Citation Nr: 0005547 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 95-42 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE The propriety of the initial 10 percent evaluation assigned following a grant of service connection for post-concussive headaches. ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from August 1992 to December 1994. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 1995 rating decision by the Winston- Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for post-concussive headaches and assigned a 10 percent rating for that disability effective December 13, 1994, the day following the veteran's discharge from service. The case was remanded back to the RO in January 1997 and in August 1998 for further development. The Board notes that the RO adjudicated (and the Board previously characterized) the instant claim as one for an increased rating. However, in light of the distinction noted by the United States Court of Appeals for Veterans Claims (formerly, the United States Court of Veterans Appeals) (Court) in the recently-issued case Fenderson v. West, 12 Vet. App. 119 (1999), the Board has recharacterized the issue as one involving the propriety of the initial evaluation assigned. FINDING OF FACT The medical evidence shows that the veteran's headache disability is a result of head trauma, and, since his discharge from service, has been productive of subjective complaints of incapacitating headaches two to three times per week; no objective neurological sequelae is shown. CONCLUSION OF LAW As the initial 10 percent rating assigned following a grant of service connection for service-connected post-concussive headaches was proper, the criteria for a higher evaluation are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.20 4.124a, 4.130, Diagnostic Codes 8045, 8100 and 9304 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim as to this issue is well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a plausible claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). A review of the service medical records reveals that the veteran suffered a head injury when he was struck in the head with a baseball bat in July 1993. A computerized tomography of the veteran's brain in February 1994 was normal. On examination in April 1994, the veteran reported that he had nearly constant headaches since the injury. At that time, the veteran did not complain of nausea or vomiting associated with the headaches, but noted that a visual aura preceded the more intense episodes. The veteran was diagnosed with post- concussive headache syndrome. Naprosyn, Cafergot and Imitrex were prescribed for the pain associated with the veteran's headaches. The examiner indicated that 70 percent of patients with classic post-concussive headache syndrome are headache free after one year. However, 15 percent continue to have headaches for greater than three years. There is no correlation to the severity of the head injury. In conclusion, the examiner noted that it is not certain whether the veteran's headaches will be permanent, as most patients are relieved after one year, and after two years that number increases further. A Medical Board Report dated May 1994 indicated that the veteran's post-concussive headaches did not exist prior to service. The Air Force Evaluation Board recommended a 50 percent disability rating for the veteran's post-concussive headache syndrome. The veteran was discharged from service in December 1994, and he submitted a claim for service connection for post- concussive headaches in January 1995. In a January 1995 rating decision, service connection was granted for post- concussive headache syndrome, and a 10 percent evaluation was assigned for this disability, effective from December 13, 1994. The veteran was afforded a VA examination in September 1995 to evaluate the severity of his headaches. At that time, the veteran complained of migraine headaches, nausea, flashes of light, and sinus pressure. He indicated that he received treatment from the Durham VA Medical Center from July 1993 to the present. The veteran indicated that he lost 72 hours of work in the last year as a result of migraine headaches. The veteran described his headaches as a sharp, steady pain, aggravated by light and sometimes relieved somewhat by various medications such as Imitrex, Cafergot, Inderal, and Naprosyn. The veteran reported that his headaches have increased in intensity and duration in the past several months and he has an aura of visual disturbances prior to a headache. On examination, station and gait was within normal limits. Examination of the cranial nerves was as follows: II, vision was within normal limits. Examination of III, IV, and XI revealed some weakness of the right eye on lateral gaze; X and XII were intact on facial muscle strength testing. Facial gag and swallow were within normal limits. Trapezium and sternocleidomastoid strength was within normal limits. Tongue was midline without deviation. Diagnosis was headaches, no neurological sequelae. In January 1997, the Board remanded the case back to the RO for further development. Pursuant to the directives set forth in the remand, the veteran was afforded another VA neurological examination in February 1998. The veteran reported that during the past year he had headaches that last approximately 45 minutes two to three times per week. The veteran indicated that he has lost 2 months of work since February 1995 as a result of treatment for his headaches. The examiner reviewed the claims file prior to the examination. Upon examination, the veteran's pupils, discs, rotations, and fields were normal. Movements of his face, tongue, palate, and scalp were normal. There were no bruits in his neck or over the orbits or scalp. Strength in the muscles was symmetric and active, and reflexes at the major locations were symmetric and active, and sensation was entirely normal. The diagnosis was post-traumatic headaches, neurologically negative. As noted above, the veteran indicated that he has received treatment for his headaches from the Durham VA Medical Center since July 1993. Specifically, the veteran indicated that he received outpatient treatment for his headaches from the Durham VA Medical Center in February, March, and June 1995. Accordingly, the RO attempted to obtain any such records pursuant to the directives set forth in the January 1997 remand. The search produced outpatient records indicating that the veteran was treated for a sinus infection in July and August 1995. Moreover, no records were found prior to July 1995. The Board remanded the case back to the RO again in August 1998. The Board requested that the RO obtain documentation from the veteran's past employers regarding the amount of time lost from work as a result of the veteran's headaches. In addition, the RO requested that any additional outpatient treatment reports, not already of record, should be secured and associated with the claims file. The veteran did not respond to either of the RO's requests. Currently, the veteran contends that his service-connected headache disability has been more disabling since the date of the grant of service connection than has been represented by the 10 percent rating. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (1999). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (1999). The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1 (1999); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The veteran's post-concussive headaches have been rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (1999), pursuant to which migraine headaches are evaluated. Under Diagnostic Code 8100, a 10 percent rating is warranted for headaches where there are characteristic prostrating attacks averaging 1 in 2 months over the last several months. A 30 percent evaluation is provided for migraine manifested by characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent evaluation requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (1999). However, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Pursuant to Diagnostic Code 8045, brain disease due to trauma, evaluations based on 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). Based upon the circumstances of this case, as explained below, the Board finds that veteran's disability is more appropriately evaluated under Diagnostic Code 8045 and 9304. In this case, the medical evidence shows that the veteran suffers from post-concussive headaches. Specifically, the medical diagnosis of "headaches, no neurological sequelae" was provided in September 1995, and a diagnosis of post- traumatic headaches, neurologically negative" was provided in February 1998. Although the veteran reports a history of migraine headaches since his injury in service, the record is negative for such a diagnosis. Moreover, no type of headaches other than, essentially, post-traumatic, have been diagnosed. As such, and because there are specific diagnostic codes governing evaluation of headaches resulting from head injury, there is no basis for evaluation of the veteran's headaches, even by analogy, under Diagnostic Code 8100. See 38 C.F.R. § 4.20 (1999) (providing that when an unlisted disability 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). Moreover, a review of the medical evidence of record reveals that the veteran has not been shown to have a purely neurological disability, nor has he been diagnosed with multi-infarct dementia. Given the medical opinions that the veteran's headaches are related to a head injury, but no dementia has been diagnosed, the Board finds that a 10 percent evaluation, but no higher, is consistent with the criteria specified in Diagnostic Codes 8045 and 9304. In the absence of such evidence, the veteran is receiving the schedular maximum available to him for his service-connected disability; that is, a ten percent rating. See 38 C.F.R.§ 4.124a, Diagnostic Code 8045 (1999). The above determination is based upon consideration of applicable provisions of the rating schedule. Additionally, however, there is no showing that the veteran's post- traumatic headaches reflects so exceptional or so unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. In this regard, the Board notes that the disability is not objectively shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned rating), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. The Board notes that the veteran was given an opportunity to provide additional objective evidence in support of his claim including documentation from his employers showing lost work time due to his service-connected headache disability, as well as outpatient treatment records showing regular and/or continuous treatment for his headache disability. The veteran did not respond to the request, and a search for VA outpatient records since his discharge from service to the present was negative for regular or continuous treatment for his headache disability. In the absence of evidence of such factors as those outlined above, the Board is not required to remand the claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a final note, the Board would point out that, according to the Fenderson, "at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" rating. " In this case, however, in light of the medical evidence and the veteran's contentions indicating that he has suffered from the same symptoms since service, the Board finds that the level of severity of the veteran's service-connected disability has been 10 percent disabling since the effective date of service connection. Hence, there is no basis for assignment of a "staged" rating. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER As the initial 10 percent rating assigned following a grant of service connection for post-concussive headaches was proper, a higher evaluation is denied JACQUELINE E. MONROE Member, Board of Veterans' Appeals