Citation Nr: 1336772 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 09-42 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected migraine headaches. 2. Entitlement to service connection for a lung condition. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from August 1987 to August 2007. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginian. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The issue of service connection for a lung condition 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 The Veteran's service-connected migraine headaches resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Criteria for a rating not to exceed 50 percent for service-connected migraine headaches have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking an increased initial rating for his service-connected migraine headaches. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's condition is currently rated 30 percent disabling under Diagnostic Code 8100. Under this code a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 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. All evidence of record has been reviewed and considered and the relevant evidence is discussed below. As will be discussed the Veteran's claim for an increased rating is granted and a rating not to exceed 50 percent is assigned. In November 2007 the Veteran was provided with a VA examination. He reported experiencing reoccurring headache attacks with severe pain in the head, nose, left eye, and face. The Veteran reported during these attacks he had to stay in bed and was unable to do anything. The Veteran reported these symptoms occurred yearly with each occurrence lasting for two weeks. During these occurrences the headache attacks averaged two times per day, lasting for six hours each time. The Board finds this medical record establishes the Veteran had to stay in bed during his headaches attacks, and therefore finds such attacks were completely prostrating. As his headache attacks lasted for two weeks the Board finds these attacks were also prolonged. In February 2008 the Veteran established treatment at a VA medical center. He reported a history of headaches with watery eyes and redness. The Veteran stated this condition was treated with prednisone in the military service and "apparently resolved." The Veteran reported he got headaches in the left fronto-parietal area with eyes and nose watering but denied photophobia or vision change. The Veteran reported this pain would last for weeks. He stated there were no specific triggers for his headache pain. CT and spinal tap while in military service were negative. The Veteran was referred to the neurology department. In April 2008 and January 2009 the Veteran sought private treatment for his cluster headaches and associated left eye orbital pain. In his January 2009 written notice of disagreement the Veteran asserted that he suffered from cluster headaches which were severe and incapacitating "with a duration cycle of four to eight weeks." The Veteran reported during these episodes he experienced severe, stabbing pain to the left side of his head and behind his left eye. He also described excessive tearness, redness, and drooping eyelid in his left eye during attacks. The Veteran also reported runny nose, intolerance to light, sound, and smell, and swelling during the attacks. These attacks resulted in loss of sleep and frequent agitation. The Veteran asserted medical treatment had not been able to delay or prevent his headache attacks. In February 2009 the Veteran was seen for a private neurology consult. The Veteran reported experiencing cluster headaches every six months or so, which usually lasted for three weeks at a time. During these headaches he had blurry vision, dizziness, and eye weakness in the left eye. Brain MRI was normal. The physician opined the Veteran likely had "common migraine headaches and tension headaches as the cause of the symptoms." In his October 2009 written substantive appeal the Veteran stated his headaches "appear daily" and medications did not seem to help. The Veteran reported this condition had affected his work as it has caused him to miss time. The Board finds this written statement from the Veteran provides evidence in support of his claim for an increased rating. His written statement suggests the Veteran's headaches appeared daily, meeting the 50 percent criteria for "very frequent" attacks. The Veteran also stated these attacks caused him to miss time, therefore causing a negative economic impact. As a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing headaches which result in loss of work. Layno v. Brown, 6 Vet. App. 465 (1994). As the Veteran's testimony regarding this condition has been consistent, the Board finds no reason to doubt the veracity or credibility of his testimony. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, the Veteran's lay statement is also supported by objective medical evidence. In September 2012 the Veteran was provided with an additional VA examination. The examiner opined the Veteran had migraine headaches and had characteristic prostrating attacks of migraine headache pain more frequently than once per month. The examiner specifically indicated these prostrating and prolonged attacks were "very frequent." The examiner also opined the Veteran's headache condition impacted his ability to work. In support of this opinion the examiner quoted the Veteran's description, "I have to call in sick at times. I'm on call, so I just don't take the call. I have to leave work early at times." The Veteran's credibility is key in this case: The Board finds no reason to dispute the Veteran's statements at this time. The Board finds this objective medical evidence establishes the Veteran experienced very frequent completely prostrating and prolonged attacks, meeting the criteria for a higher 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. These attacks have also had an economic impact on the Veteran as they caused him to miss work. The record is not clear how frequently the Veteran has missed work due to his service-connected headaches and whether this has constituted "severe economic inadaptability" as contemplated by the VA regulations for a 50 percent rating. Id. However, given that the Veteran has established the frequency of attacks described by a 50 percent rating and some economic impact is established, affording all benefit of the doubt to the Veteran the Board finds a higher 50 percent rating is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 A 50 percent rating is the schedular maximum rating allowed under 38 C.F.R. § 4.124a Diagnostic Code 8100. Accordingly, a schedular rating in excess of 50 percent is not warranted. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's headache condition that would render the schedular criteria inadequate. The Veteran's main symptoms were complaints of severe pain in his head and left eye which prevented him from being able to work. As discussed above, these symptoms were specifically contemplated in the schedular ratings that were assigned. The schedular maximum rating was assigned for the Veteran's very frequent prostrating attacks which caused him to miss work. Therefore the schedular rating assigned already contemplated the Veteran's interference with employment and the Board afforded the Veteran the benefit of the doubt in assigning the increased rating of 50 percent. As such, the Board believes that the schedular rating criteria adequately describe the Veteran's disability picture and even if it does not, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. 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. However, the record does not establish the Veteran is unemployed. After military service the Veteran worked temporarily for the post office. At the time of his April 2008 VA examination he was "awaiting a job with the sheriff's department." Moreover, at his most recent VA examination in September 2012 the Veteran reported his headaches caused him to miss time at work, suggesting he was still currently employed. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Veteran's claim for service connection for headaches was granted. He then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regard to that issue. As to VA's duty to assist, 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). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with two VA examinations, the reports of which have been associated with the claims file. The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim regarding headaches. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal for an increased rating for service-connected headaches. ORDER The claim for a rating not to exceed 50 percent for his service-connected migraine headaches is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran is also seeking service connection for a lung condition. The Veteran was provided with a VA examination regarding this condition in April 2008. When the VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). However in this case the Board finds the VA examination provided was not adequate. An adequate examination requires the examiner must be informed of the full and accurate fact and the Veteran's history. See Nieves-Rodriguez v. Peake, 21 Vet. App. 23 (2007). However, in this case the examiner was not provided with the Veteran's medical history. Instead he opined "I am unable to make a diagnosis at this time as I have no past information, which should be required for a diagnosis to be made." Therefore the Board finds the opinion was inadequate and remand for an adequate examination is required. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA examination to determine the nature and etiology of any lung condition. The examiner should review the Veteran's complete claims file in connection with the examination, and a full rationale should be provided for any opinion expressed. Consistent with the factual history, including in-service treatment for shortness of breath and the January 2008 abnormal chest CT scan and biopsy, the examiner should provide an opinion to the following questions: a) Does the Veteran currently have a chest/lung condition? If more than one, specifically identify each condition. b) For each condition identified is it as least as likely as not (50 percent or greater) that the Veteran's current chest condition, if any, either began during or was otherwise caused by his military service? 2. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs