Citation Nr: 1452016 Decision Date: 11/24/14 Archive Date: 12/02/14 DOCKET NO. 12-24 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable rating for chronic headaches to include migraines. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from August 1972 to August 1976, and from October 1993 until August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2013, the Veteran testified at a travel Board hearing conducted before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In August 2014, the Veteran's submitted additional argument and evidence accompanied by a waiver of the Veteran's right to have this evidence initially considered by the RO. Accordingly, the Board may consider this evidence in the first instance. See 38 C.F.R. § 20.1304 (2014). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence FINDING OF FACT The Veteran experiences severe headaches which cause him to be incapacitated for half an hour or more multiple times a month, these headaches produce severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent rating for migraine headaches are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). The appeal arises from a disagreement with an initial rating decision in December 2011, which granted service-connection for chronic headaches at noncompensable. The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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 duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records, as well as his post service medical records, records from the University of South Carolina Department of Neurosurgery, Sentinel Health Partners, and from J.M.T. MD. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A headaches Disability Benefits Questionnaire (DBQ) was conducted in November 2011. 38 C.F.R. § 3.159(4). At the headaches DBQ the examiner reviewed the Veteran's complaints, medical history, conducted a physical examination and gave a diagnosis. Since the examinations included sufficient detail as to the current severity of the Veteran's headaches, the Board concludes that the examination are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Legal Criteria The Veteran has been assigned a noncompensable disability rating effective from October 2010. The Veteran seeks an increased initial rating. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In instances in which a veteran disagrees with the initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Under DC 8100, which addresses migraines, a noncompensable evaluation is assigned with less frequent attacks. A 10 percent rating is assigned with characteristic prostrating attacks averaging one in two months, over the last several months. A 30 percent rating is assigned with characteristic prostrating attacks occurring on an average of once a month of the last several months. Finally, a 50 percent rating is assigned when there are migraines with very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran complained of neck pain at his VA spine examination in November 2010. The Veteran stated his neck problems began in the late 1990s. The Veteran complained that his cervical pain was an eight out ten. The Veteran also stated that his cervical pain was aggravated by prolonged sitting and with nearly any movement of his neck. The Veteran stated that he last worked in January 2009 and that he was fired in part due to his inability to flex his neck, and hold books in order to read them. Private treatment records from the University of South Carolina Department of Neurosurgery dated in November 2010 show that the Veteran complained of severe neck pain and was positive for headaches in a neurological review of systems. In March 2011 the Veteran underwent a VA neurological disorders examination where he was diagnosed with chronic headaches. The Veteran stated that he had headaches since the early 1990's and that recently in the past two years his headaches got worse. The Veteran stated that his headaches are on the back of his head and every time he moves his neck he gets a headache. The Veteran reported that he tries to prevent having pain by not moving his neck too much. The Veteran stated that every time he moves his neck he has headaches. The Veteran reiterated that he last worked in January 2009 and that his neck pain impacted his ability to work, and led to his termination. The examiner determined that the Veteran's headaches were related on a secondary basis to the Veteran's cervical spine disability. In November 2011 the Veteran underwent a VA headache DBQ. The examiner determined that the Veteran has headache pain with the rotation of his head. The examiner found that the Veteran's pain lasts less than one day, with pain to his occipital region. The examiner determined that the Veteran did not have characteristic prostrating attacks, and that the Veteran's headache condition did not impact his ability to work. The Veteran testified about his chronic headache disability at his travel Board hearing in October 2013. The Veteran stated that he kept a headache calendar and marked the days in which he woke up with a headache, and the days in which he had a severe headache that caused him to be incapacitated and do nothing for a half hour to two hours. The Veteran stated that he had five to eight severe headaches a month. The Veteran stated that his headaches are caused from movement of his neck and that the pain goes from the back of his neck to his head, and that it radiates. The Veteran stated that he had a difficult looking down to read books, and that he must stop when driving due to the pain of his headaches. The Veteran also supplied headache logs and calendars which showed nearly daily headaches for the entire appeal period. After review of the lay and medical evidence of record, the Board finds that in giving the Veteran the benefit of the doubt, pursuant to 38 C.F.R. §§ 4.3, 4.7; the Veteran's migraine headaches are of the frequency and severity to warrant a 50 percent rating under DC 8100. Specifically, the Veteran's headache calendars and his lay statements indicate that nearly any neck movement is painful and results in headaches. The Veteran is impaired so severely that he is unable to read and look down without pain. The Veteran throughout the appeal period has had severe headache pain, and constant headache pain with any neck movement which requires rest and incapacitation several times a month. Therefore the Veteran's chronic headaches are prostrating and prolonged and produce severe economic inadaptability. The Board finds that the Veteran's statements regarding the frequency and severity of his headaches during the appeal period are both competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to discuss the symptoms of his headaches as such are subject to direct experience. Furthermore, the Veteran is found to be credible, as his statements during the appeal period have remained consistent and are further supported by the majority of medical evidence of record. The Board has no reason to doubt the Veteran's credibility. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. I VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The schedular evaluation for the Veteran's chronic headaches is not inadequate. The Veteran complains of radiating pain to his head which occurs several times a month. These symptoms are contemplated in the broad rating schedule under Diagnostic Code 8100. The Veteran does not have any symptoms from his service-connected disorder that are unusual or exceptional from those contemplated by the schedular criteria. The available schedular evaluations reasonably describe the service-connected chronic headaches; thus, the schedular evaluations are adequate to rate the Veteran's chronic headaches. The Board need not determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms" such as "marked interference with employment" and "frequent periods of hospitalization." See Thun, 22 Vet. App. at 115. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. In the December 2011 rating decision on appeal, the RO denied entitlement to individual unemployability. Since issuing Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court has clarified that although a claim for a TDIU generally exists as part of a claim for an increased rating, in Locklear v. Shinseki, 24 Vet. App. 311 (2011) the Court distinguished Rice and held that where VA has specifically separated the adjudication of the schedular disability rating from the adjudication of entitlement to TDIU, the TDIU issue must be separately appealed. The Veteran has not initiated an appeal regarding the denial of his TDIU, as such; the issue of TDIU is not before the Board. (CONTINUED ON NEXT PAGE) ORDER A 50 percent rating for migraine headaches is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs