Citation Nr: 1337517 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 12-03 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial compensable disability rating for service-connected migraine headaches. ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1989 to November 2009. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's perfected appeal to the Board, he limited his appeal to an increased rating for migraine headaches. Post-appeal, the Veteran submitted updated medical evidence from the VA East Liverpool CBOC. Generally, the Board would remand the appeal in its entirety to the RO for review in the first instance. However, in light of the Veteran's written waiver, the Board accepts jurisdiction over the newly submitted evidence. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's electronic files on the "Virtual VA" and VBMS systems to insure a total review of the evidence. FINDING OF FACT Throughout the rating period on appeal, the Veteran's migraine headaches have manifested in at least eight prostrating headaches per month over several years accompanied by photophobia, occasional left hand numbness, and intermittent nausea. CONCLUSION OF LAW The criteria for an initial disability rating of 30 percent for service-connected migraine headaches has been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis In the present case, the RO granted the Veteran service connection for migraines in a June 2010 rating decision that is the subject of his appeal. The RO assigned an initial 0 percent rating effective December 1, 2009, the day after the Veteran's military discharge. In his appeal, the Veteran asserts that he suffers from chronic migraine headaches of a frequency and intensity necessitating a higher rating level. After reviewing all evidence of record, the Board finds that the preponderance of the evidence weighs in favor of an increased initial rating of 30 percent. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. A 0 percent disability rating is assigned for migraines with less frequent attacks. A 10 percent disability rating is assigned for prostrating attacks averaging one in 2 months over the last several months. For the next higher 30 percent disability rating, there must be characteristic prostrating attacks occurring on average once a month over the last several months. For a higher 50 percent disability rating to be warranted, there must be migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Although prostrating attacks are not defined in the rating criteria, medical guidance used by the VA Compensation Service suggests that such an attack causes one a lack of strength to the point of exhaustion. See VA Compensation Service's Medical Electronic Performance Support System. In connection with the Veteran's appeal, the Board reviewed a May 2010 general medical examination conducted by VA medical personnel as well as the Veteran's lay statements based on the Veteran's limited treatment history. The May 2010 general examination examiner relied heavily on the Veteran's competent lay statements in diagnosing the Veteran with a migraine disorder. The Veteran reported headaches beginning in 1993 while in service. He reported that the headaches would start at the right temple. At the time, doctors considered these headaches to be stress-related and gave the Veteran Motrin to manage this pain. Over the next 10 years, these headaches increased in frequency and intensity. The Veteran reports having headaches on a daily basis as of November 2004 coinciding with his return to Iraq. At that time, doctors prescribed the Veteran Treximet, an anti-migraine medication, which provided minimal pain relief. Upon the Veteran's military discharge in November 2009, he ceased all medical treatment and opted to use over-the-counter medications such as Advil to manage his migraine symptoms, thus accounting for the sparse medical record. Based on the Veteran's statements, he continues to have two to three prostrating migraine headaches each week. These headaches begin at the right temple and radiate over to the left temple with incapacitating pain. When the Veteran has such an attack, he is unable to perform any activity until it subsides, which usually results in a loss of two to three hours. The Veteran also notes that he is photophobic and encounters occasional left hand numbness and nausea associated with these attacks. The Veteran resumed treatment for migraine headaches in October 2013 when he sought evaluation for his migraine headaches. Due to the frequency and intensity of the Veteran's migraine headaches, VA medical personnel started the Veteran on a trifecta of migraine medications including Maxalt for the Veteran to take at the onset of the migraine, Promethazine to take after breakthrough, and Amitriptyline for headache prevention. Based on the competency and credibility of the Veteran's lay statements and the medical evidence of record regarding the frequency and intensity of his migraine headaches, the Board finds a 30 percent disability rating warranted. The Board finds that the Veteran's migraine headaches do not rise to a higher 50 percent rating because the record fails to demonstrate migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran reports that he was able to modify his schedule while in service, and has made adjustments as a civilian to help accommodate his prostrating attacks. Although the record indicates that the Veteran was not working at the time of this application, he has diligently looked for work over the course of the appeal period by sending out several resumes and attending interviews while attending school on a part-time basis. Presently, the Veteran works with a vocational rehabilitation and education counselor as part of his job search. The Veteran's activities in furtherance of securing employment are inconsistent with severe economic inadaptability. The Board has also considered the applicability of other diagnostic codes for rating the Veteran's disability, but finds that none apply. There are no other diagnostic codes that fit the description of the service-connected migraine headaches. The Board next considers whether referral for an extraschedular evaluation is warranted for the Veteran's service-connected migraine headaches. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant'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"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds the rating criteria specifically contemplates the symptomatology of the Veteran's headache disability. The record demonstrates that the Veteran's migraine disorder has manifested in prostrating headaches at least eight times per month with accompanying photophobia, occasional left hand numbness and nausea. The schedular rating criteria specifically provides ratings for such attacks with such debilitating effects (Diagnostic Code 8100, 38 C.F.R. § 4.124a ), and even provide for attacks more severe than those experienced by the Veteran. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability of each throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. In the absence of exceptional factors associated with the migraine disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). VA's Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue herein decided. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326. The information contained in an April 2010 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the April 2010 letter as well as the Statement of the Case. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, the Veteran was afforded a VA general medical examination in May 2010. The examiner, a medical professional, performed an examination and provided the Board with sufficient information to rate the Veteran's disability. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issue of entitlement to an increased rating for migraine headaches. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). Since the Veteran did not make the RO or Board aware of any other relevant evidence that would need to be obtained, the Board finds that no further development is required. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable rating of 30 percent for service-connected migraine headaches is warranted, subject to the applicable laws and regulations governing the payment of monetary awards. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs