Citation Nr: 1503433 Decision Date: 01/23/15 Archive Date: 01/27/15 DOCKET NO. 11-32 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable rating for tension headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2006 to June 2009. She appealed to the Board of Veterans' Appeals (Board/BVA) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted her claim of entitlement to service connection for tension headaches and assigned an initial noncompensable (i.e., 0 percent) disability rating retroactively effective from June 20, 2009, the day after her separation from active duty. She appealed for a higher initial rating for this disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award to compensate him or her for times when the disability may have been more severe than at others). In support of her claim for a higher initial rating for this headache disability, the Veteran had a videoconference hearing in August 2012 before the undersigned Veterans Law Judge (VLJ) of the Board. A copy of the transcript is of record. The Board subsequently remanded this claim in May 2014 for further development, namely, for a VA compensation examination reassessing the severity of the tension headaches. FINDINGS OF FACT 1. For the period prior to August 2, 2010, the most competent and credible evidence of record indicates the Veteran did not have tension headaches that were prostrating in nature. 2. Since August 2, 2010, however, she reportedly has had tension headaches approximately one or more times a week that are prostrating in nature, albeit that do not have an adverse impact on her employment so as to, in turn, be considered productive of severe economic inadaptability. 3. Because of this variance in the frequency and duration of her tension headaches, the rating for them must be staged. CONCLUSION OF LAW The criteria are not met for an initial compensable rating for the tension headaches for the period prior to August 2, 2010. But since August 2, 2010, especially when resolving all reasonable doubt in her favor, the criteria are met for a higher 30 percent rating, though no greater rating, for these tension headaches. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). When, as here, the claim arose in the context of the Veteran trying to establish her underlying entitlement to service connection, and this since has been granted and she has appealed a "downstream" issue such as the initial rating assigned for her disability, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). So, in this situation, VA is not required to provide her additional VCAA notice concerning the downstream disability rating and effective date elements of her claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this has occurred. Here, prior to initially adjudicating the Veteran's claim of entitlement to service connection, so in the preferred sequence, a June 2009 letter was sent to her in accordance with the duty-to-notify provisions of the VCAA. Moreover, once she appealed the "downstream" initial rating for her tension headaches, the RO sent her the required SOC, also since has provided her a supplemental SOC (SSOC), which together focused on this "downstream" initial rating element of her claim. That satisfied VA's notice obligation concerning this downstream claim. Therefore, she has received all required notice concerning this claim. The Board also finds that VA has made reasonable efforts to assist her in obtaining evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2014). To this end, her service treatment records (STRs) have been obtained and associated with her claims file for consideration, as well as all post-service pertinent or identified records that could be obtained, whether from VA or private sources. Also, pursuant to the Board's May 2014 remand directive, she had VA a compensation examination in September 2014 reassessing the severity of her tension headaches. That VA examination is more than adequate for deciding this claim because the report contains the information needed to address the applicable rating criteria to properly adjudicate this claim. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). VA's duty to assist therefore has been met. Moreover, there was compliance, certainly substantial compliance, with the May 2014 remand directives in the scheduling and conducting of this VA compensation examination, in turn allowing the Board to proceed with its adjudication of this claim. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As for the August 2012 hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that a presiding VLJ of the Board or hearing officer has two duties to comply with a pertinent VA regulation, 38 C.F.R. § 3.103(c)(2). The first duty is to explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the presiding VLJ or hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. There was compliance with these two duties, as the presiding VLJ - the undersigned - fully explained the issue on appeal and attempted to identify any evidence that might be missing from the record by asking the Veteran about her symptoms and treatment history. Moreover, the subsequent attempts to further develop the claim on remand, including especially by having her reexamined, arose partly out of the testimony she had provided during her hearing. II. Entitlement a Higher Initial Rating for the Tension Headaches VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2014). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2014). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). All reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. See 38 C.F.R. § 4.14 (2014). In initial-rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as a "staged" rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (extending this practice even to claims that do not involve initial ratings). In a claim for increased rating, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). But even in the initial-rating context, determining the present level of disability will require assessing the severity of the disability over the life span of the claim, so since the effective date of the award. The Veteran's service-connected tension headaches have been assigned an initial noncompensable (i.e., 0 percent) disability rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2014). According to this code, a 50 percent rating is warranted for tension (migraine) headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. Id. And a noncompensable rating is assigned for less frequent attacks. Id. Neither the regulations nor the Court has defined "prostrating." Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes DC 8100, verbatim, but does not specifically address the matter of what is a prostrating attack). By way of reference, according to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "prostration" is defined as "complete physical or mental exhaustion." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." Here, however, for the period prior to August 2, 2010, the Board finds that the Veteran did not meet the criteria for an initial compensable rating. In reaching this conclusion, the Board has considered her STRs, which show that she had complaints of daily occipital headaches ranging on a scale of 0 to 6 out of 10, with 10 being the highest. See STRs dated from May to August 2008. Her STRs also indicate she received chiropractic treatments that helped to relieve her pain in conjunction with pain medication such as Tylenol. During her November 2009 VA examination, she stated that she had headaches every other day, lasting a couple of hours to as long as 24 hours. She described the pain as starting in her neck then moving up to the back of her neck. The examiner noted that when the Veteran had these attacks, she did not have weakness, fatigue or functional loss. Additionally, she observed that the Veteran did not have prostrating attacks and that her headaches were relieved by pain medication, daily neck stretches and chiropractic treatments. The examiner also commented that, although the Veteran was unemployed at that time, when she was previously employed she had to take breaks and lay down when she had headaches. But the examiner, nevertheless, concluded that there were no effects on the Veteran's activities of daily living (ADLs) - except that she sometimes got irritable when the headaches occurred. So, based on this medical and other evidence prior to August 2, 2010, the criteria are not met for an initial compensable rating. While the Veteran did have headaches, she did not have headaches that were prostrating in nature. Moreover, the medical evidence shows that she had no consequent functional loss or associated weakness or fatigue owing to her headaches. Additionally, there were just relatively minimum effects on her ADLs. As support for her claim for a higher rating, the Veteran since has submitted headache logs dating from August to September 2010 and from December 2011 to July 2012 documenting the frequency and nature of her tension headaches. These headache logs indicate she has headaches as frequently as once a week. She consistently described her headaches as throbbing pain occurring at the back of her head, side of her head, and in some cases extending to both her left and right eyes as well as her ears. She noted that her headaches lasted anywhere from four to over 12 hours. During these headaches, she experiences irritability, stress, nausea, vomiting and muscle neck tension. The pain is alleviated by complete rest, pain medication, chiropractic treatments, heat and massage therapy. During her August 2012 hearing, the Veteran reiterated these assertions, also indicated that her headaches had worsened since her November 2009 VA compensation examination. She testified that, at minimum, she had a headache at least once a week. She explained that, since the November 2009 VA compensation examination, she had started working as a physical trainer but had to quit her job because she would have a flare-up in the middle of training someone and would end up canceling her next appointments. Moreover, she testified that she either would seek chiropractic treatment or go home and sleep. She further commented that she was then currently enrolled in school and that, whenever she had a headache, she had the flexibility to go home and sleep. As already alluded to, the Board subsequently remanded this claim in May 2014 for another VA compensation examination reassessing the severity of the Veteran's tension headaches. To this end, she had this additional VA examination in September 2014. During this additional VA examination, the Veteran stated that before she left the Army she had a headache once-to-twice a week. After discharge from the service, she continued to see a chiropractor on her own. Additionally, she reported that in 2011 she had started college, but that her headaches were interfering with her studies, so her doctor tried her on Maxalt, which had helped relieve her headaches. She described her headaches as the same left-sided throbbing as what she had in the service, but said she did respond well to the Maxalt medication. It was noted that she had completed her degree in 2013 and was now working part-time as a daycare teacher. She said her headaches now occurred two-to-three times a week for a couple of weeks, then none for two weeks. She explained that her headache usually began with a left-sided neck/occipital shooting pain with left eye discomfort, then the pain radiated to the left top of her head. She described it as a pounding, stabbing sensation, sometimes associated with nausea. She continued to take the Maxalt medication, also Motrin or Tylenol (whatever she had) and the headache resolved within an hour. She indicated the Maxalt worked the best. She further commented that her headache would return the next day and that she would take another Maxalt and the headache would resolve again within the hour. She stated that she was able to "slog" through her work shift because she had a "high pain tolerance", but recalled that three times in the last year (average of once every 4 months) she had to call in sick because of the headaches and then she missed work for a day to stay home and lay down. She reported that she sought chiropractic treatment once every two months to help with her headaches. The examiner observed the Veteran did not get scotomata, light intolerance or visual blurring. The Veteran denied having any head trauma, stroke or other neurologic conditions since leaving service. The examiner explained that the prior diagnosed tension headaches and current migraine headaches were one and the same, as a migraine often can be associated with muscle contraction (tension) headaches. Therefore, for rating purposes the headache condition, which was a combination muscle contraction-migraine phenomena, was relabeled as "migraine" headaches since the migraine therapy (Maxalt) had been the most effective treatment thus far. She further observed that the Veteran had a normal neurologic examination. Regarding whether the Veteran experiences prostrating attacks, the examiner commented that the Veteran had severe headaches bad enough to miss work and lay down (i.e., "prostrating") every four months and were prostrating for one day. She further observed that the severity of the Veteran's headaches had changed since the initial VA examination in November 2009, likely from the more effective migraine treatment she now used (Maxalt) and other factors, such as hormone status (i.e., oral contraceptive pills or pregnancy) and sleep deficiency (as from caring for a newborn) could have contributed to a change in the nature of her headaches over the last five years. So resolving all reasonable doubt in the Veteran's favor, the Board finds that she has met the criteria for a higher 30 percent rating for her tension headaches since August 2, 2010. The evidence indicates she has prostrating headaches occurring approximately 4 or more times a month, if accepting that she has at least one a week. The evidence of record also indicates they can last anywhere from four to 12 hours. While the September 2014 VA examiner acknowledged that the Veteran's headaches had improved due to using the new migraine therapy, Maxalt, in Jones v. Shinseki, 26 Vet. App. at 56, 63 (2012), the Veterans Court (CAVC) held that, in assigning a disability rating, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. In other words, if not for the new migraine therapy that has helped to reduce the frequency and intensity of the Veteran's headaches, she more than likely would still experience weekly headaches that are prostrating in nature. Thus, the requirements have been met for a higher 30 percent rating for her tension headaches since August 2, 2010. In order to be entitled to a rating exceeding 30 percent, however, the evidence also must show that the Veteran has headaches of very frequent completely prostrating intensity, and prolonged attacks productive of (or capable of producing) severe economic inadaptability. Having evaluated both the lay and medical evidence in the record, the Board concludes that the criteria for the assignment of an even greater 50 percent rating have not been met at any point during the pendency of this appeal. In essence, the evidence does not demonstrate very frequent and prolonged headaches producing or capable of producing severe economic inadaptability. While it has been established that the Veteran has had on average four or more headaches a month characterized by prostrating attacks, there nevertheless is no indication they were producing or capable of producing severe economic inadaptability. As the more recent September 2014 VA examiner observed, the Veteran's headaches are not seriously disabling, as she was able to complete a Bachelor's degree, work part-time and was planning on further advanced education, although she occasionally (once every quarter) missed a day or so of work. Hence, the preponderance of the competent and credible (so ultimately probative) evidence of record shows that, since August 2, 2010, her tension headaches have not caused severe economic inadaptability. Further in this regard, it must be emphasized that, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. This is especially true when the Veteran has a rating that is in the higher end of the rating spectrum for the particular disability. Moreover, the use of the conjunctive "and" in a statutory provision means that all of the conditions listed in the provision must be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991); compare with Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Here, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating (at least what could be considered most of them), each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Accordingly, the evidence does not establish that the requirements for the maximum schedular rating of 50 percent were met during the period at issue since August 2, 2010. Instead, only at most the 30 percent criteria have been met, so this is the rating that must be assigned, again, especially when resolving all reasonable doubt in the Veteran's favor. 38 C.F.R. §§ 4.3, 4.7. A. Extra-schedular Consideration In evaluating the Veteran's claim for a higher rating for this disability, the Board also has considered whether she is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extra-schedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit-of-the-doubt doctrine applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected disability in considering whether she is entitled to an extra-schedular rating. According to the regulation, an extra-schedular 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). See also 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 that 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. The Veteran reported that she had functional impairment due to severe headaches resulting in missed time from work, again, three times in the past year, in turn requiring that she lay down and rest. But DC 8100 contemplates headaches with characteristic prostrating attacks even at the 30-percent rating level, and the Board is assigning this higher rating as of August 2, 2010, essentially coinciding with the dates mentioned in the Veteran's log. Thus, her symptoms associated with this disability do not suggest an exceptional or unusual disability picture. That is to say, the symptoms are not shown to cause any impairment that is not already contemplated by the applicable rating criteria. Again, 38 C.F.R. § 4.1, generally, contemplates that the degrees of disability specified in the Rating Schedule are adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). Also, most, indeed if not all, of the evaluation and treatment she has received for her headaches has been on an outpatient basis, not as an inpatient, certainly not frequent inpatient. Hence, the Board is not obligated to refer this claim for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Prior to August 2, 2010, the claim for an initial compensable rating for the tension headaches is denied, but since August 2, 2010, a higher 30 percent rating, though no greater rating, is granted for these tension headaches, subject to the statutes and regulations governing the payment of retroactive VA compensation. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs