Citation Nr: 1511365 Decision Date: 03/17/15 Archive Date: 03/27/15 DOCKET NO. 10-49 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 10 percent for headaches. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1985. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. The Veteran testified before the undersigned in a October 2012 videoconference Board hearing, the transcript of which is included in the record. In April 2014, the Board granted a 10 percent rating for headaches. The Board also remanded the claim for service connection for sleep apnea, claimed as secondary to the service-connected status post fracture left zygoma and orbital floor disability. Thereafter, the Veteran appealed the Board's decision regarding the 10 percent rating awarded for the headache disability to the U.S. Court of Appeals for Veterans Claims (Court). In December 2014, the Court granted a Joint Motion for Remand (JMR), which vacated and remanded, in part, the April 2014 decision of the Board to the extent that it denied entitlement to an initial rating in excess of 10 percent for headaches. The JMR did not disturb those parts of the Board decision which granted the 10 percent rating for headaches and remanded the claim of service connection for sleep apnea, claimed as secondary to the service-connected status post fracture left zygoma and orbital floor disability. Accordingly, the Board will address whether a rating in excess of 10 percent is warranted for the Veteran's service-connected headache disability. As to the remanded issue for service connection for sleep apnea, claimed as secondary to the service-connected status post fracture left zygoma and orbital floor disability, the Board notes that additional development has not been completed in accordance with the Board's April 2014 remand directive; as such, that issue remains in remand status and is not currently before the Board at this time. Further, the following issues, including: (1) service connection for hearing loss; (2) service connection for tinnitus; (3) an increased rating for coronary artery disease; (4) an increased rating for a right knee disability; (5) an increased rating for sinusitis; (6) an increased rating for fracture of the right fifth metacarpal disability; (7) an increased rating for status post fracture left zygoma and orbital floor disability; and (8) entitlement to a total disability rating based on unemployability due to service-connected disabilities have been raised by the record in a July 2014 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDING OF FACT For the entire rating period on appeal, the Veteran's headaches are not manifested by characteristic prostrating attacks occurring on average once a month over the last several months. 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, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.21, 4.104, Diagnostic Code 8100 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist the Veteran in substantiating this claim for VA benefits. 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 Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate this claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1) (2014); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). In this case, the Veteran's increased rating claim arises from his disagreement with the initial 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). Therefore, no further notice is needed under VCAA. Next, VA 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; 38 C.F.R. § 3.159. Service treatment records, post-service private treatment records, Social Security Administration disability records, and various lay statements have been associated with the record. The Veteran was also afforded VA examinations in February 2009 and January 2012. These examinations were adequate as they contained a description of the history of the disability at issue, documented and considered the reported complaints and symptoms, addressed the relevant rating criteria, and note functional effects of the disability on daily activities. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. Disability Rating for Headaches As noted above, the December 2014 JMR vacated and remanded, in part, the April 2014 Board decision only to the extent that it denied entitlement to an initial rating in excess of 10 percent for headaches. The portion of the April 2014 Board decision which granted the 10 percent rating for headaches was not disturbed. Accordingly, the Board will only address whether a rating in excess of 10 percent is warranted for the Veteran's headache disability. The Veteran's headaches are evaluated under 38 C.F.R. § 4.124, Diagnostic Codes 8199-8100. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2014). Diagnostic Code 8100 (migraines) provides for the assignment of a 50 percent rating with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. With characteristic prostrating attacks occurring on average once a month over the last several months, a 30 percent rating is warranted. With characteristic prostrating attacks averaging one in two months over the last several months, a 10 percent rating is warranted, and with less frequent attacks a noncompensable rating is assigned. It is the Veteran's contention that a rating in excess of 10 percent is warranted for his headaches. However, upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran's headache disability does not more nearly approximate a rating in excess of 10 percent. The evidence includes a February 2009 VA examination, where the Veteran stated that he had headaches two or three times per month. More specifically, he reported having headaches in the right rear part of his head, occurring once every two to three months and lasting one week to one month. The symptoms associated with headaches of the right rear part of the head were noted by the examiner to be "more like a migraine headache." On the left side of his face, the Veteran stated that he experienced headaches about two or three times per month behind the left eye, which were noted to last two days to one week. The Veteran reported that he considered the headaches to be "severe" when they occurred. On a pain scale from 1 to 10, with 10 being the worst, the Veteran reported that his pain was a 5 on average. He did report some weakness and tiredness associated with the headaches. The examiner noted that the Veteran did not have a specific diagnosis for migraines, but he had some symptoms that would be considered migraines in the "right posterior scalp," which were noted to occur once every two to three months. In the most recent January 2012 VA examination report, the Veteran stated that he had headaches once or twice per month. He also reported that the pain and frequency of the headaches had decreased. The Veteran rated his headaches as a 3 to 4 on a scale of 1 to 10, with 10 being the most painful. The January 2012 VA examiner noted that the Veteran did not have characteristic prostrating attacks of headache pain. During the October 2012 Board hearing, the Veteran stated that he has headaches once or twice a month. The Veteran also testified that chiropractic care has reduced the severity of his headaches. Aggravating factors were reported as stress and weather. Alleviating facts included taking Tylenol extra strength, lying down, and using ice and heat. Upon review of all the evidence of record, both lay and medical, the Board finds that a rating in excess of 10 percent for headaches is not more nearly approximated for the entire rating period on appeal. The February 2009 VA examiner noted that the Veteran experienced headaches two or three times per month in the left side of his face, behind the left eye. It was also noted that the Veteran experienced "one" headache to the right rear part of the head every two to three months, which according to the examiner was "more like a migraine headache." The Board finds that the statement by the February 2009 VA examiner regarding the migraine headache occurring once every two to three months more nearly represents symptoms characterized as "prostrating attacks" under Diagnostic Code 8100. The Board notes that neither the rating criteria nor the Court of Appeals for Veterans' Claims has defined the term "prostrating." According to Webster's New World Dictionary of American English, Third College Edition 1080 (1986), "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Illustrated Medical Dictionary 1367 (28th ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." As such, the Board finds that the Veteran's migraine headache, occurring once every two to three months, is adequately contemplated by the currently assigned 10 percent rating under Diagnostic Code 8100. See 38 C.F.R. § 4.124a, Diagnostic Code 8100 (with characteristic prostrating attacks averaging one in two months over the last several months, a 10 percent rating is warranted). On the other hand, the Veteran's headaches which occurred two or three times per month in the left side of his face, behind the left eye, were not noted by the February 2009 VA examiner to be prostrating or more similar to migraines. The Veteran did report that these headaches were "severe, " but he only rated them as a 5 on a pain scale from 1 to 10, with 10 being the worst. He also stated that he had some weakness and tiredness associated with the headaches; however, the Board finds that these symptoms do not more nearly approximate prostrating attacks as contemplates by Diagnostic Code 8100, such as "utter physical exhaustion or helplessness" or "extreme exhaustion or powerlessness." See Webster's New World Dictionary of American English, Third College Edition 1080 (1986); see also Dorland's Illustrated Medical Dictionary 1367 (28th ed. 1994). Further, the January 2012 VA examiner noted that, although the Veteran experienced headaches once or twice per month, the Veteran did not have characteristic prostrating attacks of headache pain as specifically required for a 30 percent disability rating. In sum, although the Veteran has been shown to experience headaches more than once a month, most of these headaches have not been manifested by characteristic prostrating attacks. The only headacheswhich more nearly approximated migraines with characteristic prostrating attacks were reported to occur only once every two to three months; the Board finds that the currently assigned 10 percent disability rating adequately contemplates these symptoms. For these reasons, the Board finds that a higher rating in excess of 10 percent is not warranted as the evidence does not demonstrate characteristic prostrating attacks occurring on average once a month over the last several months. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's headache disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disabilities with the established criteria found in the rating schedule for those disabilities. Thun v. Peake, 22 Vet. App. 111 (2008). 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's headaches are contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. A comparison between the level of severity and symptomatology of the Veteran's disability as discussed above, with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "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." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran (one prostrating attack every two to three months) are specifically contemplated by the criteria discussed above, including the effect on his daily life. These symptoms are fully contemplated by the assigned diagnostic criteria. In the absence of exceptional factors associated with this disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Further, according to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. ORDER A rating in excess of 10 percent for headaches is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs