Citation Nr: 0005628 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 95-24 081A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether the reduction in the disability evaluation for headaches from 30 percent to 10 percent disabling from July 1, 1995 through April 16, 1997, was proper. 2. Entitlement to an increased evaluation for headaches, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission INTRODUCTION The veteran served on active duty from August 1986 to May 1992. In January 1995 the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, in pertinent part, proposed reduction in the evaluation for headaches from 30 percent (effective since May 16, 1992) to 10 percent disabling, and for lumbosacral strain from 10 percent (effective since May 16, 1992) to noncompensable. The current appeal arose from an April 1995 rating decision of the RO. The RO reduced the evaluation for headaches from 30 percent (effective since May 16, 1992) to 10 percent disabling effective July 1, 1995; and the evaluation for lumbosacral strain from 10 percent to noncompensable effective July 1, 1995. In August 1997 the RO granted entitlement to an increased evaluation of 30 percent for headaches effective April 17, 1995; and affirmed the noncompensable evaluation for lumbosacral strain. In January 1998 the Board of Veterans' Appeals (Board) denied entitlement to restoration of the previous 10 percent evaluation for lumbosacral strain, and remanded the issue of entitlement to increased compensation benefits for headaches to the RO for further development and adjudicative actions. In November 1999 the RO denied entitlement to an increased evaluation for headaches. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The appellant's headaches were productive of characteristic prostrating attacks occurring on an average once a month over last several months from July 1, 1995 to April 16, 1997. 2. The appellant's headaches since April 17, 1997 have not been very frequent with completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The reduction in the disability evaluation for headaches from 30 percent to 10 percent effective from July 1, 1995 to April 16, 1997 was not proper. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (1999). 2. The criteria for an evaluation in excess of 30 percent for headaches effective from April 17, 1997 have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background A review of the service medical records discloses that the appellant was treated for occasional tension headaches. A July 1992 VA neurological examination report shows the veteran complained of pain in her temples with radiation of pain into her neck, right greater than left. Her headaches had increased to approximately once per week. During the attacks she was unable to function well in any kind of activity. The examination diagnosis was headaches, probably myofascial, versus temporomandibular joint. In January 1993 the RO granted entitlement to service connection for headaches, myofascial versus temporomandibular joint, with assignment of a 30 percent evaluation. An August 1994 VA dental examination report shows the veteran was evaluated for complaints of headaches which might be caused by her temporomandibular joint. An August 1994 VA neurological examination report shows the veteran reported she had sustained a closed head injury when on active duty. She complained that her headaches occur once or twice per month, and varied in severity. The most severe attacks were occipital/frontal in location, sometimes bitemporal with associated nausea, vomiting, sonophobia, and photophobia. She had noticed no precipitating factors for headaches such as food, drink, lack of sleep, menstruation. She had a chronic dull headache on a daily basis. On examination neurologically she was awake, alert and oriented times three. Cranial nerves II through XII were intact. The clinical impression shows the veteran had a history of migraine headaches most likely post traumatic in nature. Associated with the claims file is a substantial quantity of VA outpatient treatment reports dated during immediately preceding years which while they contain some limited references to headaches, are primarily referable to disorders which are not related to the current appeal. VA conducted a special thyroid dysfunction and pituitary adenoma examination of the veteran on April 17, 1997. The examination report shows that she pertinently complained of headaches which were bitemporal and occipital. She stated that she had a headache almost on a daily basis. The pertinent diagnostic impression was bitemporal and occipital headaches secondary to muscle tension, and no visual difficulty. VA conducted a special neurological examination of the appellant in May 1997. She described headaches with nausea, vomiting, visual disturbance and photophobia in which she usually has to lie down in a quiet dark room and go to sleep. The examiner noted the veteran may have a couple of these per week. It was noted that the veteran did not remember ever being on a specific medication given for migraine type headaches. No pertinent abnormalities were found on examination. The examination diagnosis was headaches which appeared to be vascular migraine in nature. The examiner noted that the veteran also apparently had some other headaches due to temporomandibular jaw syndrome. VA conducted a special neurological examination of the veteran in September 1998. She reported that she was having headaches around 1986, but they worsened after trauma in 1989 or 1990. She described headaches with nausea, vomiting, visual disturbance and photophobia in which she would initially lie down in a quiet, dark room and go to sleep. This would occur about two times per week. Currently her headaches were pretty much as before with nausea and some visual blurring with photophobia. Prior to being pregnant she had a couple of headaches a week. She stated she usually worked through the headaches which were not particularly incapacitating. No pertinent abnormalities were found on examination. The diagnosis was headaches consistent with vascular migraine headaches. The examiner also noted that the headaches had increased in severity possibly because of her pregnancy. In a November 1998 addendum to the September examination report the examiner opined that the veteran's migraine headaches were independent of her temporomandibular joint syndrome and pregnancy. He felt that she did not have any neurological disability on examination to interfere with gainful employment. Certainly, when she had a migraine, it may interfere with her daily activity. Criteria In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2 (1999). However, where 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA 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 such disease or injury and their residual conditions in civil occupations. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Ratings shall be based as far as practicable, upon average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). A 50 percent evaluation may be assigned for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating may be assigned for migraine with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating may be assigned for migraine with characteristic prostrating attacks averaging one in 2 months over last several months. A noncompensable evaluation may be assigned for migraine with less frequent attacks. 38 C.F.R. § 4.124a; Diagnostic Code 8100. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Initially, the Board finds that the veteran's claims of entitlement to increased evaluations for her headache disability in connection with the periods of time involved due to reduction and restoration are well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, plausible claims have been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of her service-connected headaches (that are within the competence of a lay party to report) are sufficient to conclude that her claims for increased compensation for that disability are well grounded. King v. Brown, 5 Vet. App. 19 (1993). The Board is also satisfied that, as a result of the January 1998 remand of the case to the RO for further development and adjudicative actions, all relevant facts have been properly developed to their full extent and that VA has met its duty to assist. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). The RO reduced the evaluation of the appellant's migraine headache disability from 30 percent to 10 percent disabling effective from July 1, 1995 until April 17, 1997, when the previous 30 percent evaluation was restored. The Board must determine whether the subject reduction in the disability evaluation for the appellant's headaches was proper, and whether there exists a basis upon which to predicate an evaluation in excess of the current 30 percent evaluation. The Board's review of the period in question from July 1, 1995 to April 16, 1997, when the reduced evaluation of 10 percent was effective does not permit the conclusion that such reduction was proper. In this regard the Board notes that the RO evidently utilized the clinical findings reported on the VA August 1994 neurological examination upon which to predicate the reduction in the disability evaluation. The prior 30 percent evaluation was predicated on migraine with characteristic prostrating attacks occurring on an average once a month over last several months. The August 1994 examination report shows that the appellant's headaches were severe and occurred one to two times per month. This is in keeping with the required once monthly headache for the 30 percent evaluation. The 10 percent evaluation would have sustained a history of headaches averaging one in 2 months over last several months. This was clearly not shown by the evidentiary record. Accordingly, the Board finds that reduction in the disability evaluation for headaches from 30 percent to 10 percent during the period from July 1, 1995 to April 16, 1997 inclusive was not proper, thereby warranting restoration of the previous 30 percent evaluation during this time period. The next issue for appellate review concerns whether the current 30 percent evaluation adequately compensates the veteran for the nature and extent of severity of her migraine headaches. The Board is of the opinion that it does. In this regard, the Board notes that, as reported above, the current 30 percent evaluation contemplates headaches on an average once a month over last several months. The maximum 50 percent evaluation requires very frequent completely prostrating and prolonged migraine headache attacks productive of severe economic inadaptability. The evidentiary record clearly shows that the diagnostic criteria for the maximum schedular evaluation of 50 percent have not been met. In this regard the Board notes that September 1998 VA examination report shows the appellant reported that she usually works through her headaches which she stated were not particularly incapacitating. In his November 1998 addendum to the September 1998 VA examination report the examiner advised that the veteran did not have any neurological disability on examination to interfere with gainful employment. He acknowledged that when she did have migraine, they clearly interfered with daily activities; however, no where was it shown that she suffered from severe economic inadaptability. Accordingly, the criteria for the maximum schedular evaluation of 50 percent are not met beginning April 17, 1997, for migraine headaches. No question has been presented as to which of two evaluations would more properly classify the severity of the appellant's migraine headaches. 38 C.F.R. § 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case, the Board notes that while the RO provided the criteria referable to extraschedular evaluation, it did not actually discuss them in light of the veteran's claim. It is clear that the RO in denying the claim for increased compensation benefits had considered the criteria. The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Under Secretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find that veteran's disability picture to be unusual or exceptional in nature as to warrant referral of her case to the Director or Under Secretary for Benefits for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). The veteran has admitted that she works through her headaches and the VA examiner specifically pointed out that she has no neurological disability interfering with gainful employment. Moreover, the appellant has not required frequent inpatient care much less any inpatient care for her migraine headache disability. The current schedular criteria adequately compensate her for the current nature and extent of severity of her migraine headaches. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for an evaluation in excess of 30 percent for headaches. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to restoration of a 30 percent evaluation for headaches effective from July 1, 1995 is granted, subject to the governing criteria applicable to the payment of monetary benefits. Entitlement to an evaluation in excess of 30 percent for headaches effective from April 17, 1997 is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals