Citation Nr: 1331845 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-09 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for migraine headaches. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from September 1979 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a June 2009 statement, the Veteran raised the issue of whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus, type II. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran's migraine headaches presented with frequent, prostrating attacks productive of economic impairment. CONCLUSION OF LAW The criteria for a disability rating of 50 percent for migraine headaches have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the 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. at 486. By letters dated in April 2007 and October 2008 the Veteran was notified of the evidence not of record that was necessary to substantiate her claim. She was told what information that she needed to provide, and what information and evidence that VA would attempt to obtain. She was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For an increased-compensation claim, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on her own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on her employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that she could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations in May 2007 and August 2010. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. Therefore, the Board finds the examinations to be sufficient and adequate for rating purposes. Increased Rating - Migraine Headaches Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's migraine disability is currently evaluated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating; migraines with characteristic prostrating attacks occurring on average once a month over the last several months warrant a 30 percent rating; migraines with characteristic prostrating attacks averaging one in two months over the last several months warrants a 10 percent rating; and migraines with less frequent attacks warrant a noncompensable (0 percent) rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board finds that the Veteran's symptoms more nearly approximate the criteria for a 50 percent disability rating. The Veteran was afforded a VA examination in May 2007. At that time, the Veteran reported headache 24 hours daily. Once a week her headache increased to a level of 10/10 with nausea, vomiting, throbbing, and a requirement to be in a dark room in bed for hours to days. The examiner noted that the Veteran had weekly headaches, most of which are prostrating and last one to two days. He noted that the Veteran's headaches prevent shopping, sports, and recreation and severely impairs her ability to do chores and exercise. The Veteran's treatment records show treatment for constant chronic daily headaches. The record also shows hospitalization for migraine headaches in April 2008. A January 2010 record shows that the Veteran takes prescription and over-the-counter medication every day. The Veteran was afforded a VA examination in August 2010. The examiner noted daily headaches with pain across the total top of her head, occurring seven days a week with increased pressure behind her eyes and constant nausea. When her headaches flare she has additional symptoms of light and sound sensitivity, humming in her ears, and nausea without vomiting. The pain becomes throbbing and causes weakness, fatigue, and functional loss for two days. These flare ups occur two times per week. To receive a 50 percent rating, the evidence must show migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran's headaches occur daily, with increased migraines twice per week. These attacks are frequent and have been found by two VA examiners to be prostrating from hours to a matter of two days. Although the evidence does not specifically note economic inadaptability, the Veteran's disability is clearly more symptomatic than noted in the 30 percent criteria, which requires migraines with characteristic prostrating attacks occurring on average once a month over the last several months. Additionally, the Board notes that prostrating attacks, occurring weekly and lasting for up to two days, must have some economic impact. Therefore, the Board finds that the Veteran's symptomatology more closely approximates the criteria for a 50 percent disability rating under Diagnostic Code 8100. A 50 percent disability rating is the maximum schedular rating available under Diagnostic Code 8100. No other diagnostic codes apply to the Veteran's symptomatology; therefore, a schedular disability rating in excess of 50 percent is not warranted. The Board addresses the issue of an extraschedular rating below. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's migraine headaches are manifested by frequent prostrating attacks that create an economic impairment. As such, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, her description of migraine symptomatology is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. ORDER Subject to the law and regulations governing payment of monetary benefits, a 50 percent rating for migraine headaches is granted. REMAND The Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Here, the Board has found that the Veteran's migraine headaches create an economic impairment. As such, the Board notes that the Veteran has claimed an increased rating and had submitted evidence of interference with her ability to obtain and maintain substantially gainful employment. The Board finds that remand of the issue of TDIU for development by the RO, specifically to provide an examination to determine whether the Veteran is capable of obtaining and maintaining employment, is the appropriate action. The Veteran's sole service-connected disability, her headache disorder, is rated as 50 percent disabling, which does not meet the schedular criteria set forth in 38 C.F.R. § 4.16(a) (2013). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b). in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. On remand, the RO must determine whether the case should be referred to the Director of the Compensation and Pension Service for extraschedular consideration. Finally, unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the criteria required for a TDIU claim. 2. Notify the Veteran that she may submit lay statements from herself and from individuals who have first-hand knowledge, and/or were contemporaneously informed of the impact of her headache disorder on her ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After physically or electronically associating all pertinent outstanding records with the claims file, to specifically include any records of her treatment at the Kansas City VA Medical Center, schedule the Veteran for a VA examination, to be conducted, if possible, by a vocational specialist, for the purpose of ascertaining the impact of the Veteran's service-connected disabilities on her ability to obtain and maintain substantially gainful employment. The examiner should review the claims file and address the following issues: a.) The VA examiner is requested to evaluate and discuss the impact of the Veteran's service-connected headache disorder on her Veteran's employability. b.) The VA examiner is requested to offer an opinion as to whether the Veteran's service-connected disability, without consideration of her age or non-service- connected disabilities, renders her unable to secure or maintain a substantially gainful occupation, in light of her education, training and work history. 4. Then, readjudicate the appeal. In doing so, the RO must specifically consider whether the case should be referred to the Director of the Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). If the benefits sought on appeal are not granted, issue the Veteran and her representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs