Citation Nr: 1335513 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-47 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial compensable rating for post-concussive headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from December 2004 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a decision review officer at the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, in which service connection was granted for post-concussive headaches as a residual of traumatic brain injury, which disability was evaluated as noncompensable. The Veteran disagreed with the disability rating. On April 7, 2010, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The instant matter was previously before the Board in July 2011, at which time it was remanded for further development. Upon completion of the requested development, the matter was readjudicated via an April 2012 supplemental statement of the case and the appeal was returned to the Board the following month. FINDING OF FACT The Veteran's post-concussive headaches are not shown to be equated to migraines with characteristic prostrating attacks averaging one episode every 2 months. CONCLUSION OF LAW The schedular criteria for an initial compensable evaluation for the Veteran's service-connected post-concussive headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.655, 4.7, 4.124a, Diagnostic Code 8045-8100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. It also requires VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These 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). The Board notes that VA's General Counsel has held that VCAA notice is not required for downstream issues. VAOPGCPREC 8-2003. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. In this case, the Veteran's claim of service connection for headaches was granted in October 2009, and he was assigned a disability rating and effective date in that decision. As his claim for a higher initial rating for that disability stems from a disagreement with a downstream element, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled with respect to that claim. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his VA outpatient treatment records; a VA examination report; and statements in support of his claim. The Veteran has not indicated that there are outstanding records for the time period in question that VA should have obtained, and the Board is aware of none. Notably, during his April 2010 hearing, the Veteran stated that he had an appointment at the Omaha, Nebraska, VA medical center (VAMC) scheduled for May 7, 2010. The Veteran indicated that one purpose of that appointment was to discuss with an examiner the severity of his headaches to determine whether he should be prescribed a medication to treat them. On remand from the Board, the agency of original jurisdiction (AOJ) obtained and associated with the claims folder the Veteran's treatment records from the Omaha, VAMC. Although there is no record of a May 7, 2010, appointment, there are records of appointments near that date, to include notations referring to the Veteran's headaches. As there is no indication that additional evidence remains outstanding, the Board finds no reason to again remand the matter. Further, the Veteran was afforded a VA examination in connection with his claim for service connection, the report of which contains detailed information regarding the Veteran's symptomatology related to his service-connected disability and its effect on his ability to function. The Board notes that the matter was previously remanded for the Veteran to be scheduled for another VA examination as the evidence suggested a possible worsening of symptoms, which examination was scheduled for August 2011. That examination was, however, cancelled because the Veteran was unable to make the scheduled appointment. Thereafter, the AOJ sought to reschedule the examination. A September 2011 report of general information indicates that three messages were left for the Veteran but that no return call was received. The Veteran was also contacted in October 2013 and asked whether he would be willing to report for an examination in connection with his claim if one was scheduled. The Veteran stated that he would not report. In this regard, if a claimant fails to report for a scheduled examination, VA regulations provide: When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) . . . of this section as appropriate. 38 C.F.R. § 3.655(a) (2013). Paragraph (b) further provides, in pertinent part: "When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record." 38 C.F.R. § 3.655(b). Here, the Veteran failed to report for his August 2011 examination and has indicated that he is unwilling to report for any scheduled examination. Given the Veteran's recent assertion that he will not report for any scheduled examination, the Board finds no basis to again remand the matter for a more current examination. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that the duty to assist is not a one-way street). Accordingly, as the issue currently before the Board stems from the Veteran's disagreement with the rating assigned as part of an original compensation claim, the Board must adjudicate the issue of entitlement to an initial compensable rating on the basis of the existing record. 38 C.F.R. § 3.655(b). II. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). "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 required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 (2013). A veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. In the instant case, the Veteran's claim for a higher evaluation his service-connected headaches is an original claim that was placed in appellate status by a notice of disagreement expressing disagreement with an initial rating award. As such, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's service-connected post-concussive headaches have been evaluated as noncompensably (zero percent) disabling under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045-8100. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2013). With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2013). The hyphenated DC in this case indicates that the Veteran's headache disorder is a residual of a traumatic brain injury. See 38 C.F.R. § 4.124a, DCs 8045, 8100. Under DC 8100, a noncompensable rating is assigned for migraines with less frequent attacks; a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months; and, a 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100 (2013). Evidence relevant to the issue of the appropriate rating for the Veteran's service-connected post-concussive headaches includes the report of a January 2009 VA examination that notes the Veteran's complaints of headaches "a few times a week." The headaches were described as mild in severity and generalized in nature, with no precipitating or aggravating factors. The Veteran reported that the headaches could last hours and stated that he took no treatment, but rather, tolerated the headaches. The Veteran also denied incapacitating headaches. During his April 2010 hearing, the Veteran reported experiencing "maybe a dozen or so" headaches a month, with incapacitating headaches on a weekly basis during which would need to "sit down somewhere in the shade and take a minute." He also noted that on rare occasions he would be unable to sleep on account of a headache and reported being unable to carry on a conversation when having a severe headache. The Veteran also endorsed a variety of symptoms potentially related to his headaches, but indicated that those symptoms could also be a result of his posttraumatic stress disorder. He indicated that his headaches had begun in 2007 and stated that they had become less frequent since that time. (The Veteran also suggested that he could also just be getting used to the headaches.) VA treatment records contain a May 2010 primary care outpatient note wherein it was indicated that the Veteran experienced headaches twice a week. He reported taking Tylenol, which alleviated the majority of his headaches, and noted that when having a severe headache he would need to go home and rest. There was no nausea, vomiting, or aura associated with the Veteran's headaches. An October 2007 treatment record noted that the Veteran had problems with teeth grinding, which resulted in headaches. He denied dizziness, change in vision, and nausea or vomiting at that time. In evaluating whether the evidence supports a compensable rating, the Board notes that the rating criteria have not defined "prostrating." However, "prostration" is defined as "extreme exhaustion or powerlessness," Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007), or as "physically or emotionally exhausted," Webster II New College Dictionary 889 (3rd ed. 2001). In light of these definitions and in consideration of the evidence of record, the Board finds that a compensable rating under DC 8100 is not warranted for the Veteran's service-connected headache disability. Regardless of the frequency with which the Veteran experiences headaches, the evidence does not suggest that they are prostrating in nature. In 2009, the Veteran denied taking any medication to relieve headache symptoms and did not describe incapacitating episodes. The Veteran himself described his headaches as being mild in severity, which does not suggest that they resulted in any physical or emotional exhaustion. Although the Veteran later reported incapacitating headaches on a weekly basis, the Board does not find that his description of such episodes rises to the level of a prostrating attack. Indeed, the Veteran indicated only that he would need to sit in the shade for a minute. The Veteran has also denied changes in vision, nausea, or vomiting associated with his headaches. Moreover, while the Veteran has asserted that when having a severe headache he would need to go home and rest, which could potentially be indicative of a prostrating attack, the Veteran did not indicate the frequency with which he would experience such a headache. Consequently, the Board finds that the evidence fails to establish that the Veteran's headaches more nearly approximate migraines with characteristic prostrating attacks averaging one in 2 months. 38 C.F.R. § 4.124a, DC 8100. Accordingly, an initial compensable rating is not warranted at any point during the relevant time period. See 38 C.F.R. § 4.124a, DC 8045-8100. As for DC 8045, subjective symptoms, such as headaches, may warrant a compensable rating, but only when there is a combination of three or more subjective symptoms that mildly or moderately interfere with work, activities of daily living, family or other close relationships. As the RO has noted, other subjective symptoms have not been shown, except for tinnitus, which has been rated separately as 10 percent disabling. Consequently, a compensable rating is not warranted under DC 8045. The above determination is based upon consideration of applicable rating provisions. The Board finds that the Veteran's reported symptoms are described by the rating criteria. A review of the Veteran's lay statements, VA treatment records, and examination report fails to reveal symptomatology not contemplated by the rating criteria. Nor does the Veteran assert that he experiences symptoms not contemplated by the rating criteria. Without sufficient evidence reflecting that the Veteran's disability picture is so "exceptional or unusual" such that "the available schedular evaluation[] for [his service-connected disability is] inadequate," referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R. § 3.321(b)(1) (2013). Lastly, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that the issue of entitlement to a total rating based upon individual unemployability due to service connected disability (TDIU) is part of an increased rating claim when that issue is raised by the record. As it appears from the record that the Veteran is working and there is no "cogent evidence of unemployability," the Board finds that this issue has not been raised as part of the claim currently before it. See Comer v. Peake, 552 F .3d 1362, 1366 (Fed.Cir.2009); Rice, supra. ORDER Entitlement to an initial compensable rating for post-concussive headaches is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs