Citation Nr: 1335856 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-34 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for migraine headaches prior to August 11, 2011. 2. Entitlement to an initial disability rating in excess of 30 percent for migraine headaches since August 11, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2004 to December 2005 and from August 2009 to August 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for migraine headaches and evaluated the disability as noncompensable (zero percent disabling), effective the date of the Veteran's discharge from service. Subsequently, in an April 2009 rating decision, the RO increased the evaluation for the Veteran's migraine headaches to 10 percent disabling. In a May 2012 rating decision, the RO again increased the evaluation for the Veteran's migraine headaches to 30 percent disabling. This case was previously before the Board in June 2011, wherein it was remanded to obtain updated VA treatment records and to schedule the Veteran for an appropriate VA examination. Review of the record reflects the referenced VA treatment records have been associated with the claims file, and the Veteran underwent an examination in August 2011 for miscellaneous neurological disorders. The claim was then readjudciated by the RO. Therefore, the Board is satisfied that there has been substantial compliance with the remand directives and appellate review may continue. See Stegall v. West, 11 Vet. App. 268 (1998). While this appeal was pending, the Veteran was activated for another period of active duty from August 2009 to August 2010. In Virtual VA is a "Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances" regarding some active or inactive duty training days the Veteran had in 2012. It does not appear that the RO has considered the Veteran's VA disability benefits and the fact that he was also on active duty from 2009 and 2010. This issue is REFERRED for additional action. The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Prior to August 11, 2011, the Veteran's migraine headaches manifested in characteristic prostrating attacks averaging one in two months; the Veteran's migraine headaches did not manifest in characteristic prostrating attacks occurring on an average once a month over the last several months or very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. From August 11, 2011, the Veteran's migraine headaches manifested in characteristic prostrating attacks occurring on an average once a month over the last several months; the Veteran's migraine headaches did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Prior to August 11, 2011, the criteria for a rating in excess of 10 percent for service-connected migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8100 (2013). 2. From August 11, 2011, the criteria for a rating in excess of 30 percent for service-connected migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice absent VCAA notice. Harman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). Regarding the duty to assist, VA must make reasonable efforts to assist a claimant 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. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, statements in support of the claim by the Veteran and his representative, VA treatment records, and two VA examinations, including the recent examination from August 2011. Each examination was adequate because the examiners reviewed the Veteran's relevant medical history, recorded pertinent examination findings, and provided a sufficient analysis to support the conclusions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Moreover, if the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). As described, the Veteran is service-connected for migraine headaches at 10 percent disabling from December 15, 2005 to August 11, 2011 and 30 percent disabling from August 11, 2011. The Veteran's migraine headache disability is rated under Diagnostic Code 8100. 38 C.F.R. § 4.124a. Under the Schedule of Ratings for neurological conditions and convulsive disorders, a 50 percent evaluation is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent evaluation is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent evaluation is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. Finally, a noncompensable evaluation is warranted for migraine headaches with less frequent attacks. See id. The rating criteria do not define "prostrating" as used in DC 8100. By way of reference, the Board notes that according to WEBSTER'S NEW COLLEGE DICTIONARY 909 (3d Ed. 2008), "prostrate" is defined as "physically or emotionally exhausted." "Incapacitated" is listed as a synonym. A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." To begin, the first appeal period includes December 15, 2005 to August 11, 2011. In March 2006, the Veteran stated that he had migraine headaches every other month prior to deployment. In April 2006 VA treatment records, the Veteran described his history of migraine headaches and reported symptoms of nausea and tunnel vision. The Veteran indicated he experienced throbbing pain that lasted for several hours, which would resolve with three Excedrin taken immediately upon onset of the headache. In addition, the Veteran stated he had headaches nearly everyday since deployment due to increased mental and physical stress. VA treatment records from May 2006 and August 2006 also noted that the Veteran had migraine headaches. The Veteran was afforded a VA examination in September 2006. At that time, the Veteran reported that he had migraine headaches his entire life, but he began having them daily since 2004. The Veteran stated the migraines lasted about thirty minutes as long as he treated with Excedrin. He also described symptoms of sensitivity to light and nausea, without vomiting. The examiner concluded that the Veteran's descriptions were consistent with migraine headaches that were mild and non-prostrating. August 2007 records show that the Veteran complained of migraine headaches three times per week. He also indicated that he has had migraine headaches since high school, but they became more frequent, almost every day, since 2004. A head CT in July 2007 revealed that the skull and visualized extracranial soft tissues were unremarkable. In the right transverse and dural venous sinus there was a filling defect noted. Subsequently, an August 2007 MRI showed that the base of the brain structures demonstrated the usual symmetry and signal intensity with only minor sinus mucosal changes. The impression provided for possible solitary gliotic focus belly of the pons of questionable clinical significance. A January 2008 neurological exam was also unremarkable. In his October 2007 substantive appeal, the Veteran reported that his migraine headaches occurred two times per week since returning from Iraq. The Veteran described his symptoms, including nausea, sensitivity to light and sound, tunnel vision, inability to concentrate, lack of sound judgment, body fatigue, and loss of appetite. The Veteran indicated most prescription drugs do not help his migraine headaches and that when the migraines occur, he cannot drive, work, or function normally. In January 2008, the Veteran was seen by VA Neurology for his headaches. He complained of 2-4 headaches per week, lasting up to 2 days. The painkiller he had been prescribed - Naproxen - was ineffective at relieving the headaches. He was prescribed two new medications - one to prevent headaches and one to take at the onset of a headache. In May 2008, the Veteran received follow-up care. The Veteran reported that initially the medications completely abolished his headaches, but the most recent two headaches were not relieved by the medication. He still complained of 2-4 headaches per week that could last for more than two days if not controlled. He was prescribed a new medication - Topomax - to prevent headaches. In 2008, the Veteran established treatment at Loma Linda VAMC and sought follow-up care for his headaches. In October, he indicated he had been followed for his headaches, and he reported stopping all prescribed medications. In December, he indicated he had one migraine headache every six months until 2004/2005; at that time, they increased to about three per week. Moreover, the Veteran reported that his migraine headaches lasted approximately thirty minutes if he took three Excedrin. The medical examiner diagnosed migraine headaches with rebound headaches due to overuse of Excedrin. He was prescribed a new medication and instructed to re-start one of his prior prescriptions. The Veteran had another period of active duty from August 2009 to August 2010. Therefore, there is a gap in his VA treatment records. In June 2010, when he reestablishes VA treatment, he states he just returned from Iraq a few weeks previously. He reported a history of migraine headaches, but it was noted that he was taking no medications, so he apparently had discontinued use of the medications previously prescribed. The majority of the 2010-2011 VA treatment notes concern mental health treatment, and there is no indication that the Veteran resumed taking any prescription medications for his headaches. The Veteran underwent another VA examination in August 2011, which marks the beginning of the second appeal period at issue in this case. The Veteran again described onset of headaches during his teenage years, occurring once every six months. He stated that his headaches increased to three per week during his first deployment and when he returned from his second deployment in June 2010. At the time of the August 2011 examination, the Veteran indicated he had migraine headaches three to four times per week. The Veteran attributed the worsening of his migraine headaches to being around oil pits, ammunition, and depleted uranium. He indicated that the "only thing that seems to work" is taking three Excedrin. He reported that if he did not take medication at the onset of pain, his migraine headaches could last for two to three days. The Veteran identified symptoms such as tunnel vision, photophobia, phonophobia, and nausea. In addition, the examiner noted that in the last twelve months prior to the examination, the Veteran had weekly migraine headaches, which lasted for hours, and that less than half of those headaches were prostrating. The examiner indicated that the Veteran had at least one prostrating migraine headache per month. Furthermore, the examiner noted that the Veteran's migraine headaches produced increased absenteeism. The Veteran reported missing three weeks of work in the previous twelve months due to migraine headaches. Turning to the application of the rating schedule, the Board acknowledges that the Veteran is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this regard, the Veteran has described the severity and frequency of his migraine headaches as well as associated symptoms. However, for the period prior to August 11, 2011, the lay and medical evidence shows that the Veteran experienced frequent headaches with characteristic prostrating attacks averaging once a month over the last several months, which warrants a 10 percent rating. The Veteran has repeatedly indicated in VA treatment records that the migraine headaches have become more frequent since deployment, but that these migraine headaches resolved with the use of Excedrin, usually in less than an hour. Moreover, in the September 2006 VA examination, the examiner diagnosed mild and non-prostrating migraine headaches. Although it is clear that the Veteran suffered from migraine headaches prior to August 11, 2011, the preponderance of the evidence is against a finding that the Veteran meets the criteria for a rating in excess of 10 percent because the migraine headaches have not been shown to manifest in characteristic prostrating attacks occurring on an average once a month over the last several months or very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Again, a prostrating headache is one that leaves the person physically or emotionally exhausted or incapacitated. Although the Veteran's headaches certainly affected his ability to function prior to August 2011, they were not prostrating, and, in fact, he continued to maintain a level of physical fitness that he performed another period of active duty. For the period beginning August 11, 2011, the evidence must show migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability for the next higher evaluation, a 50 percent rating, to be awarded under Diagnostic Code 8100. While the August 2011 VA examination described severe headaches occurring multiple times per month, the evidence does not support that they are productive of severe economic inadaptability. They do support, however, that the Veteran's headaches included at least one prostrating attack per month. At the Veteran's August 2011 VA examination, the examiner noted that the Veteran missed three weeks of work in the previous twelve months due to migraine headaches. The examiner explained that the Veteran would rest in a dark room when headaches are present. This suggests that while the Veteran is clearly affected by his migraine headaches, he is still able to work; the migraine headaches do not rise to the level of severe economic inadaptability. For the reasons and bases discussed above, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to an disability rating greater than 10 percent prior to August 11, 2011 for migraine headaches and greater than 30 percent since August 11, 2011. Consequently, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied on a schedular basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3, 4.7. Moreover, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds no other diagnostic codes would be appropriate to evaluate the Veteran's migraine headache disability. See Schafrath, 1 Vet. App. at 595. Extraschedular Consideration The Board has considered whether an extraschedular evaluation is warranted for migraine headaches. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director of the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)(2013). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular scheduler standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. With regards to the Veteran's migraine headache disability, the Board finds the Veteran's complaints of regular migraine headaches manifesting with sensitivity to light and sound, nausea, tunnel vision, fatigue, loss of concentration, loss of appetite, and loss of sound judgment are contemplated by the rating criteria of Diagnostic Code 8100, which specifically evaluates prostrating attacks of migraine headaches based on frequency and economic inadaptability. Therefore, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. at 111. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Although the Veteran has indicated that he has difficulty functioning when he has a migraine headache, he has not asserted he is unemployable as a result of his service-connected migraine headaches. Moreover, in the August 2011 examination, the Veteran indicated missing a few weeks of work in the past twelve months due to migraine headaches. He is currently employed fulltime. As such, the Board finds that Rice is inapplicable in this case. ORDER Entitlement to an initial disability rating in excess of 10 percent for migraine headaches prior to August 11, 2011 is denied. Entitlement to an initial disability rating in excess of 30 percent for migraine headaches since August 11, 2011 is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs