BVA9502222 DOCKET NO. 92-10 102 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Increased rating for vascular headaches, currently rated as 30 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant served on active duty from October 1974 to August 1976. The instant appeal is from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) of April 1991 denying a higher disability rating for vascular headaches. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he is entitled to a 50 percent disability rating for his service-connected headaches. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that an increase in the schedular disability rating is warranted. FINDING OF FACT The appellant has completely prostrating headache attacks approximately weekly that are productive of severe economic inadaptability. CONCLUSION OF LAW The schedular criteria for a 50 percent disability rating for vascular headaches are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the evidence submitted is sufficient to justify a belief that the appellant's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). This finding is based on the appellant's contentions and testimony and the medical evidence received in support of the claim. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Further, the RO has adequately developed the record for appellate purposes, and we may therefore proceed to a disposition of the appeal on the merits. In our review of claims for increased ratings, the Board considers all of the medical evidence of record, including the appellant's relevant medical history. Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991); Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991). The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). We attempt to determine the extent to which a service- connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10. In so doing, we must weigh the evidence before us. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Review of the record reveals that the appellant developed headaches in service about February 1975 and was treated repeatedly thereafter. The headaches were diagnosed as migraine in type. VA outpatient treatment records from 1978 and 1979 show the appellant was followed and treated for a chief complaint of vascular headaches, which responded well to Cafergot, and were associated with and exacerbated by hypertension, which was uncontrolled. VA outpatient records from 1981 and 1982 revealed good management of headaches with medication. A VA examination report of March 1982 noted a long history of migraines, unchanged, and that the appellant reported he had not worked in four or five years because of headaches, high blood pressure, and poor eyesight; the appellant reported he lacked the will power to get up and do things. A VA Mental Hygiene Clinic note of August 1982 recorded the appellant's comment that no one would hire him because he had so many disabilities. VA examination in February 1983 diagnosed vascular headaches under excellent control with Inderal. A VA examination report in February 1984 produced an impression of migraine headaches and noted the appellant's report that he could not hold a job because of loss of time from work due to headaches. On VA examination in May 1986 headaches were described as bifrontal, throbbing, spreading to the rest of the head and neck, with prodromata and nausea, vomiting and weakness during attacks. In a December 1990 VA examination report, the examiner explained that the headaches characterized as vascular in some records and as migraine in others are one and the same thing. Extensive VA outpatient records from May 1981 to October 1983 also reveal ongoing treatment for hypertension, coronary artery disease, congenital nystagmus, and mental disorder. The appellant has also been treated privately at Jefferson Memorial Hospital in January 1986 for ureteral calculi and at Hamilton Medical Center in January 1991 for accelerated hypertension and chronic obstructive pulmonary disease. An Administrative Law Judge decision from the Social Security Administration of June 1992 found the appellant disabled from January 1990 because of high blood pressure and bad eyesight. The appellant reported he had worked briefly in July 1990 and in January 1991, but quit because of severe cardiac symptoms and mental problems. Headaches were not mentioned by the appellant or the judge as among the elements of industrial impairment. In a statement of May 1991, John D. Richmond, M.D., opined that there is a relationship between the appellant's hypertension and the occurrence of headaches; severe episodes of accelerated hypertension were thought to aggravate the headaches; obstructive sleep apnea was also suggested as a possible cause or aggravating factor for headaches. The appellant testified at a hearing on appeal in September 1992. He indicated that the preponderance of his medical treatment over the past several years had been for hypertension; although he complained, he said, of headaches, the doctors kept telling him if his hypertension was effectively managed maybe his headaches would diminish. He stated he had last worked in February 1992 and lost the job due to eye problems; he had lost previous jobs because of repeated hospitalizations. On VA outpatient follow-up in October 1993 following a July 1993 heart attack, the appellant reported daily migraine headaches. He denied having any "real bad ones" for several months. The appellant had a VA examination in February 1994, which noted a 20 year history of migraines in the appellant and current complaints of daily headaches with "really bad ones" with nausea and vomiting lasting three to four hours and forcing him to lie down about once a week. The appellant had another VA examination in June 1994, which included a detailed clinical interview with family and individual history, descriptions of the frequency, character, intensity, precipitants and other clinically significant features of the appellant's headaches, and offered diagnostic impressions. The examiner clearly found sincere and credible the appellant's report of daily headaches with breakthrough headaches, which the appellant called "bad ones," about four to five times per month. The history of headaches went back bout 20 years. They were described as bifrontal, throbbing and pounding in quality, associated with nausea, vomiting, fatigue, photophobia, and phonophobia. The appellant had to go to a dark room and lay down with a sheet on his head. He reported several courses of prophylactic and abortive medical therapy over the years without significant help. The examiner also noted multiple other significant medical problems. The examiner's impression was that the appellant's long-standing and chronic daily headache with frequent peaks was very consistent with chronic intractable migraine. Almost all of the characteristics of the symptoms presented were consistent with migraine. The appellant is currently rated as 30 percent disabled by headaches. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (1993) [hereinafter Code 8100]. The criteria for a 30 percent rating are "migraine with characteristic prostrating attacks occurring on an average once a month over the last several months." Id.. For a 50 percent rating there must be "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." Id. Code 8100 provides guidance for the frequency and quality of headache attacks consistent with a 30 percent rating. It does not define the term "prostrating," or "frequent," and offers no insight into the distinction between "prostrating" and "completely prostrating" headaches, or how long a headache must last to be "prolonged." That he is compelled to lie down with a sheet over his head, is nauseous and vomits is consistent with "completely prostrating." Moreover, it appears to the Board that the frequency, severity and prostrating nature of the appellant's headaches more nearly approximates the schedular requirement of severe economic inadaptability. 38 C.F.R. § 4.7 (1993). Consequently, a 50 percent schedular rating is warranted. Whereas the appellant is to be compensated at the highest level provided in the rating schedule for his headache disability, consideration of the question whether application of the rating schedule is practical under the appellant's circumstances, 38 C.F.R. § 3.321(b)(1) (1993), is appropriate. See Schafrath, 1 Vet.App. 589, 593 (1991) (consideration of all potentially applicable regulations is required). Moreover, this consideration by the Board is of a question of the appropriate rating of a disability where the appellant has already argued to the degree of disability and the effect of it on his daily life, including employment, 38 C.F.R. § 4.10 (1993); it does not prejudice the appellant for the Board to consider the question of extra-schedular rating even though the RO has not. O.G.C. Precedent Op. 16-92, 57 Fed. Reg. 49747 (1992). Where application of the VA Schedule for Rating Disabilities is impractical because the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods or hospitalization as to render impractical the application of the regular rating standards," a disability may be rated on an extra- schedular basis. 38 C.F.R. § 3.321(b)(1) (1993). The appellant is unemployed because of numerous non-service- connected disabilities, as evidenced by the Social Security Administration's decision and the appellant's statements in VA examination in March 1982, Mental Hygiene Clinic records of August 1982, and hearing testimony in September 1992. The hospital records show various reasons for hospitalizations, but headaches is not among them. The rating schedule provides a 50 percent rating for severe economic inadaptability, Code 8100, therefore the "marked interference with employment" warranting extra-schedular rating would have to be of such a character as to make obvious the impracticality of characterizing the appellant's disability as "productive of severe economic inadaptability." Extra-schedular ratings are "to accord justice . . . to the exceptional case where the schedular evaluations are found to be inadequate." 38 C.F.R. § 3.321(b)(1) (1993). Submission to VA Central Office officials was not required by the record in this case. The schedular evaluation of 50 percent is adequate to compensate the veteran for the disability demonstrated. Consequently, an extra-schedular rating is not for application in this case. ORDER A 50 percent schedular rating for vascular headaches is granted. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.