Citation Nr: 1333518 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 11-04 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for migraine headaches. ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active military service from January 2007 to January 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that established service connection for migraine headaches. The Veteran appealed the initial 10 percent evaluation assigned for this disability. Jurisdiction was subsequently transferred to the RO in Muskogee, Oklahoma. In February 2011, the RO in Muskogee, Oklahoma, awarded an initial 30 percent rating for service connected migraines, effective the same date that service connection was established. As a higher scheduler rating is available, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). FINDING OF FACT The Veteran's migraine headaches occur daily but those which are prostrating are not very frequent and those prostrating headaches are not productive of economic inadaptability. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for headaches are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical 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 is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. In any event, the Veteran received notification prior to the initial RO decision through a notice letter dated December 2009. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103 (2012). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All other post-service treatment records and reports identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded a VA examination for his migraines on appeal. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds this examination is adequate for the purposes of the evaluating the Veteran's migraines, as it involved a review of the Veteran's pertinent medical history as well as a clinical examination of the Veteran, and provided a review of relevant symptomatology related to the disability on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. 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 reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's migraines have been assigned an initial 30 percent evaluation pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). Under this diagnostic code, a 30 percent evaluation is warranted for migraines with prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). The Board concludes that an initial rating in excess of 30 percent is not warranted here. The Veteran has headaches daily. See March 2010 Private Treatment Record; February 2010 VA Examination Report; September 2010 VA Treatment Record. About once per week, those headaches are severe. February 2011 Statement of Veteran. At his VA examination, the Veteran rated his pain during a non-severe headache as 2 to 3 out of ten, while his pain for a severe headache rated as 7 to 8 out of 10. February 2010 VA Examination Report. According to the Veteran, those non-severe headaches are sometimes resolved within 2 to 3 hours of taking tramadol. Id. The Veteran's severe headaches are characterized by photophobia, phonophobia, throbbing, and radiating pain behind his eyes. See March 2010 Private Treatment Record; February 2010 VA Examination. A September 2010 VA treatment record indicates that the Veteran no longer develops headaches in the morning. Instead, his headaches begin to develop later in the day and the Veteran will go to bed with "bad ones" and he wakes up without pain. September 2010 VA Treatment Record. The Board finds that the Veteran's severe headaches are prostrating given that the Veteran experiences photophobia, phonophobia, throbbing, and radiating pain behind his eyes during those headaches. However, as the Veteran claims, these severe headaches occur only about once a week. Accordingly, the Board finds that the Veteran's migraine headaches, while prostrating, do not occur very frequently. As such, an initial rating in excess of 30 percent is not warranted here. The Board acknowledges that the Veteran's migraines have caused him some occupational impairment. In February 2011, the Veteran asserted that he has a severe headache about once per week and that "cause[s] [the Veteran] to have a hard time doing [his] schoolwork and make[s] work difficult." While the Veteran is competent to report that his weekly severe headaches make work difficult, and the Board does not doubt the Veteran's assertion, the criteria for a 50 percent evaluation requires that the Veteran's migraine headaches are productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). The other evidence of record does not indicate that the Veteran's headaches have caused severe economic inadaptability. Specifically, a September 2010 VA treatment record indicates that the Veteran had not yet begun working, but the Veteran was enrolled in school and taking a full load of courses. The Veteran had classes scheduled daily. The Veteran received good grades and did not miss school due to any migraine headaches. It was also reported by the Veteran in a July 2010 VA treatment record that he had not missed school or class work. In short, the Veteran's headaches did not prevent him from attending school on a daily basis and the Veteran's headaches did not prevent him from attaining good grades. As such, the Board finds that the Veteran's headaches are not productive of severe economic inadaptability and an increased initial rating is not warranted. The record does not establish that the rating criteria are inadequate for rating the Veteran's headaches such that an extraschedular rating is warranted. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Specifically, Diagnostic Code 8100 considers the symptoms of migraines. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial evaluation in excess of 30 percent for migraine headaches is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs