Citation Nr: 1342901	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  13-05 904	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for headaches.


ATTORNEY FOR THE BOARD

L. Reeder, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1980 through November 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).


FINDING OF FACT

The credible and probative evidence fails to show the Veteran's headaches manifest with characteristically prostrating attacks occurring on an average once a month.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for headaches have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100 (2013)


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veteran's claim of entitlement to a higher initial rating for headaches arises from his disagreement with the initial evaluation following the grant of service connection.  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).

The VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and to provide a VA examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2013).  In this case, the VA obtained service treatment records, post-service VA treatment records, and a VA QTC (contract) examination report.

As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran was provided with a meaningful opportunity to participate in the claims process, and has done so by providing evidence and argument.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran.  See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004).  Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

II.  Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in 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, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).

In its July 2011 rating decision granting service connection, the RO assigned the Veteran's headaches a 10 percent rating effective in May 2010.  The Veteran is seeking a higher initial rating.

The Veteran's headaches have been rated analogously to migraines under Diagnostic Code 8199-8100.  See 38 C.F.R. §§ 4.20, 4.124a.

Diagnostic Code 8100 provides a 10 percent rating for migraine headaches with characteristic prostrating attacks averaging once in two months over the last several months, a 30 percent rating for characteristic prostrating attacks occurring on average once a month over the last several months, and a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a.

The rating criteria do not define "prostrating."  By way of reference, however, MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), defines "prostration" as "complete physical or mental exhaustion."  A similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), which defines "prostration" as "extreme exhaustion or powerlessness."

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his 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 file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  When there is an approximate balance 
of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's service treatment records indicate that he was treated for tension headaches on several occasions during service.  

Post-service VA treatment records reveal that during a follow-up appointment for a blood pressure check in February 2005, the Veteran reported occasional headaches.  In October 2005, the Veteran presented to a VA emergency room with a two-day history of severe headache.  At that time, the Veteran indicated he had never experienced that pain before, and that his only previous headaches were experienced in connection with hangovers.  The Veteran's headache resolved the day after he was admitted.  He was discharged and advised to return immediately to be reevaluated if he experienced another headache or any neurologic deficits.  In December 2005 the Veteran returned to the VA medical center for a scheduled follow-up visit.  He indicated he had a headache the previous day, but that he had not had a severe headache since his October 2005 hospitalization.  The Veteran was advised to return to VA for routine check-ups as needed.

During a February 2011 VA QTC (contract) examination, the Veteran stated he experienced headaches twice a day on average, and that they lasted for three minutes.  He indicated the condition began in 1984.  The Veteran stated that he had to stop whatever he was doing when he got one of the headaches and wait for the pain to subside.  He denied receiving any treatment for his headaches, and stated he was able to go to work when the headaches occurred, but that he needed to take medication.  He rated the severity of the pain at 7 out of 10, with 10 being the highest level of pain.  The Veteran reported no other symptoms.  The examiner diagnosed tension headaches, describing them as short but sharp episodic head pains on the top of the Veteran's head that caused him to stop whatever he was doing until the pain subsided.

In December 2011 correspondence to the VA, the Veteran stated he had headaches three to four times a week, and during a VA cervical spine examination in June 2013, the Veteran reported that the frequency of his headaches had "increased to about 3 - 4 times a week."

Upon review of the record, the Board finds that an evaluation in excess of 10 percent for headaches is not warranted.  Since 2011, the Veteran has reported both twice-daily headaches and headaches that occur three to four times per week.  However, during the 2011 VA contract examination, the Veteran reported he was not receiving treatment for headaches.  The only apparent treatment for and evidence of what seemed to be a "prostrating" headache at any point in the record occurred in October 2005.  That headache was characterized by the Veteran as the first of its type.  The Veteran was instructed to return for additional care if he experienced another, similar headache, and it does not appear from the record that he did so.  Additionally, the Veteran indicated that he could go to work while he had his headaches if he took medication, and that his headaches lasted three 
minutes on average.  This description does not suggest that the Veteran continued 
to experience the type of headache for which he was hospitalized in 2005 on a frequent or monthly basis.  Indeed, his statements during examination suggest that his activity is only interrupted by his headaches in approximately three-minute increments, and that he is able to continue what he was doing as soon as the pain subsides.  Thus, his level of impairment is consistent with no more than the 10 percent evaluation assigned.

In summary, the Board finds the credible and probative evidence reflects that the Veteran does not suffer from characteristic prostrating attacks occurring on an average once a month.  Accordingly, the preponderance of the evidence is against the claim, and an evaluation in excess of 10 percent for headaches is denied for the entire period of the claim.

III.  Other Considerations

The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application 
of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). 

Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted. 

As a final matter, the Board notes that the February 2011 examination included references to the Veteran working, and VA treatment records from 2010 stated that the Veteran currently worked in sales.  Based on the evidence of record, a claim for unemployability is not raised by the record, and no action pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is required.

In reaching the conclusion the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57 (1990).


ORDER

Entitlement to an initial disability rating in excess of 10 percent for headaches is denied.


____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs