Citation Nr: 18142464 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-23 379 DATE: October 15, 2018 ORDER Entitlement to an initial 50 percent rating, but not higher, for cluster headaches is granted.   FINDINGS OF FACT Prior to March 28, 2016, the evidence is approximately evenly balanced as to whether the Veteran’s headaches have more nearly approximated very frequent completely prostrating and prolonged headache attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW The criteria for an initial 50 percent rating, but not higher, for cluster headaches have been met. 38 U.S.C. §§ 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 4.1, 4.2, 4.3, 4.7, 4.124, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1989 to April 1997, January 1998 to August 1999, September 2001 to November 2002, January 2006 to July 2006, and August 2006 to November 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. A March 2016 rating decision granted a 50 percent disability rating for cluster headaches effective from March 28, 2016. In his VA Form 9, the Veteran raised the issue of entitlement to an earlier effective date for the grant of the 50 percent rating for headaches. The Board observes that his dispute with the effective date is subsumed by the appeal for an increased disability rating because in looking at the record to determine if a rating greater than 50 percent prior to March 26, 2013, is warranted, the Board will necessarily be adjudicating an earlier effective date issue. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Fenderson v. West, 12 Vet. App. 119, 125-27 (1999); cf Hazan v. Gober, 10 Vet. App. 511 (1997). In the May 2016 VA Form 9, the Veteran also stated that he did not receive an appeal election letter. However, following the Veteran’s September 2015 notice of disagreement, the RO sent an appeals election letter dated October 2015 to the Veteran. There is no evidence that this letter was returned. Therefore, the Board finds that the RO complied with due process and provided the Veteran with an appeals election letter. Entitlement to a compensable rating prior to March 28, 2016, and in excess of 50 percent thereafter for cluster headaches The Veteran asserts that his headaches warrant at least a 30 percent rating prior to March 28, 2016, and in excess of 50 percent. A. Applicable Law Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. 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, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran’s cluster headaches have been rated under Diagnostic Code 8100. Diagnostic Code 8100 provides ratings for migraines. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in two months, over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on average once a month over the last several months; the maximum schedular rating of 50 percent is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. B. Discussion Prior to March 28, 2016, the Veteran’s disability has been assigned a noncompensable (zero percent) disability rating. The question for the Board is whether the Veteran’s disability was manifested by a higher disability level during that time period. The Board finds that an initial 50 percent disability has been demonstrated. Importantly, the RO granted a 50 percent rating from March 28, 2016, based on the results of a VA examination conducted on that date. Thus, it not reasonably in dispute that his disability manifested at the 50 percent level by at least that date. Although the RO assigned the 50 percent rating from the date of the VA examination, an effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating—as well as for an initial rating or for staged ratings—is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014); see also Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); VAOPGCPREC 12-98. To this extent, the March 2016 VA examination indicates 4 periods of cluster headaches per year. The clusters lasted from 2 weeks to 2 months. During the cluster, they occurred at least once per month per day and lasted for 15 to 20 minutes to 90 minutes. During the headaches, he was unable to function and had to miss work. He missed approximately 10 days per year of work. The examiner noted that the Veteran’s treatment plan included taking medication for his cluster headaches. Symptoms associated with the headache pain included the following: pulsating or throbbing head pain; pain localized to one side of the head; pain on both sides of the head; nausea; vomiting; sensitivity to light; sensitivity to sound; and changes in vision. The Veteran had characteristic prostrating attacks of migraine/non-migraine headache pain that occurred once every month. The VA examiner found the Veteran to have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. Earlier evidence is consistent with the March 2016 VA examiner’s assessment. A January 2013 service treatment record noted that the Veteran had a history of cluster headaches since 2001. He said he had his last one around Christmas. He denied change in character and said he got them every winter. In an August 2014 service treatment record, the Veteran reported that his cluster headaches required an oxygen concentrator at home and tanks for work. In a December 2014 statement, the Veteran stated since 2001 he continued to experience frequent, prolonged, severe, incapacitating, and