Citation Nr: 1808811 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-30 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable disability rating for headaches. REPRESENTATION Veteran represented by: Virginia Noble, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty in the Army National Guard from February to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal, in part, from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. By this rating action, the RO effectuated a November 2011 Board decision, and granted service connection for headaches. The Veteran appealed the initial noncompensable rating assigned to the service-connected headaches to the Board. In October 2016, the Veteran testified before the undersigned at the above RO. A copy of the hearing transcript has been associated with the electronic record. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected headaches have been manifested by very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an initial 50 percent evaluation, but no higher, for headaches have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties 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 a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in October 2016. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). II. Merits Analysis Disability ratings are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. §§ 4.2, 4.41 (2017). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2017). When the appeal arises from an initial rating, such as the claim for an initial disability rating in excess of 30 percent for migraine headaches, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in increased-rating claims in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a service-connected disability is already established, such as the Veteran's major depression, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). By the appealed November 2011 rating action, the RO granted service connection for headaches and assigned an initial noncompensable percent disability rating. The RO based its award of service connection on a November 2011 Board decision. In that decision, after noting that the Veteran's service treatment records were unavailable, the Board granted service connection for headaches based on private medical reports and statements of the Veteran and his sister reflecting that he had had frontal headaches since service in 1976. Under Diagnostic Code, 8100, the Diagnostic Code used to evaluate migraine headaches, a zero percent rating is warranted for migraine headaches with less frequent attacks. For migraines with characteristic prostrating attacks averaging one in two months over the last several months, a 10 percent evaluation is assigned. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson, 12 Vet. App. at 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), "prostration" is defined as "extreme exhaustion or powerlessness." Resolving all doubt in favor of the Veteran, the Board finds that the evidence of record supports an initial rating of 50 percent for the service-connected headaches. In support of the claim, are the Veteran's statements and hearing testimony that he experiences headaches at least two to three times a week that were accompanied with dizziness, instability and light sensitivity, lasted 18 hours, and required him to lie down. See January 2012 Statement in Support of Claim; October 2016 Transcript (T.) at pages (pgs.) 5-7, 14)). The Veteran's statements are bolstered by April 2013 and October 2016 private medical reports, prepared by a medical practitioner, BT. See April 2013 and October 2016 reports, prepared by BT, PA-C. In an April 2013 report, BT opined that the Veteran's headaches were frequent and completely prostrating and had resulted in severe economic inadaptability. BT noted that the Veteran had headaches at least twice a week that lasted up to eight hours and were accompanied with dizziness and noise and light sensitivity. In an October 2016 report, BT indicated that the Veteran's headache symptoms had remained unchanged since April 2013. Thus the evidence of record supports an initial rating of 50 percent for the service-connected headaches. The Veteran has consistently reported throughout the appeal period that he has severe and prostrating headaches that last an entire day, occur several times a week, are associated with dizziness, instability, and light sensitivity, and require him to lie down. In addition, BT characterized the Veteran's headaches as frequent and completely prostrating and resulting in severe economic inadaptability. The Board finds the Veteran's statements regarding his headaches to be credible, and that assessment has been supported by a private physician's assistant. Notably, there is no evidence to the contrary. Affording the Veteran the benefit of the doubt, the Board finds that the criteria for an initial 50 percent disability rating for the service-connected headaches have been met throughout the appeal period. Inasmuch as 50 percent is the highest rating provided by the Rating Schedule for headaches, no higher schedular rating may be assigned. Although the Veteran testified that his headaches had played a role in him leaving his previous employment as a truck driver (T. at page (pg.) 3)), he has not maintained, nor does the evidence of record indicate, that he is unable to secure or follow any substantially gainful occupation because of his service-connected headaches. Indeed, in the Veteran's attorney's October 2016 memorandum, she argued only that his headaches produced economic inadaptability, but did not argue that they produced unemployability. Thus, the Board finds that a claim of entitlement to a total disability rating based on unemployability due to service-connected disability has been not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER For the entire appeal period, an initial 50 percent rating for migraine headaches is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs