Citation Nr: 1340491 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-14 209 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to a rating in excess of 30 percent for migraine headaches, from August 21, 2009. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant, S.M., and D.S. ATTORNEY FOR THE BOARD Nathaniel J. Doan, Counsel INTRODUCTION The Veteran had active military service from October 2001 to October 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2009 rating decision in which the RO, inter alia, granted service connection for and assigned an initial 10 percent rating for migraine headaches, effective February 17, 2009. The Veteran perfected an appeal as to the initial rating assigned. In a March 2012 Decision Review Officer decision, the RO assigned a 30 percent rating for migraine headaches, from February 7, 2012. In June 2012, the Veteran and two of his co-workers, S.M. and D.S., testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record. This claim was last before the Board in February 2013, at which time the Board denied an initial rating in excess of 10 percent for migraine headaches from February 17, 2009 through August 20, 2009 and granted the 30 percent rating thereafter (thus, granting an earlier effective date for the assignment of the 30 percent rating). The Board remanded the claim of entitlement to a rating in excess of 30, from August 21, 2009. In September 2013, the AMC issued a supplemental statement of the case reflecting continued denial of a rating in excess of 30 percent, from August 21, 2009, and subsequently returned the claim for higher rating to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished. 2. As of August 21, 2009, the Veteran has experienced very frequent completely prostrating and prolong attacks from migraines that have been productive of severe economic inadaptability. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for 50 percent rating for migraine headaches, from August 21, 2009, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 ; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations 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, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Reviewing VA's attempts to fulfill the duties to notify and assist under the VCAA, the Board is cognizant that the RO did not issue a notification letter directed by the February 2013 remand. Given the grant of the maximum schedular rating for the entire period remaining in appellate status, however, the Board finds that no additional notification and development actions to fairly adjudicate this matter need be accomplished. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 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 to be considered when making disability evaluations. 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 the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the award of service connection and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Pursuant to the Board's February 2013 decision, the Veteran is currently assigned a 30 percent disability rating for his migraine headaches, from August 21, 2009, pursuant to Diagnostic Code 8100. 38 C.F.R. § 4.12a. In that same Board decision, the Board denied an initial rating in excess of 10 percent prior to August 21, 2009; therefore, the only period currently on appeal before the Board is August 21, 2009 and onward. Under Diagnostic Code 8100, a 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months; a 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in two months over last several months; a non-compensable rating is assigned with less frequent attacks. Id. At the time of the February 2013 decision, the Board evaluated the evidence from the period beginning August 21, 2009. The Board will briefly summarize this evidence again that formed the basis for the Board to seek an additional VA opinion to answer the question of whether the disability met the criteria for the maximum 50 percent rating. In an August 21, 2009 physician's note from the VA Community-Based Outpatient Clinic (CBOC) in La Grande, Oregon, a clinician documented that within the last two months the Veteran's headaches increased in frequency from one or two per month to three or four per week. In a February 2012 VA compensation examination, the Veteran's migraine headache pain was characterized by pulsating or throbbing head pain on both sides of the head, and he reported nausea, sensitivity to light and sound, and changes in vision as a result of the migraines. The typical duration of the pain was less than one day. He also reported prostrating attacks of migraine headache pain more frequently than one per month. However, he was reported not to have "very frequent prostrating and prolonged attacks of headache pain." In addition, the examiner noted that the migraine headaches did not impact his ability to work. During the June 2012 Board hearing, the Veteran testified regarding the medications he was taking, but indicated that even through the severity of the headaches had decreased, he had three to four headaches per week. He testified about the impact the headaches were having on his job. Because he had to make appointments with his clients in advance, his frequent headaches caused him to schedule fewer clients. Regarding evidence showing the effect on his ability to work, the Veteran submitted a year's worth of pay stubs and time sheets from his employer. Generally speaking, the pay stubs show a sharp decrease in the number of hours that the Veteran worked. From May 2011 to September 2011, he worked the following hours in each respective pay period: 42, 58, 54, 46, 51, 43, and 52.5. The average number of hours for these periods is 49.5 hours per pay period. From September 2011 to May 2012, his pay stubs show the following hours per pay period: 28, 21, 20, 11, 15, 26, 32.5, 38, 30, 27, 19, 9, 23, 17.5, and 13. The average number of hours worked for this span of time is 22 hours per pay period. His rate of pay did not change during the year, and he was paid hourly. The Veteran testified that this decrease in the number of hours worked was a consequence of his debilitating migraine headaches, which forced him to schedule fewer clients. In the February 2013 remand, the Board directed that after review of additional records of file that the examiner who conducted the February 2012 VA examination provide an addendum opinion regarding whether the Veteran had "very frequent completely prostrating and prolonged attacks" and whether the migraine headaches had impacted the Veteran's work performance to the point where they have produced "severe economic inadaptability." The examiner was also directed to provide the approximate date of any found increase in the severity of the disability. In the June 2013 VA headache opinion obtained upon remand, the examiner noted review of the claims file. The examiner noted that the examiner who completed the February 2012 VA examination was no longer on staff. In general, the examiner detailed evidence that the Veteran was not compliant in treatment recommendations, to include the Veteran not taking the prescribed narcotics as directed, leading to the Veteran running out of prescriptions early. In addition, due to the noncompliance with the medication schedule, the Veteran had "rebound headaches from narcotic use." Further, the Veteran was not using his CPAP machine as directed, which the examiner found would help the Veteran with the sleep apnea and also minimize the headaches that woke the Veteran. Regarding symptoms, the Veteran had constant head pain, pulsating and throbbing head pain, and pain on both sides of his head. The Veteran also experienced nausea as well as sensitivity to light and sound. The duration of the headaches were less than one day. Importantly, the examiner noted that the Veteran experienced very frequent prostrating and prolonged attacks of migraine headache pain. Detailing the impact of the disability on the Veteran's ability to work, the examiner found that since May 2011 the Veteran was not able to work an 80 hours during a two week pay period, and that beginning in September 2011 he was averaging 22 hours period pay period. The examiner wrote that this reflected significant time lost due to pain. The examiner summarized that the Veteran did have very frequent attacks of migraine headaches from review of the claims file and the provided pay stubs. The examiner noted, however, that there was a component of noncompliance. Specifically, she found "[a]s it is evident that he is having frequent and severe migraines, it is also noted that this is also caused by non-compliance on the part of the [V]eteran." The examiner further indicated that the date of increase in the frequency of the headaches as August 2009, but that there was no pay stub evidence of the increase in severity prior to the May 2011 pay stubs. The examiner also noted that she could not provide any other opinion regarding the headache disability without resorting to speculation. As noted above, the Veteran is currently assigned a 30 percent rating under Code 8100, from August 21, 2009. A 30 percent is warranted under Code 8100 when there is a migraine disability resulting in characteristic prostrating attacks occurring on an average once a month over last several months. A higher, 50 percent, rating is not assignable under Code 8100 unless there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The phrase "very frequent" and the term "prolonged" are not defined in the rating schedule so, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Here, at the time of the February 2013 decision and remand, the Board found that the period beginning on August 21, 2009 supported a 30 percent rating, which is provided under Diagnostic Code 8100 for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. The purpose of the remand was to obtain additional opinion evidence which took into account evidence in the form of pay stubs which tended to support the Veteran's contentions regarding economic inadaptability. In the subsequently obtained June 2013 opinion, the examiner opined that there were very frequent prostrating and prolonged attacks that impacted the Veteran's ability to work, directly countering a different examiner's finding in the February 2012 VA examination report. The Board notes that the examiner indicated that increased severity was due to the Veteran's non-compliance with prescribed treatment and medications; although the Veteran's non-compliance raises concerns for the Board, the Board does not find a basis for discounting the documented increased severity-notwithstanding that it is at least partially due to the Veteran's volitional behavior. Although the examiner noted that the evidence from the pay stubs indicated increased severity beginning in May 2011, the examiner's June 2013 opinion, overall, supports the finding that the increased severity began in August 2009, the beginning of the period remaining in appellate status. In sum, in the Board's February 2013 remand, the Board sought additional opinion evidence based on review of additional records of file. In the subsequently obtained June 2013 opinion, the examiner provided opinion evidence that supports the granting of the maximum 50 percent schedular rating under Diagnostic Code 8100 for migraines for the entire period remaining in appellate status. Although the examiner did not make a specific opinion that the migraines were "productive of severe economic inadaptability," the examiner did opine that the migraine attacks were very frequent that combined with the examiner's general comments regarding the effect on employability support the assignment of highest schedular rating. In this June 2013 opinion, the examiner resolved the remaining questions raised by the February 2012 VA examination report. Given the examiner's June 2013 opinion based on review of all evidence of record, the Board finds that, resolving all reasonable doubt in the Veteran's favor, the criteria for a 50 percent schedular rating for migraines is warranted as of August 21, 2009. Accordingly, and with resolution of all reasonable doubt in the Veteran's favor, the Board that the criteria for a the maximum schedular 50 percent rating for his migraine headache disability are met as of August 21, 2009. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board points out that Veteran has not asserted, and the evidence does not indicate, that his migraine headache disability warrants a higher rating under any other provision of VA's rating schedule, or that a higher rating is warranted on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 (2013). ORDER A 50 percent rating for migraine headaches, from August 21, 2009, is granted, subject to the legal authority governing the payment of compensation benefits. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs