BVA9502585 DOCKET NO. 93-07 841 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an increased disability evaluation for cephalgia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from December 1945 to January 1947. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an October 1991 rating decision of the Reno, Nevada, Department of Veterans Affairs Regional Office (VARO). CONTENTION OF APPELLANT ON APPEAL The appellant contends that his service-connected cephalgia has sufficiently worsened to warrant entitlement to a disability evaluation in excess of the 10 percent rating currently assigned. 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. 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 the preponderance of evidence is against entitlement to an increased disability evaluation. FINDING OF FACT The appellant's service-connected cephalgia is described by him as "dizziness" or "lightheadedness," and is productive of neither very frequent completely prostrating and prolonged migraine attacks, or prostrating migraine attacks occurring on an average once a month over the last several months. CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 10 percent for cephalgia are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.20, 4.124a, Diagnostic Code 8199-8100 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. Background A review of the record shows that the appellant sustained multiple injuries, including a fracture of the right frontal bone, when a jeep turned over and pinned the appellant underneath in 1944 during service. By rating action dated March 1950, the appellant was service connected for traumatic encephalopathy, previously diagnosed as a fracture of the right frontal bone, at the 30 percent disability level. On VA examination in January 1956, the appellant complained of headaches. He was reported to be employed as a carpenter since he left the service and to have lost no time from work because of his service-connected neurological condition. Neurological findings were entirely negative. The appellant was diagnosed with post-traumatic cephalgia. By rating action dated March 1956, the appellant's service- connected traumatic cephalgia, formerly diagnosed traumatic encephalopathy, was evaluated as 10 percent disabling. VA hospital and outpatient treatment reports dated December 1989 to February 1992 are negative for complaints or findings of cephalgia. A treatment report dated November 1990 shows complaints for head and neck pain after the appellant fell on ice and hit the back of his head; a hematoma and tenderness were noted on examination. On an October 1991 treatment report, occipital and neck pain were noted along with a history of trauma and degenerative joint disease; cervical spine motion was noted to be limited, and Tylenol was prescribed on an as needed basis. These reports are mostly significant for audiological and cardiovascular care. VA outpatient treatment reports dated September 1991 to June 1992 are negative for complaints or findings for cephalgia. These reports are mostly significant for audiological and cardiovascular care. In May 1992, a personal hearing was conducted at VARO. The appellant testified that he has headaches off-and-on depending on the weather; in cool weather, the headaches are more common and occur in the morning. He indicated that he takes medication for headaches although he did not recall the name. He described his "headaches" as a lightheaded or dizzy sensation when he stands from a sitting position and which are productive of an aching all over his body, as opposed to severe pain in his head. The dizziness is reportedly relieved within 3-5 minutes after taking Nitroglycerin. The appellant indicated that he was prescribed Nitroglycerin for his heart condition. He also acknowledged having high blood pressure and knowing that "dizziness" may occur as a side affect of that condition. The appellant argued that, in the past 4-5 years, his dizzy spells have increased and limited his day-to-day activities. At the hearing, he submitted a letter written by himself, dated June 1979. This letter reflects various medical complaints, not including headaches or cephalgia, and treatment for those conditions. In September 1992, a VA examination was conducted. The appellant was noted to be 77 years old with 12 years of education and 2 years of junior college; he was further noted to have worked in the construction business, and to have last been employed in 1985, at which time he relocated cars for car rental agencies. On his medical history, the appellant reported that he sustained multiple injuries, including a mashed face, dislocated jaw, and fractured right malar bone, when a jeep overturned and pinned him underneath. Subsequently, he was returned to the United States where he underwent extensive reconstruction of the face and nose. At present, the appellant reported living in a retirement village where many of the day-to day household chores are performed by staff (i.e., laundry and meal preparation); however, he further reported that he shops, comes and goes at will from his retirement home, and uses an exercise room which has both a treadmill and stationary bike. On examination in September 1992, the appellant complained of hearing loss in the left ear, a chronic sinus problem with some headaches; dizziness when standing quickly from a supine or sitting position, and poor short term memory. The appellant noted that his headaches were not as severe as they had once been, and that his dizziness did not impede his ability to drive an automobile. Clinical findings noted an asymmetry of the face, and indicated that he was able to chew and articulate his words very well; also he had no difficulty in using words or finding words to use properly. Diction and annunciation were noted to be within normal limits. Cranial nerves were found to be entirely functional and within normal limits, both motor and sensory. Clinical findings indicated that the appellant's headaches appear in the area of the sinuses and that the appellant relates them to sinus difficulties. Clinical findings further indicated that his sensory system was intact, his strength was 5/5, there were no muscle fasciculation or tremors, and that his range of motion was within normal limits. An x-ray study of the facial bones revealed evidence of old fractures involving the right maxilla and nasal bones. The appellant was diagnosed with closed trauma, head, with multiple facial bone fractures and plastic surgery repair, a deviated nasal septum and deviated bone structure secondary to trauma, a slight asymmetry of the face with depression of the right side secondary to trauma, and evidence of traumatic encephalopathy. Analysis The appellant is seeking a rating in excess of the currently assigned 10 percent disability evaluation for his service- connected cephalgia. 38 U.S.C.A. § 1155 (West 1991). In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). 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 (1993). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1993). The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history in accordance with 38 C.F.R. § 4.1 (1993) and Peyton v. Derwinski, 1 Vet.App. 282 (1991), and concluded that a disability evaluation in excess of 10 percent is not warranted at this time. A rating in excess of 10 percent under diagnostic code 8199-8100 requires very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability, or characteristic prostrating migraine attacks occurring on an average once a month over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100 (1993). A review of the record shows that VA outpatient treatment reports dated December 1989 to June 1992 are entirely negative for complaints of headaches, and mostly reflect treatment for other unrelated medical conditions. On VA examination in September 1992 , while the appellant complained of headaches and dizziness, there were essentially no abnormal neurological findings even though the diagnosis reflects that evidence of traumatic encephalopathy was found. Furthermore, in sworn testimony, the appellant indicated that he did not experience an aching in his head; but rather, he experienced dizziness productive of an aching all over his body. He also acknowledged that the dizziness may be attributable to his hypertension. The objective medical evidence of record reflects neither regular treatment for headaches or the use of doctor prescribed medication for headache relief. As such, the Board finds the weight of evidence is against a disability evaluation in excess of the 10 percent rating currently assigned. In accordance with 38 C.F.R. § 4.40 (1993), the Board has considered the appellant's subjective complaints of severe pain resulting in functional loss . However, in view of only subjective complaints for headaches described as "dizziness" or "lightheadedness" of short duration and essentially no objective medical evidence of prostrating headaches, the Board finds that the preponderance of evidence is against the claim to an increased evaluation and that appellant's disability is properly rated at 10 percent as provided in diagnostic code 8199-8100. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Application of the extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1993). There is no evidence that the service-connected cephalgia presents such an exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. ORDER A rating in excess of 10 percent for service-connected cephalgia is denied. C.P. RUSSELL 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.