Citation Nr: 0002646 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 94-37 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE What evaluation is warranted for headaches from October 1, 1990. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had active service from May 1970 to September 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In May 1996 and again in December 1997, the Board remanded this issue for further development. The RO, after readjudicating the claim based on the requested development, continued its denial of the veteran's claim. The case has returned to the Board for appellate review. FINDING OF FACT Since October 1, 1990, the veteran's headaches have not resulted in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for headaches since October 1, 1990 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is appealing the original disability evaluation assigned following an award of service connection, and, as such, the claim for an evaluation since October 1, 1990 for headaches is well grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Moreover, in such a case as this it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). After reviewing the evidence, which includes various VA examination reports, the Board is satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and that no further assistance is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). 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. Factual background A December 1990 VA neurological evaluation report shows that the veteran complained of recurrent headaches since 1978, while in service. He took Inderal, a medication prescribed to relieve his headaches, which reduced the frequency and severity of the attacks to one to two headaches per month. According to the veteran, the headaches would begin in the cervical occipital area and they were sharp and vascular in quality. Nausea and slight vomiting normally accompanied the attacks, however, he would not lose consciousness. The neurological examination revealed that the veteran's mental status and cranial nerves were intact. The examiner diagnosed migraine headaches by history, and the neurological disability was minimal. Private medical records from 1992 to 1997 reveal treatment for migraine headaches. For example, in March 1992, the veteran reported that he had a long history of vascular headaches and he was treated in service with Inderal. His headaches occurred almost monthly and were very severe. The headaches generally left him incapacitated. He would take over-the-counter medication for relief. The assessment was cluster headaches by history. The examiner prescribed Fioricet #50 to relieve the headaches. In April 1993, the headaches had increased in frequency and severity, and in June 1993 the Fioricet was no longer working. Occasionally the headaches were severe enough to prevent him from going to work. The private medical records further showed that in August 1994, the veteran was feeling well, and he had had no migraines. He had not had Imitrex since he began dieting. He continued to have a few muscle tension headaches due to stress at work. In January 1995, the private records indicate that he was prescribed Imitrex for headache relief. In April 1995, he continued to have migraines, sometimes up to two a week. He used Imitrex maybe twice a month for the very severe ones. Working at Hitachi up to 16 hours a day was stressful for him. The examiner kept him on Fioricet because it had worked well, and he also continued to take Imitrex. The examiner also started him on Midrin. In August 1996, a private physician noted that the veteran had a history of migraine cephalalgia. The physician started him on 50 milligrams of Imitrex for headache relief. VA examined the veteran in February 1997. The examiner noted the veteran's medical history as discussed previously. The veteran described his headaches as sharp, pressure like and vascular in quality, which would last up to two hours. He experienced one to three headaches per week by history. Nausea, occasional vomiting, tearing of the eyes, blurry vision, photophobia, and phonophobia accompanied the headaches. There was no dizziness or loss of consciousness. For relief, he took Imitrex. This would stop the headache immediately. The veteran was unable to work during a headache attack. The neurological examination revealed that the veteran was alert, cooperative, and oriented. There was no impairment of speech, memory, or thinking. His cranial nerve function was intact. The diagnosis was migraine syndrome, with no neurologic disability. In April 1998, pursuant to the Board's December 1997 Remand, the RO requested that the veteran provide his sick leave records from work since 1990, in addition to any additional medical records. Also pursuant to the Board's December 1997 Remand, the VA physician who examined the veteran in February 1997 elaborated on his decision. He indicated that the veteran was unable to work with the headache, and that the headaches would last two to three hours and occur two to three times per week. This indicated a small degree of industrial impairment. Analysis The veteran's headache disability has been rated as 30 percent disabling since October 1, 1990. According to the Rating Schedule, a headache disability with characteristic prostrating attacks occurring on an average once a month over last several months warrants a 30 percent evaluation. A headache disability with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrants a 50 percent evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 30 percent for headaches since October 1, 1990. First, there is no evidence that the veteran has experienced very frequent completely prostrating and prolonged attacks. For example, the veteran's private medical records show that his headaches were controlled with medication. Furthermore, according to the February 1997 VA examination report, although the veteran was unable to work during a headache, his medication would stop the headaches almost immediately. Therefore, the evidence clearly shows that his headaches were not prostrating or prolonged when he took his medication. Second, there is no credible evidence that the veteran's headaches were productive of severe economic inadaptability. For example, there are no records from the veteran's employer indicating that he missed work due to headaches. In response to the RO's April 1998 request, the veteran responded that he had nothing to add to the record. Furthermore, the record shows that he has been employed full-time. Thus, there is no credible evidence that the veteran has experienced severe economic inadaptability as a result of his service-connected headaches. After applying standards, the Board finds that the veteran's headache disorder does not warrant a rating in excess of 30 percent at any time since October 1, 1990. Accordingly, the preponderance of the evidence is against a rating in excess of 30 percent for headaches since October 1990. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a rating in excess of 30 percent for headaches since October 1, 1990 is denied. NADINE W. BENJAMIN Acting Member, Board of Veterans' Appeals