Citation Nr: 1341208 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 08-27 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent from January 16, 2008, for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial compensable rating for headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who had active duty service from May 1987 to November 2006, with approximately six months of prior active service. The PTSD issue on appeal comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in July 2012, which partially vacated a February 2012 Board decision, in pertinent part, and remanded the issue for additional development. The appeal arose from an April 2007 rating decision by the Winston Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. In order to facilitate the quick processing of claims under the BDD program, the Virtual VA paperless claims processing system is utilized. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a veteran's claim for benefits. The headache issue on appeal also arose from the April 2007 rating decision and was remanded by the Board in February 2012 for additional development. This matter was re-certified for appellate review in May 2013. The issue of entitlement to service connection for right side sciatica was remanded by the Board in February 2012, but service connection was granted in a March 2013 rating decision and the appeal as to that matter is fully resolved. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to an initial rating in excess of 30 percent from January 16, 2008, for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if additional action is required on his part. FINDING OF FACT The Veteran's headaches are manifested five times per month and are not shown to result in characteristic prostrating attacks. CONCLUSION OF LAW The criteria for an initial compensable rating for headaches have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims under the BDD process in July 2006 and by correspondence dated in January 2008 and November 2012. The notice requirements pertinent to the issue decided in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, and the Veteran's statements in support of his claim. The development requested on remand in February 2012 has been substantially completed. There is no evidence of any additional existing pertinent records as to this matter. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to this issue has been met. 38 C.F.R. § 3.159(c)(4) (2012). Although a November 2013 post-remand brief noted the Veteran argued his answers to a January 2013 VA examiner were vague because the inquires had been vague, the Board finds the provided report is shown to have adequately considered the Veteran's reports of headaches "once or twice a month" and associated with sensitivity to light and sound. The available medical evidence is found to be sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Disability Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, 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. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The Court has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2012). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of 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; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2012). The regulations pertaining to neurological disabilities were revised, effective October 23, 2008. See 73 Fed. Reg. 54693-01 (Sept. 23, 2008); see also VBA Fast Letter 8-36 (Oct. 24, 2008). The criteria for migraine, however, were not revised. For migraine disabilities a 0 percent rating is assigned for less frequent attacks than is required for a 10 percent rating, a 10 percent rating is assigned with characteristic prostrating attacks averaging one in two months over the last several months, a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on average of once a month over the last several months, and a 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (effective before and after October 23, 2008). In this case, service treatment records dated in October 1999 show the Veteran called and complained of headaches after being bitten by a mosquito. Care advice was provided. VA examination in August 2006 included a diagnosis of headaches occurring with a frequency of five times per month, each lasting for two hours. No complications were identified. It was noted the Veteran reported he had been provided a diagnosis of migraine in 1995 and that during his migraine attacks he stayed in bed unable to do anything. In correspondence dated in November 2012 the Veteran reported that he had no change in frequency or severity of headaches since his initial claim. He stated he treated them with routine pain medication. VA examination in January 2013 included a diagnosis of tension headaches. It was noted the Veteran reported his headache frequency and intensity was unchanged and that he had them once or twice a month. He described his headaches as throbbing and located behind the eyes and jaw area and progressing to band-like. He denied any treatment for migraine headaches and the examiner noted his medical records indicated no medication specific for migraine headaches. The Veteran also stated that his headaches began in intensity of one on a ten point scale and gradually worsened over one to four hours to an intensity of ten. They were associated with flushing, clammy skin, watery eyes, and hot/cold intolerance. His headaches last a couple of hours at most. There were no reports of noise or sound triggers, but with increased intensity he experienced sensitivity to light and any noise. He received headache relief with rest, cool towel, and analgesics. It was noted he was unemployed since 2009 with no disability for headaches, but that when he was employed he reported he had an inability to function at times due to intermittent headaches. He indicated, however, that his work was mostly impacted by his back and right leg disabilities. The examiner found the Veteran did not have characteristic prostrating attacks of migraine headache pain and did not have characteristic prostrating attacks of non-migraine headache pain. His headaches did not impact on his ability to work. It was also noted the clinical presentation was inconsistent with a diagnosis of migraine headaches. Based upon the evidence of record, the Board finds the Veteran's service-connected headaches are manifested no more than five times per month and are not shown to be characteristic prostrating attacks. In correspondence dated in November 2012 the Veteran reported that he had no change in frequency or severity of headaches since his initial claim and at his January 2013 examination he reported he only had headache episodes once or twice a month. Those headaches were described as gradually worsened over one to four hours to an intensity of ten on a ten point scale. They were associated with flushing, clammy skin, watery eyes, and hot/cold intolerance and lasted a couple of hours at most with no noise or sound triggers. The January 2013 examination findings are found to be persuasive as to the severity of the Veteran's service-connected headache disability. The examiner is shown to have reviewed the evidence of record and to have conducted a thorough examination with consideration of the Veteran's reported symptoms. There is no probative evidence of characteristic prostrating attacks averaging one in two months over the last several months, characteristic prostrating attacks occurring on average of once a month over the last several months, nor very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Although the Veteran has argued that his headaches episodes were prostrating attacks and in August 2006 he reported that during his migraine attacks he had to stay in bed unable to do anything, the Board finds these reports are not supported by objective evidence and are not credible. The Veteran is not shown to have sought treatment during a more severe headache episode during the course of this appeal nor to have been prescribed medication specific for migraine headaches. When working, he had no more than intermittent headaches with inability to function at times. Rather, his work was mostly impacted by back and right leg disorders. This is not consistent with completely prostrating attacks. In determining whether evidence submitted by a veteran is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341, 345 (1999) (holding in a case where the claimant was also a physician, and therefore a medical expert, that the Board should properly consider the appellant's own personal interest in the outcome of the case). The Court has also held that VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). The Board acknowledges the Veteran is competent to provide evidence of his experienced symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness). There is no credible evidence, however, of more severe headache symptoms at any time during the course of this appeal. Therefore, the claim must be denied. The Board further finds there is no evidence of any unusual or exceptional circumstances that would take this case outside the norm so as to warrant an extraschedular rating. The Veteran's service-connected headaches are adequately rated under the available schedular criteria and the objective findings of impairment are well documented. The probative evidence is not indicative of a more severe disability. The Court in Thun v. Peake, 22 Vet. App. 111 (2008), has established a three-step inquiry for determining whether a veteran is entitled to extraschedular rating consideration. First, determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, then determine whether the claimant's 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. The overall evidence of record in this case is not indicative of a marked interference with employment as a result of the service-connected headache disability. In fact, the January 2013 VA examiner found the disorder had no impact on the Veteran's ability to work. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board finds that the preponderance of the evidence is against the Veteran's claim. ORDER Entitlement to an initial compensable rating for headaches is denied. REMAND In its July 2012 order the Court, by incorporating the terms of a joint motion for partial remand, found a remand was required for readjudication and additional development concerning entitlement to an initial rating in excess of 30 percent from January 16, 2008, for PTSD. The Board's denial of an initial rating in excess of 10 percent for the period from December 1, 2006, to January 15, 2008, was undisturbed. It was noted that the evidence indicated the Veteran was only working 20 hours per week, and that upon remand his reported inability to manage a full workload and whether there is an occupational and social impairment with reduced reliability should be specifically addressed. The Board also notes that in correspondence dated in November 2012 the Veteran reported that he had not worked since February 2009 due to his employer going out of business. Therefore, further development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issue remaining on appeal. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Whether or not the Veteran responds, appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained he should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. 2. Following completion of the above, schedule the Veteran for a VA mental disorders examination for an opinion as to the nature and severity of his service-connected PTSD. All indicated examinations, tests, or studies necessary for an adequate opinion should be conducted. The examiner should acknowledge the pertinent evidence of record and identify all manifest PTSD symptoms with opinions as to whether those symptoms have caused an occupational and social impairment with reduced reliability and productivity; an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or a total occupational and social impairment. The examiner's findings should cover the period from January 16, 2008, to the present. The examiner should specifically identify and discuss any time period where the service-connected PTSD exhibits symptoms that would warrant different ratings. Opinions should be provided based on examination findings; credible lay evidence; a review of the medical evidence of record; and sound medical principles. All findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all the evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs