Citation Nr: 1745547 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 08-00 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 30 percent prior to June 11, 2013, and in excess of 50 percent thereafter for chronic headache disorder. REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Htun, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1962 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In July 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In July 2016, the Board remanded the issue on the title page, as well as a claim for service connection for a respiratory disorder for additional development. Thereafter, in a February 2017 rating decision, service connection for calcified pleural plaques and septal thickening, claimed as asbestos exposure, was granted. Therefore, as such is a full grant of the benefit sought on appeal with respect to the Veteran's claim for service connection for a respiratory disorder, such matter is no longer before the Board. The remaining issue on appeal now returns for further appellate review. FINDING OF FACT For the entire appeal period stemming from the April 5, 2007 informal claim for an increased rating, the Veteran's chronic headache disorder is manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, thus resulting in the assignment of the maximum schedular rating for such disability. CONCLUSION OF LAW For the entire appeal period stemming from the April 5, 2007 informal claim for an increased rating, the criteria for a 50 percent rating, but no higher, for chronic headache disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8199-8100 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In the instant case, VA's duty to notify was satisfied by a July 2007 letter, sent prior to the issuance of the rating decision on appeal. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In the instant case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for the equitable resolution of the issue decided herein has been obtained. Specifically, the Veteran's service treatment records, VA and private treatment records, and Social Security Administration (SSA) records have been obtained and considered. He has not identified any additional outstanding records that have not been requested or obtained. The Veteran was also provided VA examinations in order to assess the nature and severity of his chronic headache disorder in July 2007, June 2010, and June 2013. The Board finds that such examinations are sufficient evidence for deciding the instant claim in that the reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in June 2014. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the June 2014 hearing, the undersigned noted the issues on appeal. Additionally, testimony regarding the nature and severity of the Veteran's service-connected headache disability was solicited, to include the type and frequency of the symptoms he experiences as a result of such disability, as well as the impact such has on his daily life and employment. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, as a result of the Veteran's testimony, the Board remanded the case in order to obtain outstanding records. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Additionally, the Board finds there has been substantial compliance with the Board's July 2016 remand directives and no further action in this regard is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998)). In this regard, the Board directed the AOJ to afford the Veteran the opportunity to identify any outstanding private or VA treatment records, to include those from Mather Air Force Base and any VA treatment records created since February 2005. Additionally, the Board directed the AOJ to obtain all records regarding any state disability benefits as well as those from SSA regarding disability benefits. Thereafter, the Board directed the AOJ to undertake any additionally indicated development, to include affording the Veteran a new VA examination to determine the current severity of his headache disorder, if newly associated treatment records reflect a material change in the disability since his most recent VA examination in June 2013. Thereafter, in an August 2016 letter, the Board requested that the Veteran identify any non-VA treatment records who treated him for his claimed disorders, to include at Mather Air Force Base; however, the Veteran did not respond to the letter. Furthermore, the Board notes that the records from Mather Air Force Base were requested in connection with the Veteran's unrelated claim pertaining to service connection for a respiratory disorder. Also in August 2016, the AOJ associated VA treatment records dated from February 2005 through August 2016 with the record. Further, in October 2016, records from SSA were obtained and, in November 2016, the Veteran reported that he was not in receipt of state disability benefits. As the newly received records did not suggest a worsening in the Veteran's chronic headache disorder, no additional VA examination was provided. Therefore, the Board finds that there has been substantial compliance with the Board's July 2016 remand directives, and no further action in this regard is necessary. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied. Thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Analysis The instant appeal stems from the receipt of private treatment records on April 5, 2007, that addressed the severity of the Veteran's chronic headache disorder. 38 C.F.R. § 3.157(b)(2). At such time, he was in receipt of a 30 percent rating for such disability; however, during the course of the appeal, the AOJ awarded the maximum schedular rating of 50 percent for such disability, effective June 11, 2013. However, the Veteran has continued his appeal for higher ratings for his chronic headache disorder. 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability one year before the claim was filed until VA makes a final decision the claim. Id. The Veteran's headache disability has been assigned a disability rating under Diagnostic Code (DC) 8199-8100. See 38 C.F.R. § 4.124a. The diagnostic code 8199 signifies that the disability is an unlisted condition being rated by analogy to migraine headaches under DC 8100. See 38 C.F.R. §§ 4.20, 4.27; Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8100, provide for a 50 percent rating for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is assigned for migraine with characteristic prostrating attacks occurring on an average once a month over last several months. The rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "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." Also, the term "productive of severe economic adaptability" has not been clearly defined by regulations. The Court has, however, explained that "productive of" for purposes of Diagnostic Code 8100 can either mean producing, or capable of producing. See Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually produce severe economic inadaptability to warrant a 50 percent rating under Diagnostic Code 8100. Id. at 445-46. Similarly, "economic inadaptability" does not equate to unemployability, as such would undermine the purpose of regulations pertaining to a total disability rating for compensation based on individual unemployability (TDIU). Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at a minimum, capable of producing severe economic inadaptability in order to meet the 50 percent criteria. A treatment records reflect that, in June 2006, the Veteran reported headaches and pain in his right shoulder that affected, as relevant, his ability to concentrate and make decisions. In September 2006, private treatment records reflect the Veteran's report of headaches for more than 30 years that stemmed from an in-service fall in 1962. In December 2006, VA treatment records reflect the Veteran's report that he had headaches when he exercised. At an April 2007 VA audiological examination, he indicated that he had headaches all of the time. In July 2007, the Veteran was afforded a VA examination so as to assess the nature and severity of his headaches. At such time, he reported that he had daily headaches with an intensity level of 5/10. He further indicated that he had flare-ups three times a week at which time his headaches were a 10/10 and lasted two to four hours. The examiner noted that the Veteran's headaches were prostrating when they are at a 10/10. He medicated with about six Vicodin pills a day. The Veteran denied nausea, vomiting, or photophobia, but indicated that he had eye pain with the headaches. The pain usually started on the left side of the face and radiated over towards the right. It was pounding in nature, and exercise often times made the headache worse or precipitate them. Physical and neurological examinations were normal. The examiner diagnosed chronic daily headaches. VA treatment records reflect that, in August 2007, the Veteran reported that he continued to have headaches and, in January 2008, he indicated that such were persistent. In April 2009, it was noted that the Veteran reported daily headaches since his in-service head injury, and took Vicodin for such disorder. In April 2010, the Veteran reported frequent headaches with a generalized ache at 4/10 and, in May 2010, he indicated that he had headaches daily since his in-service accident and Vicodin helped control them. In June 2010, the Veteran underwent a second VA examination, at which time, he reported daily constant headaches rated on average of 7/10. However, the examiner noted that such will go up to a 10/10, at which point they will be prostrating, about twice weekly, lasting about five to six hours, during which time the Veteran had to increase his Vicodin usage and lie in a dark room. Aggravating factors included any type of exercise, weightlifting, or working above his head. The Veteran denied aura, nausea or vomiting, or sensitivity to smell or sound; however, he did experience some photo sensitivity with a severe headache. The headaches typically start at the base of the skull and move up the left side of the head toward the top of the head. They were pounding in nature. Physical and neurological examinations were normal. The examiner diagnosed chronic daily headaches. The Veteran's sister submitted a letter in January 2011, in which she indicated that the Veteran had to take pain pills for his headaches. She indicated that the Veteran's disabilities, to include his headaches, had affected his ability to perform daily activities. VA treatment records dated in August 2011 reflect reports of headaches in the mornings most days, but such continued throughout the day. On June 11, 2013, the Veteran underwent another VA examination, at which time the examiner diagnosed severe headaches that occurred more than once daily. The Veteran reported that he had daily headaches since his in-service fall. He indicated that he used pain pills and would lie down for a half hour. The Veteran further reported that, at his last job, his supervisor allowed him to lie down for 30 minutes at least once during the work day. He indicated that, when he was working, he would need to take more medication and lie down a second time for 30 minutes when he got home from work. The examiner noted that the Veteran described debilitating headaches more than once per day, which required pain medication and a 30-minute rest period. Occasionally, he would have a day when his headache was so bad that he had difficulty getting out of bed. The examiner noted that the Veteran's headaches were a significant problem on his work schedule as the headaches vary in intensity and frequency, but occur on a daily basis. He indicated that the Veteran may miss work on days when he has an intense or long-lasting headache. In this regard, the Board notes that SSA records reflect that the Veteran became disabled as of June 2003 due to non-headache disorders. In this regard, it was reported that he had worked as a lube engineer in the construction (machinery servicing) industry from 1967 to 2003. At his June 2014 Board hearing, the Veteran testified that he had headaches all the time, 24 hours a day/7 days a week. He indicated that the intensity of his headaches increased approximately three or four times a week. The Veteran reported that his medical providers had changed his prescription from Vicodin to Norco. The Veteran reported that Norco seemed to help alleviate the severity of his headaches, but did not completely cure it. Further, the Veteran indicated that, although the AOJ increased his rating for headaches in June 2013, the severity of his headaches had remained the same throughout the appeal period. Based on the foregoing, the Board finds that the criteria for a rating of 50 percent, but no higher, prior to June 11, 2013, have been met. In this regard, for the entire appeal period stemming from the April 5, 2007 informal claim for an increased rating, the Veteran's chronic headache disorder is manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, thus resulting in the assignment of the maximum schedular rating for such disability. Specifically, as evidenced by the Veteran's lay reports, which have remained consistent throughout the appeal period and are corroborated by his contemporaneous reports to his treatment providers, he experiences daily headaches with flare-ups two to three times a week, at which time his headaches were prostrating in nature and required him to increase his medication usage and lie in a dark room. In fact, at the June 2013 VA examination, the examiner described such flare-ups as debilitating headaches, which occurred more than once a day. In this regard, the Board finds that such flare-ups more nearly approximate very frequent completely prostrating and prolonged attacks. Furthermore, as noted previously, while the Veteran has not worked since June 2003, the Board finds that, for the entire appeal period, such attacks are capable of producing severe economic inadaptability. In this regard, in June 2006, the Veteran reported headaches, in combination with pain in his right shoulder affected his ability to concentrate and make decisions. Further, in January 2011, the Veteran's sister indicated that his disabilities, to include his headaches, had affected his ability to perform daily activities. Furthermore, at the June 2013 VA examination, which was the basis for the AOJ's award of a 50 percent rating for the Veteran's chronic headache disorder, the examiner found that the Veteran's headaches were a significant problem on his work schedule as the headaches vary in intensity and frequency, but occur on a daily basis. He indicated that the Veteran may miss work on days when he has an intense or long-lasting headache. However, as noted previously, the Veteran has not worked since June 2003. Even so, the Board finds that such evidence indicates that the Veteran's headache attacks are in fact capable of producing severe economic inadaptability. Therefore, the Board finds that, for the entire appeal period stemming from the April 5, 2007 informal claim for an increased rating, the Veteran's chronic headache disorder warrants a 50 percent rating. However, a rating in excess of 50 percent is not warranted as such is the maximum schedular rating for such disability. Moreover, the assignment of such rating contemplates the nature, severity, and duration of the Veteran's headache episodes, to include the flare-ups that result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Furthermore, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Rice v. Shinseki, 22 Vet. App. 447 (2009). Consequently, the Board finds that, for the entire appeal period stemming from the April 5, 2007 informal claim for an increased rating, a rating of 50 percent, but no higher, for chronic headache disorder is warranted. In reaching such conclusion, the Board has resolved all reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER For the entire appeal period stemming from the April 5, 2007 informal claim for an increased rating, a rating of 50 percent, but no higher, for chronic headache disorder is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs