Citation Nr: 1336968 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-35 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 50 percent for migraine headaches. 2. Entitlement to a rating in excess of 10 percent for stress fractures of the left lower extremity. 3. Entitlement to a rating in excess of 10 percent for stress fractures of the right lower extremity. 4. Entitlement to an initial rating in excess of 50 percent for depression. 5. Entitlement to service connection for osteoarthritis. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from July 1991 to November 1992 and from November 1997 to April 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction over the claims file is currently held by the RO in Chicago, Illinois. The Veteran's representative requested a copy of the complete claims file in November 2009. In June 2010, VA responded with a letter confirming receipt of the request. Although VA estimated it would take only 30 days for compliance, a copy of the claims file was not mailed to the Veteran until September 20, 2010. Despite the delay, VA has clearly complied with the Veteran's request under the Privacy Act and the Board will proceed with a decision in this case. The issues of entitlement to an increased initial rating for depression and service connection for osteoarthritis are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran's migraine headaches most nearly approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The severity and symptoms of the Veteran's migraine headaches are adequately rated by the established schedular criteria; the disability is not productive of an exceptional or unusual disability picture to include marked interference with employment or frequent episodes of hospitalization. 3. The Veteran's stress fractures of the left lower extremity most nearly approximate malunion of the tibia and fibula with a slight ankle disability. 4. The Veteran's stress fractures of the right lower extremity most nearly approximate malunion of the tibia and fibula with a slight ankle disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for migraine headaches are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2013). 2. The criteria for a rating in excess of 10 percent for stress fractures of the left lower extremity are not met. 38 U.S.C.A. § 1151; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. 3. The criteria for a rating in excess of 10 percent for stress fractures of the right lower extremity are not met. 38 U.S.C.A. § 1151; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that increased ratings are warranted for service-connected migraines and stress fractures of the bilateral lower extremities. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in 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 ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 the propriety of the initial disability rating 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). Migraine Headaches Service connection for migraine headaches was granted in an October 1999 rating decision with an initial noncompensable evaluation assigned effective April 28, 1999. The January 2008 rating decision on appeal continued a 10 percent evaluation for the service-connected disability. The Veteran contends that an increased rating is warranted as her migraine headaches impair her ability to work and perform the activities of daily life. The Veteran's service-connected migraine headaches are currently rated as 50 percent disabling under Diagnostic Code 8100 for rating migraines. A maximum scheduler evaluation of 50 percent is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2013). The Veteran is currently in receipt of the maximum schedular rating for migraine headaches under Diagnostic Code 8100 and a higher rating is not possible under this diagnostic code. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. Therefore, the claim for a schedular rating in excess of 50 percent for migraine headaches must be denied. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. Generally, an extra-schedular rating is warranted if a service-connected disability manifests an unusual disability picture causing a marked effect on the Veteran's ability to work. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that an extra-schedular rating is not warranted. First, the rating criteria are clearly adequate to properly evaluate the Veteran's disability. As noted above, Diagnostic Code 8100 contemplates very frequent headaches that are completely prostrating. 38 C.F.R. § 4.124s, Diagnostic Code 8100. During VA examinations conducted in August 2007, April 2009, and December 2009, the Veteran reported experiencing headaches that occurred two to three times a week and required treatment with medication and lying down in a dark room for several hours. Similar reports were made to the Veteran's VA and private treating physicians throughout the claims period. The current 50 percent evaluation therefore includes consideration of the frequency and severity of the Veteran's service-connected migraine headaches. The schedular criteria also contemplate the impact of the Veteran's migraine headaches on her ability to work. A maximum 50 percent evaluation is warranted for migraines productive of severe economic inadaptability. Id. The Veteran reported to the August 2007 VA examiner that she missed two to three days of work each month due to headaches. She retired from her position as a postal worker in November 2007, and the April 2009 VA examiner found that the Veteran's migraines limited her from performing physical or sedentary labor. As Diagnostic Code 8100 includes consideration of the economic impact of the Veteran's migraine headaches, the rating criteria are adequate to describe the severity and symptoms of the service-connected disability. The Veteran's disability also does not present an exceptional or unusual disability picture. The Veteran has never been hospitalized for symptoms associated with headaches and as noted above, her reported symptoms are specifically contemplated in the rating criteria pertaining to the disability. Furthermore, the Veteran consistently worked throughout the claims period until November 2007, when she reporting leaving her job due to headaches and pain from other disabilities. She is in receipt of TDIU for the period beginning February 19, 2009 due to the combined effect on employment of several service-connected disabilities. Although the April 2009 VA examiner found that the Veteran's headaches limited her ability to work, an August 2009 VA neurologist noted that there was a dramatic lack of evidence of limitation, discomfort, or deficits accompanying the Veteran's complaints with respect to her headaches and other disabilities. Thus, the Board does not find that the Veteran's migraine headaches cause marked interference with employment. Therefore, the Board concludes that the competent evidence of record establishes that the Veteran's migraine headaches do not manifest symptoms that are so unusual or exceptional as to render the use of the Rating Schedule inadequate. Additionally, the disability has not presented any other indications of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. An extra-schedular rating is not in the interest of justice in this case, and the claim for an increased rating, on a schedular or extra-schedular basis, is denied. Stress Fractures of the Bilateral Lower Extremities Service connection for stress fractures, shin splints, of the bilateral lower extremities was granted in an October 1999 rating decision. Initial 10 percent evaluations were assigned for each lower extremity effective April 28, 1999. The January 2008 rating decision on appeal continued the current 10 percent evaluations. The Veteran contends that increased ratings are warranted for each lower extremity as her stress fractures manifest pain and impairment that is more severe than contemplated by the current 10 percent ratings. The Veteran's disability (currently diagnosed as stress fractures of the bilateral lower extremities) is rated by analogy under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula. Under this diagnostic code, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent evaluation; with moderate knee or ankle disability warrants a 20 percent evaluation; and with a marked knee or ankle disability warrants a 30 percent evaluation. Nonunion, with loose motion, requiring a brace, warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5262. After review of the evidence of record, the Board finds that the Veteran's disabilities most nearly approximate impairment of tibia and fibula with a slight ankle disability. The Veteran has consistently complained of pain and tenderness associated with the service-connected shin splints, but objective testing of the knee and ankle joints has demonstrated only a slight disability of the ankles. The knees demonstrated full range of motion during VA examinations conducted in April and December 2009 and upon examination by a VA neurologist in August 2009. Range of motion of the ankles has also been full throughout the claims period except for a single instance of slightly limited bilateral dorsiflexion at the April 2009 VA examination. There is also no evidence of instability or other impairment to the knees or ankles. Additionally, radiographs and other testing of the bones have not disclosed abnormalities associated with the service-connected stress fractures. A bone scan performed in conjunction with an August 2007 VA examination did not show any evidence of stress fractures involving the femurs or tibias. April 2009 X-rays of the bilateral tibia and fibula were also normal. Although X-rays have shown some joint space narrowing of the knees and calcaneal spurs of the ankles, the Board observes there is no evidence linking these findings to the service-connected stress fractures and shin splints. In any event, the current 10 percent evaluations contemplate a slight disability due to impairment of the tibias and fibulas. The Board has also considered the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment, but notes that the Veteran did not complain of pain during range of motion testing at any of the VA examinations. Additionally, the August 2007 VA examiner found that there was no effect on the Veteran's occupational functioning or daily activities due to the bilateral stress fractures. The April 2009 VA examiner also concluded that the Veteran's disability only limited her ability to perform heavy physical labor, but did not impact light physical or sedentary work. Thus, even with consideration of functional factors, it is clear that the Veteran's bilateral fractures have not resulted in more than a slight ankle disability manifested by some decrease in motion of dorsiflexion of the ankles. The Board has considered whether there is any other schedular basis for granting higher ratings, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claims for additional increased ratings. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. The Board also finds that an extraschedular rating is not appropriate for the Veteran's bilateral stress fractures of the lower extremities. As noted above, the Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. Her stress fractures of the bilateral extremities are manifested by symptoms such as pain with exertion, tenderness, and a slight loss of ankle motion. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a May 2007 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claims in the May 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, private medical records, and records from the Social Security Administration (SSA). Additionally, the Veteran was provided proper VA examinations in August 2007, April 2009, and December 2009 in response to her claims. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a rating in excess of 50 percent for migraine headaches is denied. Entitlement to a rating in excess of 10 percent for stress fractures of the left lower extremity is denied. Entitlement to a rating in excess of 10 percent for stress fractures of the right lower extremity is denied. REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the other issues on appeal. Regarding the claim for an increased initial rating for depression, the Board finds that a VA examination must be provided to determine the current severity of the service-connected disability. The most recent VA psychiatric examination was conducted in April 2009, more than four years ago. A month after the examination, in May 2009, the Veteran was admitted to the St. Louis VA Medical Center (VAMC) after a suicide attempt involving an overdose of sleeping pills. The Veteran's suicidal ideation is indicative of worsening of her service-connected psychiatric disability and a VA examination is required. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Turning to the Veteran's claim for service connection for osteoarthritis, post-service treatment records document diagnoses of arthritis in the Veteran's lumbar spine, cervical spine, and bilateral hips. Additionally, VA and private radiographic reports indicate narrowing of the bilateral patellofemoral joints of the knees and bilateral ankle plantar calcaneal spurs. While these X-ray findings were first noted several years after the Veteran's separation from active duty service, osteoarthritis was included on a December 1999 problem list from the Chattanooga VAMC. Certain chronic diseases, including arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). The December 1999 notation of osteoarthritis was rendered within a year from the Veteran's separation from active duty in April 1999. The Board therefore finds that a VA medical opinion is necessary to clarify whether the Veteran's disability was manifest to a compensable degree within one year after her discharge from military service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine the current degree of severity of her service-connected depression. The claims file must be made available to and reviewed by the examiner. The examiner should identify all current manifestations of the service-connected depression. The examiner should also provide an opinion concerning the current degree of social and occupational impairment due to the service-connected psychiatric disability, including whether it is at least as likely as not that depression, by itself, would preclude the Veteran from obtaining and retaining substantially gainful employment, and provide a GAF score with an explanation of the significance of the score assigned. A full rationale must be provided for all expressed medical opinions. 2. Provide the claims file to a VA examiner with the necessary expertise to render a medical opinion regarding the claim for service connection for osteoarthritis. The claims file must be reviewed prior to the issuance of the requested opinion. After reviewing the claims file, the examiner is requested to determine: a) Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that osteoarthritis of any joint was present and manifest to a compensable degree within a year from the Veteran's separation from active duty, i.e. prior to April 28, 2000. Osteoarthritis is rated under Diagnostic Code 5003 based on limitation of motion of the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). If the Veteran manifests painful limited motion due to arthritis but does not meet the criteria for a compensable evaluation under the appropriate diagnostic code, a 10 percent rating is still for application for each major joint or group of minor joints affected. Therefore, the examiner should determine whether the Veteran's osteoarthritis manifested painful limited motion of any joint during the period prior to April 28, 2000. b) If the osteoarthritis was not present and manifest to a compensable degree prior to April 28, 2000, is it more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that osteoarthritis of any joint is etiologically related to any incident of the Veteran's active duty service? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Readjudicate the claims on appeal. If the benefits sought on appeal are not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters 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. 2013). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs