Citation Nr: 0000439	
Decision Date: 01/06/00    Archive Date: 01/11/00

DOCKET NO.  98-07 098A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Pittsburgh, Pennsylvania



THE ISSUE

Entitlement to a higher initial rating for headaches due to 
head injury, currently rated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Associate Counsel 



INTRODUCTION

The veteran had active service from June 1975 to June 1978, 
from October 1979 to November 1979, and from March 1980 to 
March 1982.

This matter comes to the Board of Veterans' Appeals (Board) 
from an August 1997 RO rating decision that granted service 
connection for residuals of head injury, including headaches, 
and assigned a 10 percent evaluation under diagnostic code 
8045-9304, effective from April 1991.  The veteran submitted 
a notice of disagreement in October 1997, and the RO issued a 
statement of the case in April 1998.  Correspondence from the 
veteran's representative submitted in July 1998 has been 
accepted as a substantive appeal.



FINDING OF FACT

The veteran's headaches due to head injury are manifested 
primarily by constant dull headaches, described as a 
throbbing pain at the right temple and radiating to the top 
of the veteran's head; dementia due to head trauma is not 
found.



CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for 
headaches due to head injury have not been met.  38 U.S.C.A. 
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.103, 4.7, 4.124a, 
diagnostic codes 8045, 9304 (1999). 





REASONS AND BASES FOR FINDING AND CONCLUSION

A.  Factual Background

The veteran had active service from June 1975 to June 1978, 
from October 1979 to November 1979, and from March 1980 to 
March 1982.

Service medical records show that the veteran was brought to 
the emergency room for a fainting spell in September 1976.  
The veteran reported that he had a head injury during 
"Reforger."

Service medical records show that the veteran was treated for 
headache pain in November 1976.

VA medical records show that the veteran underwent a 
neurological evaluation in September 1991.  He reported that 
he had suffered a head injury in service when he was crushed 
between a trailer and truck.  The veteran reported that, 
since then, he has had severe headaches, poor memory, and a 
violent disposition.  The veteran also reported having 
nausea, unilateral right-sided pain, "white out" of vision, 
dizziness, and syncope when pain was especially severe.  The 
examiner's impression was post-traumatic syndrome.

VA medical records show that the veteran was admitted to a 
neurology clinic for evaluation of his blacking-out spells in 
September 1992.  A report of an electromyography (EMG) 
conducted at that time notes that the veteran had a history 
of head injury.  Nerve conduction studies were consistent 
with polyneuropathy, primarily demyelinating, of unknown 
etiology.  There was also evidence of a radial nerve injury 
on the right.  The veteran was diagnosed with syncope of 
unknown etiology; chronic headaches secondary to head trauma; 
and right hand weakness secondary to possible brachial plexus 
injury.

A medical report by Dr. William A. Illingworth, III, dated in 
March 1996, notes that the veteran's seizure disorder and 
headaches have caused him to be unable to work.

The veteran underwent a VA examination in June 1996.  He 
reported that, in September 1976, his head was bumped against 
a protruding hook with laceration to his right temple, and 
that he was knocked unconscious.  The veteran reported that 
he awoke in a hospital.  He later returned to active duty and 
soon thereafter began having episodes of blacking out.  The 
veteran reported constant headaches, described as a throbbing 
pain in his right temple and radiating to the top of his 
head.  Upon examination, there was a small well-healed scar 
buried near the hairline on his right temple.  The remainder 
of his Neuro-examination was entirely normal.  The veteran 
was diagnosed with post-traumatic vascular headache and 
syncope of unknown etiology.
  
Testimony of the veteran at a hearing in January 1997 was to 
the effect that he sustained a head injury while serving with 
the 504 Maintenance Company.  The veteran testified that 
there was a truck and trailer, and that he was assisting in 
holding the weight on the trailer while another unhooked the 
trailer from the truck.  The trailer was not properly locked, 
and the veteran was knocked to the back of the truck and was 
knocked unconscious.  When he awoke, the veteran was in a 
field hospital; he was later transferred to an Army hospital 
in Germany.  The veteran testified that he has had headaches 
and fainting spells ever since then, and that he has been 
hospitalized at times for headache pain.

In August 1997, the Board granted service connection for 
headaches as a residual of head injury.  In its decision, the 
Board noted that the veteran's complaints of symptoms other 
than headache (dizziness, weakness, nausea, a claimed seizure 
disorder, and syncope) were not residuals of the in-service 
head injury.

An August 1997 RO rating decision effectuated the Board's 
decision, and assigned a 10 percent evaluation under 
diagnostic code 8045-9304 for residuals of head injury, 
including headaches, effective from April 1991.

A May 1998 RO rating decision denied entitlement to 
individual unemployability on the basis that the veteran's 
service-connected disabilities did not meet the schedular 
requirements for entitlement to individual unemployability.  
The RO found no exceptional factors or circumstances 
associated with the veteran's disablement to submit the case 
for extraschedular consideration.

VA medical records show that the veteran was admitted to a VA 
hospital on a voluntary status for treatment during March and 
April 1998.  The veteran reported that he was unemployed.  
The veteran's mood and affect at the time of admission were 
irritable.  There were some circumstantiality and loosening 
of association noted.  His insight and judgment were poor.  
The veteran was referred for evaluation for a drug/alcohol 
rehabilitation program.  The veteran's condition at the time 
of discharge was stable.  The veteran was scheduled for 
appointments for an MRI scan of the veteran's head and neck, 
and for an EEG.  The veteran was advised not to drive until 
he was seen at the neurology clinic.  He was also advised to 
remove all weapons from his home, and to avoid drugs and 
alcohol.  The veteran was advised to keep his outpatient 
appointments and to use his time constructively.  The veteran 
was to resume pre-hospital activities.

VA medical records show that the veteran received 
psychological and neurological treatment occasionally on an 
outpatient basis in 1998.  In June 1998, the veteran reported 
that, since his head injury in service, he had been plagued 
by headaches and by seizures; and that he had tried to keep 
his seizure disorder a secret, but that sooner or later it 
became a problem and resulted in the veteran's being unable 
to keep jobs.

An MRI scan of the veteran's skull in October 1998 revealed 
no radiopaque foreign bodies, and no fractures or other bony 
abnormalities.

VA medical records show that the veteran completed a two-week 
CMP stay in December 1998.  Records indicate that the veteran 
had a history of noncompliance with treatment and note that, 
if the veteran kept his appointments, took his medications, 
and did not use alcohol for a six-month period, the veteran 
would be rescheduled for another CMP admission.


B.  Legal Analysis

The veteran's claim for a higher evaluation for residuals of 
head injury, including headaches, is well grounded, meaning 
it is plausible.  The Board finds that all relevant evidence 
has been obtained with regard to the claim and that no 
further assistance to the veteran is required to comply with 
VA's duty to assist him.  38 U.S.C.A. § 5107(a) (West 1991).

In general, disability evaluations are assigned by applying a 
schedule of ratings which represent, as far as can 
practicably be determined, the average impairment of earning 
capacity.  38 U.S.C.A. § 1155.  Although regulations require 
that, in evaluating a given disability, the disability be 
viewed in relation to its whole history, 38 C.F.R. § 4.41, 
the present level of disability is of primary concern.  
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when 
the initial assignment of a disability rating has been 
appealed, the Board must consider the rating, and, if 
indicated, the propriety of a staged rating, from the initial 
effective date forward.  See Fenderson v. West, 12 Vet. App. 
119 (1999).  Also, 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.

In evaluating the veteran's claim for an increased rating, 
the Board considers the evidence of record.  The medical 
findings are compared to the criteria set forth in the VA's 
Schedule for Rating Disabilities.  An evaluation of the level 
of disability present must include consideration of the 
functional impairment of the veteran's ability to engage in 
ordinary activities, including employment, and the effect of 
pain on the functional abilities.  38 C.F.R. §§ 4.10, 4.40, 
4.45, 4.59.  Furthermore, the United States Court of Appeals 
for Veterans Claims (Court) has held that the VA must 
consider the applicability of regulations relating to pain.  
Quarles v. Derwinski, 3 Vet. App. 129, 139 (1992); Schafrath 
v. Derwinski, 1 Vet. App. 589, 593 (1993); Hatlestad v. 
Derwinski, 1 Vet. App. 164, 167 (1991).  "[F]unctional loss 
due to pain is to be rated at the same level as the 
functional loss when flexion is impeded."  Schafrath, 1 Vet. 
App. at 592.  

Service connection is currently in effect for headaches as a 
residual of head injury under diagnostic code 8045, which 
contemplates brain disease due to trauma.  Purely 
neurological disabilities, such as hemiplegia, epileptiform 
seizures, facial nerve paralysis, etc., following trauma to 
the brain, will be rated under the diagnostic codes 
specifically dealing with such disabilities, with citation of 
a hyphenated diagnostic code (e.g., 8045-8207).  Purely 
subjective complaints such as headache, dizziness, insomnia, 
etc., recognized as symptomatic of brain trauma, will be 
rated 10 percent and no more under diagnostic code 9304.  
This 10 percent rating will not 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 are 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 (1999).

In this case, the evidence reflects that the veteran reports 
constant headache pain as a residual of head injury.  Pain 
may provide a basis for a compensable disability rating.  
Smallwood v. Brown, 10 Vet. App. 93, 98 (1997).  The Board 
has carefully considered the veteran's testimony to the 
effect that he has functional impairment from headache pain 
that interferes with his ability to work.  38 C.F.R. § 4.10.

At the VA examination in 1996, the veteran was diagnosed with 
post-traumatic vascular headache.  Complaints of other 
symptoms experienced by the veteran are not for consideration 
in rating the service-connected headaches.  38 C.F.R. § 4.14 
(1999).  As noted above, a previous Board decision stated 
that dizziness, syncope, and other non-headache symptoms were 
not due to the in-service head injury.  Service connection 
was granted only for the headaches.

Primarily, the veteran's disability consists of the purely 
subjective complaint of headache, recognized as symptomatic 
of brain trauma under diagnostic code 8045, which allows a 
rating of 10 percent and no more under diagnostic code 9304.  
As noted above, a rating in excess of 10 percent is assigned 
under diagnostic code 8045 only when there is a showing of 
multi-infarct dementia from brain trauma.  As demonstrated by 
the evidence of record, that requirement has not been met.

After a careful review of the available diagnostic codes and 
the medical evidence of record, the Board finds that 
diagnostic codes other than 8045 do not provide a basis to 
assign an evaluation higher than the 10 percent evaluation 
currently in effect.  Diagnostic code 8100 contemplates 
migraines, and a 30 percent rating is assigned for migraines 
with characteristic prostrating attacks occurring on an 
average once a month over the last several months.  The 
evidence does show that the veteran has constant dull 
headaches, described as a throbbing pain at his right temple 
and one that radiates to the top of his head.  However, this 
evidence does not suggest that the veteran's headaches are of 
such frequency to be considered characteristic-prostrating 
attacks as required for a 30 percent rating under diagnostic 
code 8100.

The Board notes that the record reflects that the RO 
considered the issue of entitlement to an extraschedular 
rating under the criteria of 38 C.F.R. § 3.321(b)(1) as to 
the service-connected residuals of head injury, including 
headaches, in a May 1998 RO rating decision.  In reaching a 
determination here, the Board finds that the evidence does 
not suggest that the veteran's headaches present such an 
exceptional or unusual disability picture as to render 
impractical the application of the regular schedular 
standards or to warrant referral to the Under Secretary for 
Benefits or the Director, Compensation and Pension Service 
for consideration of an extraschedular evaluation under 
38 C.F.R. § 3.321(b)(1).  For example, the headaches do not 
require frequent periods of hospitalization, nor do they 
present marked interference with employment that has not 
already been contemplated by the currently assigned schedular 
evaluation.  While the Board notes that the veteran has not 
been employed since the late 1980's, there appears to be 
evidence in the record of other factors that might have 
contributed to the veteran's unemployment status-e.g., 
alcohol, a violent disposition, a possible seizure disorder, 
and the failure to keep appointments.
 
In light of all evidence of record, the Board finds that the 
veteran's disability picture does not approximate the 
criteria necessary for a higher disability evaluation.  
38 C.F.R. § 4.7.  In this regard the evidence is not in 
equipoise, but is against a higher rating.  Thus the benefit 
of the doubt cannot be applied.  38 U.S.C.A. § 5107(b) (West 
1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
  
Accordingly, a rating higher than 10 percent for headaches as 
a residual of head injury is not warranted, and the claim 
must be denied.  The Board finds that the evidence shows that 
this level of impairment due to residuals of head injury, 
including headaches, has existed since the effective date of 
the grant of service connection.   Fenderson v. West, 12 Vet. 
App. 119 (1999).



ORDER

An initial rating greater than 10 percent for headaches due 
to head injury is denied.




		
	J. E. DAY 
	Member, Board of Veterans' Appeals