prostrating cluster periods which caused a constant loss of work, mental health, sleep, and the ability to enjoy a life of comfort with his family during these attacks. He said he took several medications that did not provide any relief. He said his only course of treatment that managed to bring some form of relief was high flow oxygen therapy; however, he said this reduced the level of pain from immeasurably intense and completely debilitating to extreme pain where he could go to a quiet room and breathe through the attack. He said the cluster periods often lasted months and the condition forced him to be confined within his home until the cluster period ended. The Veteran proceeded to provide a list of dates of cluster periods lasting multiple weeks with multiple headaches daily, from fall 2003 to fall 2014. In a May 2015 headaches VA examination, the examiner noted that the Veteran’s treatment plan did not include taking medication for cluster headaches. The Veteran described the pain as constant and localized on one side of the head. Duration of typical head pain lasted 15 minutes to 1 hour, and recurrent headaches could last up to 1 month. The examiner noted that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain. In a September 2015 notice of disagreement, the Veteran stated that while experiencing his cluster periods, his prostrating attacks were often completely debilitating and resulted in him having to lie down in a quiet, dark room while using oxygen, often for several hours. He said this made his unable to work, socialize, talk, or engage in daily living until these headaches passed. The Veteran provided a list of dates from Fall 2003 to Spring 2009 of cluster periods lasting from several weeks to a few months, resulting in him having to take off work. The Veteran noted specifically in March 2010, that he experienced multiple headaches daily for the entire month, with a total of 108 cluster headaches. In October and November 2010, the Veteran reported 96 cluster headaches. In November and December 2011, the Veteran reported 101 cluster headaches. In January and April 2012, the Veteran reported 121 cluster headaches. In July and August 2012, the Veteran reported 68 cluster headaches. In January, February, and March 2013, the Veteran reported 156 cluster headaches. In September and October 2013, the Veteran reported 39 cluster headaches. In March 2014, the Veteran reported 67 cluster headaches. In January and February 2015, the Veteran reported 90 headaches. In April 2015, the Veteran reported 40 cluster headaches. In August and September 2015, the Veteran reported 14 cluster headaches. The Veteran reported in additional correspondence in April 2016, that he had 49 cluster headaches in November 2015 and 79 cluster headaches in February and March. The year is unclear, but presumably, February and March 2016. The Board finds credible and probative the Veteran’s statements that demonstrate that he has experienced headaches characteristic prostrating attacks. The May 2015 VA examiner did not find that the Veteran had characteristic prostrating attacks. In contrast, the examiner consistently described multiple headaches that lasted weeks to months and resulted in him unable to go to work. Therefore, the Board finds that the evidence is approximately evenly balanced as to whether Veteran’s headaches more closely approximate the criteria for a 50 percent rating under Diagnostic Code 8100 prior to March 28, 2016. The disability level described by the March 2016 VA examiner appears to have manifested at the same level throughout the appeal period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial rating of 50 percent for the Veteran’s headaches is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The current 50 percent rating is the maximum schedular rating assignable for this disability. Therefore, the next question for the Board is whether the Veteran’s disability has been manifested by a disability level warranting extraschedular consideration. The Board finds that this is not indicated as the schedular evaluation in this case is not inadequate. The Veteran’s service-connected cluster headaches, from the plain language of the disability and the schedular language, it is the prostrating nature of the headaches, and their frequency that gives rise to an evaluation, along with longer duration and even more severe - completely prostrating - features that allow for the highest rating. The Veteran has described his headaches as prostrating attacks of headache pain. The Veteran has reported that these attacks occur frequently and for extended periods of time. The Board finds that the rating criteria for cluster headaches contemplate the Veteran’s worsening symptoms (pain, nausea, photophobia and phonophobia), the frequency at which these symptoms occur, and the resulting functional impairment due to such symptoms. The nonspecific criteria in DC 8100 means that any evidence indicating the severity of his headaches is necessarily relevant, and contemplated by, the schedular rating level. See, e.g., Spellers v. Wilkie, No. 16-4053, 2018 U.S. App. Vet. Claims LEXIS 1201, at *13 (Vet. App. Sep. 7, 2018). (Continued on the next page) Hence, referral for extraschedular consideration is not indicated at this time. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel