Citation Nr: 0005939 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 97-17 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE 1. Entitlement to a disability evaluation in excess of 10 percent for service-connected cluster headaches prior to October 11, 1996. 2. Entitlement to a disability evaluation in excess of 30 percent for service-connected cluster headaches from October 11, 1996. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. A. Herman, Associate Counsel INTRODUCTION The veteran had active military service from October 1987 to September 1992. This appeal arises from an October 1996 rating decision of the Buffalo, New York, regional office (RO) which granted a 30 percent disability evaluation for the veteran's service-connected cluster headaches, effective in October 1996. The veteran asserts that a higher disability rating is warranted. FINDINGS OF FACT 1. For the period prior to October 11, 1996, the veteran's cluster headaches were manifested by prostrating attacks occurring on average of once a month. 2. For the period from October 11, 1996, the veteran's cluster headaches have not been manifested by more than prostrating attacks occurring on average once a month. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability evaluation for cluster headaches prior to October 11, 1996 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321 and Part 4, including §§ 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8100 (1999). 2. The criteria for a disability evaluation in excess of 30 percent for cluster headaches from October 11, 1996 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321 and Part 4, including §§ 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background By a rating action dated in September 1993, service connection for cluster headaches was granted. A 10 percent disability evaluation was assigned, effective from September 1992. In June 1996, the veteran filed a claim for an increased evaluation of his service-connected headaches. He said he suffered from severe migraine headaches. He reported receiving treatment through the Syracuse VA Medical Center (VAMC). Medical records from the Syracuse VAMC dated from January 1995 to March 1996 were associated with the claims folder. Those records show that the veteran received evaluations and treatment for headaches in addition to service-connected hemochromatosis. In June 1995, the veteran was seen for complaints of headaches. He said he used to get headaches frequently before his hemochromatosis was diagnosed. He stated his headaches had disappeared after he was phlebotomized. He reported that his headaches had returned in February 1995. The veteran indicated he would get one to two headaches a day, and that the headaches would last between four and five hours. He reported taking multiple medications without any significant relief. A different regimen of medications was suggested. A December 1995 follow up report showed that the veteran continued to complain of frequent headaches. By March 1996, the veteran was observed to have experienced relief through the use of Elavil. He stated he had not had a headache in over 10 days. The examiner noted that the veteran had had a "spell of 1 a day" headaches between December and February. The impression was cluster headaches rather than migraine headaches. His condition was stable. The veteran was afforded a VA cranial nerves examination on October 11, 1996. He gave a history of cluster headaches since 1988. He described his headaches as pounding in the right side of his head. He said the headaches were retro- orbital. He stated the headaches were occasionally accompanied by nausea, photophobia, and phonophobia. The veteran maintained his headaches had increased in frequency over the past two years. He said the headaches also lasted longer. He indicated that his average headache would last six hours. He reported that his last "cluster" had started in August, and that he continued to have headaches every two to three days. Although his right eye would become "droopy" during these attacks, he denied any visual changes. Following a physical examination, the veteran was diagnosed as having a history of cluster headaches with an increase in frequency over the past two years. By a rating action dated in October 1996, the 10 percent disability evaluation assigned to the veteran's service- connected cluster headaches was increased to 30 percent, effective on October 11, 1996. The RO found that VA outpatient treatment records showed that the veteran experienced some relief of his headache symptoms with the use of medications. The RO noted that the October 1996 VA examination indicated that the veteran's headaches occurred every two to three days. The veteran filed a substantive appeal in April 1997. He asserted that he had suffered from severe daily headaches from August to November 1996. He said he received daily injections during this period to treat his headaches. Following the administration of those injections, he reported that he would have to rest for 30 minutes. He stated his employer was sympathetic to his situation and allowed him to lay down whenever he got a headache. The veteran argued that his headaches were severe and totally incapacitating. As his headaches had been daily, he maintained a 50 percent disability evaluation was warranted. Medical records from the Syracuse VAMC dated from December 1995 to June 1997 show that the veteran continued to receive periodic treatment for headaches. In June 1996, the veteran reported that he had been "headache free" for the past one- and-one-half months. He indicated that he had had a history of one to two headaches a week prior to receiving Imitrex shots. He said he had a headache in the morning, but that, following use of Imitrex, it had resolved in 20 minutes. The assessment was cluster headaches under control with Imitrex. The veteran was seen in September 1996 for complaints of "terrible" headaches for the past two weeks. He described a constant squeezing pain on the right side of his head, a watery nose and eye, and sticky saliva. He said he had derived no relief from Imitrex. He stated the headaches lasted between one-and-a-half and two hours. A treatment note dated on October 25, 1996 showed that the veteran continued to complain of headaches on a daily basis. He said he had experienced no more than two days of relief since August 1996. He stated the headaches usually occurred in the morning. He reported that he would wake in the middle of the night with a headache, and that the headache would last for about an hour. The veteran said using Imitrex helped. The assessment was cluster versus migraine headaches. Several medications were administered to include Prednisone and Imitrex. A November 1996 follow-up treatment note indicated that the veteran had had no headaches for the past 10 days while on Prednisone. The examiner observed that the headaches would resume when the Prednisone dropped below 20 milligrams a day. Later that month, the veteran was admitted for treatment with "DHE". He reported unilateral right-sided headaches that were sharp in nature and caused nausea without vomiting. He said he become hot and sweaty during an attack. The veteran's response to medication was discussed. He stated he currently had headaches two to three times a day. He was put on DHE and had positive results. The veteran was discharged three days after his admission. The veteran was afforded a VA neurological examination in January 1999. His history of headaches and treatment thereof was referenced. The use of sumatriptan injections in 1995 was noted to have been the first medication to decrease the frequency and duration of his headaches. However, since 1997, he reported that his headaches had increased in intensity and frequency. He did acknowledge that he did have longer "breaks" between his cluster headaches. He stated his headaches seemed to worsen between March and October. The veteran maintained he had currently been experiencing two to three headaches a day every day for the past six months. He said that the headaches usually subsided within 10 minutes of being administered a sumatriptan or DHE-45 injection. The veteran reported that he had been working full-time as an auto mechanic since his service discharge. He stated he had recently obtained a job refueling planes. In this regard, he said his bosses had been very understanding of his need to take a break whenever he had a headache. He indicated that he had missed work fairly frequently due to his headaches or doctor appointments. Following an examination of the cranial nerve system, the veteran was diagnosed as having cluster headaches. The examiner noted that the headaches appeared to have increased in severity and duration over the years, but that the veteran was able to get some relief with sumatriptan and DHE-45 injections. Additional medical records from the Syracuse VAMC dated from November 1996 to April 1999 were associated with the claims folder. Those records show that the veteran continued to receive routine treatment for headaches. Of note, the veteran was admitted in August 1997 due to complaints of a severe throbbing right-sided headache. He claimed loss of appetite and nausea. He said the headaches had been occurring five times a day for the past week. He reported deriving only temporary relief from Imitrex. DHE therapy was administered over the course of two days. The veteran was noted to have experienced an appreciable improvement of his symptoms. A March 1999 note from the veteran's neurologist indicated that the veteran was receiving treatment for recurrent severe headaches, migraine type. The physician stated the headaches did become so severe as to require rest. However, he said the headaches were not accompanied by an impairment of alertness or neurologic function. The physician opined that the veteran's headaches would not represent any risk to his ability to safely operate machinery or work around vehicles or heavy machinery. In July 1999, the 30 percent disability evaluation assigned cluster headaches was continued. The RO stated a higher evaluation was not warranted unless the headaches resulted in very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. The RO determined that these symptoms had not been shown. A supplemental statement of the case was mailed to the veteran in July 1999. II. Analysis The first inquiry must be whether the appellant has stated a well-grounded claim as required by 38 U.S.C.A. § 5107(a). A well-grounded claim is one that is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In the context of a claim for an increased evaluation of a condition adjudicated service connected, an assertion by a claimant that the condition has worsened is sufficient to state a plausible, well-grounded claim. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The appellant in the instant case has stated a well-grounded claim. Moreover, as all evidence necessary to an equitable disposition of the veteran's claim was obtained by the RO, the VA has fulfilled its duty to assist. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159 (1999). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, the VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. 38 C.F.R. § 4.10 provides that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whatever system is affected, evaluations are based upon lack of usefulness of these parts or systems, especially in self- support. The medical examiner must therefore furnish, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, a full description of the effects of disability upon the person's ordinary activity. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1999). A. Rating in Excess of 10 percent Prior to October 11, 1996 Prior to October 11, 1996, the veteran's cluster headaches were rated by analogy as 10 percent disabling under Diagnostic Code 8100, migraine headaches. A 10 percent evaluation requires characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent evaluation is assigned when there is characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent evaluation is assigned for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. While he reported having been "headache free" for the past one-and-half months in June 1996, treatment notes dated in September and October 1996 reflect a significant increase in the severity and frequency of the veteran's headaches. He was seen in September 1996 for complaints of terrible headaches for the past two weeks. He described a constant squeezing pain on the right side of his head, a watery nose and eye, and sticky saliva. He reported that the headaches would last from one-and-a-half to two hours. At that time, he stated he was not experiencing any relief from his medication. An October 1996 treatment note indicated that this increase in severity and frequency had started in August 1996. In sum, the Board finds that the evidence of record supported a 30 percent disability evaluation for cluster headaches prior to October 11, 1996. However, a disability evaluation in excess of 30 percent prior to October 11, 1996 was not warranted. The Board does not question the credibility of the veteran with regard to the frequency of his headaches. However, the evaluating criteria for 50 percent evaluations specify that the attacks be completely prostrating in nature and productive of severe economic inadaptability. The veteran reported that his headaches were severe in their intensity. He said the headaches never lasted more than an hour-and-a-half. Moreover, he made no allegations of severe headache attacks wherein the severe quality lasted for days and rendered him unable to work or otherwise function. The Board has also considered the assignment of a higher evaluation in this case on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1). There was no basis for referral by the RO for consideration of an extra-schedular evaluation, however, as the service-connected cluster headaches were not shown to have resulted in marked interference with employment or frequent periods of hospitalization, or to have otherwise presented an exceptional or unusual disability picture, during the period under review. B. Rating in Excess of 30 Percent From October 11, 1996 Here, the veteran has been affected by headaches which he says affect him on a daily basis. He maintains that these headaches are severe and may occur several times a day. While the frequency and severity of these headaches appear to have remained consistent throughout the claims period, it is also apparent that the veteran has continued to work on a full-time basis and to function despite them. He worked as an auto mechanic from service discharge until he obtained employment as a plane refueler in 1998. He says that his employers have been sympathetic to his condition and allow him to take a break whenever he has a headache. He reports that his headaches are controlled by use of medication. The veteran states that the duration of a headache can be as short as 10 minutes. In other words, the evidence in the claims file simply does not indicate that the veteran's service-connected cluster headaches have caused the severe economic inadaptability required for a 50 percent rating under Diagnostic Code 8100. The Board has also considered the assignment of a higher evaluation in this case on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1). A basis for an extra-schedular evaluation is not shown, however, as the service-connected cluster headaches do not result in marked interference with employment or frequent periods of hospitalization, or otherwise present an exceptional or unusual disability picture. ORDER Entitlement to a 30 percent disability rating for service- connected cluster headaches prior to October 11, 1996 is granted, subject to the criteria governing payment of monetary benefits. Entitlement to a disability rating in excess of 30 percent for service-connected cluster headaches from October 11, 1996 is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals