Citation Nr: 1331988 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-11 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an evaluation in excess of 30 percent for status post concussion due to head injury including headaches, for the period of April 30, 2007 through February 4, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 7, 2002 to May 6, 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appeal the above issue. The Board notes that it provided a fairly lengthy procedural history of this case in its November 2011 Board decision; that procedural history is incorporated herein by reference. In the November 2011 Board decision, the Board denied an increased evaluation for the Veteran's status post concussion due to a head injury including headaches for the April 2007 to February 2009 period. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Following an extensive briefing of that issue, the Court issued a memorandum decision in March 2013 which vacated the Board's November 2011 decision with respect to that issue and remanded the case to the Board for further clarification. The case has been returned to the Board at this time for further appellate review in compliance with that March 2013 memorandum decision. The Board notes that it additionally denied an earlier effective date for the assignment of a 30 percent evaluation as well as an evaluation in excess of 50 percent for the Veteran's status post concussion due to head injury including headaches, effective February 5, 2009, in the November 2011 Board decision. The memorandum decision, in footnote 1 on the first page, indicates that the Veteran made no arguments with regards to those issues during his appeal to the Court, and the Court therefore deemed those claims abandoned. Accordingly, the Board finds that those issues are final and they will no longer be addressed at this time. FINDINGS OF FACT For the period of April 30, 2007 through February 4, 2009, the Veteran's status post concussion due to head injury including headaches was not manifested by migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; instead, it was more closely approximate with characteristic prostrating attacks occurring on an average once a month over last several months. CONCLUSION OF LAW For the period of April 30, 2007 through February 4, 2009, the criteria for an evaluation in excess of 30 percent for the Veteran's status post concussion due to head injury including headaches had not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in June 2007 that provided information as to what evidence was required to substantiate the claim increased evaluation claim herein decided and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim herein decided. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2013); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2013); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2013); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2013). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider a veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Id.; Powell v. West, 13 Vet. App. 31, 35 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's status post concussion due to a head injury including headaches has been evaluated as 30 percent disabling for the period of April 30, 2007 through February 4, 2009; beginning February 5, 2009, the Veteran's disability evaluation was increased to 50 percent disabling. As noted above, the Board will only address the period of April 30, 2007 through February 4, 2009 at this time. The Veteran's evaluation was assigned under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a rating of 50 percent is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months; a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months; a noncompensable rating is warranted for less frequent attacks. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2013). Turning to the evidence of record, the Veteran submitted an April 2007 correspondence in which he sought entitlement to service connection for migraines. Since the Veteran was already service connected for status post concussion due to head injury, to include headaches, the RO properly construed the correspondence as an increased rating claim. At the time, his status post concussion due to head injury, to include headaches had been rated at 10 percent. The RO increased the rating to 30 percent effective April 30, 2007-the date of the receipt of claim for increased evaluation. VA outpatient treatment reports reflect that the Veteran went to the emergency room on January 17, 2007 with complaints of migraine headaches of two days duration. He took over the counter medications; but they were not working. He reported that bright light, loud sounds, and strong odors cause nausea and make the headaches worse. The Veteran submitted a May 2007 charge for discrimination form in which he states that he was employed in January 2007 and was discharged in April 2007. The stated reason for his firing was the fact that the Veteran had been tardy 11 times. The Veteran contends that he was discharged because of his disability. The Veteran submitted a June 2007 correspondence in which he stated that his health conditions have ruined his life. He stated that he was waking up every morning with extreme headaches/migraines; and that they have prevented him from pursuing a career. He reported that he had lost his appetite and he feels like vomiting even if he had not eaten anything. He stated that he had to shut himself in a dark room due to sensitivity to bright light; and that when he is not in pain, he feels weak, confused, and has trouble with his memory. These symptoms occur every day. He stated that he was recently fired from his last job due to his disability. He also reported trouble with his vision that prevents him from being able to read or write well. The Veteran's roommate (K.T.) also submitted a June 2007 statement in which he stated that the Veteran's sleep patterns are erratic (the Veteran gets very little sleep and has to force himself to nap during the day). The Veteran underwent a VA examination in July 2007. He complained of headaches a few times per week, with each lasting a few hours. He reported that they are relieved by taking Vicodin. In addition to right sided head pain, he also reported experiencing photosensitivity and occasional nausea. As a result of headaches, he stated that he has missed a total of one week's worth of work in February. He stated that he has not been employed since February. The cranial nerve examination was normal. The examiner diagnosed the Veteran with frequent migraines. The Veteran underwent another VA examination in April 2008. He reported that he gets migraine headaches every day. He described them as throbbing headaches that begin in the morning and last all day. He also described nausea and vomiting with the headaches. He reported that his most recent job lasted two months. He missed one week of work during that time. He was unemployed. He reported that he sees his doctor once per month, and that he was awaiting an appointment with a neurologist. He stated that he is not able to function for half the day as a result of the headaches. After an examination of the Veteran, the examiner stated that it was unclear to her why the Veteran would be unable to obtain or maintain gainful employment unless additional findings are noted on an MRI of the brain. The Veteran underwent a February 2009 VA examination (the basis on which the 50 percent evaluation in February 2009 was granted) in which he stated that he was working full time as a maintenance technician; and that he missed approximately two days per month last year as a result of the headaches. A February 2009 Social Security Administration (SSA) decision reflects that the Veteran claimed an inability to work due to a TBI, hemiplegia, epileptiform, seizures, paralysis, vision, headaches, insomnia, depression, anxiety, weakness in the legs, memory, and confusion. The SSA determined that these conditions cause some work-related restrictions but do not prevent him from doing all types of work. In order to warrant a rating in excess of 30 percent, the Veteran's disability would need to be manifested by migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Regarding the Veteran's employment, in his June 2007 correspondence, he stated that he was recently fired from his job as a result of his disability (which included non-headache symptoms such as feeling weak, confused, and trouble with his memory). During his July 2007 and April 2008 examinations, he reported that he had a job for two months; and that he missed one week of work in February 2007. He stated that he has not worked since then. At his February 2009 examination, he stated that he was working full time and that in the past year (which the Board notes would be approximately February 2008 to February 2009) he has missed approximately two days of work per month. The Board notes that working full time and missing two days of work per month would not constitute a disability that is productive of severe economic inadaptability. Insofar as the Veteran averred that from April 2007 through approximately February 2008 that he was unable to work or that his headache symptomatology was severely economically inadaptive, the Board finds that such is not the case. First, the Board notes that the Veteran asserts that he was discriminated against due to his disability and was fired due to being tardy for his job 11 times due to his disability. The Board notes that his headache symptomatology was but one of many symptoms, among several others including vision issues, feeling weak, confused and having trouble with his memory, that constituted his "disability" at that time. Moreover, in the April 2008 examination, the Veteran reported having a job for two months and that he missed a week of work during that two month period. The Veteran did not assert during that time period that his headaches were solely responsible for his missing time from work nor that he was unemployed solely due to his headache condition, and in fact, the Veteran appears to indicate in his February 2009 application for Social Security benefits that several non-headache conditions or symptoms led to his inability to work. Based on the evidence of record, the Board cannot conclude that the Veteran's status post concussion due to a head injury including headaches was productive of severe economic inadaptability during the period of time at issue in this case. In reference to the March 2013 memorandum decision, the Court has instructed that the Board address whether the evidence of record during this period constitutes evidence of "very frequent" headache symptomatology. In the previous November 2011 Board decision, the Board stated: The Board notes that the evidence regarding the Veteran's migraines is somewhat varied. In the Veteran's June 2007 correspondence, he stated that he wakes up with headaches every morning. At his July 2007 examination, he complained of headaches a few times per week. At his April 2008 examination, the Veteran once again reported headaches every day. The Court specifically took issue with the Board's usage of the word "varied" in the memorandum decision. To clarify, the Board notes that it was merely noting the relative inconsistency of the Veteran's lay reporting of symptomatology over the course of the appeal period; there are some instances where he reported "daily" headaches and other instances where he complained of "headaches a few times a week." In this way, the evidence is "varied." The Board further notes that the he reported headaches "every morning" in June 2007, but the very next month he reported headaches only a few times a week. No other evidence disputes this fact until April 2008, when the Veteran again reported daily headaches. In light of this reporting, the Board finds that it appears that from July 2007 to April 2008, the Veteran's own reporting of his headache symptomatology is not "daily," but rather limited to a few instances per week. The July 2007 examiner noted that these headaches were "frequent." Given the difference between a few days per week and daily headaches, as well as the July 2007 examiner's assessment of "frequent" instead of "very frequent" symptomatology, the Board finds that the evidence prior to April 2008 does not demonstrate symptomatology that rises to the severity of "very frequent" attacks. However, even if the Board were to concede that the frequency was "very frequent" in this case, the Board cannot find that such attacks-regardless of their frequency-are "completely prostrating and prolonged" attacks. The Board notes that the March 2013 memorandum decision appears to ask the Board to discuss whether the headache symptomatology was "completely prostrating" or "prolonged," or to address those two factors separately from each other. The Board, however, notes the use of the conjunctive "and" in the regulation. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (noting that the attacks must be "completely prostrating and prolonged") (Emphasis added). Thus, the Board will analyze the attacks with those factors together, in light of the regulation. In this case, the evidence demonstrates in July 2007, the Veteran reported that such attacks lasted "a few hours" and involved photosensitivity, right-sided pain, and occasional nausea; his symptoms were relieved by Vicodin. The Board notes that it does not appear that the Veteran had to lie down to relieve his headaches at that time. Moreover, the Board cannot find that a "few hours" is a "prolonged" period of time. Thus, based on the Veteran's own reporting of symptomatology in July 2007, the Board cannot find that his symptomatology was either "completely prostrating" or "prolonged" in nature. Likewise, in the April 2008 examination, the Veteran reported that his headaches occurred daily, and were throbbing headaches that began in the morning and lasted all day; there was associated nausea and vomiting. He noted that he was not able to function for approximately "half the day" due to his headaches. Based on this evidence, the Board notes that while it appears that the Veteran's headaches were actually more prolonged in April 2008, they were not completely prostrating. The Board additionally notes that the Veteran did not report that he had to lie down for a full day, but rather than he was at least able to function for "half a day." Such ability to function demonstrates that the Veteran is not "completely" prostrated. While the Board acknowledges that the Veteran's lay statements in June 2007 are more consistent with symptomatology that would be considered "completely prostrating and prolonged" attacks, including the need to shut himself in a dark room due to his photosensitivity, that level of symptomatology does not appear to be endorsed in either of his subsequent VA examinations in July 2007 or in April 2008. Accordingly, the Board must find that the evidence of record does not demonstrate "completely prostrating and prolonged" attacks throughout the relevant appeal period. Finally, the Board notes that even if the Court were to find that the Veteran had "very frequent completely prostrating and prolonged attacks" during the relevant appeal period, such attacks must be productive of severe economic inadaptability. It does not appear that the memorandum decision took issue the Board's analysis of this fact in the November 2011 Board decision. As noted above, however, the Board continues to find that the evidence during the relevant period is not productive of severe economic inadaptability. In addition to the analysis already noted above on this point, the Board notes that both the SSA examiner in February 2009 as well as the April 2008 VA examiner found that the Veteran was not unable to work due to his several conditions, not all of which are relevant to the single condition before the Board at this time. In short, the Board finds that the evidence of record for the period of April 30, 2007 through February 4, 2009, does not demonstrate "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." (Emphasis added). The evidence demonstrates that the frequency of his symptomatology is less than "very frequent" and that such attacks are not both "completely prostrating and prolonged" attacks. Even if those two different factors were found in this case, his symptomatology is not productive of severe economic inadaptability, which the Court did not ask for clarification on in its March 2013 memorandum decision. The Board's finding with regards to the Veteran's disability not being productive of severe economic inadaptability remains unchanged from the November 2011 Board decision. Consequently, the Board finds that the Veteran's symptomatology is more closely approximate to "with characteristic prostrating attacks occurring on an average once a month over last several months." Accordingly, the Board finds that an evaluation in excess of 30 percent for status post concussion due to a head injury including headaches for the period of April 30, 2007 through February 4, 2009, must be denied at this time. See 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the 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 or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, 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. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected status post concussion due to a head injury with headaches, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An evaluation in excess of 30 percent for status post concussion due to a head injury including headaches, for the period of April 30, 2007 through February 4, 2009, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs