Citation Nr: 1756623 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-22 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 30 percent for migraine headaches. REPRESENTATION Appellant represented by: Pamela Walz, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1979 to January 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for migraine headaches, rated 0 percent, effective September 2011. In October 2015, a Travel Board hearing was held before the undersigned; a transcript is in the record. In April 2016, the Board remanded this matter for additional development of the record. In December 2016, the RO assigned a 30 percent rating for migraine headaches, effective September 2011. The Board's April 2016 decision also denied service connection for hepatitis C and remanded the claim of service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). In December 2016, the RO granted service connection for PTSD, rated 70 percent, resolving that matter. FINDING OF FACT The Veteran's headache disorder is not shown to have been manifested by more than monthly prostrating headaches, and they are not shown to be productive of severe economic inadaptability are not shown. CONCLUSION OF LAW A rating in excess of 30 percent for migraine headaches is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code (Code) 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As this matter is on appeal from the initial rating assigned with the award of service connection, statutory notice had served its purpose, and its application is no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). A statement of the case (SOC) properly provided notice on the downstream issue of entitlement to an increased initial rating. A notice deficiency is not alleged. The Veteran's VA, Social Security Administration and private medical records have been secured. He was afforded adequate VA examinations to assess the severity of his headaches (including following the Board's April 2016 remand. He has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (CAVC) held that 38 C.F.R. 3.103(c)(2) requires that a VLJ who conducts a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the October 2015 hearing, the undersigned identified this issue, and advised the Veteran of what is needed to substantiate the claim. A hearing deficiency is not alleged. Factual Background, Legal criteria and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate; the analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). On October 2012 VA examination, the Veteran stated that he had headaches approximately two to three times a day, lasting for four to five hours. He said that the headaches have a throbbing quality, but are not associated with any other symptoms. He did not have to take bed rest for the headaches. Neurological examination was essentially normal. VA outpatient treatment records show that in November 2011, the Veteran reported headache and neck pain. In April 2012, he said he suffered from severe headaches. Later that month, it was noted that he took medication for headaches. In June 2016 he stated that he had been having headaches for years and took medication as necessary. It was noted that medication relieved the headache pain. In August 2016, he was seen for a neurological consultation and stated that his headaches come and go. He said that the headaches had been worse at one point, but improved with treatment of his hypertension. Prior to the improvement, he would have to lie down in the dark and use ice packs and/or over-the-counter medication. He stated that it had been a year since he had experienced a bad headache. He also stated that about one to two times a week, he would have a mild headache, and that he sometimes felt throbbing at his temples. He denied any associated symptoms such as visual disturbance, heat or swelling. The impression was that the neurological examination was normal. Medication for headaches was prescribed. At the October 2015 Travel Board hearing the veteran reported he takes medication for headaches. He described the headaches as pounding in nature, and occurring daily. If he did not take medication quickly enough to forestall a headache when he felt one coming on, sometimes he would need cold compresses for relief. On December 2016 VA neurological examination, it was noted that the Veteran was on medication for headaches. He indicated that he experienced pulsating or throbbing headache pain that was worse with physical activity. Additional symptoms included sensitivity to light and visual changes. He stated that the typical head pain lasted less than one day and was located on both sides of his head. It was noted that he had characteristic prostrating attacks of headache pain once a month. He did not have very prostrating and prolonged attacks of migraines that were productive of severe economic inadaptability. There were no other pertinent physical findings, complications, conditions or signs or symptoms of headaches. The diagnosis was migraine headache. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports 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; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal is from the initial rating assigned with the award of service connection, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Under Code 8100 (for migraine headaches) a 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month over the last several months. 38 C.F.R. § 4.124a. As the Veteran's headaches are now rated 30 percent, the question for consideration is whether or not the manifestations of, and impairment due to, the headaches meet or approximate the criteria for the next higher (50 percent) rating, i.e., whether the headaches are very frequent and manifested by prolonged attacks productive of "severe economic inadaptability". Severe economic inadaptability is not defined in the regulations. The U.S. Court of Appeals for Veterans Claims has found that it is not synonymous with being completely unable to work, and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" severe economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). The record does not reflect that the headaches the Veteran has on a daily basis are prostrating in nature. On 2016 VA examination it was noted that prostrating headaches occurred monthly. The record for consideration further shows that while in April 2012 the Veteran described his headaches as severe, he has also indicated that the headaches are generally relieved by medication (and if he does not taking medication in a timely fashion by cold compresses). On October examination he stated that he had headaches up to three times a day, but denied having any other symptoms. Notably, on December 2016 VA examination, the examiner specifically opined that the headaches the Veteran reported were not such as to be productive of severe economic inadaptability. Such findings are consistent with the criteria for the 30 percent rating and do not meet or approximate the criteria for the 50 percent rating. Accordingly, a rating in excess of 30 percent for migraine headaches is not warranted. ORDER A rating in excess of 30 percent for migraine headaches is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs