinus infection is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs