Citation Nr: 1808307 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-22 046A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 30 percent for headaches with fatigue and memory loss. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1990 to August 1990 and from November 1990 to June 1991, to include service in Southwest Asia. She had additional Reserve service and served on active duty for training from June 1989 to September 1989. She was awarded the Combat Action Ribbon, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office and was remanded in October 2016. The Board notes that the Veteran originally requested a Board hearing, but withdrew her request through her representative in a statement dated March 2016. A statement of the case issued on October 26, 2017 addressed the issues of entitlement to an increased disability rating for a back disability and entitlement to service connection for chronic fatigue syndrome and thyroid cancer. A substantive appeal was faxed to VA by the Veteran's attorney on December 26, 2017. VA's appeals locator system indicates that a timely substantive appeal was not received for that appeal. The Agency of Original Jurisdiction should, taking into account that December 25, 2017 was a Sunday, reexamine the status of that appeal. See 38 C.F.R. §§ 20.302(b), 20.305(b) (2017). FINDING OF FACT Throughout the pendency of the appeal, the evidence shows headache symptomatology equivalent to very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for a disability rating of 50 percent, but not higher, for migraines have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor her 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 a duty to assist argument). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination 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 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); 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 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, 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); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's headaches are currently rated as 30 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100, which provides for a 30 percent disability rating for headaches with characteristic prostrating attacks occurring on an average once a month over the last several months, and for a maximum 50 percent disability rating for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran first underwent VA examination in connection with this claim in May 2010. She reported that she suffered from headaches at least weekly within the past 12 months and that most attacks lasted for one or two days and were prostrating. While she reported that she took daily medication for pain, the examiner indicated that the headaches were not treated with continuous medication. The examiner opined that the headaches would have no significant effects on the Veteran's usual occupation, but would have severe effects on her ability to do chores, shopping, exercise, recreation, and travel. The Veteran again underwent VA examination in June 2013. She reported headaches typically lasting from hours to days with pulsating or throbbing pain on both sides of her head. She also indicated that during headaches she was sensitive to light and sound and occasionally experienced nausea, and that she needed to stay in a dark place during an attack. The examiner opined that the Veteran had characteristic prostrating attacks, but did not provide a response as to whether the attacks were very frequent. The examiner opined that the Veteran's headaches were not disabling, did not require medication, and would not impact her ability to work. In August 2013, however, the Veteran provided a statement indicating that the reason she was not on medication during the June 2013 examination was that she was pregnant and that prior to her pregnancy she had been on a variety of medications. In August 2015, the Veteran underwent a Vocational Employability Assessment by an independent expert. The expert, who reviewed the claims file and interviewed the Veteran, noted the Veteran's complaints of severe headaches three to four times per week with low levels of pain all the time, as well as her report that there was nothing that helped the pain besides turning off the lights and resting. The expert went on to opine that while all of the Veteran's disabilities contributed to her inability to work, her headaches alone would preclude her from securing and following a substantially gainful occupation. The expert indicated that with severe headaches at least four times per week, the Veteran would not be able to maintain a steady pace of production and would miss a significant amount of work. The Veteran most recently underwent VA examination in connection with this claim in June 2017. She again reported that her headaches could last from hours to days with pain that was always present but increased in intensity during attacks. She stated that the pain was pulsating or throbbing in nature, with nausea and sensitivity to light and sound relieved only with darkness, rest, and keeping her head still. The examiner indicated that the Veteran did not take medication for her headaches, but went on to note the Veteran's reports of taking Tylenol 3 daily and to opine that the Veteran's current headaches were due to medication overuse with no rationale to support that opinion. The examiner also opined that the Veteran's headaches did not result in characteristic prostrating attacks despite the Veteran's reports of frequent attacks requiring darkness and rest. Treatment records throughout the period on appeal reflect frequent complaints of chronic headache pain with nausea and sensitivity to light and sound. Upon review, and resolving the benefit of the doubt in the Veteran's favor, the Board finds that a disability rating of 50 percent, but no higher, is warranted for headaches. In that regard, the Veteran's reports throughout the period on appeal are frequent, competent, and consistent as to the fact that she experiences very frequent prostrating attacks requiring her to remain at rest in a dark room, despite the unsupported opinion of the June 2017 examiner to the contrary. Furthermore, the August 2015 vocational expert opined that the Veteran's headaches alone would prevent her from maintaining gainful employment, a finding which led in large part to the award of a total disability rating based upon individual unemployability due to service-connected disability and which certainly supports a finding that the Veteran's headaches are productive of severe economic adaptability. The Board notes that the VA examination reports do not completely support these findings; in that regard, however, when the VA examiners' conclusions regarding the Veteran's symptoms differed from her competent and consistent reports, the examiners provided no rationale for failing to credit the Veteran's reports. Accordingly, in the absence of competent evidence to the contrary, the Board finds that a 50 percent disability rating, the highest schedular rating available, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a 50 percent disability rating, but no higher, for headaches is granted. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs