Citation Nr: 1339980 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-01 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial compensable rating for posttraumatic headaches prior to November 18, 2011 and in excess of 30 percent from November 18, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from September 2002 to February 2003 and from December 2003 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska which granted service connection for posttraumatic headaches and assigned a noncompensable evaluation. In November 2011, the Board remanded this matter for additional development. The development ordered in the November 2011 remand included affording the Veteran a VA examination to ascertain the current severity of his headache disability. The Veteran was afforded a VA examination in November 2011. Therefore, the Board concludes there was substantial compliance with the remand directives of January 2013. Stegall v. West, 11 Vet. App. 268 (1998). In July 2012, the RO increased the Veteran's rating from 0 to 30 percent from November 18, 2011. FINDINGS OF FACT 1. For the period prior to November 18, 2011, the Veteran's posttraumatic headaches were manifested by characteristic prostrating attacks occurring on an average once every two months over several years. 2. From November 18, 2011, the Veteran's posttraumatic headaches were manifested by prostrating headaches 3 to 4 times a month, which more nearly approximated very frequent and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. Prior to November 18, 2011, the criteria for a 10 percent evaluation, and no higher, for posttraumatic headaches were met. 38 U.S.C.A. §§ 1155, 5107, 38 C.F.R. §§ 3.02, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2013). 2. From November 18, 2011, the criteria for a 50 percent evaluation for posttraumatic headaches have been met. 38 U.S.C.A. §§ 1155, 5107, 38 C.F.R. §§ 3.02, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties 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, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). Here, prior to the initial rating decision in this matter, an August 2006 letter informed the Veteran of the evidence required to substantiate his service connection claim and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. The August 2006 letter also informed the Veteran of provisions regarding disability ratings and effective dates. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Therefore, the Board concludes that the duty to notify has been satisfied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording VA examinations. The evidence that has been associated with the claims file includes the Veteran's service treatment records and VA outpatient treatment records. VA provided the Veteran with examinations in August 2007 and November 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The August 2007 and November 2011 examinations included thorough findings regarding the frequency of the Veteran's headaches and the manifestations of his disability and included and included an interview of the appellant and review of the claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Initial Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, the Veteran is appealing the initial assignment of disability ratings, and as such, the severity of the disabilities is to be considered during the entire period from the initial assignment of the disability ratings to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Post-traumatic headaches are rated according to Diagnostic Code 8100, which pertains to migraine headaches. A 50 percent rating is assignable with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assignable with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent rating is assignable with characteristic prostrating attacks averaging one in 2 months over the last several years. A 0 percent rating is assignable with less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2013). "Prostrating " is defined as extreme exhaustion or powerlessness. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). As to the term " productive of economic inadaptability, such term could have either the meaning of " producing " or " capable of producing " economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Initial rating for post-traumatic headaches prior to November 18, 2011 An August 2007 rating decision granted service connection for post-traumatic headaches and granted a non-compensable (zero percent) evaluation from July 2006. A VA outpatient treatment record dated in August 2006 reflects that the Veteran reported headaches that were present all the time. The Veteran reported that his headaches were helped by Tylenol and Motrin and that he would sometimes go to sleep with headaches. He reported that his headaches may interfere with going to sleep. The Veteran underwent a VA examination in August 2007. The Veteran reported daily headaches of the chronic pressure type, generalized. He denied photophobia. The Veteran reported that he was treated with continuous medication. He described his headaches as daily and chronic. The Veteran reported that he took pain pills daily. The VA examiner noted that the headaches were not prostrating and that ordinary activity was possible. The examiner noted that the usual duration of the Veteran's headaches was longer than two days. The VA examiner noted that a CT of the head was performed to rule out any intracranial lesion as the cause of headaches and was completely normal. The VA examiner diagnosed posttraumatic headaches. The VA examiner noted that there were no significant effects on the Veteran's usual occupation and no problems with usual daily activities. The VA examiner noted that the Veteran has daily pressure which is generalized about the scalp. The VA examiner commented that they occur all the time. Aspirin, Tylenol and Motrin occasionally helped, but nothing made them go away, and they were there daily. The Veteran reported that he did not know what precipitated them, but aggravating factors were noise, activity and movement of the head. The Veteran reported that he was working as a contractor for the Department of Defense. In the substantive appeal dated in January 2008, the Veteran indicated that he had migraines once or twice a week. He stated that he had to stop working when a migraine starts. He did not indicate that he had to take time off of work. He also indicated that he would wake up when he had a migraine and would not be able to fall asleep. In this case, based upon the medical evidence of record as well as the Veteran's statements, it is concluded that his disability picture more nearly approximates a 10 percent rating. Although it is acknowledged that he has daily headaches, there is no evidence that such are prostrating on a daily basis. In this case, the VA examination report from 2007 indicates there are no prostrating headaches. The VA examiner indicated that the headaches did not impact activities of daily living. Despite the comments from the VA examiner indicating the absence of prostrating attacks, the Board finds the Veteran credible that, at most, he has prostrating attacks once every two months. A 10 percent rating for the entire initial rating period prior to November 18, 2011, is warranted. The Board finds that the criteria for a 30 percent rating were not more nearly approximated during the period prior to November 18, 2011, as the evidence did not show characteristic prostrating attacks occurring on an average once a month over the last several months. Again, while the evidence establishes that the Veteran had headaches on a daily basis, the evidence does not indicate that his headaches were prostrating at that same frequency. Thus, although the Veteran is shown to have had migraine headaches as frequently as daily, the severity of such headaches did not approximate a finding of "prostrating attacks occurring on an average once a month, over the last several months," as required for the assignment of a 30 percent rating. Accordingly, a 10 percent rating, but no higher, is warranted for posttraumatic headaches for the entire initial rating period prior to November 18, 2011. From November 18, 2011 The Veteran had a VA examination in November 2011. The Veteran reported that he continued to have daily pressure in his head and headaches. The Veteran reported that his headaches occurred more frequently than once a month. The Veteran reported that he had very frequent prostrating and prolonged attacks of non-migraine headache pain. With regard to non-headache symptoms, the examination report noted nausea, sensitivity to light and sensitivity to sound. It was noted that the duration of typical head pain was typically less than one day. The head pain was typically on both sides of the head. The examination report noted that the Veteran did not have characteristic prostrating attacks of head pain. The VA examiner indicated that many of the Veteran's answers were somewhat vague, especially when asked how often he had true or incapacitating type headaches. It was noted that, initially, the Veteran stated that he did not miss work because of headaches, but he had difficulty concentrating at work. It was noted that, later, when asked again, the Veteran said he had 3 or 4 incapacitating headaches each month which were very bad, and he would have to lie down and use a cold rag on his head. The Veteran denied emergency room visits. The Veteran reported nausea, sometimes daily. The VA examiner noted that the Veteran had daily headaches, and the severity appeared to be moderate. The VA examiner indicated that, concerning prostrating type headaches, it was difficult for the Veteran to report prostrating type headaches. The VA examiner noted that the Veteran's answers were somewhat vague, but as best the examiner could determine, the Veteran had 3 to 4 headaches a month where he had to lie down, so this appeared to be prostrating. Based upon the foregoing, the Board finds that the criteria for a 50 percent rating were met from November 18, 2011. During this time period, the Veteran's posttraumatic headaches were manifested by 3 to 4 prostrating headaches per month. Based on the foregoing, the Board finds that the Veteran's disability has more nearly approximated the criteria for the maximum 50 percent rating from November 18, 2011. 38 C.F.R. § 4.124a , DC 8100. Accordingly, a 50 percent rating is warranted for the Veteran's posttraumatic headaches from November 18, 2011. Extraschedular considerations The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's headache disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). 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. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's headache disability is specifically contemplated by the schedular rating criteria and no referral for extraschedular consideration is required. The schedular rating criteria for the Veteran's disability specifically provides for disability ratings based on a combination of history, symptoms, and clinical findings. Symptoms such as the frequency and severity of the Veteran's headaches are considered by the schedular criteria. Because the schedular rating criteria are adequate to rate the Veteran's headache disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. Consequently, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). ORDER Prior to November 18, 2011, a 10 percent rating is granted for posttraumatic headaches, subject to regulations governing the payment of monetary benefits. From November 18, 2011, a 50 percent rating is granted for posttraumatic headaches, subject to regulations governing the payment of monetary benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs