Citation Nr: 0005016 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-02 125A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Entitlement to an increased evaluation for post-traumatic headaches currently evaluated as 50 percent disabling, to include 38 C.F.R. § 3.321 (b)(1). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Bunch, Associate Counsel INTRODUCTION The veteran had active military duty from April 1965 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 1997 rating decision by the Washington, DC, regional office (RO) of the Department of Veterans' Affairs (VA) which denied entitlement to an increased evaluation of headaches currently evaluated as 50 percent disabling, to include consideration of 38 C.F.R. § 3.321 (b)(1) (1999). The veteran appears to be raising the issues of service connection for a nervous disorder facial swelling, memory loss, tremors and a low back disorder and an increased rating for facial scars. It is requested that the RO contact the veteran to clarify this matter and thereafter take any appropriate actions. FINDING OF FACT The veteran's service-connected post-traumatic headaches are productive of very frequent completely prostrating and prolonged attacks resulting in severe economic inadaptability. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for post- traumatic headaches are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.20, Part 4, 3.321(b), Diagnostic Code 8199-8100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. FACTUAL BACKGROUND The service medical records reflect that in April 1966 the veteran was seen at the sickbay after passing out and sustaining a laceration to the left eyebrow. He was seen in March 1967 for a laceration above the left eyebrow. During an October 1979 VA examination the veteran related that in 1966, while in the hold of a ship loading materials, a 3 to 4 foot wrench fell from the deck. The veteran was struck across the frontal area of the face and the medial right eyebrow was lacerated. He was temporarily dazed, fell to the deck and vaguely remembered being helped to the ship dispensary. There was no skull fracture diagnosed. During one of the few days post injury he was in the food line, felt faint and dropped his food tray, and collapsed to the deck striking his left medial supraorbital area and requiring sutures for closure of the laceration. Since then, in both military and civilian life, the veteran reported that he had daily frontal headaches. He never had convulsions or fits and occasionally had dizziness. He found no medication, which provided relief. He worked as a sign painter, and lost no days of work from his problem, but when the headaches were severe he had to stop work and rest. The diagnoses included posttraumatic headaches and laceration scars, suborbital areas bilateral-asymptomatic. In January 1980, the RO granted service connection for posttraumatic headaches and assigned a 30 percent rating. A VA examination was conducted in May 19891. At that time the diagnoses included post-traumatic headaches. In July 1981 the RO increased the 30 percent in effect for post-traumatic headaches to 50 percent. The 50 percent rating has remained in effect since that time. An April 1997 statement from the veteran is to the effect that his headaches are not controlled by Tylenol or Valium. The veteran reported that he had suffered due to swelling in the temple area, which had a very rapid pulse with a deep thumping much like a steady heartbeat. He stated that the swelling lasts for several weeks. The veteran also reported having had frequent periods of blurred vision when his headaches occurred. He also reported that his mind went blank while involved in an activity. The veteran stated that his job consisted of operating a computer which required him to be alert at all times. The veteran indicated that only with his medication has been able to do his job. Occasionally, he would have to stop and let the feeling pass, and eventually his vision would return. The veteran related that things get too loud, or even when it is quite, that he sometimes experienced pain for no apparent reason. The pain shot straight to the back of his neck and he became extremely nervous on the inside, and his hands and arms began to shake uncontrollably. He stated that these episodes sometimes last through half his day. A VA examination was conducted in August 1998. The clinical history indicates that the veteran had been receiving treatment at VA facilities for bifrontal headaches. The examiner indicated that the VA progress notes show that the headaches occurred almost daily. The examination showed that the cranial nerves II to XII were intact. An evaluation of the motor system showed no abnormality. The deep tendon reflexes were 2+ and symmetrical in the arms and legs. There were no Babinski signs or muscle spasms in the cervical and lumbar paravertebral muscles. A CT scan of the head was essentially negative. The diagnoses included chronic daily headaches either post-traumatic or muscle contraction headaches. II. ANALYSIS Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. A claim that a disorder has become more severe is well grounded where the disorder was previously service-connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Disability ratings are based on schedular requirements, which reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. § 1155 (West 1991). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1999). In determining the level of impairment, the disability must be considered in the context of the whole-recorded history, including service medical records. 38 C.F.R. § 4.2 (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 (1999). It is essential, both in the examination and evaluation of disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1 (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. Francisco v. Brown, 7 Vet. App. 55 (1994). The RO has assigned a 50 percent rating for post-traumatic headaches pursuant to the VA's Schedule for Rating Disabilities (Schedule) as analogous to migraine headaches. 38 C.F.R.§ 4.20, Part 4, Diagnostic Codes 8199-8100 (1999). Diagnostic Code 8100 provides for the evaluation of migraines. When there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, a rating of 50 percent is warranted. This is the maximum schedular evaluation appropriately assignable for the disability at issue under Diagnostic Code 8100. 38 C.F.R. § 3.321 (b)(1) provides that in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities is made. 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. Id. In this regard, the evidence does not reflect that the migraines have required any recent hospitalization. Additionally, the 50 percent currently in effect contemplates the presence severe and frequent migraines, which in turn cause severe economic inadaptability. To summarize the evidence, the veteran has variously stated the severity and frequency of the headaches and accompanying symptoms. An August 1996 VA neurology clinic shows that the veteran's chronic headaches, which were usually controlled by Tylenol #3 noted, no change in headaches. His headaches were generalized, no prodrome or aura, some phonophobia and nausea. The headaches could last 30 to 40 minutes, not longer, and recurred 10 to 12 times per week. There was no response to several medications. The impression was of chronic headaches, and non-insulin-dependent diabetes mellitus. In addition, the veteran has included symptoms of blurred vision, swelling and pounding of his temples, and memory loss. To summarize, the veteran's statements describing the symptoms associated with the headaches are considered to be competent evidence. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. The 50 percent rating in effect for the post-traumatic headaches is the maximum rating permitted under diagnostic code 8100. The recent VA examination, which included a CT scan of the brain, showed no evidence of any neurological abnormality. Accordingly, the Board finds that there is no basis for a schedular rating in excess of 50 percent. The veteran is also claiming consideration of an extra- schedular evaluation under 38 C.F.R. § 3.321 (b)(1). The veteran indicated that he has daily headaches and his mind goes blank. These disorders interfere with his ability to work as a computer operator. In this regard, the evidence indicates that he is gainfully employed in the computer field. Although he is seen at a VA facility intermittently for the headaches, he has not been hospitalized in the recent past. Additionally, the Board points out that the 50 percent rating in effect includes severe economic inadaptability caused by the headaches. As such the Board finds that the current complaints and findings are contemplated in the 50 percent rating. The Board does not find the presence of an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards per 38 C.F.R. § 3.321 (b)(1). Accordingly, it is the Board's judgment that the preponderance of the evidence is against his claim for an increased rating for post-traumatic headaches. In rendering this determination, the Board has considered all pertinent aspects of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath, supra. However, no potentially applicable provision provides a basis for a rating in excess of 50 percent for the veteran's migraine headaches. ORDER Entitlement to an increased rating for post-traumatic headaches, to include 38 C.F.R. § 3.321(b), is denied. ROBERT P. REGAN Member, Board of Veterans' Appeals