Citation Nr: 1333076 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 04-26 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder. 2. Entitlement to service connection for a left great toe disability. 3. Entitlement to an initial rating higher than 30 percent for headaches. 4. Entitlement to a rating higher than 10 percent before October 28, 2006 for chronic pain syndrome with disc bulging at L4-5 and a rating higher than 40 percent rating for from October 28, 2006. 5. Entitlement to a rating higher than 10 percent for limitation of flexion of the left knee. 6. Entitlement to a rating higher than 30 percent for limitation of extension of the left knee from September 3, 2009. 7. Entitlement to a rating higher than 20 percent rating for instability of the left knee from March 8, 2007. 8. Entitlement to a compensable rating for limitation of flexion of the right knee. 9. Entitlement to a rating higher than 30 for limitation of extension of the right knee from September 3, 2009. 10. Entitlement to a rating higher than 20 percent for instability of the right knee from September 3, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty in the Army from September 1980 to September 1984 and in the Coast Guard from January 1985 to May 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in April 2003 and in May 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). In a rating decision in February 2007, the RO increased the rating for chronic pain syndrome with disc bulging at L4-5 from 10 to 30 percent, effective from October 28, 2006. In February 2008, a statement of the case was issued on the denial of service connection for posttraumatic stress disorder, but the Veteran did not file a substantive appeal to perfect the appeal. In February 2009, the Veteran appeared at hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. At the hearing in February 2009, the Veteran claimed service connection for Chiari malformation and raised the claim of service connection for glaucoma. The claims have not been developed, and are referred to the RO for appropriate action. In April 2009, this matter was remanded by the Board for additional development. In November 2010, service connection for a right arm disability and separate ratings for right knee extension and instability were granted. In a decision in March 2012, the Board denied service connection for a psychiatric disorder other than posttraumatic stress disorder; reopened a claim for service connection for a left great toe disability; denied in part and granted in part a claim for a higher rating for chronic pain syndrome with disc bulging st L4-5; denied in part and granted in part a claim for higher ratings for the various manifestations of a left knee disability; denied higher ratings for the various manifestations of a right knee disability; denied in part and granted in part higher ratings for the various manifestations of a right hip disability; denied in part and granted in part a claim for a compensable rating for chronic gastritis, esophagitis with reflux, and duodenitis. The Board remanded the reopened claim for service connection for a left great toe disability and a higher rating for headaches for further development. The Veteran then appealed the portions of the Board's decision, denying service connection for a psychiatric disorder other than posttraumatic stress disorder, and the claims for higher ratings for the low back and knees to the United States Court of Appeals for Veterans Claims (Court). In March 2013, the Court granted the Joint Motion for Partial Remand (Joint Motion) by the parties (the Veteran and the Secretary of Veterans Affairs). The claims remanded by the Court pursuant to the Joint Motion, as well as the reopened claim of service connection for the left great toe and the claim for a total disability rating before April 18, 2005, are REMANDED to the RO via the Appeals Management Center Washington, DC. FINDING OF FACT Headaches more nearly approximate the criteria of frequent prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial rating of 50 percent for headaches, which is the maximum schedular rating, have been met. 38 U.S.C.A. § 1155; 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the initial rating claim for migraine headaches, the RO provided the Veteran with content-complying VCAA notice on the underlying claim of service connection for headaches by letter in December 2002 and March 2006. Where, as here, service connection has been granted and an initial disability rating has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for a higher rating for headaches, following the initial grant of service connection. Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Relevant to its obligation to assist a claimant, VA has also made reasonable efforts to identify and obtain relevant records in support of a claim. 38 U.S.C.A. § 5103A (a), (b) and (c). The RO has obtained the service treatment records, VA records, private treatment records, and the records from the Social Security Administration. The Veteran has not identified any additionally available evidence for consideration in her appeal. Further, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). The Veteran was afforded VA examinations in September 2001, August 2005, November 2006, September 2009, and November 2012. The Board has reviewed the reports of the examinations and finds the examinations are adequate to decide the claim, because the examiners considered the Veteran's history and described the disability in sufficient detail so that the Board's decision is fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There is no evidence in the record dated subsequent to the VA examinations that shows a material change to warrant a reexamination. 38 C.F.R. § 3.327(a). As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the Veteran is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Rating Disabilities Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Facts In a rating decision in April 2003, the RO granted service connection for headaches, and initially assigned a 10 rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100. In a subsequent rating decision in May 2004, the RO granted higher rating of 30 percent, effective the date of the award of service connection, August 20, 2001. The Veteran contends that his disability warrant a higher rating. The headaches are rated as analogous to migraine headaches. Under Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. The criteria for a maximum 50 percent rating for migraine headaches are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The term "productive of severe economic inadaptability" does not require that a veteran be completely unable to work to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Veteran has been unemployed since 1995, that is, throughout the appeal period. VA records from 2000 to 2002 show that in August 2000 the Veteran described occasional migraine headaches, brought on by lack of sleep and excessive computer viewing. He characterized the headaches as producing a throbbing sensation on the left side of his face, which were relieved by retiring to a quiet, dark room and taking ibuprofen. In May 2001, the Veteran described right-sided throbbing headaches. In July 2001, the Veteran stated that he had shock-like headache symptoms. The Veteran stated that the episodes resolved after a few seconds, but that he had 10 to 15 such episodes a day. In November 2001, the Veteran stated that he had occasional right-sided headache pain, relieved by a large dose of ibuprofen. On VA examination in September 2001, the Veteran characterized his headaches as right- sided associated with numbness. He stated that the headaches occurred once a month and lasted for one week, during which he could not work. Private medical records from 2003 to 2004 show that in October 2003 the Veteran complained of significant headaches. In December 2003, the Veteran described d migraine headache symptoms. In February 2004, the Veteran stated that his headache symptoms had slightly improved since he had been taking prescription medication. VA records from 2004 show that in September 2004 the Veteran stated that he had a constant headache for the six months. He had no associated loss of consciousness, muscle weakness, or diplopia. In October 2004, the Veteran stated that he was still experiencing headaches. On VA neurological examination in August 2005, the Veteran complained of constant pressure-like headaches with exacerbations two to three times a week, accompanied by nausea, vomiting, and blurred vision. In November 2005 and April 2006, VA record shows that the daily headaches were associated with Arnold- Chiari malformation. On VA examination in November 2006, the Veteran describes a pressure-like headache that awakened him at night, as well as separate more intense headaches. He stated that the more intense headaches were completely incapacitating and lasted for several days. The VA examiner stated that the Veteran did not have migraine headaches and that the headaches were most likely psychophysiological in nature. In February 2009, the Veteran testified that he daily had chronic headaches with exacerbations of pain occurring three to four times a week, requiring that he retire to a dark and quiet room. On VA examination in September 2009, the Veteran stated that he had daily headaches. The VA examiner stated that the headaches did not resemble migraine headaches and were unrelated to an Arnold-Chiari malformation, but were more likely cervicogenic pain related to cervical degenerative disc disease. VA records from 2009 through 2012 note headaches on the list of the Veteran's medical problems. On VA examination in November 2012, the examiner stated that the Veteran's headaches were manifestations of occipital neuritis. The examiner stated that while headaches were listed among the Veteran's medical problems, headaches were rarely mentioned in the neurological and neurosurgical records. The Veteran complained of daily headaches with bilateral occipital pain, as well as sensitivity to light and sound with the more severe headaches, which were prostrating. The examiner noted that the Veteran rarely addressed headaches with his neurologist and concluded that there was a strong psychogenic component to the headaches. Nevertheless the examiner stated that the Veteran had very frequent, prostrating, and prolonged attacks of non-migraine headaches, affecting the ability to work. Analysis While the etiology of the Veteran's headaches remains unclear, there is not question that the Veteran experiences severe headaches, which is reflected in the current rating of 30 percent rating. The remaining question is whether the headaches occur very frequent with completely prostrating and prolonged attacks productive of severe economic inadaptability. As for the frequency and severity of the headaches, VA records show that in August 2000 the Veteran described headaches, which were relieved by retiring to a quiet, dark room. On VA examination in September 2001, the Veteran stated that headaches occurred once a month. In September 2004 the Veteran stated that he had a constant headache for the six months. On VA neurological examination in August 2005, the Veteran complained of constant pressure-like headaches with exacerbations two to three times a week, accompanied by nausea, vomiting, and blurred vision. In November 2005 and April 2006, daily headaches were noted. On VA examination in November 2006, the Veteran stated that the more intense headaches were completely incapacitating and lasted for several days. In February 2009, the Veteran testified that he daily had chronic headaches with exacerbations of pain occurring three to four times a week, requiring that he retire to a dark and quiet room. On VA examination in September 2009, the Veteran stated that he had daily headaches. From 2009 through 2012 headaches were on the list of the Veteran's medical problems. On VA examination in November 2012, the Veteran complained of daily headaches as well as sensitivity to light and sound with the more severe headaches, which were prostrating. The examiner stated that the Veteran had very frequent, prostrating, and prolonged attacks of non-migraine headaches. The record shows that the headaches occur on an average of more than one a month and headaches on occasion are characterized by prostrating attacks. As for whether the headaches are productive of severe economic inadaptability, complete inability to work need not be shown. The Veteran has stated that with episodes of severe headaches, he is incapacitated and cannot functional. On VA examination in November 2012, the examiner stated that the Veteran had very frequent, prostrating, and prolonged attacks of non-migraine headaches, affecting the ability to work. Whereas here there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The VA examiner stated that the Veteran had very frequent, prostrating, and prolonged attacks of headaches, affecting the ability to work. Economic inadaptability does not require complete inability to work. As economic inadaptability is part of the criteria for the next higher rating, 50 percent, but not the criteria for a 30 percent rating, the disability picture more nearly approximates the criteria for the 50 percent rating under Diagnostic Code 8100, which is the maximum schedular rating for headaches. There is no other potentially applicable Diagnostic Code. As the disability picture has been consistent, the 50 percent rating is warranted throughout the appeal period. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the disability level and symptomatology, as the Veteran has stated that his headaches are productive of frequent, severe, completely-prostrating episodes, symptoms expressly enumerated by the assigned schedular rating. In other words, the Veteran does not experience any symptomatology not already encompassed in the rating criteria, and the assigned schedular rating is therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER An initial rating of 50 percent headaches is granted. REMAND On the claim of service connection for a psychiatric disorder other than posttraumatic stress disorder, in order to comply with the Court's order further development under the duty to assist is needed. On the claim of service connection for a left great toe disability, the Board remanded the claim to afford the Veteran a VA examination and to obtain a nexus opinion. In December 2012 in the supplemental statement of the case, it was noted that the Veteran failed to appear for his scheduled examination. As it is not shown in the record that the Veteran was timely notified of the examination and as there is no expressed reason for the cancellation of the examination, the Veteran should be afforded a new VA examination under the duty to assist. On the claims for increase for the back and the knees, in order to comply with the Court's order further development under the duty to assist is needed. With the grant of increased ratings by the Board in the decision in March 2012 and with the grant of the increase for headaches in this decision, and as the claims for increase for the back and knees remain on appeal, the record raises the claim of a total disability rating for compensation based on individual unemployability before April 18, 2005. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where a claim for a total disability rating on the basis of individual unemployability is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). Accordingly, the case is REMANDED for the following action: 1. Obtain VA records since March 2012 to the present. 2. On the claim of service connection for a psychiatric disorder other than post-traumatic stress disorder, afford the Veteran a VA examination by a VA examiner who has not previously examined the Veteran, to determine: a). Whether the Veteran has major depression or dysthymia or another psychiatric disorder other than post-traumatic stress disorder and, if so, b). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that any current psychiatric disorder other than post-traumatic stress disorder is a progression of the in-service diagnoses of major depression or dysthymia or the development of a new and separate psychiatric disorder? If a current psychiatric disorder other than post-traumatic stress disorder is not related to the in-service diagnoses of major depression or dysthymia, then is the current psychiatric disorder other than post-traumatic stress disorder caused by or aggravated the service-connected disabilities? Aggravation means that the service-connected disabilities, singularly or combined, caused a permanent increase in the severity of the psychiatric disorder as opposed to a temporary worsening of symptoms. The VA examiner is asked to consider the psychiatric entries in the service treatment records, covering the period from September 1994 to April 1995; and after service diagnoses by VA of recurrent major depression (VA examination in January 2003), of depressive disorder (April to October 2004) and of major depression (April 2011 and September 2011). The Veteran's file must be available to the examiner for review. 3. Afford the Veteran a VA examination to determine: a). Whether the Veteran has residuals of removal of a ingrown toe nail of the left great toe or residuals of frostbite, and, if so, b). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that any current pathology of the left great is due to removal of a ingrown toe nail or residuals of frostbite or the development of a new and separate condition? The VA examiner is asked to consider there is current evidence of degenerative changes at the interphalangeal joint. The Veteran's file must be available to the examiner for review. 4. Afford the Veteran VA orthopedic and neurological examinations to evaluate the severity of the service-connected disabilities of the low back, right knee, and left knee. a). On the claim for increase for the low back, the VA examiner is asked to describe: i). Range of motion in degrees of flexion, extension, rotation, and lateral flexion; any additional functional loss due to pain, painful movement, weakened movement, fatigue, or repetitive movement; or unfavorable ankylosis of the entire thoracolumbar spine; ii). Any objective neurological abnormalities; iii). Any incapacitating episodes necessitating bed rest and treatment by a physician, and if so, the duration of the episodes b). On the claims for increase for the knees, the VA examiner is asked to describe: i). Flexion and extension in degrees and any additional limitation of flexion or extension, considering functional loss due to pain, weakness, fatigability, painful motion, including during flare- ups or with repetitive use, if feasible, in terms of degrees of additional limitation of flexion or extension; ii). Any ligament instability; iii). Any other symptoms, such as locking or effusion, not encompassed by limitation of flexion or extension or functional loss due to pain or instability. The Veteran's file must be available to the examiner for review. ` . The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs