Citation Nr: 1340767 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-31 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial compensable disability rating for service-connected tension headaches. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from February 1991 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board notes that the Veteran was scheduled for a Travel Board hearing at the RO in April 2013; however, she failed to report. She has not requested a new hearing nor has she shown good cause as to why she failed to report for her scheduled hearing. Consequently, no further action is necessary to comply with due process requirements in affording the Veteran a hearing. FINDING OF FACT The Veteran's service-connected tension headaches are not productive of characteristic prostrating attacks averaging at least one within two months; nor do they represent an exceptional or unusual disability picture. CONCLUSION OF LAW The criteria for an initial compensable disability rating for service-connected tension headaches are not met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, and 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; and (3) of the information and evidence that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). For a claim seeking increased compensation for an already service-connected disability, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that he/she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment in order to substantiate the claim. Vazquez-Flores, 22 Vet. App. 37 (2008). VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. It is noted that, on September 4, 2009, the Federal Circuit vacated and remanded Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), and Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Specifically, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be veteran specific." In addition, the Federal Circuit determined that "while a veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a veteran of alternative diagnostic codes or potential 'daily life' evidence, we vacate the judgments." In this case, notice was sent to the Veteran in January 2010, prior to the initial adjudication of her claim for service connection. Although compliant notice was not sent to the Veteran with regard to her claim for an increased rating, the Board notes that the Veteran's claim was originally one for service connection for her tension headaches, which was granted in the March 2010 rating decision and evaluated as zero percent disabling effective January 8, 2010 (the date the Veteran's claim for service connection was filed). Thereafter, the Veteran disagreed with the zero percent evaluation of this now service-connected disability. Consequently, since the Veteran's claim was initially one for service connection, which has been granted, the Board finds that VA's obligation to notify her was met as the claim for service connection was obviously substantiated. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, any deficiency in notice relating to the Veteran's appeal for an increased rating is not prejudicial to her. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence. The duty to assist includes providing the Veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examinations in March 2008 and June 2012. Significantly, the Board observes that she does not report that the condition has worsened since she was last examined, and thus a remand is not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). As discussed in more detail below, the Board finds that the March 2008 VA examination is deficient in that it fails to provide all the necessary criteria to evaluate the Veteran's service-connected tension headaches; however, it is adequate to demonstrate that she did not have prostrating attacks at that time. The June 2012 VA examination is adequate as the report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded her current complaints, conducted appropriate physical examination, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that at least the examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and her representative have not contended otherwise. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify her would serve no useful purpose. Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claim. II. Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2. It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor, 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's claim for a higher evaluation for tension headaches is an original claim that was placed in appellate status by her disagreement with the initial rating award. In these circumstances, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In the March 2010 rating decision on appeal, the RO granted service connection for tension headaches effective January 8, 2010 and evaluated it as zero percent disabling under Diagnostic Code 8100. Initially the Board notes that there is not a diagnostic code specifically for tension headaches. When an unlisted condition is encountered, it is permissible to rate the condition under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. 38 C.F.R. § 4.27. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board finds that the Veteran's service-connected tension headaches are appropriately evaluated by analogy under Diagnostic Code 8100, which evaluates migraines. Diagnostic Code 8100 is the most apt because there are no other rating criteria that evaluate headaches or similar symptoms. Under Diagnostic Code 8100, a 50 percent evaluation is warranted if there are very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent evaluation is warranted for migraine headaches where there is characteristic prostrating attacks occurring on an average of once a month over the last several months. A 10 percent evaluation for migraine headaches requires characteristic prostrating attacks averaging one in two months over the last several months. A zero percent evaluation is warranted for less frequent attacks. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran has submitted several statements relating to her headaches. In her April 2010 Notice of Disagreement, she stated that she has headaches averaging once every two days that will last up to four days and then come back again in two or three days. She treats her headaches with over the counter medicines such as Ibuprofen and Tylenol P.M. She stated that sometimes the pain will keep her awake. In an April 2012 statement, she stated that she has headaches at least four out of seven days a week; that these headaches come on instantly and last for hours; and that she is not able to function at the beginning of the onset of her headaches. Based on this, she stated that she felt she should have been granted a higher rating. After considering the evidence of record, the Board finds that it fails to support a compensable disability rating for the Veteran's service-connected tension headaches. Specifically, the evidence fails to demonstrate that the Veteran has characteristic prostrating attacks that occur at least once every two months. VA treatment records fail to demonstrate that the Veteran has had regular treatment for her headaches through VA. Headaches are not listed on her Problem List and most Primary Care notes show the Veteran denied having headaches on a review of systems. In addition, the Veteran has not identified any private medical treatment for this disability. The VA treatment records do, however, contain the following references to headaches. A September 2009 OEF/OIF Psycho-Social note indicates the Veteran reported only really experiencing headaches in the last five days although it was noted that she was in a motor vehicle accident in 1998, experienced a fall while in Kosovo in 2002 in which she hit her head and lost consciousness, and had at least one concussive incident while she was a child. A November 2009 VA Concussion Clinic Evaluation note indicates the Veteran reported having headaches that seem to be mainly in the frontal and bitemporal regions. They seem to have a duration of about two to three days and seem to occur monthly. It was noted that the Veteran did not feel that they are debilitating and they do respond to Tylenol. The assessment was that the Veteran appears to have episodic tension headaches. Questionnaires filled out be the Veteran in relation to this evaluation demonstrate she reported she has mild headaches. In October 2010, she was seen at VA for complaints of having a headache that started the night before around 7:00 pm with vomiting around 3:00 am. She reported that the pain was so severe she was unable to sleep. She further stated she had never had a headache like this before. She was assessed to have a migraine and was treated with medication for it. She was told to come back in if headache persisted. There is no record that she returned for further treatment. A November 2010 Primary Care note shows the Veteran reported on a review of symptoms of having headaches but no assessment was made and no details are noted. In December 2010, however, she reported to her primary care physician that she began having increased appetite, weight gain and headaches after a recent change in her depression/anxiety medication. She tapered herself off of this medication. The assessment was headaches associated with Paroxetine. Her depression/anxiety medication was changed. An August 2011 Pain Medicine Outpatient Note from August 2011 indicates the Veteran reported having a history of migraine headaches as well as back pain (which was why she was seeing this clinic). It was noted that she was taking Topamax 50 mg a day to help with that but states she had a very bad headache last week. The physician increased her dosage of the Topamax (also known as Topiramate) to help both her low back pain and migraine headaches. The Board notes, however, that a January 2010 OEF/OIF Individual Session note demonstrates that the Veteran was placed on Topiramate for her psychiatric problems (diagnosed as adjustment disorder and depression at that time). A May 2012 Primary Care note confirms that this medication was for her anxiety. Interestingly enough, at that visit, she denied any headaches on a review of systems. Finally, a PTSD Clinic Note and Mental Health Intake note from June 2012 indicate the Veteran's antidepressant medication had recently been switched to Venlafaxine, which gave her headaches. Thus, she was taken off that medication and switched to another medication she had previously used before that did not have such a side effect. Consequently, only three of these treatment notes, those from November 2009, October 2010 and August 2011, really address the Veteran's headaches as the others show her headaches were related to medications she was taking for her psychiatric problems. None of these records, however, demonstrate that the Veteran's tension headaches are productive of prostrating attacks that occur at least once every two months. The Veteran also underwent VA examination in March 2010 and June 2012. The Board finds, however, that the March 2010 VA examiner failed to indicate the frequency of the Veteran's headaches (only noting that her headaches occur a few days at a time). The Board notes that the frequency of the Veteran's headaches is important information as the rating criteria for a compensable disability rating under Diagnostic Code 8100 are based upon the frequency of prostrating attacks. It is, however, significant that the examiner noted the Veteran's denial that the headaches were incapacitating or that they interfere with her job or daytime activities. Neurological physical examination was benign. The assessment was tension headaches. Finally, in conjunction with an examination for traumatic brain injury conducted in June 2012, the Veteran also underwent a headaches examination. At that time, she described headaches that occur three to four times a week. They will last hours in duration. They can be band-like across the front of the head. She treated them with rest, a quiet dark environment and Aleve or Advil. She also reported experiencing incapacitating headaches one to two times a year as most of her headaches are painful and distracting, but not incapacitating. She did not report any visual changes. It was noted she had undergone previous MRI (magnetic resonance imaging) and CT evaluations of the head, which have been within normal limits. She described that her headaches can be accompanied by photophobia and some mild phonophobia, but typically, at present, no significant nausea or vomiting. The examiner noted that he was unable to identify a history of a traumatic brain injury that ultimately has resulted in her current symptoms of dizziness and headaches. In answering the questions regarding her symptoms, the examiner noted that she has headache pain on both sides of head and across the front of the head. She also has sensitivity to light. Duration of typical head pain was less than one day. She does not experience characteristic prostrating attacks of migraine headache pain; however, he checked that she does have prostrating attacks of non-migraine headache pain that occur less than once every two months. He further checked that she does not having very frequent prostrating and prolonged attacks of non-migraine headache pain. As for functional impact, he checked that that there is no impact on the Veteran's ability to work. The assessment was tension headaches. Based on the foregoing evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected tension headaches are consistent with the rating criteria for a compensable disability rating for migraines under Diagnostic Code 8100. The medical evidence clearly fails to demonstrate that the Veteran's tension headaches are productive of characteristic prostrating attacks (also referred to as incapacitating headaches) that occur at least once every two months. Rather, by the Veteran's own report at the March 2010 VA examination, she had no incapacitating headaches at that time; and, at the June 2012 VA examination, she only had incapacitating or prostrating attacks one to two times a year. Furthermore, the Board finds that, although the Veteran may have frequent tension headaches, there is no showing that they have a functional impact on her work and daily activities. In fact, she denied such an impact at both VA examinations and at the November 2009 VA Concussion Clinic evaluation although she said in April 2012 statement that she is unable to function at the onset of her headaches. The Board finds that the statements seen in the medical evidence are more probative than the April 2012 statement as that statement was made to the RO while the other statements were made to medical professionals, to whom she would have had more reason to be more forthcoming about her symptomatology. Finally, the Board must also consider whether referral for an extraschedular disability rating is warranted pursuant to 38 C.F.R. § 3.321(b). It is generally provided that the rating schedule will represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from a service-connected disability. 38 C.F.R. § 3.321(a). In the exceptional case, however, to accord justice, where the schedular evaluations are found to be inadequate, the Secretary is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321(b)(1), an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b). The governing norm in these exceptional cases is: A finding that 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. Id. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. In other words, whether the disability picture presented in the record is adequately contemplated by the rating schedule. In doing so, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In the present case, the Board finds that the Veteran's disability picture is not so exceptional or unusual as to render the rating schedule inadequate to evaluate her service-connected tension headaches. Although the Board acknowledges that there is not a diagnostic code specific to the Veteran's service-connected tension headaches, the rating criteria used under Diagnostic Code 8100 for evaluating migraines contemplates all of the Veteran's symptoms, which consists mostly of headache pain with some photophobia and occasional mild phonophobia (according to the last VA examination). The rating criteria require characteristic prostrating attacks occurring at least once every two months to warrant a compensable disability rating. The rating criteria also provide that a zero percent disability rating should be assigned for when there are less frequent attacks. In the present case, although the Veteran may have headaches frequently, they are mainly not prostrating and she has not claimed that they are except for one or two times a year, which clearly fails to meet the schedular criteria for a compensable disability rating. There is also nothing showing that she has symptoms that are out of the ordinary for her disability. Finally, as previously discussed, the Veteran's credible statements fail to demonstrate that her headaches cause any functional impact to her work or daily activities and she has not submitted any evidence that would contradict this. The Board finds, therefore, that the preponderance of the evidence is against finding that referral for consideration of an extraschedular disability rating is warranted. In conclusion, the Board finds that the preponderance of the evidence is against finding that a compensable disability rating for service-connected tension headaches is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The claim is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an initial compensable disability rating for service-connected tension headaches is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs