Citation Nr: 1331366 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 06-00 211A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial disability rating greater than 10 percent for service-connected right shoulder tendonitis with impingement, weakness, and limited motion. 2. Entitlement to an initial disability rating greater than 20 percent for service-connected cervical strain. 3. Entitlement to an initial disability rating greater than 30 percent for service-connected migraine headaches 4. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: California Department of Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from July 1999 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Los Angeles, California. Jurisdiction is currently with the RO located in Reno, Nevada. In August 2013, the Veteran testified at a video conference hearing over which the undersigned Acting Veterans Law Judge presided. A transcript of that hearing has been associated with the claims file. The provisions of 38 C.F.R. § 3.103(c) (2) impose 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). During the August 2013 hearing, the undersigned clarified the issues on appeal and inquired as to the nature and severity of the Veteran's asserted disabilities. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. The Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. Although the issue of TDIU was previously denied by the agency of original jurisdiction, it is part and parcel of whether a higher disability rating should be assigned for the migraine headache disorder. The Board finds that its jurisdiction in this matter has been triggered, and the issue of TDIU will be discussed below and has been added to the front page of this decision. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. During the August 2013 hearing and prior to the promulgation of a decision in the appeal, the Veteran indicated that she wished to withdraw her appeal as to the issue of an initial disability rating greater than 10 percent for the service-connected right shoulder disability. 2. During the August 2013 hearing and prior to the promulgation of a decision in the appeal, the Veteran indicated that she wished to withdraw her appeal as to the issue of an initial disability rating greater than 20 percent for the service-connected cervical spine disability. 3. The Veteran's migraine headaches are productive of symptoms that more nearly resemble headaches which are very frequently completely prostrating with prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the Veteran as to the issue of an initial disability rating greater than 10 percent for service-connected right shoulder tendonitis with impingement, weakness, and limited motion, have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of the appeal by the Veteran as to the issue of an initial disability rating greater than 20 percent for service-connected cervical strain have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 50 percent disability rating for migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Right Shoulder and Cervical Spine Disabilities The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the August 2013 hearing, the Veteran indicated that she wished to withdraw her appeal as to the issues of initial disability ratings greater than 10 percent for a right shoulder disability, and greater than 20 percent for a cervical spine disability, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals, and they are dismissed. Migraine Headaches VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board grants the maximum 50 percent disability rating for the service-connected migraine headaches. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by her, and for which she authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated with the claims file the service treatment records and reports of her post-service care. She has also been afforded VA examinations. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of her claim. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Veteran is appealing the initial assignment of a disability rating, as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2013). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2013). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Veteran's migraine headaches have been rated as 30 percent disabling under Diagnostic Code 8100. Under Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks occurring on an average once a month over preceding several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. For definitional purposes, prostration is extreme exhaustion or powerlessness. Dorland's Illustrated Medical Dictionary 1523 (30th ed. 2003). Turning to the merits of the claim, during the August 2013 hearing, the Veteran testified essentially that her migraine headaches had worsened and were now so severe that she required emergency care and continued medication and treatment including injections. The migraines were prostrating and of a longevity enough to have a financial impact on her ability to work. She described that some months she would have two or three migraine episodes and some months she would have as many as eight or nine. She added that she could no longer work full time, and that she was now engaged in part-time work from home which caused her financial hardship. She noted that, "I'm very limited. I've had to cut out most of my luxuries, cable, I'm lucky if I could pay my cell phone which is my only means of speaking some months but it's been a struggle." Review of VA treatment and emergency room records show that on a July 13, 2005, record indicates that the Veteran was evaluated in the neurology clinic for her headaches. At that time she reported headaches about two times per week lasting anywhere from two to 48 hours. At that visit she was diagnosed with migraines. On July 18, 2005, she was evaluated in the pain clinic and was approved for acupuncture. She received two acupuncture sessions without improvement. On September 25, 2005, she was started on Percocet for her headaches as the Vicodin was not always relieving the pain. On December 26, 2006, she reported experiencing one migraine every week that was relieved with Sumatriptan injections plus pain requiring either Vicodin or Percocet every other night. On July 3, 2007, she reported using one to two tablets of Percocet or Vicodin a couple times per week. She also reported severe nausea and vomiting associated with her pain medication and was prescribed Promethazine as needed. Since then, her migraines were said to have increased in frequency. She reported having at least two migraine headaches per week. She describes them as incapacitating and was unable to do anything other than take the Sumatriptan and go to sleep when one occurred. She added that she had missed so much school due to her migraines that she was on probation. She was unable to work when she had the migraines. A November 2007 report indicates that the Veteran was seen in the emergency room for migraines in October 2007 and given Propranolol HCL, 10mg. A February 2008 report notes that the Veteran was currently on probation from school because she missed too many days secondary to her migraine headaches. She stated she continues to get migraines a couple times per week. Symptoms included nausea, severe headache feeling like her "head is going to burst." She reported the headaches are incapacitating. If she could catch them early enough they are often relieved with Vicodin or Percocet. If not, she would use Sumatriptan but then would be knocked out for the next several hours. She stated she would end up taking two Percocet tablets two times per week for severe headaches. She would continue to take diazepam for muscle spasms in her neck and occasional to help her relax before going to bed. A letter addressed to the California Department of Veteran Affairs per the Veteran's request noted that she has been under the clinician's care since December 26, 2006, and suffers from chronic pain due to migraine headaches as well as due to removal of her right first rib and subsequent surgeries for thoracic outlet syndrome. She currently takes Percocet, Vicodin, sumatriptan and diazepam for these symptoms. She is now being started on Propanolol for migraine prophylaxis. A February 2008 emergency room record notes the Veteran was admitted for migraine headaches. She stated two injections of Imitrex and two Vicodin provided no relief. She added that she had nausea, vomiting, and photophobia and described the pain as a 10 on a scale of 10. The report continued that the Veteran had a history of migraine versus tension headaches; had an attack once weekly which would usually break with Imitrex but after two doses there had been no relief. She described the pain as starting in her neck and radiating to her forehead, which was typical for her. A December 2008 record notes the Veteran continued to have headaches every few weeks, usually starting in the occipital region with "knots" that then involved the whole head. She noted worsening headaches with stress from her new job. No associated nausea, vomiting, photo- or phonophobia, or aura. She did not notice any association with her OCPs. She would usually take Vicodin or Percocet at the onset of pain. Imitrex injections would always abort the headaches but she was afraid of needles and preferred to try Vicodin or Percocet first. Upon neurological disorders examination in June 2011, the Veteran reported that she was unemployed due to her migraines. They were of an increased severity and duration and prevented her from working. The migraines were said to have increased in intensity and occurrences in the preceding two years, averaging twice per week. The pain was sharp and piercing starting at the base of the skull and spreading to the entire head causing her to stay in bed or lie down until they pass. She indicated that she had lost her last job as a result of absenteeism due to migraines which caused her to be incapacitated. The examiner diagnosed migraine headache of increasing severity, intensity, and duration. Considering the evidence of record in light of the above criteria, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the overall record supports the assignment of the maximum 50 percent disability rating for migraine headaches. During the pendency of the appeal, the Veteran has described having had two to three migraine episodes a month and some months having as many as eight or nine which were prostrating and including severe pain, nausea, light sensitivity, and requiring her to lie down for extended periods of time. In addition, the June 2011 VA examiner noted that the Veteran reported that she was unemployed due to her migraines which were of an increased severity and duration and prevented her from working. The migraines had increased in intensity and occurrences in the preceding two years, averaging twice per week. The pain was sharp and piercing starting at the base of the skull and spreading to the entire head causing her to stay in bed or lie down until they pass. The examiner diagnosed migraine headache of increasing severity, intensity, and duration. In addition, the above excerpts from the Veteran's VA treatment records support the Veteran's testimony and examination findings. Comparing these manifestations to the rating criteria, it is clear that the criteria for a 30 percent rating are greatly exceeded, because that rating requires characteristic prostrating attacks that occur only once a month. Throughout the appeal period, the Veteran's migraines have occurred much more frequently than once per month. The Board notes that the Veteran is competent to report the frequency and severity of his migraine headache episodes, as both are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Moreover, the Board finds the Veteran's reports to be credible, as they have remained consistent over time and are corroborated by the Veteran's medical treatment of record. As such, the Board finds that the Veteran's migraine headaches meet the rating criteria for a 50 percent disability rating, as her migraines may be characterized as completely prostrating and prolonged attacks occurring very frequently (at least once per week) and productive of severe economic inadaptability. The Board notes that a 50 percent disability rating is the highest schedular rating available pursuant to Diagnostic Code 8100. The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's migraine headaches have reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). In this case, the Board finds that the rating criteria contemplate the Veteran's migraine headache disability picture, as the Veteran's service-connected migraine headaches are productive of characteristically prostrating attacks and economic inadaptability, manifestations that are contemplated adequately by the applicable schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether any disability on appeal requires the assignment of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In light of the foregoing, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the criteria for assignment of a 50 percent disability rating-the maximum rating assignable for the Veteran's migraine headaches under Diagnostic Code 8100-is warranted. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal as to the issue of an initial disability rating greater than 10 percent for service-connected right shoulder tendonitis with impingement, weakness, and limited motion, is dismissed. The appeal as to the issue of an initial disability rating greater than 20 percent for service-connected cervical strain is dismissed. An initial 50 percent disability rating for migraine headaches is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND As noted above, a claim for a TDIU is part of an increased disability rating claim when such claim is reasonably raised by the record. In this case, the Veteran has not formally filed a claim of entitlement to a TDIU. However, she has alleged that her service-connected migraine headaches preclude her from obtaining or maintaining gainful employment. As such, the TDIU claim is part and parcel of the increased rating claim on appeal. See Rice, 22 Vet. App. at 453-54. A Veteran will be entitled to a TDIU upon establishing an inability to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to the level of education, any special training, and previous work experience in making this determination, but not to age or impairment from disabilities that are not service connected (i.e., unrelated to military service). See 38 C.F.R. §§ 3.341, 4.15, 4.16, 4.19. To qualify for a total disability rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities - provided there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . ." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." In this context, the Court noted the following standard announced by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the Courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See, too, Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration was given on account of the same. See 38 C.F.R. § 4.18. To receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In this case, the service connection is in effect for migraine headaches, rated as 50 percent disabling; cervical strain, rated as 20 percent disabling; right shoulder tendonitis with impingement, weakness, and limited motion, rated as 10 percent disabling; painful and tender scarring, rated as 10 percent disabling; ganglion cyst, right wrist, rated as noncompensable; and resection cervical rib, rated as noncompensable; for a combined disability rating of 70 percent. Accordingly, the Veteran currently meets the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a). However, it remains unclear whether the Veteran is prevented from engaging in substantially gainful employment as a result of her service-connected disabilities. As such, on remand, the Veteran should be afforded a VA examination in order to obtain an opinion as to whether the service-connected disabilities have impacted her ability to work. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran should also be obtained. See 38 U.S.C.A. § 5103A (b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO/AMC shall send the Veteran a notice letter pertaining to a claim of entitlement to a TDIU, to include a description of the evidence necessary to substantiate a claim for TDIU, the Veteran's duties to substantiate the record, and VA's duties. A reasonable period of time to respond must be provided. The RO/AMC shall assist in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO/AMC shall notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. The RO/AMC shall schedule the Veteran for a VA examination to determine whether her service-connected disabilities, either alone or in combination, prevent her from securing or following employment for which her education and occupational experience would otherwise qualify her. The claims file, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. The examiner is requested to determine whether the Veteran is currently working. If not, the examiner shall opine as to whether it is at least as likely as not that the Veteran's service-connected disabilities, either alone or in combination, preclude her from securing or following substantially gainful employment for which her education and occupational experience would otherwise qualify her. The examiner must provide reasons for the opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report her symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and her representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until she is so informed. She 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This case must be afforded expeditious treatment. Claims remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs