Citation Nr: 1339788 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 05-23 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to an initial rating higher than 50 percent for residuals of a shrapnel wound to the head manifested by headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1969; he had Reserve service until November 1970. He received the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans' Affairs (VA), Regional Office (RO), in White River Junction, Vermont. In that decision, the RO granted service connection for a shrapnel wound injury to the head and assigned an initial disability rating of 10 percent, effective April 16, 2004. This matter was previously before the Board in November 2007 and November 2009, at which time it was remanded for additional development. In December 2008, the Veteran was awarded an effective date of September 29, 1988, for service connection for a shrapnel wound injury to the head. By rating action dated in October 2011, the disability rating for the service-connected residuals of a shrapnel wound to the head, manifested by headaches, was increased to 50 percent, effective September 29, 1988. In August 2012, the Board issued a decision finding that the criteria for an initial disability rating in excess of 50 percent were not met. The Board granted a separate 10 percent rating for residuals of traumatic brain injury (TBI) were met since October 23, 2008 (the date of enactment of the revised regulation 38 C.F.R. § 4.124a, Diagnostic Code 8045). Also, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from September 29, 1988, to August 13, 1997 was remanded. The development directed in the remand has not been completed and that issue has not been recertified to the Board. In July 2013, the United States Court of Appeals for Veterans Claims (the Court) granted a joint motion to vacate and remand the part of the Board's decision that denied entitlement to an initial disability rating higher than 50 percent for residuals of a shrapnel wound to the head, manifested by headaches. It did not report any error in the part of the decision that denied a higher rating on a scheduler basis, but found error in that part of the decision which denied referral for extraschedular consideration. The Veteran has been in receipt of a 100 percent rating for posttraumatic stress disorder since February 2002; and special monthly compensation on account of being housebound since August 1997. He was in receipt of a TDIU from August 1997 to February 2002. FINDINGS OF FACT 1. The Veteran is in receipt of the maximum scheduler rating for headaches as residuals of shrapnel wound of the head. 2. The schedular rating for residuals of a shrapnel wound to the head, manifested by headaches, adequately contemplates the Veteran's level of disability; and there is no evidence of exceptional factors such as frequent hospitalization and marked interference with employment, beyond the severe economic impairment contemplated by the current rating. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for residuals of a shrapnel wound to the head manifested by headaches have not been met on a scheduler or extraschedular basis. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and 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 appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Board remanded this claim for a VA examination in November 2009 and for records in November 2007; a review of the file shows these objectives were accomplished. The Board finds that there has been substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2013, the Veteran and his wife submitted statements regarding his cane use with a waiver of review by the agency of original jurisdiction (AOJ). As some VA treatment records were uploaded to Virtual VA in August 2013, the Veteran's representative also waived AOJ review of these records in November 2013. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the 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). Schedular Rating The Veteran has been in receipt of the maximum rating for headaches as a residual of a shrapnel wound during the entire period since the effective date of service connection for the disability in 1988. See Diagnostic Code 8100. There is, therefore, no basis for a higher initial rating on a scheduler basis. Extraschedular Rating The remaining question is whether the Veteran is entitled to a higher rating on an extraschedular basis. Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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"). Id. If those exceptional factors are found, the claim must be referred for consideration of an extraschedular rating. The basis for the Joint Motion was that the Veteran reported on an April 2011 examination that he had been using a cane for over 10 years due to a fear of falling when he had headaches and the Board had not discussed whether the use of a cane was contemplated the applicable diagnostic criteria. In an October 2013 statement, the Veteran's wife reported she had been married to the Veteran for over 40 years. She stated the Veteran had walked with a cane "for several years now" and had first started using it as a patient at a VA hospital. He tended to stumble when walking and the cane provided extra security. He had no problems when driving or sitting, just walking. The Veteran also submitted his own statement with that of his wife. He reported that he had used a cane for thirteen years, explaining that on days when his headaches were more severe he tended to get dizzy. The cane provided extra support. He had experienced problems with headaches and dizziness since the 1980s. "The headache is always there but not the dizziness that's just while I am walking." The Veteran and his wife are competent to report his use of a cane, and the Veteran is competent to report that he uses the cane for dizziness and headaches. 38 C.F.R. § 3.159(a). Treatment records generally show; however, that the Veteran has reported use of the cane for symptoms associated with back and right foot disabilities, but has occasionally reported that the cane was needed for symptoms associated with headaches. While a May 1989 VA Agent Orange examination showed that the Veteran's gait and a sensory examination were normal, a VA psychiatric examination from the same month showed that his low back pain limited his ability to walk and stand. Other records also support that the Veteran had trouble walking due to his back (see July 1989 Dr. C.W., January 1982 Dr. H.C., and March 1994 private records). Some records support that the Veteran had trouble walking due to his service-connected right foot disability (see 1994 private medical record and May 1994 Dr. C.W. record). In June 1998, a field report from The Department of Veterans Affairs Canada stated the Veteran didn't exercise due to his right foot. He limped on his right foot but had never considered a cane. In September 1999, an admission record noted that he used the aid of a cane for walking long distances. Further, in November 2000, a private annual health examination record showed "headaches/dizziness/falling down x 6." Central nervous system and musculoskeletal findings were normal. The assessment was headaches. A February 3, 2002 VA psychiatric note states he ambulated with a cane due to his back disability. A May 2002, VA record shows the Veteran again stated he was walking with a cane due to back pain. In May 2003 Dr. W. reported that back and right foot disabilities prevented the Veteran from walking far. A July 2008 VA history and physical examination record show the Veteran had chronic low back and hip pain; and used a cane to ambulate. The Veteran was often noted to walk with a limp (see February 2002 VA history and physical examination and October 2002 VA record addendum) or an antalgic gait (see November 2002 VA physical therapy and July 2008 history and physical examination records). Prosthetic consultations note the Veteran's eligibility due to his service connection ratings as well as diagnoses of a backache; radiating pain from hips to feet; numbness; and pain while walking (see December 2004 and March 2005 VA records). These records also show the Veteran was issued a cane upon request, but denied a scooter. The Veteran has reported also reported occasional dizziness. (See May 2002 VA lodger; May 2007 VA neurological e; November 2007 VA lodger; and May 2010 VA clinic notes.) At the April 2011 VA examination, the Veteran was able to perform tandem gait and walk on his toes and heels. He suffered prostrating headaches but no mobility problems. He indicated that he experienced dizziness and balance problems for a few months after his initial injury while still in service. He also reported "the spins" after the initial injury in service, which occurred off and on and lasted for a few seconds. The Veteran was ambulatory, but reported he started using a cane ten years ago because he was afraid of falling when he got a headache. At the examination, the examiner found no autonomic nervous system impairment; gait abnormalities; imbalance or tremors; muscle atrophy or loss of muscle tone; spasticity or rigidity; fasciculations; or cranial nerve dysfunction. It was determined that subjective symptoms did not interfere with work, instrumental activities of daily living, or family or other close relationships. The diagnosis was mild TBI sustained in service, with chronic headaches and cognitive problems. Memory loss, decreased concentration, and pain were said to have an effect on usual daily activities. The examiner concluded that the Veteran gave inadequate effort on cognitive testing, so his complaints of cognitive decline following mild TBI could not be substantiated. The Board finds the Veteran partially credible in his statement that he has occasionally used the cane because of dizziness (see the November 2000 record), but the Board also finds the Veteran uses a cane because of another service-connected disability (his right foot) and his nonservice-connected back disability. The Veteran's wife did not address the reasons for the cane in her statement. As a result, the lay statements are assigned limited weight. Analysis With regard to the first step of the Thune analysis, the schedular 50 percent rating contemplates very frequent completely prostrating attacks and severe economic inadaptability. Diagnostic Code 8100. The question then is whether the use of a cane together with headaches that require him to lie down approximately twice per week and decrease productivity (as documented in the most recent VA examination) are of a greater severity than the rating criteria and thus render the rating criteria inadequate. Thune. On its face, the Veteran's symptoms are not more severe than very frequent completely prostrating attacks with severe economic impairment. The use of the cane does not reportedly cause additional impairment, but rather, as described by the Veteran and his wife, enables him to better deal with his disability. Even with the use of the cane, he is able to drive and otherwise get around. This is actually less severe than a completely prostrating attack. The Veteran has at times reported the use of a cane for dizziness. Dizziness is a symptom contemplated by the rating schedule. The schedular criteria for headaches contemplate migraine "attacks" of various intensity and frequency, and such "attacks" reasonably describe periodic dizziness. See 38 C.F.R. § 4.124a, DC 8100 (providing four separate disability ratings for migraine "attacks" based upon their severity and frequency). Additionally, the old Diagnostic Code 8045 (brain disease due to trauma) specifically addressed dizziness. See 38 C.F.R. § 4.124a, DC 8045 (2007). Since October 23, 2008, dizziness is again specifically mentioned in the schedular rating. See 38 C.F.R. § 4.124a, DC 8045 (2013). Even if the Board could find that step one of Thun had been satisfied, extraschedular referral would still not be warranted because exceptional factors such as frequent hospitalization or marked interference with employment have not been demonstrated. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). The record shows no periods of hospitalization due to headaches. The Veteran's unemployment is reportedly due to his psychiatric disabilities or a back injury, but there have been no reports or allegations that the headaches cause marked interference with employment beyond the severe economic impairment contemplated by the rating schedule. Examinations have shown he is able to engage in activities of daily living except for during prostrating attacks. Absent evidence of marked interference with employment beyond severe economic impairment, the second step of the Thune test is not met. Referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial rating higher than 50 percent for residuals of a shrapnel wound to the head manifested by headaches is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs