Citation Nr: 1341475 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-26 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased rating for headaches, currently evaluated as 30 percent disabling. ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to October 1983 and from April 1985 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In July 2011 and April 2013, the Board remanded the above issue for additional development. When the appeal was before the Board in July 2011, it had characterized the Veteran's rating claim as a claim for an increased rating for posttraumatic seizures with headaches. However, in a February 2013 rating decision the RO granted the Veteran a separate 10 percent rating for her seizure disorder and the claimant did not appeal that rating. Therefore, the Board has recharacterized the rating claim which is in appellate status as a claim for an increased rating for headaches. FINDING OF FACT The most probative evidence of record shows that the Veteran's headaches did not cause severe economic inadaptability at any time during the pendency of the appeal. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for headaches have not been met at any time during the pendency of the appeal. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.14, 4.31, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 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) (2013). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence she is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). The Board finds that in a letter dated in February 2008, prior to the May 2008 rating decision, along with letters dated in July 2009, August 2011, May 2013, and June 2013 the RO provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. Moreover, even if the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing her with additional notice in the above letters followed by a readjudication of the claim in the August 2013 supplemental statement of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, even if the above letters did not provide adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remands. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records as well as her vocational rehabilitation file and her post-service records from the East Orange VA Medical Center, in substantial compliance with the Board's remand directions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In the regard, while the July 2011 remand also directed the RO/AMC to obtain and associate with the claims file the Veteran's treatment records from Womack Army Medical Center and Madigan Army Hospital and the April 2013 remand directed the RO/AMC to obtain and associate with the claims file her treatment records from St. Peters University Hospital, these records are not in the claims file. Nonetheless, the Board finds that adjudication of the current appeal may go forward without another request for these records because in September 2011 Womack Army Medical Center notified VA that it did not have any treatment records of the Veteran, in December 2012 Madigan Army Hospital notified VA that it did not have any of her treatment records, in February 2013 the National Personnel Records Center (NPRC) notified VA that it did not have any of the Veteran's treatment records from Womack Army Medical Center, and in July 2013 St. Peters University Hospital notified VA that it did not have any of her treatment records. The Veteran was afforded VA examinations in February 2008 and March 2010 and medical opinions were obtained in February 2013 and July 2013. Moreover, the Board finds that the July 2013 opinion is adequate for rating purposes and substantially complies with the Board's remand directions because after a review of the record on appeal the examiner provided an opinion as to the severity of her headaches that allows the Board to rate it under all relevant Diagnostic Codes. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall, D'Aries; Dyment. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA and VBMS. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims files shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The Veteran's asserts that her headaches are manifested by adverse symptomatology that warrants an increased rating. 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. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). In this regard, the Veteran's headaches have been rated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Therefore, she will only be entitled to an increased, 50 percent, rating if her headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In July 2013, VA obtained the following medical opinion based on a review of the record on appeal: Patient was previously seen in neurology for headaches, and [since the] C&P exam on 2/13/08 has been followed up in neurology clinic. However, were moderately serve and with current treatment headaches are better controlled as per neurology and follow-up notes and less recurrent. Headaches are neither severe nor prostrating at this time. So it is less likely than not [that] patients current migraine headaches cause severe economic inadaptability. In this regard, while the record contains voluminous medical records documenting the Veteran's complaints and treatment for her headaches, which records include a February 2008 VA headaches examination and a March 2010 neurological VA examination as well as a February 2013 VA opinion, the Board finds that nothing in these medical records contradicts the July 2013 opinion as to the appellant's headaches not causing severe economic inadaptability. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In fact, the February 2008 VA examiner also opined that, while the Veteran occasionally has to take time off from work because of her headaches, she is nonetheless working full-time and her headaches are neither severe nor prostrating. Similarly, while the Veteran and other lay persons are competent and credible to report on the observable symptoms of her headaches, the Board finds that they are not similarly competent to report of whether her headaches cause severe economic inadaptability because this is a medical question and they do not have the required medical training. See Davidson. Moreover, the Board finds more probative the medical opinions as to the severity of her disability provided by the expert in July 2013 than these lay assertions. See Black v. Brown, 10 Vet. App. 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators. . ."). Therefore, because the most probative evidence of record shows that the Veteran's headaches do not cause severe economic inadaptability, the Board finds that the criteria for a 50 percent rating for headaches has not been met and the claim is denied. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board finds that this is true at all times during the pendency of the appeal because the severity of the Veteran's adverse symptoms has been substantially the same during this time. See Hart. Based on the Veteran's claims that her headaches are worse than rated, the Board will consider the application of 38 C.F.R. § 3.321(b)(1) (2013). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected headaches is inadequate. A comparison between the level of severity and symptomatology of the Veteran's conditions with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore finds that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In adjudicating the current appeal for an increased rating, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims she is unable to work due to a service connected disability). However, the Board finds that Rice is not applicable to the current appeal because the Veteran has never claimed that her headaches, acting alone, prevent her from obtaining and/or maintaining employment. Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for a TDIU. ORDER A rating in excess of 30 percent for headaches is denied at all times during the pendency of the appeal. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs