Citation Nr: 1420967 Decision Date: 05/09/14 Archive Date: 05/21/14 DOCKET NO. 11-19 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable rating for occipital neuralgia with chronic right sided headaches, from July 1, 1974. 2. Entitlement to a rating in excess of 10 percent for occipital neuralgia with chronic right sided headaches, from February 7, 2008. REPRESENTATION Appellant represented by: Armed Forces Service Corporation WITNESS AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from November 1948 to June 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in May 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. That rating decision, in pertinent part, granted service connection for occipital neuralgia and assigned an initial noncompensable rating from July 1, 1974. Subsequently, a May 2011 rating decision increased the initial rating to 10 percent, effective from February 7, 2008. In April 2014, the Veteran provided testimony at a videoconference hearing before the undersigned. Pursuant to 38 C.F.R. § 20.900(c), this appeal has been advanced on the Board's docket. FINDINGS OF FACT 1. From July 1, 1974 to February 6, 2008, the Veteran's occipital neuralgia with chronic right sided headaches disability picture more nearly approximates characteristic prostrating attacks averaging one in two months. 2. From February 7, 2008, the Veteran's occipital neuralgia with chronic right sided headaches disability picture more nearly approximates characteristic prostrating attacks occurring approximately once each month; the disability does not result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 10 percent, but no higher, for occipital neuralgia with chronic right sided headaches have been met from July 1, 1974. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8100 (2013). 2. The criteria for an evaluation of 30 percent, but no higher, for occipital neuralgia with chronic right sided headaches have been met from February 7, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and implemented in part at 38 C.F.R § 3.159 (2013), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced diagnostic code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the initial rating claim for headaches, the RO provided the Veteran with content-complying VCAA notice on the underlying claim of service connection by letter dated in November 2008. In any case, where, as here, service connection has been granted and an initial disability rating has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for a higher rating following the initial grant of service connection. Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Relevant to its obligation to assist a claimant, VA has also made reasonable efforts to identify and obtain relevant records in support of a claim. 38 U.S.C.A. § 5103A (a), (b) and (c). The RO has obtained the service treatment records and VA records. The Veteran has not identified any additionally available evidence for consideration in his appeal. Further, VA has conducted necessary medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). The Veteran was afforded VA examinations in April 2009 and September 2010. The Board has reviewed the reports of the examinations and finds the examinations are adequate to decide the claim, because the examiners considered the Veteran's history and described the disability in sufficient detail so that the Board's decision is fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Additionally, there is no evidence in the records dated subsequent to the most recent VA examination that shows a material change to warrant a reexamination. 38 C.F.R. § 3.327(a). As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the Veteran is required to comply with the duty to assist. II. Analysis Initial Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 8100 (migraine) is the only diagnostic code applicable to headaches, so it is the most closely analogous to the Veteran's disability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. This diagnostic code has not been revised since July 1, 1974, the effective date of the grant of service connection for occipital neuralgia with chronic right sided headaches. Under this diagnostic code, noncompensable (zero percent) rating is assigned for migraines with less frequent attacks. A 10 percent evaluation is proper where there are characteristic prostrating attacks averaging one in two months over last several months. A 30 percent evaluation is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. Finally, a 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating." According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." The Board notes that the Veteran asserts that he does not have headaches that should be characterized as migraine or tension headaches. Nevertheless, the symptoms he describes are consistent with "headaches," however the headache is characterized. Thus, while the Veteran may not have migraine headaches, Diagnostic Code 8100 is the best diagnostic code for evaluating his service-connected disability. Facts During service in January 1970 and February 1971, the Veteran reported pain in the right eye area. In April 1973, he reported right sided headaches after driving and reading. Headaches were again noted in March 1974 and June 1974. On a February 7, 2008, VA eye clinic note, the Veteran reported complaints of severe headache several times since the previous October. He reported the pain was mostly behind the right eye. In March 2008, the Veteran reported headaches off and on since the past October. In November 2008, the Veteran complained of chronic headaches that he reported recur often and are characterized by pressure in the back of the neck and behind the right eye. The headaches were not preceded by an aura. In December 2008, the Veteran reported that his headaches had been present for 40 years. On a VA eye clinic note later that month, he reported that he had right sided head pain that had been present on and off for 45 years. In January 2009, he complained of right occipital pain that he described as having been present on and off for 45 years. He stated that the pain was pounding and throbbing in nature, eight to nine out of 10 in intensity at its peak, and sometimes associated with nausea. The impression was occipital neuralgia. On VA examination in April 2009, the Veteran reported a history of daily headaches since his military days that he had treated himself with aspirin products and other over the counter remedies. These headaches were located in the right occipital area. The Veteran reported that over the past year the attacks had been occurring weekly. He used no continuous medication. Less than half the headache attacks were prostrating. The usual duration of the headaches was longer than two days. The impression was occipital neuralgia, and the examiner found that the current headaches were related to the inservice complaints. The examiner described the headaches as having a moderate effect on the Veteran's chores, shopping, exercises, sports, recreation, and travelling. A December 2009 treatment record noted that the Veteran continued to have periodic chronic headaches. In January 2010 he reported that his right sided headaches had been present for 40 years with no other neurologic symptoms. "The location, nature and intensity has been stable for years." He underwent an occipital nerve block in January 2010. On VA examination in September 2010, the Veteran reported a history of daily headaches since 1965 that were misdiagnosed and mistreated until 2009. He reported that in the last year he had experienced a progression of his headache condition, and that the headaches were coming more frequently, lasting longer, and were of increased severity. He had had daily mild headaches. "He has documentation of 143 moderate to severe prostrating throbbing headaches that last 4-6 hours each and require bedrest in a darkened room." The examiner stated that during prostrating episodes the headaches prevented chores, exercise, sports, and driving, and had a severe effect on recreation, travel, diet, social interaction, and sleeping. At the April 2014 Board hearing, the Veteran stated about his head pain that "it used to come and go, but now it's all the time-frequent and severe." Later in his testimony, however, he indicated that his headache disability had been "about the same" over the course of the past 40 years. Rating from July 1, 1974 The Veteran has reported in written statements, testimony, and to medical care providers, that he has experienced headaches since service. The service treatment records document complaints of headaches. While there is no documentation of treatment or complaints of headaches in the medical evidence of record prior to February 2008, the Board finds the Veteran's statements credible and that a 10 percent initial rating is warranted since July 1, 1974, the effective date of the award of service connection for occipital neuralgia. A higher rating during this period is not warranted as there is no contemporaneous medical evidence that would demonstrate characteristic prostrating attacks occurring on an average of once a month during this period. Additionally, the more recent evidence does not show that the Veteran experienced that type of symptomatology during that remote time period. The Board also notes that the Veteran does not contend that his headache disability warranted a rating higher than 10 percent prior to 2008. See attachment to Veteran's substantive appeal, dated in July 2011. Rating since February 7, 2008 Beginning February 7, 2008, the record contains medical documentation of ongoing headache complaints. The Veteran has provided competent and credible evidence that his service-connected chronic headaches are manifested by severe pain and to some extent nausea. Although he has reported varying frequencies of headaches, these headaches may fairly be characterized as occurring quite often, from daily to weekly, although not always prostrating. Affording the Veteran the benefit of the doubt, the Board finds that the competent evidence of record warrants a 30 percent disability rating for the occipital neuralgia with chronic right sided headaches, since February 7, 2008. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board finds that the disability picture since that time is productive of headaches with characteristic prostrating attacks occurring on average once a month over the last several months. Though the chronic headache symptoms have varied to some extent over time, the Board finds that the criteria have generally been met since February 7, 2008, and therefore warrants a 30 percent disability rating for the entire period since that date. 38 C.F.R. § 4.124(a), Diagnostic Code 8100. The preponderance of the evidence is against finding, however, that a disability rating in excess of 30 percent is warranted at any time. There is no showing of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, and the Veteran has not argued that his disability warrants a 50 percent rating. See attachment to Veteran's substantive appeal, dated in July 2011. The symptoms associated with the Veteran's service-connected occipital neuralgia with chronic right sided headaches more nearly approximate the criteria for a 30 percent evaluation since February 7, 2008. 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. As such, the Board finds that a 30 percent evaluation, but not more, is warranted since February 7, 2008. Extraschedular Consideration The evidence shows that the Veteran's service-connected headaches occur with frequent characteristic prostrating attacks that are associated with symptoms of pain and nausea. The headaches are not very frequent and completely prostrating with prolonged attacks productive of severe economic inadaptability. The Veteran has not described any significant manifestations not contemplated by the schedular criteria; the schedular criteria reasonably describe the Veteran's disability level and his symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations for the service-connected occipital neuralgia with right sided headache disability are adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1) (2013). ORDER An initial 10 percent rating, but no higher, for occipital neuralgia with chronic right sided headaches, is granted from July 1, 1974, subject to the laws and regulations governing the payment of monetary awards. An initial 30 percent rating, but no higher, for occipital neuralgia with chronic right sided headaches, is granted from February 7, 2008, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs