Citation Nr: 1625854 Decision Date: 06/28/16 Archive Date: 07/11/16 DOCKET NO. 13-32 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial compensable disability rating for the service-connected migraine headaches. ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from May 2004 to June 2009. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In that rating decision, the RO granted service connection for migraine headaches and assigned an initial noncompensable disability rating effective from March 5, 2012. The Veteran disagreed with the initial noncompensable rating assigned for the service-connected migraines and this appeal ensued. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Since the effective date of service connection, the Veteran's service-connected migraine headaches have more nearly approximated characteristic prostrating attacks occurring at least once per month. 2. The Veteran's headaches have never more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for the assignment of a 30 percent rating, but not higher, for the service-connected migraine headaches have been met since the effective date of service connection. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.7, 4.124a and Diagnostic Code 8100 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The Veteran's claim arises from a disagreement with the initial disability rating that was assigned 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). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service and post-service treatment records, VA examination reports, and lay statements have been obtained. VA has associated with the claims folder records of the Veteran's VA outpatient treatment. He was also afforded a VA examination, which is adequate because the examiner discussed his medical history, described his disabilities and associated symptoms in detail, which the Board finds is all that is necessary to warrant an increased rating as detailed below. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has not reported that his migraine headache disability has worsened since the date of the VA examination. A remand is thus not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). II. Increased Ratings The Veteran seeks an initial compensable disability rating (higher than 0 percent) for his service-connected migraine headache disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran is competent to provide evidence of observable symptoms, including pain. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). See also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal. The Veteran's service treatment records show that his headaches began shortly after a motor vehicle accident (MVA) in October 2006. He injured his back and neck, and his pain eventually progressed to headaches. His headaches were initially occurring two to three times per week, with approximately five severe headaches per month. On his March 2012 claim form, the Veteran reported that his headaches, at that time, were occurring four to eight times per month. He stated that the migraines, "usually last 1-3 hours before I am able to do anything again." At a VA examination in May 2012, the examiner noted a diagnosis of migraine headaches. The Veteran reported that since discharge, he experiences approximately five migraines per month with typical symptoms including nausea, vomiting, blurred vision, light and sound sensitivity. He also experiences 15 to 20 other headaches per month which are not described as migraines. The Veteran submitted a journal of his headaches which occurred between January 2012 and May 2012. The Veteran's journal entries suggest that he has several prostrating headaches per month; however, the examiner indicated on the May 2012 examination report that the Veteran's headaches were not prostrating. The examiner said that the Veteran's report of symptoms was not consistent with a prostrating attack, but he did not explain why his headaches were not prostrating in nature, and offered no other headache diagnosis. The Veteran, in his July 2013 Notice of Disagreement (NOD), explained that during a prostrating attack, he must stop everything he is doing to lay down; and, during the prostrating attacks, he is reportedly "completely useless" and is unable to do any type of work effectively. According to his headache journal, he had an average of 5 prostrating attacks per month, all requiring him to stop everything and lay down in a dark, quiet room for an average of 4 to 5 hours per prostrating attack. The Veteran also reported that the frequency and severity of his headaches have remained consistent since service. The Veteran reiterated his assertions on his November 2013 VA Form 9, substantive appeal to the Board. Migraines are rating pursuant to 38 C.F.R. § 4.124(a), Diagnostic Code 8100. A maximum 50 percent schedular disability rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent disability rating contemplates migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating is assigned for characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable (0 percent) disability rating is assigned for less frequent attacks. Here, the VA examiner acknowledged all of the Veteran's reported headache symptoms, but opined that the Veteran's headaches were not prostrating in nature without providing any explanation for that conclusion. Moreover, the examiner did not otherwise characterize the headaches as anything different than migraines. Notably, the regulation does not specifically define a "characteristic prostrating migraine;" however, "prostration" is defined as extreme exhaustion or powerlessness. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1523 (30th ed.2003) [hereinafter DORLAND'S]. Thus, while the Veteran may not necessarily be competent to diagnose his headaches as migraine in nature, he is competent to describe the frequency, severity, and duration of his headaches, and there is no reason to doubt his credibility in this regard. The Veteran has credibly reported that he has a severe headache at least once per month that is accompanied by nausea, vomiting, blurred vision, light sensitivity and sound sensitivity. More importantly, the Veteran explained that during these headaches, he must lay down in a dark room and is unable to do anything. Thus, the Veteran appears to be describing a prostrating attack. Moreover, even if the Board were to accept the VA examiner's finding that the Veteran's headaches are not actually and medically prostrating in nature, the Veteran's description of the symptoms, frequency and severity of his migraines more nearly approximates the criteria associated with prostrating migraines. In other words, the Board finds that the Veteran's symptoms are, at the very least, analogous to a prostrating attack, particularly given the Veteran's need to lay down in a dark, quiet, room when he experiences a severe headache. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Here, the Veteran's reported symptoms are sufficiently characteristic of a prostrating migraine, and therefore the rating assigned must be coordinated with the impairment of function which occurs during his severe migraine attacks. In this regard, the Board finds that the Veteran experiences severe headaches that are, at the very least, analogous to a characteristic prostrating attack, and this occurs at least once monthly. This corresponds to the criteria for the assignment of a 30 percent rating for the Veteran's headaches, as that criteria are more nearly approximated. A higher, 50 percent rating is not for assignment in this case. The evidence of record does not support a finding of severe economic inadaptability due to headaches, and the Veteran has never asserted such. While there may have been fluctuations in the manifestations of the Veteran's service-connected migraine headaches, the evidence shows no distinct periods of time during the appeal period, when the manifestations of the Veteran's service-connected migraines did not warrant the assignment of a 30 percent disability rating, so ratings greater or less than that currently assigned are not warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, in resolving all doubt in favor of the Veteran, the Board concludes that the criteria for the assignment of an initial 30 percent rating are more nearly approximated. Finally, the Board has considered whether referral for consideration of an extraschedular rating is warranted. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2015). 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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's migraine headache disability picture is not so unusual or exceptional in nature as to render the disability rating assigned above inadequate. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 30 percent disability rating for his migraine headaches. A higher evaluation under Diagnostic Code 8100 contemplates severe economic inadaptability, which is not shown in this case. The criteria for the ratings currently assigned reasonably describe the Veteran's migraine headache disability level and symptomatology. Consequently, the Board concludes that the schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. Under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms of record that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Johnson, 762 F.3d 1362. Finally, the Veteran has never suggested that he is unemployable due to his service-connected migraine headaches, and the record does not otherwise reasonably raise the issue of the Veteran being unable to engage in substantially gainful employment due to his disability. Thus, this appeal does not raise the issue of entitlement to a total disability rating based on individual unemployability (TDIU). See 38 C.F.R. §§ 3.340, 4.16 (2014); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). (CONTINUED ON NEXT PAGE) ORDER An initial 30 percent rating, but no higher, for the service-connected migraine headaches is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs