Citation Nr: 1609736 Decision Date: 03/10/16 Archive Date: 03/22/16 DOCKET NO. 05-27 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to a higher disability rating than 50 percent for cephalalgia, residuals of a mild concussion, and migraine headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Veresink, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Due to the Veteran's relocation, jurisdiction of the claim has been transferred to the RO in Manila, Republic of the Philippines. The issues were remanded for further development by the Board in November 2014 to obtain outstanding VA records and to afford the Veteran a VA examination to evaluate his residuals of a head injury to include any residuals of traumatic brain injury (TBI) not already separately rated. The VA treatment records were obtained and associated with the claims file. The Veteran was afforded VA examinations in December 2014. The examiners provided the requested opinions and a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of entitlement to service connection for a brain concussion, right fourth finger, scar, depression, stroke, and blurred vision, and a claim of housebound status or permanent need for regular aid and attendance has been raised by the record in October 2014 and November 2015 statements, 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) (2015). FINDING OF FACT The Veteran's residuals of a head injury manifested with migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability and subjective mild memory problems, but with no other residual symptomatology associated with TBI. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for cephalalgia, residuals of a mild concussion, and migraine headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7 4.124a, Diagnostic Codes 8100, 8045 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through VCAA letters dated September 2005, May 2006, and April 2008, the Veteran was informed of the information and evidence necessary to substantiate the claim. He was also advised of the types of evidence VA would assist in obtaining, as well as his own responsibilities as to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 1) veteran status, 2) existence of a disability, 3) a connection between the 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). A VCAA letter to the Veteran was provided prior to the initial unfavorable decision. In this case, the Veteran was advised of the criteria for rating a disability and those governing effective dates of awards in the May 2006 letter, prior to the most recent adjudication by the RO, which cures any timing deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, VA treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was provided VA examinations in February 2006, October 2006, and December 2014. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination findings. As such, the examination reports are adequate to decide the claim. Thus, further examination is not necessary regarding the issue on appeal. Higher Rating - Residuals of a Head Injury Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran is service connected for residuals of a head injury, including cephalalgia, mild concussion, and migraine headaches. The Veteran's symptoms are rated at 50 percent disabling under Diagnostic Code 8100 for migraines using the hyphenated Code 8045-8100. Under Diagnostic Code 8100, migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating; migraines with characteristic prostrating attacks occurring on average once a month over the last several months warrant a 30 percent rating; migraines with characteristic prostrating attacks averaging one in two months over the last several months warrants a 10 percent rating; and migraines with less frequent attacks warrant a noncompensable (0 percent) rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. As the Veteran's migraines include very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, he is currently receiving the maximum 50 percent schedular rating for migraine headaches. The Veteran has asserted that he should receive a separate compensable disability rating under the criteria for TBI. Prior to October 23, 2008, the regulation regarding TBI noted that purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Effective October 23, 2008, the protocol for evaluating TBI was revised. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). See 38 C.F.R. § 4.124, Note (5) (2014). As revised, effective October 23, 2008, Diagnostic Code 8045 addresses three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Id. The rater is to evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings--mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Id. The rater is to evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. Id. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Id. Also for consideration is the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. The rater is to assign a 100- percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the rater shall assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, the rater shall assign a 70 percent rating if 3 is the highest level of evaluation for any facet. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a co-morbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Id. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Id. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Id. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Id. The effective date of a grant of disability compensation awarded pursuant to any liberalizing law shall not be earlier than the effective date of the law. Therefore, the Board will consider the earlier regulations for the period prior to October 23, 2008, and the revised criteria thereafter. A February 2006 VA examination noted that the Veteran started to have regular headaches after his motor vehicle accident (MVA) that persisted up to the time of the examination. The Veteran described pounding headaches with blurring vision and fullness of the ears during headache attacks, occurring almost daily, usually lasting three to four hours, and precipitated by activities such as bowel movements, bending, and changes in position. The Veteran's headaches occurred weekly with most attacks being prostrating. The Veteran had a normal motor and sensory examination and normal reflexes. During an October 2006 neurological VA examination, the examiner noted that the Veteran had regular headaches which persisted up to the present time. The Veteran described the headaches as pounding in nature with blurring of vision and feeling of fullness of the ears during said headaches. He noted that the headaches occur almost daily. The Veteran related that his headaches were usually precipitated by activities such as bowel movements, bending or any changes in his postural position. The headaches usually lasted three to four hours. He complained that he recently has become forgetful. He treated the headaches with tramadol three times per day and ibuprofen and Advil as needed. The frequency of the headaches was weekly with continuous medication. The examiner noted that most attacks were prostrating. The Veteran's motor and sensory exams were normal. The migraines affected the Veteran's usual daily activities. The examiner found no other neurological sequelae evident during the examination as secondary to the Veteran's cerebral concussion, except his headaches. The Veteran's treatment records do not show any additional complaints or findings related to his TBI during this period. The Board notes that the Veteran does not meet the criteria for a separate disability rating for TBI during this period. The Veteran's only neurological disability was his headaches, which were diagnosed and rated under a separate disability rating. The Board acknowledges the Veteran's subjective complaint of mild memory loss, but the Veteran was separately rated at 70 percent for service-connected depression, associated with cephalalgia, residuals of mild concussion, with migraine headaches. The Veteran's mild memory loss is considered a psychiatric symptom that is considered in rating his psychiatric disability. The Board notes that the evaluation of the same disability or symptomatology under various diagnoses, known as pyramiding, is to be avoided. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Therefore, the Veteran has no additional subjective symptoms that may be rated diagnostic code 9304 and the Veteran does not have a diagnosis of multi-infarct dementia associated with brain trauma. Subsequent to October 23, 2008, the Veteran was afforded a VA examination to specifically address his TBI in December 2014. The examiner noted the Veteran's headaches that are triggered by hard bowel movement, lights, and loud sounds. The Veteran denied any other symptomatology associated with TBI. The examiner noted normal memory, attention, concentration, or executive functions, normal judgement, normal social interaction, normal motor activity, normal visual spatial orientation, and normal consciousness. The Veteran was always oriented with no neurobehavioral effects. He was able to communicate by spoken and written language. The Veteran reported subjective symptoms of headaches. The examiner noted headaches as the only residuals of the Veteran's TBI. The Veteran had no other pertinent physical findings, complications, conditions, signs, or symptoms. In October 2014, neuropsychological testing was performed. The Veteran's residual conditions attributable to traumatic brain injury do not impact his ability to work. The examiner cited treatment records from October 1979 through December 2014 and found that it is less likely than not that the Veteran's claimed cognitive impairment is due to the TBI from the MVA that occurred in 1979, but more likely due to the Veteran's vascular disease. The examiner cited the following treatment records. The Veteran was noted to have an acute hemorrhagic stroke in June 2010. In September 2014, the Veteran underwent a neurological evaluation when admitted for a CVA. The October 2014 neuropsychological testing noted that the Veteran's presentation and background would be consistent with residual from an old right hemisphere middle cerebral artery CVA with left hemiparesis. The Veteran appeared to have been able to function independently prior to his admission, thus the treatment record notes that the Veteran's presentation is believed to be most consistent with mild vascular neurocognitive disorder. He noted that the Veteran's concrete thinking, forgetfulness, and visuospatial weaknesses are not obvious, but subtle behaviors that would indicate his CVA has impacted those functions. The examiner found that the Veteran is still noted to have residual cephalgia, i.e. headaches, related to the MVA. The examiner acknowledged that the Veteran also claimed visual disturbance; however he noted that there were no evaluations for ongoing visual problems after the MVA. He also noted that no prior VA examination mentioned a visual condition. A recent optometry examination dated December 2014 found only a refractive error and the Veteran did not note any ongoing visual symptoms. Therefore, the examiner found no evidence of a visual condition that was associated with TBI. The Veteran's treatment records do not show any additional complaints or findings related to his TBI that are not noted and addressed in the December 2014 VA examinations. The Board notes that without additional cognitive impairment related to memory, attention, concentration, executive function, judgment, social interaction, orientation, motor activity, visual spatial orientation, subjective symptoms, neurobehavioral effects, communication, or consciousness, or additional physical impairment beyond that already separately rated, the Veteran is not entitled to a higher disability rating. The Veteran's symptoms of headaches and subject memory problems are separately rated or addressed under another diagnostic code. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the current appeal. See 38 U.S.C.A. § 5107(b) (West 2002). Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's residuals of TBI are manifested by migraine headaches and subjective memory problems. These manifestations are contemplated in the applicable rating criteria and are addressed under the separate rating under Diagnostic Code 8100 and in conjunction with his severe service-connected psychiatric disability. The Board does not find that the Veteran has described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluations. Rather, his description of TBI symptomatology is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran's entitlement to TDIU was separately adjudicated. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (distinguishing Rice). In a January 2007 rating decision, the RO granted entitlement to TDIU effective December 3, 2003. TDIU was discontinued in a February 2009 rating decision, not due to a change in the Veteran's symptomatology, but because the Veteran failed to provide evidence of his unemployment when requested. The Board wishes to emphasize that, "[t]he duty to assist in the "development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As the issue of entitlement to TDIU has not been raised by the record since then, the Board finds that it is not necessary to address it on the merits in this decision. ORDER Entitlement to a higher disability rating than 50 percent for cephalalgia, residuals of a mild concussion, and migraine headaches is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs