Citation Nr: 1606094 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 14-02 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to an initial compensable evaluation for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1989 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2015 the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. FINDING OF FACT For the entire period on appeal, the Veteran's migraine headaches have been manifested by nonprostrating attacks occurring several times per week and requiring medication. CONCLUSION OF LAW The criteria for a rating of 10 percent, but no higher, for migraine headaches are more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. 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). In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are private treatment records dating from the Veteran's period of service, VA treatment records, VA examination reports, and lay statements. The Veteran was also afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issue and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issue to the Veteran, who testified as to the symptomatology of his claimed condition, functional impairment and treatment history. Neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. 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). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for that disability, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's migraine headaches are rated under Diagnostic Code 8100. Diagnostic Code 8100 provides a 10 percent rating for migraine headaches with characteristic prostrating attacks averaging once in two months over the last several months, a 30 percent rating for characteristic prostrating attacks occurring on average once a month over the last several months, and a 50 percent rating for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The rating criteria do not define "prostrating." By way of reference, however, MERRIAM WEBSTER 'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), defines "prostration" as "complete physical or mental exhaustion." A similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. 2012), which defines "prostration" as "extreme exhaustion or powerlessness." The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection for the Veteran's headaches was established effective June 13, 2008. During VA treatment in October 2008, the Veteran reported that his headaches cause constant pain and that he was being treated with gabapentin which provides some relief. During the March 2009 VA examination, the Veteran reported frontal, chronic daily headaches and that he has tried butalbital and Imitrex without relief. The examiner opined that the Veteran's headaches were nonprostrating and that he could function with his headaches. In May 2011, the Veteran reported frequent headaches, some with migraine type presentations and some dull. In June and July 2011, the Veteran's neighbor stated that the Veteran would respond to her phone calls that he was asleep or had a very bad headache and the Veteran's sister stated that the Veteran was unable to concentrate due to constant migraines. During the June 2012 VA examination, the Veteran reported headaches occurring three to four times per week lasting 1-2 hours. During his headaches he experiences sensitivity to light and sound and pulsating or throbbing pain on both sides of his head that worsens with physical activity. The Veteran stated that his headaches have increased since 2008. The examiner noted that the Veteran has not been seen in the emergency room or admitted to the hospital for migraines and that his headaches have been treated with oral medications. The examiner stated that the Veteran's headaches were nonprostrating and do not prevent him from seeking or maintaining gainful employment. During his hearing, the Veteran indicated that he currently had a headache. He reported that his headaches occur four times per week, last several hours and require him to lie down. He also reported nausea, dizziness, or lightheadedness occurring with his headaches. He stated that he did not call out from work due to headaches, although they caused some difficulty concentrating, and that he was unable to perform the duties of his last position because his knee problems caused pain during extended standing. After resolving all doubt in favor of the Veteran, the Board finds that for the entire period on appeal the Veteran's headaches more nearly approximate the criteria for a 10 percent rating. See 38 C.F.R. § 4.7. The Veteran has reported headaches occurring at least three times per week throughout the appeal period requiring prescription treatment and causing some impact on his functioning. Accordingly, the Board finds that a 10 percent evaluation is warranted. However, a rating in excess of 10 percent is not warranted at any point during the period of the claim. The VA examiners have noted that the Veteran's headaches are not prostrating, and the Veteran stated that he was not forced to miss work due to headaches. Furthermore, the Veteran attributed his termination from his last employment position to his knee problems rather than his headaches. Thus, his level of impairment is consistent with no more than the 10 percent evaluation assigned, as prostrating attacks occurring on average once a month have not been shown by the evidence of record. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability. See Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, the rating criteria approximate the Veteran's disability level and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In any event, the evidence also does not suggest that the Veteran's headaches have resulted in marked interference with employment above and beyond that considered by the assigned disability evaluation, or that the Veteran has been frequently hospitalized as a result of this condition. Consequently, referral for extraschedular consideration is not warranted. Id. Finally, the Veteran has not asserted that he is unemployable as a result of his headaches, nor does the evidence suggest such. In light of these facts, action pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is not required. ORDER An evaluation of 10 percent, but no higher, for migraine headaches is granted, subject to the rules and regulations governing the payment of VA monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs