Citation Nr: 1332348	
Decision Date: 10/18/13    Archive Date: 10/24/13

DOCKET NO.  13-16 387	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to an initial disability evaluation for migraine headaches in excess of 10 percent prior to December 2, 2011, and 30 percent thereafter.


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel



INTRODUCTION

The Veteran had active duty from October 2008 to May 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA).

The RO granted the Veteran service connection for her "tension headaches" in June 2011.  This was rated as 10 percent disabling, effective May 27, 2010, the day after she was discharged from active service.  The RO subsequently increased the headache evaluation to 30 percent disabling, effective December 2, 2011, in a June 2013 rating decision.  This increase during did not constitute a full grant of the benefit sought.  Therefore, the Veteran's claim for an increased evaluation for the service-connected headache disability remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).

A review of the Virtual VA paperless claims processing system reveals VA treatment records pertinent to the present appeal.


FINDING OF FACT

With resolution of the benefit of the doubt in the Veteran's favor, migraine headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are shown from May 27, 2010.


CONCLUSION OF LAW

The criteria for a rating of 50 percent for migraine headaches are approximated.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit  (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. 
§ 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of her claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

This appeal arises from disagreement with an initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; 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). 

Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id.   There has been no allegation of prejudice with regard to the notice in this case, hence further VCAA notice is not required with regard to the initial rating appeal. 

VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in April 2011. This letter advised the Veteran of what evidence was required to substantiate her claim, and of her and VA's respective duties for obtaining evidence. This letter provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. 

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA compensation examinations in May 2011 and April 2012.

The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims file, and appropriate diagnostic tests. 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. She has been given ample opportunity to present evidence and argument in support of her claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). 

Increased Evaluation Claim

The Veteran contends that her migraine headaches are more severe than reflected by her current evaluation.  Having carefully considered the Veteran's contentions, the Board finds that the weight of the evidence is in approximate balance and the claim will be granted on this basis - a 50 percent evaluation will be assigned from May 27, 2010, the date of the original grant of service connection.  38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown, 5 Vet.App. 413 (1993) (under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue).

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 

The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 

The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Pertinent to a claim for an increased rating, lay testimony is competent when it describes symptoms, which supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (holding that, in general, for the need for a VA examination to arise, a claimant would only need submit her competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation.). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 

Migraines

Migraine headaches are evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100.  Under Diagnostic Code 8100, a 10 percent disability evaluation is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months.  A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring an average of once a month over the last several months.  A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define "prostrating," nor has the Court.  See Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.)  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 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 rating criteria also do not define "severe economic inadaptability."  However, nothing in Diagnostic Code 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating.  See Pierce v. Principi, 18 Vet. App. 440 (2004).

The Veteran was granted service connection for her headaches, effective May 27, 2010, one day after she was discharged from active service.  She claims she suffered from migraines since 2009, but she did not seek medical treatment for them until July 2011.  See May 2011 VA examination.  

At her May 2011 VA examination, the Veteran reported having headaches "every two days" that were "right-sided in location."  She treated her headaches with ibuprofen and by sleeping in dark rooms.  She had not required emergency room treatment for her headaches since discharge.  She reported an incident of having to leave work one month prior to the VA examination for headaches, but did not seek medical treatment.  Also, her headaches did "not interfere with her occupation."  The VA examiner diagnosed her with tension headaches, but not migraines.

In July 2011, the Veteran began seeking treatment for her headaches from VA facilities.  She reported having chronic headaches, with a frequency of 1-2 per week.  She also reported self medicating with Tylenol and Motrin, but with little relief.  "The headaches [were] mostly right-sided, throbbing," and with symptoms of "photo and phonobia."  See July 2011 VA treatment record.  She was diagnosed with migraines and prescribed Sumatripan.

An August 2011 VA treatment record indicates the Sumatripan dosage was increased, and she was also prescribed Tylenol with codeine.

The Veteran reported in her November 2011 Notice of Disagreement that she had migraines "every one to three days" lasting "5-6 hours."  She reported missing "quite a few days of work due to these headaches."  She reiterated the increase in the Sumatripan dosage described above.

A December 2011 VA treatment record indicates she was prescribed 500mg of Divalproex for "migraine prevention," but that it was discontinued one month later because of adverse side effects.

In January 2012, the Veteran reported that her headaches had worsened since her May 2011 VA examination.  

A March 2012 VA treatment record indicates the Veteran was treated for a "severe migraine headache" that had lasted for 3 days.  Three medications were unhelpful in relieving the symptoms.  She was encouraged to go the emergency room, but she declined.

She was afforded a second VA examination in April 2012.  The Veteran reported her headaches now caused pain on both sides of her head.  The headaches were found to cause nausea, vomiting, light and sound sensitivity, and changes in vision.  The "mild to moderate" headaches lasted less than one day, while the severe headaches lasted 1-2 days.  The examiner found prostrating attacks occurred less than once every two months.

An April 2013 statement from the Veteran's VA primary care physician notes a migraine diagnosis and the Sumatripan prescription.  Also, the physician said "these frequent headaches have caused [the Veteran] to be absent from work."  The frequency of the headaches has decreased from "several days a week to a few days per week" because of the Sumatripan.

In her May 2013 VA Form 9, the Veteran stated her headaches had decreased from once every 1-2 days to once "every week/two weeks" because of the medication.  She noted the frequency, but not intensity, of the headaches had decreased.  She also reported having to miss work "on different occasions" because of the headaches.

There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, but it would not materially assist the Board in this determination.  Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet.App. 52 (1993); see also Massey v. Brown, 7 Vet.App. 204 (1994). 

The Veteran is competent to report the frequency and effect of her migraine headache symptoms.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  The reports of the frequency and severity of incapacitating headaches varies, but it appears to average more than once per month since discharge.  These prostrating or incapacitating headaches can last for several hours and periodically for days.  These findings clearly approximate those that would amount to severe economic inadaptability. 

The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance - given the Veteran's subjective account which is presumed competent and appears credible, this point has been attained.  Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied and a 50 percent evaluation for migraine headaches will be granted, retroactive to May 27, 2010.  Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown, 5 Vet.App. 413 (1993).

The potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered, whether or not they were raised by the Veteran, as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1).  The evidence does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  In the absence of such factors, the criteria for referral for the assignment of an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).


ORDER

With resolution of the benefit of the doubt in the Veteran's favor, a 50 percent rating, but not higher, for migraine headaches is granted, effective May 27, 2010, subject to the regulations governing the payment of monetary awards.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs