Citation Nr: 1414627 Decision Date: 04/03/14 Archive Date: 04/11/14 DOCKET NO. 09-16 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable disability rating for service-connected migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from May 1978 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. By that rating action, the RO granted service connection for migraine headaches; an initial noncompensable disability rating was assigned, effective, October 31, 2006--the date VA received the Veteran's initial claim for compensation for this disability. The Veteran appealed the RO's assignment of an initial noncompensable rating to the Board. The Veteran cancelled a videoconference hearing before a Veterans Law Judge slated for June 2012 (See VA Form 21-4138, dated June 2012). As he had not requested that his hearing be rescheduled, his request is considered withdrawn and no further action is necessary. 38 C.F.R. § 20.704(e) (2013). In a September 2012 decision, the Board, in part denied the Veteran's claim of entitlement to an initial compensable rating for migraine headaches. The Veteran appealed the September 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 Order, the Court vacated the Board's September 2012 decision with respect to the above-cited initial rating claim for action consistent with a JMPR for Partial Remand (JMPR). The Board notes that the Veteran's representative has waived initial RO consideration of an August 2012 VA headache examination report that was not of record at the time of the Board's September 2012 decision and Court's March 2013 Order. (See Veteran's representative's March 2014 written argument to the Board). FINDING OF FACT For the entire appeal period, the Veteran's migraine headaches were manifested by characteristic prostrating attacks occurring on an average once a month. CONCLUSION OF LAW The criteria for an initial 30 percent disability rating, but no higher, for migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012) ; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100; Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473(2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran's headaches claim arises from his disagreement with the initial noncompensable 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). No further notice is needed under the VCAA. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA treatment records, dated from 1997 to 2011, to include those uploaded to his Virtual VA electronic claims file have been associated with the claims file. The Veteran also submitted statements in support of his claim. In that regard, neither the Veteran nor his representative has identified any outstanding treatment records that have not otherwise been obtained. Additionally, while not noted by the Board or the Court in their September 2012 decision and March 2013 Order, respectively, VA examined the Veteran to determine the current severity of his migraine headaches in August 2012. A copy of this examination report has been associated with the claims file. The Board finds that the August 2012 VA examination performed in this case is more than adequate, as it is considered all of the pertinent evidence of record, to include the Veteran's statements of how his migraine headaches have affected his daily functioning, and provides all the necessary information in order to properly consider the claim under the applicable scheduler criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4) (2013). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 22 (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). II. Laws and Regulations Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2 , 4.41 (2013). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). When the appeal arises from an initial rating, such as here, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in increased-rating claims in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a service-connected disability is already established, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). III. Merits Analysis By the appealed March 2009 rating action, the RO granted service connection for headaches. An initial noncompensable percent disability rating was assigned, effective October 31, 2006--the date the RO received the Veteran's initial claim for compensation for this disability. The RO based its award, on a December 2008 VA examination report. At that examination, the Veteran gave a history of having had headaches during military service. He related that he experienced four (4) headaches a month that lasted for three (3) hours and were located in the left frontal area. The headaches were not associated with nausea or vomiting, but were accompanied with some photophobia. The Veteran indicated that he was employed and worked through his headaches. He related that he took Naproxen for his headaches, but had not been prescribed any medications specifically for his migraines. The VA examiner diagnosed the Veteran with migraine headaches that started on active duty and occurred four (4) times a month. Also of record at the time of the March 2009 rating action were the Veteran's service treatment records. In December 1988, the Veteran was seen for treatment of pharyngitis. At that time, the examining clinician reported that he had a history of headaches. An April 1992 service discharge examination report reflects that the Veteran was found to have been neurologically "normal." On an accompanying Report of Medical History, the Veteran denied having had frequent or severe headaches. During the August 2012 VA examination, the Veteran complained of having had bilateral headache pain that lasted every three (3) days, for up to two (2) hours at a time, was associated with occasional nausea and vomiting, and relieved with Tylenol (20 capsules a month). The Veteran related that on the weekends, his headaches caused him to lie down in a dark room for about three (3) hours. The August 2012 VA examiner specifically concluded that the Veteran did not have characteristic prostrating or frequent prostrating and prolonged attacks of migraine and non-migraine headache pain. No rationale was provided for this conclusion. There was also no discussion as to whether the examiner took into account the Veteran's use of medications. The August 2012 VA examiner indicated that the Veteran's headaches had not impacted his ability to work as a telemarketer, a position that he had held for 18 years. Under Diagnostic Code, 8100, the Diagnostic Code used to evaluate migraine headaches, a zero percent rating is warranted for migraine headaches less frequent attacks. For migraines with characteristic prostrating attacks averaging one in two months over the last several months, a 10 percent evaluation is assigned. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson, 12 Vet. App. at 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), "prostration" is defined as "extreme exhaustion or powerlessness." As described above, the evidence more nearly reflects that the Veteran has had severe headaches that have occurred on average at least once a month. The question is whether these headaches have been characteristically prostrating. There is evidence that supports a finding of prostrating attacks, including headaches that involve photophobia and occasional nausea and vomiting, and have caused the Veteran to rest for three (3) hours in a dark room until the symptoms subsided. There is also evidence indicating that his attacks are less than prostrating. He has reported that his headaches generally only last about two hours and that he has to lie down on the week-ends. However, as noted, neither physician considered the Veteran's nearly daily use of medications to reduce the symptoms of his headaches. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). Collectively, and in contemplation with the Court's holding in Jones, the Board finds that the evidence for and against a 30 percent rating is in relative equipoise. Hence, the benefit of the doubt will be resolved in the Veteran's favor and an initial 30 percent rating is assigned during the appeal period for the service-connected migraine headaches. The Board finds that the preponderance of the evidence of record is against an initial rating higher than 30 percent for the service-connected headaches. The Veteran does not experience very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. The evidence of record does not show that the Veteran's migraine symptoms rise to the level of very frequent completely prostrating attacks that are productive of severe economic inadaptability. To the contrary, the August 2012 VA examiner has expressly determined that the Veteran's headaches did not impact his ability to work. The Veteran has also specifically acknowledged that he has been able to "work through" his headaches. (See August 2012 VA headache examination report, pg. 26). He does not miss work (or miss work with any frequency) due to his headaches. Thus, this suggests that, by the Veteran's own admission, his migraines do not cause such "utter physical exhaustion or helplessness," or "extreme exhaustion or powerlessness," as to either produce, or be capable of producing, severe economic inadaptability, criteria essential for an initial 50 percent rating under Diagnostic Code 8100. Based on the foregoing, an initial 30 percent disability rating, but no higher, for migraine headaches is warranted. The Board finds that there is no basis for staged ratings for the service-connected migraine headaches. Fenderson, supra. Rather, the above-cited symptomatology associated with the service-connected migraine headaches is essentially consistent throughout the appeal period and is fully contemplated by the 30 percent disability rating assigned herein. IV. TDIU Consideration In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The record reflects that throughout the appeal, the Veteran has remained employed. Accordingly, the Board concludes that a claim for TDIU has not been raised by either the Veteran or the record. V. Extraschedular Consideration In evaluating the Veteran's claim for an initial rating for the service-connected migraine headaches, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 1993). According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must 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. 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 evaluation for the service-connected migraine headaches is inadequate. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's migraine headaches are more than adequately contemplated by the 30 percent disability rating assigned herein by the Board. No higher rating is provided by the Rating Schedule. The manifestations of the Veteran's service-connected headaches, such as headaches that have occurred several times a months, have lasted for a maximum of two (2) hours and have been associated with occasional nausea and vomiting are specifically contemplated by the criteria for a 30 percent rating. More importantly, despite these symptoms, the Veteran has remained employed, and has not indicated that his headache symptoms have caused him to be absent from his work. Accordingly, the criteria for an initial 30 percent disability rating reasonably describes the Veteran's disability level and symptomatology and, therefore, the assigned schedular evaluation is adequate and no referral is required. ORDER An initial 30 percent disability rating for service-connected migraine headaches is granted, subject to the laws and regulations governing monetary benefits. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs