Citation Nr: 1332562 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-47 194A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. What evaluation is warranted for migraine headaches prior to April 12, 2010? 2. What evaluation is warranted for migraine headaches since April 12, 2010? REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty for training from October 1971 to August 1972, and on active duty from April 1989 to September 2008. This case comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In September 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In September 2011, additional evidence was submitted with a waiver of RO jurisdiction. The question what evaluation is warranted for migraine headaches since April 12, 2010 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 reasonable doubt in the Veteran's favor, prior to April 12, 2010, headaches of a prostrating nature were demonstrated at least once a month. Very frequent completely prostrating and prolonged attacks which were productive of severe economic inadaptability were not demonstrated by the evidence of record. CONCLUSION OF LAW Prior to April 12, 2010, the criteria for a 30 percent rating for migraine headaches were met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Compliance with the Veterans Claims Assistance Act of 2000 (VCAA) As service connection, initial ratings, and effective dates have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. The Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 . Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 , 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation 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 Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of staged ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. Given that the Veteran has appealed the initial evaluation assigned, the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present. Fenderson. In a March 2009 rating decision the Veteran was granted entitlement to service connection for daily rebound headaches, effective September 2008. He appeals the denial of a compensable initial rating. The Veteran's disability has been evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a 10 percent rating is in order where there is evidence of characteristic prostrating attacks due to migraines that average one every two months lasting over several months. A 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran reported in April 2008 that he had problems with tension headaches for the 15 last years. He rated his pain at a level eight and stated that his headaches occurred about five times a month. At times, his headaches reportedly caused great pressure above his eyes. Daily rebound headaches were diagnosed following a May 2008 VA examination. At that time, he reported symptoms of severe pain between and above the eyes. He described daily headaches that lasted 30 minutes. In March 2009, the Veteran's wife expressed that the appellant's headaches had progressively worsened since his retirement from service. She maintained that he took migraine medication which assisted with pain reduction but now his medications offer little relief. According to his wife, the Veteran experienced severe headaches that lasted three to four hours about twice a week. He had nausea and an aversion to light as well. In treatment records recorded by Dr. M in June 2009, the Veteran complained of frequent headaches almost once a week. The headaches were usually unilateral and in left or right temporal area. Prior to the headaches, the Veteran got blurriness and stars in his visual field. When the headaches are severe, he closed his eyes, laid down and turned off the lights. Following a physical examination the appellant was diagnosed with migraine with aura. Migraine medication was prescribed. The Veteran described very frequent headaches almost three times a week in July 2009. During his October 2009 Decision Review Officer hearing, the Veteran reported that he did not miss work because of his headaches but rather at times he had to stop working, turn off the light in his cubicle and get in the prone position. He expressed that he treated the headaches with Topamax. The Veteran continued to complain of four to six headaches a month in January 2010. The headaches usually lasted one to two hours but were described as less severe as before. Dr. M noted in April 2010 that he increased the dosage of Topamax at bedtime. The Veteran's headaches were better controlled with the increased dosage. The Veteran averaged two to three migraine headaches a month. During his September 2011 hearing, the Veteran stated that he experienced between four to six severe headaches monthly which consisted of a flash of light. He expressed having some relief with Topamax. According to the Veteran, he had prostrating or completely incapacitating attacks several times a month. He could not, however, specify a number. In light of the evidence of record, and after considering the doctrine of reasonable doubt, the Board finds that the criteria for a 30 percent evaluation for migraine headaches prior to April 12, 2010 have been met. In this regard, during this time the Veteran experienced several headaches monthly which caused him to stop what he was doing, shut down the lights and lay down. During his hearing, he stated that he had prostrating or completely incapacitating attacks several times a month. Neither the rating criteria nor the United States Court of Veterans Claims (Court) have defined "prostrating," however, by way of reference, "prostration" is defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007). The Veteran reported having prostrating or completely incapacitating attacks several times a month. The Veteran is competent report the severity of his headaches and the Board finds that his statements are credible as to the matter of frequency and severity of his headaches. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that the appellant's headache symptoms approximated characteristic prostrating attacks occurring on an average once a month over the last several months prior to April 12, 2010. The Board finds, however, that a rating higher than 30 percent disabling is not warranted as there is no showing that the Veteran's headaches were both very frequent completely prostrating and prolonged attacks and that they were productive of severe economic inadaptability. Indeed, the Veteran has been gainfully employed throughout the appeal. According to the appellant he while he sometimes had to temporarily stop working, he did not miss work because of his headaches. While the Veteran reports frequent headaches, neither the lay and/or medical evidence reflects severe economic inadaptability. Accordingly, the Board finds that an evaluation of 30 percent disabling and no more is warranted. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. To the extent that the Veteran has complained of symptoms such as monthly headaches, these symptoms are specifically contemplated by the rating criteria. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. Finally, there is no evidence that the appellant is unemployable as a result of this service connected disability. Consequently, there is no implicit claim of entitlement to a total disability rating based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER Entitlement to a 30 percent evaluation for migraine headaches prior to April 12, 2010 is granted, subject to the controlling regulations applicable to the payment of monetary benefits. REMAND During his September 2011 hearing, the Veteran indicated that his headache medication has increased. Treatment records from Dr. M dated April 19, 2011 indicate that the appellant was reporting six to seven severe headaches per month. Moreover, during his hearing, the Veteran testified that the dosage had been increased yet again. As the record demonstrates that the Veteran's migraine medication has increased since the last VA examination, another VA examination is necessary to determine the current severity of his disability. The evidence also shows that the Veteran was last examined for compensation purposes in May 2008. To ensure that the record reflects the current severity of his disability, a contemporaneous examination is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Simply put, the May 2008 examination report is too remote to adequately address the severity of the Veteran's current disability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he provide the full name and address of any medical facility and/or provider (VA or private) from whom he received treatment for headaches since April 2010. Following receipt of that information, the RO/AMC should contact all facilities/providers in question, and request that they provide copies of any and all records of treatment provided the Veteran during that time period. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO cannot locate any identified record, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must be given an opportunity to respond. 2. Thereafter, the Veteran should be afforded a VA neurological examination. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. In accordance with the latest worksheets for rating migraine headaches, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his migraine headaches. The examiner must be sure to address the applicable rating criteria, including especially in terms of whether there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A complete rationale for any opinions expressed must be provided. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 5. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claim should be readjudicated. If the benefit sought remains denied, the appellant should be provided a supplemental statement of the case and given the opportunity to respond. The appellant 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). 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs