Citation Nr: 1123856 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 09-35 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to a rating higher than 30 percent for mixed headaches with tension and migrainous components. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1973 to May 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). The claim of increase for depressive disorder has been raised by the Veteran in a statement in September 2010, which is s referred to the RO for appropriate action. FINDING OF FACT For the period covered in this appeal, the mixed headaches with tension and migrainous components are productive of very frequent completely prostrating and prolonged attacks that result in occupational impairment equivalent to severe economic inadaptability. CONCLUSION OF LAW The criteria for a 50 percent rating for mixed headaches with tension and migrainous components are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2010). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided the Veteran pre- and post-adjudicatory VCAA notice by letters, dated in April 2007 and November 2009. The notice included the type of evidence needed to substantiate the claim for increase, namely, evidence of an increase in severity of the service-connected disability and the effect that worsening has on the claimant's employment and daily life. The Veteran was notified that VA would obtain VA records and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the provisions for the effective date of the claim and the degree of disability assignable. As for content and timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (preadjudication VCAA notice), except for the November 2009 notice; of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was offered the opportunity for a personal hearing, but he declined a hearing. The RO obtained the service records and VA records, as well as private records identified by the Veteran, to include records from Northern Rockies Regional Pain Center and Billings Clinic. He has not identified any additional records for the RO to obtain on his behalf. VA has conducted necessary medical inquiry in an effort to substantiate the claim for a higher rating. 38 U.S.C.A. § 5103A(d). The Veteran was afforded VA examinations in June 2007 and September 2009. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Applicable Criteria and Analysis A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's mixed headaches with tension and migrainous components (previously characterized as cephalgia, tension type) is currently evaluated as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Codes 8045-8100. Traumatic brain disease was previously rated under Diagnostic Code 8045, which provided that purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc. will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8911). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, were rated 10 percent and no more under Diagnostic Code 9304. The 10 percent rating was not to be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). The protocol for evaluating traumatic brain injuries was revised during the pendency of this appeal. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124, Note (5). For claims received by VA prior to that effective date, a veteran is to be rated under the old criteria for any periods prior to October 23, 2008 and is to be rated under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (October 24, 2008). In this case, the Veteran's migraine and tension type headaches are the result of a head injury during service. In a July 2010 rating decision, the RO has re-evaluated the Veteran's residuals of traumatic brain injury in light of the change in regulatory criteria relevant to traumatic brain injury, and established service connection for traumatic brain injury under the revised Diagnostic Code 8045 as a separate disability from his service-connected headache disability. The recent evaluation of traumatic brain injury, as a disability separate from the headache disability on appeal, is not before the Board for consideration. It is only the issue of evaluation of the headaches that is in proper appellate status, and for the period considered in this appeal the applicable rating criteria that afford the highest evaluation for the headache disability are found in Diagnostic Code 8100. Under Diagnostic Code 8100, migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating, and migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a maximum 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The term "productive of severe economic inadaptability" does not require that a veteran be completely unable to work to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Veteran underwent VA examinations in June 2007 and September 2009. At the June 2007 VA examination, he reported an increase in the frequency and severity of headaches. He stated that he experienced at least two headaches weekly, lasting a day. He had light and noise sensitivity, nausea, and increased ringing in the ears. With onset, he took Darvocet during the day and would lie down in a dark place. Nerve blocks to the posterior cervical area for any cervical component had helped some but lasted only 4-6 weeks. He still had the temporal headaches. He was evaluated as normal neurologically. The diagnosis was mixed headaches with tension and migrainous components. In an addendum notation, the examiner referred to a leave usage report and stated that the Veteran had lost one month of work days in the past year due to his headaches. At the time of a September 2009 VA examination, the Veteran reported that his headaches had gradually worsened in both severity and frequency. He experienced them as pain in the back of the neck and back of the head. He currently had a headache almost daily from the time he got up in the morning until he went to bed at night. The Veteran treated his headaches with morphine sulfate every eight hours and a muscle relaxer taken at bedtime. The morphine helped to manage the headache pain. His headaches were associated with nausea two to three times per week, lasting 24 to 48 hours. He also reported episodic "fireflies" in his visual field. Most days he rated his headaches as a 5 to 7 out of 10 (on a scale of 1 to 10, with 10 being the greatest pain), and he continued to work, but when headaches were 7 to 9 out of 10, he missed work. Headaches were exacerbated by bright light and loud noise, and were alleviated by lying down in a dark room. As to the effect of the headaches on his occupation, the Veteran responded that he had missed a lot of work, estimating that he had missed greater than 50 days of work in the past year. Neurological and motor testing was normal. The diagnosis was chronic persistent daily headache most consistent with mixed tension/migraine-type headaches associated with chronic narcotic use and rebound. VA and private records show continuous treatment for headaches. Records from the Billings Clinic dated from April 2006 to July 2007 show that the Veteran was initially seen with headaches that lasted for two days with a frequency of once or twice a week. He received occipital nerve blocks periodically, which had varying degrees of effectiveness (four to six weeks of some measure of relief). Other options were discussed to treat the pain, including possible occipital nerve resection. Various pain medications were prescribed, including Darvocet. In October 2007 VA records show that a recent facet injection was of no benefit. In November 2007, a private physician switched the Veteran from Darvocet, which was not helping, to hydrocodone. In April 2008, VA records show that the physician discussed rebound headaches with the Veteran. Hydrocodone was on the Veteran's list of medications. In June 2008, the Veteran's chronic headaches seemed to be somewhat better, but there was no further discussion of this assessment. In November 2008, records of the Northern Rockies Regional Pain Center show that the Veteran's headaches were reported to last more than four hours and up to three to four days. His headaches were essentially constant. He had tried and failed multiple abortive medications, such as multiple triptans (including Imitrex, Zomig, and Maxalt). He had tried preventive medications such as Topamax and certain blood pressure medications, as well as several interventional procedures such as facet blocks and greater occipital nerve blocks, which helped somewhat to reduce his headaches. The Veteran reported at least six weeks of 80 percent pain reduction from the occipital nerve blocks, but his headaches returned as the block wore off. He was currently on amitriptyline as well as a muscle relaxant. He also was on Vicodin, and reported a pain level of 8 out of 10, which could escalate to 10 out of 10 with severe exacerbations in headaches that required him to go to a quiet, dark room and put an ice pack over his head and eyes. The impression included chronic daily headaches/migraines and occipital neuralgia. The physician recommended a trial of Botox injections as a preventive measure, changed the Vicodin to oxycodone, and took the Veteran off Tylenol completely as it was notorious for causing rebound headaches. The VA examiner in September 2009 also noted that the Veteran was scheduled to have a second Botox injection as the first injection had been ineffective. The Veteran had a longstanding use of opioids for control of pain which allowed him to work, and that he had been on oxycodone four times a day and due to shortage of the medication he was switched to morphine sulfate. In statements, the Veteran has asserted that his migraine headaches have worsened over the past few years. In June 2008, he stated that he was in constant pain from the time he awoke until he fell asleep at night, and that his migraines affected his job as he missed work at least two times every couple of weeks. In December 2008, he related that he saw a private doctor at a pain management center for his headaches and occipital neuralgia. In September 2009, the Veteran stated that his leave balance at work was nearly zero and that he worried about losing his job or being forced to retire prematurely. He indicated that oxycodone had helped him to manage his headache pain, until it was changed to morphine sulfate that did not work as effectively as his previous medication. In September 2010, the Veteran stated that his work was compromised due to severe migraines and his job was in jeopardy because he missed at least one day of work every week for the past 6 to 8 months. He claimed that he no longer had any "quality of life" due to the migraines and daily pain. He stated that he was only permitted to receive occipital nerve block injections once every four months, which only lasted 6 to 8 weeks, in addition to his pain medications. To support the impact of his headaches on his job, he submitted numerous computer-generated log entries, dated from January 2006 to September 2010, showing his leave usage at his workplace. In one list, dated from January 2006 to May 2007, he took 259.5 hours of sick and annual leave due to headaches or to doctor appointments to treat the headaches. From additional work log entries submitted into the record, the Veteran tallied missed work due to migraine headaches for the following periods: for the year 2007, 23 missed days; for the year 2008, 19 missed days; and for the period of January to September 2009, 19 missed days. Based on a review of the foregoing, to include medical evidence and the Veteran's own statements regarding frequency, duration, and severity of headaches, the Board finds that for the period considered in this appeal the Veteran's tension and migraine-type headaches are shown to more nearly approximate the criteria for a 50 percent rating than the criteria for his current 30 percent rating. The record reflects that the Veteran sees medical professionals on a regular basis specifically for treatment of the headaches, and that he has tried numerous types of treatments and medications to control his headache pain, including oral medications and nerve blocks. Despite taking prescription pain medications daily, and having injections periodically, the headache pain returns and is shown to be severe enough to affect the Veteran in the performance of his duties at work. The Veteran has submitted records of the use of his leave from work dating back to 2006, which demonstrate that his headaches are the reason he misses a couple of days of work each month. The Veteran asserts that his leave balance is zero or nearly so. He also believes that his job is in jeopardy on account of his frequent absences due to migraines. The characterization of the severity and duration of headaches as indicated in the medical records and in the Veteran's statements shows that the headaches are severe and prolonged and that they appear to occur much more often than is contemplated for a 30 percent rating. Further, while it is somewhat difficult without clear guidance in the regulations to determine what evidence constitutes severe economic inadaptability, it is reasonable to view the Veteran's documented frequent absences at work as equivalent to or meeting the standard of severe economic inadaptability for a 50 percent rating. Therefore, the Board interprets the findings in a light most favorable to the Veteran, particularly as he is deemed competent to describe his symptoms and is found to be credible. In so doing, the Board concludes that the Veteran meets the criteria for a 50 percent rating, the maximum schedular rating under Diagnostic Code 8100, for the period covered in this appeal, and his claim is granted. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the Veteran has maintained full time employment despite the severity of his headaches. The rating criteria for migraine headaches reasonably describe his disability level and symptomatology, and provide for a maximum 50 percent rating for symptoms that produce severe economic inadaptability. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER A 50 percent rating for mixed headaches with tension and migrainous components is granted, subject to subject to the law and regulations, governing the award of a monetary benefit. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs