Citation Nr: 1342259 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 13-08 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable rating (in excess of 0 percent) for migraines. ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION 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 Veteran served on active duty from July 1960 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDING OF FACT Throughout the appeal, the Veteran's migraine's symptoms have approximated characteristically prostrating and occur twice a month, on average, over the last several months. They are not very frequently completely prostrating, nor does the Veteran experience prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria are met for an initial rating of 30 percent, but no higher, for the service-connected migraines. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veteran's increased rating claim for migraines arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of his service treatment records (STRs) and pertinent post-service treatment records (VA and private), and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The claims file contains STRs, VA medical evidence, and the Veteran's contentions. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Furthermore, the Veteran was provided a VA examination. The examination report reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the duties to notify and assist have been met. II. Legal Criteria and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4 (2013). The 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 ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2013). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where, as here, a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. The RO granted service connection for migraines in November 2011. A zero percent, noncompensable, disability rating was assigned, effective from January 6, 2011. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2013). Under Diagnostic Code 8100, migraines resulting in characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Id. Migraines resulting in characteristic prostrating attacks occurring on an average once a month over the last several months warrant a 30 percent rating. Id. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. Id. A 50 percent rating is the maximum rating assignable under Diagnostic Code 8100. Id. The Board finds the Veteran's disability picture most nearly approximates the criteria contemplated by a 30 percent rating under Diagnostic Code 8100. Id. During a September 2011 Compensation and Pension (C&P) Examination, the Veteran stated that after his separation from the military, he continued to have migraines, and sought intermittent care since then. He stated that he had been dealing with migraine pain for over 40 years. The Veteran reported that he has episodic migraines (usually twice a month) which involve "stabbing pain lasting for 30 seconds with moderate underlying headache." The Veteran stated that the stabbing pain is severe enough to stop normal activity and may last for an hour or two at a time. The VA examiner diagnosed the Veteran with chronic headaches. The Veteran is competent, even as a layman, to report on his symptomatology, such as the frequency, severity, and duration of his migraines. His complaints and testimony are credible, and therefore probative, in support of his claim, and are supported by the September 2011 C&P Examination. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, although a medical professional has not described the Veteran's migraines as being "prostrating" in nature, in light of the Veteran's testimony, as well as the medical findings reported on the September 2011 C&P Examination, characteristic prostrating attacks occurring on average once a month over the last several months have been approximated. The Veteran does not meet the criteria for an even higher rating of 50 percent because "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability" have not been shown or approximated. No other Diagnostic Codes are applicable that might provide him a rating higher than 30 percent. See also Butts v. Brown, 5 Vet. App. 532 (1993) (noting that the choice of diagnostic code should be upheld if it is supported by explanation and evidence). Furthermore, as the evidence more nearly approximates a finding that the Veteran's migraines have been this disabling since the filing of this claim, the Board need not "stage" this rating. See Fenderson, 12 Vet. App. at 125-26. The Veteran is entitled to this higher 30 percent rating back to the date of receipt of this claim, January 6, 2011. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. At 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1) (2013). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular rating in this case is adequate. The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected migraines such as head pain. See Thun, 22 Vet. App. at 115. When comparing the Veteran's migraine symptoms with the schedular criteria, the Board finds that his symptoms of "stabbing" headaches lasting approximately 30 seconds, but causing a stoppage of activity for one to two hours, are congruent with the disability picture represented by the 30 percent rating assigned herein. See 38 38 C.F.R. § 4.12a, Diagnostic Code 8100 (2013). Accordingly, a comparison of the Veteran's symptoms and functional impairments resulting from migraines with the pertinent schedular criteria does not show that his service-connected migraines present "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2013). Consequently, the Board finds that the available schedular rating is adequate to rate the Veteran's migraines. Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the veteran's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). As such, referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. The Board notes that the United States Court of Appeals for Veterans Claims has held that a claim for a TDIU is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). A review of the record reveals that the Veteran's claim for a TDIU was most recently denied in an April 2012 rating decision and the Veteran did not appeal such decision. The evidence added to the claims file subsequent to the TDIU denial does not raise the issue of unemployability due to service-connected disability. A TDIU claim has therefore not been inferred. ORDER An initial disability rating of 30 percent, but no greater, for migraines, is granted, effective January 6, 2011, subject to the laws and regulations governing monetary benefits. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs