Citation Nr: 1802413	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-09 839	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.   Entitlement to service connection for hypertension.

2.   Entitlement to service connection for residuals of ingrown toenails.

3.   Entitlement to service connection for insomnia, to include as secondary to service-connected migraine headaches.

4.   Entitlement to an initial compensable rating for migraine headaches.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States




ATTORNEY FOR THE BOARD

P. Stephan, Associate Counsel


INTRODUCTION

The Veteran had active duty service from December 1987 to May 1990.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  The St. Louis RO is the agency of original jurisdiction (AOJ) for this matter.  The RO denied the benefits sought on appeal.

The issues on appeal were remanded by the Board in September 2015 to locate VAMC medical records related to the Veteran's claimed insomnia disability, to include the period of 1990-1991 as identified by the Veteran, and to schedule the Veteran for a VA examinations to determine the etiology of her claimed hypertension, residuals of ingrown toenails, insomnia, and to determine the severity of her service-connected migraines.  In response, the Appeals Management Center (AMC), in Washington, D.C. requested VA treatment records from 1990-1991 from the Kansas VAMC, but none were found.  The Veteran was provided with VA examinations for hypertension, a skin disability, a psychological disability, and migraine headaches.  With regard to the issue of an initial compensable rating for migraine headaches, the Board finds the AOJ has substantially complied with the remand directives.  Stegall v. West, 11 Vet. App. 268 (1998).

The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder has been raised by the record in the psychological VA examination and the Veteran's response to the AOJ's supplemental statement of the case (SSOC).  However, this claim has not been fully adjudicated by the AOJ, and therefore the Board does not have jurisdiction over it.  38 C.F.R. § 19.9(b).  The Board therefore refers this issue back to the AOJ for appropriate action.

The initial compensable rating for service-connected migraine headaches is decided below while the other issues on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDING OF FACT

Throughout the period on appeal, the Veteran's migraine headaches have not been manifested by any prostrating attacks.


CONCLUSION OF LAW

The criteria for an initial compensable rating for migraine headaches have not been met.  38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124(a)(2017); Diagnostic Code 8100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The VA's duty to notify and assist was satisfied by a letter sent by the AOJ in August 2012.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a).  Once service connection is granted, additional VCAA notice is not required for an initial increased rating claim, and any defect in the notice is not prejudicial.  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  The Veteran has not alleged any error in the VCAA notice, and the VA has fulfilled its duty to notify.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

The VA has also satisfied its duty to assist.  The VA has undertaken appropriate actions to obtain all evidence relevant to this claim.  The AOJ has secured the Veteran's service treatment records (STRs), VA treatment records, and all identified and available private treatment records.  The Veteran has submitted personal statements as well as arguments from her representative.  38 U.S.C. § 5103A, 38 C.F.R. § 3.159.

No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the initial compensable rating claim.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

The December 2015 VA examination for migraines was adequate.  The examination included a review of the Veteran's medical history as well as the relevant rating criteria.  There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected migraine headaches since she was last examined in December 2015.  38 C.F.R. § 3.327(a) (2017).  

Analysis

After a careful review of the record, the Board finds a preponderance of the evidence is against assignment of an initial compensable rating for the Veteran's service-connected migraine headaches.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. § 4.1.  Each Diagnostic Code (DC) in the Rating Schedule corresponds to a disability.  The ratings under the codes are intended to compensate the average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. § 4.10, 4.2.

When there is a question as to which evaluation should be applied to a Veteran's disability, 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.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

The Veteran's migraines are currently rated under DC 8100.  Diagnostic Codes 8103 and 8104 provide ratings for migraines with convulsive tics and paramyoclonus multiplex, however the record does not indicate the Veteran experiences these symptoms.  The Board will continue to evaluate the Veteran's disability under DC 8100, as it is supported by explanation and evidence, and provides the potential for the most favorable rating for the Veteran.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).

The next highest rating of 10 percent under the DC 8100 contemplates migraines with prostrating attacks averaging one in 2 months over last several months.  Higher ratings of 30 or 50 percent require migraines with prostrating attacks an average of once a month or very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, respectively.  38 C.F.R. § 4.124(a). 

The record does not show the Veteran suffers from any migraines with prostrating attacks as contemplated by a compensable evaluation.  The Veteran was afforded a November 2012 VA compensation and pension examination.  She reported migraines occurring 2 to 3 times a week.  Sometimes, she had to close the curtains, turn off the lights, and lie down to stop the headaches.  They lasted less than 1 day.  She took over the counter nonsteroidal anti-inflammatory medication that did not always works.  The pain was described as a constant pulsating or throbbing pain localized to one side of the head (the right side).  She had no non-headache symptoms associated with her migraines.  The examiner noted that she did not have headaches with characteristic prostrating attacks of migraine headache or non-migraine headache pain.  

The report of a December 2015 VA compensation and pension examination notes that the Veteran complained of headaches.  She took over the counter Excedrin when she felt pain coming.  She described a constant head pain and could felt headaches behind her eyes.  She also reported non-headache symptoms included nausea, vomiting, and sensitivity to light and should.  Her headache pain lasted either less than 1 day or between 1 and 2 days.  Significantly, the examination report notes that the Veteran did not have characteristic prostrating attacks of migraines or non-migraine headache pain.  The Veteran worked as a dispatcher using computers and cameras here entire shift and her pain did not impact her ability to work as she noted she kept working through the headache. 

As shown above, the weight of the evidences shows that the Veteran does not have characteristic prostrating attacks of migraines or non-migraine headache pain as contemplated by a higher disability evaluation under Diagnostic Code 8100.  Accordingly, the criteria for a compensable evaluation for her headaches are not met at any time during the course of the appeal.  

The Board has considered the application of various regulations, whether or not they were raised by the Veteran, to include the entire history of her disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  38 C.F.R. §§ 4.1, 4.2, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Powell v. West, 13 Vet. App. 31, 34 (1999).  

The Veteran has not contended, and the record does not otherwise suggest, that she is unemployable as a result of her service-connected migraines.  The 2015 VA examination reported her disability does not impact her ability to work, and the Veteran has made statements that she works despite her migraines.  Accordingly, the issue of entitlement to total disability due to individual unemployability has not been raised.  Rice v. Shinseki, 22 Vet. App. 447 (2009).

Comparing the Veteran's symptomatology to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate.  A veteran may be entitled to consideration under 38 C.F.R. § 3.321(b) for referral for an extraschedular evaluation based on either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities, when the "collective impact" or "compounding negative effects" of disabilities are exceptional and not adequately captured by the schedular ratings.  Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  In other words, if the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008); see Yancy v. McDonald, 27 Vet. App. 484 (2016); see also Doucette v. Shulkin, 28 Vet. App. 366 (2017).  

In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.  The Veteran's other service-connected disabilities include bilateral knee disabilities.  None of these were noted in combination to create an exceptional circumstance outside of the schedular ratings by the objective medical evidence, or from lay testimony.  Therefore the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

Entitlement to an initial compensable rating for migraine headaches is denied.


REMAND

Although the Board sincerely regrets the additional delay, some of the Veteran's claims must be remanded before the Board is able to make a determination on the merits. 

Insomnia 

Remand of the Veteran's insomnia claim is necessary because a claim for entitlement to service connection to an acquired psychiatric disorder, to include PTSD and major depressive disorder was raised by the record and is inextricably intertwined with the Veteran's claimed insomnia.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). 

The VA psychological examination diagnosed the Veteran with PTSD and a major depressive disorder, noting in-service stressors, and providing a positive nexus opinion on both, noting insomnia is a symptom of both these diagnoses.  The Board may not properly review the Veteran's claim for service connection for insomnia until the requested development for the issue of service connection of an acquired psychiatric disorder has been completed.  Therefore, the issue of service connection for insomnia, as secondary to migraines, must also be remanded.

Hypertension and residuals of ingrown toenails

In addition, remand is necessary because the VA examiner failed to follow the Board's remand instructions in the December 2015 VA examinations for hypertension and ingrown toenails.  Remand by the Board is required where there was not substantial compliance with the remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

In the remand instructions, the Board requested the VA examiner to "determine the nature and etiology of [the Veteran's] diagnosed hypertension, claimed residuals of ingrown toe nails, and diagnosed insomnia.  All pertinent evidence of record must be made available and reviewed by the examiner(s)."  The VA examiner failed to provide an opinion or rationale on the etiology of the Veteran's previously diagnosed hypertension.  The VA examiner failed to discuss the nature or etiology of the Veteran's claimed residuals of ingrown toenails.  The VA examiner stated she had reviewed VBMS and no non-VA records were available to her, however there are private medical records in VBMS that the examiner failed to consider.  As such, a remand is required for new examinations on the claims for residuals of ingrown toenails and hypertension.

Accordingly, the case is REMANDED for the following actions:

1. The AOJ should review and adjudicate the Veteran's claim for insomnia only after adjudicating the Veteran's acquired psychiatric disorder raised by the record.  If the insomnia claim remains denied, the Veteran and her representative must be provided with an SSOC and an opportunity to respond before returning the issue to the Board for further adjudication.

2. Arrange for the appropriate VA examination with a new examiner to determine the nature and etiology of the Veteran's previously diagnosed hypertension.  The electronic claims file must be provided to and reviewed by the examiner in conjunction with the examination.  

Based upon a review of the entirety of the claims file, the examiner is requested to provide an opinion as to the following questions:

(a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's hypertension is proximately due to or related to active duty service?

A complete rationale for all opinions should be set forth.  A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. 

The examiner is advised that the Veteran is competent to report her symptoms and history.  Such reports must be acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection.

If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered.

3.   Arrange for the appropriate VA examination with a new examiner to determine the nature and etiology of the Veteran's claimed residuals of ingrown toenails.  The electronic claims file must be provided to and reviewed by the examiner in conjunction with the examination.  

Based upon a review of the entirety of the claims file, the examiner is requested to provide an opinion as to the following questions:

(a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's claimed residuals of ingrown toenails is proximately due to or related to active duty service?

A complete rationale for all opinions should be set forth.  A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. 

The examiner is advised that the Veteran is competent to report her symptoms and history.  Such reports must be acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran's reports, the examiner must provide an explanation for such rejection.

If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered.

4.   The AOJ should conduct any other development deemed appropriate.  The AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

5.   After the above development has been completed, the AOJ should readjudicate the claim.  If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case, and allow the Veteran and her representative an opportunity to respond before returning the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs