Citation Nr: 1753065	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO. 09-00 717	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a disability evaluation in excess of 30 percent for service-connected cluster headaches on an extraschedular basis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

R. Husain, Associate Counsel


INTRODUCTION

The Veteran had active service in the U.S. Army from October 1980 to October 2003.

The claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran appeared before a Veterans Law Judge (VLJ) in May 2011. That VLJ is no longer employed by the Board. The Veteran declined the opportunity for a second hearing. The 2011 transcript is of record.

In October 2014, the Board denied the claim for a higher rating for cluster headaches. In July 2015 and pursuant to a joint motion for remand, the U.S. Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded the claim for additional development. In December 2015, the Board granted a schedular 30 percent rating for cluster headaches and remanded the claim for consideration of an extraschedular rating. In June 2016, the Board again remanded the extraschedular claim for procedural reasons and evidentiary development.

In January 2017, the Board denied a disability evaluation in excess of 30 percent for service-connected cluster headaches on an extraschedular basis.

The Veteran appealed the January 2017 decision to the Court. In a September 2017 Order, the Court vacated the Board's January 2017 decision and remanded the issue for action consistent with a Joint Motion for Remand (JMR). The Court limited the scope of the JMR to consider the Veteran's May 2011 hearing testimony in which he testified that his headaches cause dizziness and lack of concentration, memory loss, and stops him from doing anything, including work.

The Veteran's claim has since returned to the Board for further consideration.

FINDING OF FACT

The Veteran's service-connected headache disability picture is adequately contemplated, both when acting alone and when in concert with other service-connected disabilities, by the schedular rating criteria; there is no marked interference with employment or frequent hospitalization associated with the headache disability.


CONCLUSION OF LAW

The criteria for a rating in excess of 30 percent for service-connected cluster headaches, on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.124(a), DC 8100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.

II. Disability Ratings

Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In this case, however, the Board will not address schedular entitlement as that issue is not before it.

Headaches are rated according to DC 8100. Under this code, a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over a period of several months. 38 C.F.R. § 4.124a, DC 8100.

The Free Dictionary defines migraines as "a familial, recurrent syndrome characterized usually by unilateral head pain, accompanied by various focal disturbances of the nervous system, particularly in regard to visual phenomenon, such as scintillating scotomas. [It is] classified as classic migraine, common migraine, cluster headache, hemiplegic migraine, ophthalmoplegic migraine, and ophthalmic migraine." According to WebMD, the medical definition of migraines includes ataxia, aura, diplopia, and vertigo (which can be described as dizziness).

Neither the rating criteria, nor the Court, has defined "prostrating." Cf. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (quoting DC 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in Dorland's Illustrated Medical Dictionary 1531 (32nd Ed. 2012), "prostration" is defined as "extreme exhaustion or powerlessness." 

The Board will proceed to consider whether the Veteran is entitled to an extraschedular rating for his service-connected cluster headaches.

In Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom., Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Court outlined the framework for determining entitlement to an extraschedular evaluation. First, the Board must determine whether the evidence "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. This obliges the Board to compare "the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. When this requirement is satisfied, the Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as "marked interference with employment or "frequent periods of hospitalization." Id. at 116 (quoting 38 C.F.R. § 3.321(b)(1)). If both these inquiries are answered in the affirmative, the Board must refer the matter to the Under Secretary for Benefits or the Compensation Service Director for the third inquiry-a determination of whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular evaluation. Id.; see generally Todd v. McDonald, 27 Vet. App. 79, 89-90 (2014); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (outlining the "elements that must be established before an extraschedular rating can be awarded").

In making the extraschedular referral determination, the Board must consider the collective impact of multiple service-connected disabilities whenever that issue is expressly raised by the claimant or reasonably raised by evidence of record. Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014); Cantrell v. Shulkin, 28 Vet. App. 382, 394 (2017); Yancy v. McDonald, 27 Vet. App. 484, 495 (2017). Although Johnson requires the Board, in certain cases, to discuss the collective impact of a claimant's service-connected disabilities, that requirement does not alter the Board's jurisdiction, which is limited only to the service-connected disorder(s) on appeal. See Yancy, 27 Vet. App. at 496 (citing DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006)). The Board lacks jurisdiction to consider whether referral is warranted solely for any disability or combination of disabilities not in appellate status, just as it lacks jurisdiction to examine the proper schedular rating for a disability not on appeal. Id. at 496. Here, the only service-connected disability on appeal before the Board is the service-connected cluster headaches. Thus, the Board's consideration of the other service-connected disabilities is limited only to their impact on the disability picture of the service-connected headaches on appeal. Id.

The Board finds that an extraschedular rating in excess of 30 percent for the Veteran's headaches is not warranted, as the Veteran's symptoms are contemplated by the schedular rating criteria, which is explained below.

With respect to the first prong of Thun, the Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's cluster headaches is inadequate. A comparison between the level of severity and symptomatology of the Veteran's cluster headaches with the established criteria shows that the rating criteria reasonably contemplate the Veteran's disability level. For instance, in the Veteran's May 2011 testimony, the Veteran stated that his headaches last between 20 and 30 seconds. The Veteran stated that during a headache, he loses concentration, and experiences dizziness, and that if he is speaking with a co-worker or teaching, he has to stop because the pain would not let him doing anything else. The Veteran stated that he also experiences short term memory loss. The Veteran stated that it takes him 20 seconds to regain composure.

The Veteran contends that his symptomatology is not fully contemplated by the rating criteria because he experiences a loss of concentration, dizziness, and memory loss as a result of his headaches and other service-connected disabilities. However, prostrating is broad enough to encompass all of the Veteran's symptoms. Pain, weakness, exhaustion, loss of concentration, and nausea are captured within the definition of prostrating. Similarly, symptoms such as dizziness and nausea due to the inability to see, hear, or focus, as related to prostrating headaches is contemplated within the diagnostic code, as they are included within the definition of a migraine. Short term memory loss is related to a loss of focus and concentration, and is also therefore contemplated by the schedular criteria. Furthermore, the 30 percent rating criteria for headaches also contemplates any resulting increased absenteeism, tardiness, and difficulties with occupational duties associated with cluster headaches. See 38 C.F.R. § 4.1 ("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); see also 38 C.F.R. § 3.321(a) ("[t]he provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability.").

With regard to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. In this case, the Veteran has been assigned the 30 percent rating for his disability, which contemplates "migraine headaches with characteristic prostrating attacks." Altogether, the 30 percent rating adequately contemplates the severity and frequency of the Veteran's headaches, as well as the impact of his other disabilities.

Even if the first prong of the Thun criteria were not met, and the Board finds that the schedular criteria do not contemplate the Veteran's disability picture concerning the cluster headaches, the record does not support the second prong of Thun, as the Veteran's headaches do not exhibit other related factors such as marked interference with employment or frequent periods of hospitalization. 

The record demonstrates that although the Veteran complains of cluster headaches, a loss of concentration, dizziness, and memory loss, the Veteran continues to work as a teacher without marked interference with employment. In a VA examination from January 2008, the examiner noted that none of the headaches have caused the Veteran to leave work, and that the brief nature of the headaches allow the Veteran to continue to function normally. The examination report also indicates that the Veteran has never sought emergency medical assistance, nor has he been otherwise hospitalized for his headaches. The Veteran has reported that although the headaches last for 30 seconds, afterwards he is capable of functioning normally as the symptoms do not persist after the headache is over.

In a VA examination dated November 29, 2011, the Veteran reported that when he experiences headaches, he takes a brief "time out" for approximately 30 seconds, then the Veteran would continue normally afterwards. In a VA examination from November 30, 2011, the Veteran stated that he works at a ROTC high school instructor. In February 2016 a VA neurologist expressly stated that the headache disability did not affect the Veteran's ability to work, which tends to establish that marked inference with employment is not demonstrated.

Headache prostration is not, ipso facto, marked interference with employment. Here, the Veteran reports remaining at the same job for several years despite his symptoms. The Veteran does not report missing any work due to his symptoms, any reduction in duties, changes in salary, or formal consequences from his employer related to his disability.

The facts before the Board do not reveal evidence of frequent hospitalizations or sufficient evidence to indicate that the Veteran's headaches caused marked impairment with employment over and above that which is already contemplated in the assigned schedular rating. See 38 C.F.R. § 4.1; 38 C.F.R. § 3.321(a). The Board finds that taking into account the symptoms reported by the Veteran, including dizziness, loss of concentration, and memory loss; the preponderance of the evidence does not support that the Veteran's headaches are manifested by marked interference with work or frequent hospitalizations; and the second prong of Thun is not met.

In sum, the Board concludes that the facts here do not suggest an exceptional or unusual disability picture. The preponderance of the evidence of record is against the Veteran's claim for a disability evaluation in excess of 30 percent for service-connected cluster headaches on an extraschedular basis. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

ORDER

Entitlement to a disability evaluation in excess of 30 percent for service-connected cluster headaches, on an extraschedular basis, is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs