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Entitlement To A Disabilty Rating In Excess Of 50 Percent For Chronic Post-traumatic Headaches

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Citation Nr: 9925693 Decision Date: 09/09/99 Archive Date: 09/21/99DOCKET NO. 98 03 326 ) DATE ) )On appeal from theDepartment of Veterans Affairs (VA) Regional Office (RO) in Boston, MassachusettsTHE ISSUEEntitlement to a disabilty rating in excess of 50 percent for chronic post-traumatic headaches.REPRESENTATIONAppellant represented by: Disabled American VeteransATTORNEY FOR THE BOARDDennis F. Chiappetta, Associate Counsel INTRODUCTIONThe veteran had active service from June 1951 to July 1954.The present appeal arises from a December 1997 RO decision which, in pertinent part, granted service connection for chronic post-traumatic headaches from February 27, 1997, the date of the veteran's original claim based upon headaches. The disability was initially rated as 10 percent disabling under Diagnostic Code (DC) 8045 (brain disease due to head trauma) and DC 9304 (dementia due to head trauma). In a November 1998 decision, the RO evaluated the veteran's post-traumatic headaches as 50 percent disabling, retroactive to February 27, 1997, under the jointly applied Diagnostic Codes 8045-8100 (analogous to the rating for migraine headaches). While this is the highest rating available under the applied Diagnostic Code, the veteran has continued has appeal for an increased evaluation, asserting that a higher rating should be allowed under 38 C.F.R. § 3.321(b)(1). In addition, the veteran's service representative has recently argued that the residuals of the veteran's in-service head trauma include psychiatric symptoms that are not contemplated in his current rating. As the agency of original jurisdiction has not addressed the question of an extra-schedular rating, and it has not addressed the issue of service connection for psychiatric problems (on either a direct or a secondary basis), these issues must be referred to the RO for action deemed appropriate.FINDINGS OF FACT1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO.2. Since the effective date of service connection, the veteran's headache disorder has been manifested by subjective complaints of constant pain, with severe flare-ups associated with nausea, weakness, and loss of balance. CONCLUSION OF LAWThe criteria for a rating in excess of 50 percent for the veteran's service-connected post-traumatic headaches have not been met at any time since the effective date of service connection. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, and 4.124a, Diagnostic Codes 8100, 8045-9304 (1998).REASONS AND BASES FOR FINDINGS AND CONCLUSIONI. Factual BackgroundReview of the veteran's service medical records discloses that he suffered a head injury in an automobile accident during service in August 1952. Subsequent service medical records indicate that headaches were noted during service. Post-service medical records show treatment for chronic post-traumatic headaches. On VA examination in May 1997, it was noted that the veteran had a history of chronic headaches since the 1950's when he was involved in an automobile accident. The examiner noted that the veteran intermittently had severe headaches which were associated with nausea and could last up to six weeks in duration. He also reported that a 1996 MRI scan of the brain showed a questionable vertex artery irritation of the left 7th and 8th nerve complex. It was noted that the veteran reported that he was unsteady on his feet and used a cane to ambulate. He also reported episodes of loss of consciousness at a frequency of approximately twice per year, for the past five or six years. The impression was chronic post-traumatic headaches and episodes of syncope of unexplained anatomical basis. In a September 1997 addendum, the veteran's physician stated that seizures were not the cause of the veteran's syncope and that his headaches did not relate to his right eye problem. As noted above in the Introduction, in a December 1997 decision, the RO granted service connection, with a 10 percent disability, rating for the veteran's post-traumatic headaches. With a March 1998 statement, the veteran's service representative submitted medical records from three periods of hospitalization at the VA Medical Center (VAMC) in Jamaica Plain. These records show that the veteran was hospitalized in April 1997 for complaints of chest pain. Hypertension and glaucoma were diagnosed at that time.According to these records, the veteran was next admitted in Neurology in May 1997 for treatment of syncopal attacks, loss of balance, and passing out. A medical history indicated that the veteran stated he had been losing balance and passing out frequently over the previous two years. Headaches and migraines were reported. Past medical history included a July 1996 MRI which showed generalized cerebral cortical central atrophy in proportion to the veteran's age. An EMG showed peripheral neuropathy. A CT scan showed moderate cortical central atrophy with widened CSF (possibly cerebrospinal fluid) spaces. An MRI of the brain showed mild generalized cerebral and cortical atrophy and a small choroidal, non-colloidal cyst within the region of the trigon of the left lateral ventricle. It was noted that the LVA (possibly left ventricle aneurysm or left vertex artery) was more prominent than the right, that it was congenital in origin, and that the LVA loops cephalad on the left and comes in contact with the left seventh and eighth nerve exit zone from the "CP" angle. Gait problems were questioned, secondary to problems with the posterior column and some proximal leg weakness. The diagnosis included questionable gait problems and question of posterior column disorder.A VA discharge summary dated in July 1997 indicates that the veteran was admitted for a third period of hospitalization to rule out a myocardial infarction after having chest pain. Headaches were not noted on this report.With a second March 1998 statement, the veteran's service representative submitted additional medical evidence from the Boston VAMC, dating from May 1997 to March 1998. The report of a May 1997 CT scan of the head indicated the presence of moderate cortical and mild central atrophy, as seen in July 1996, with widened CSF spaces. It was noted that there were no extra-axial collections or evidence of a subdural hematoma. There was normal gray-white matter differentiation, the basilar systems were patent, and there was no significant ventriculomegaly. The visualized paranasal sinuses and orbits exhibited soft tissue opacification of the ethmoid air cells and minimal mucosal thickening within the sphenoid sinus. The report of a December 1997 CT of the head indicated that there was no significant interval change. Cortical atrophy was again noted, most marked anteriorly with prominent CSF spaces. No mass, mass effect, extra-axial fluid collection, midline shift, major vessel infarct, or bleeding was noted. Mucosal thickening of the sinuses was noted.The March 1998 outpatient treatment records indicated that the veteran was seen with complaints of continued occipital area pain, severe headaches, and increased migraine headaches after hitting his head against a wall in a fall. The assessments included chronic symptoms exacerbated by fall (March 4, 1998) and low back pain and occipital/neck pain due to trauma (March 18, 1998). VA records show that the veteran was hospitalized again in June 1998, for unstable angina. Findings included syncopal episodes and atypical chest pain. On VA examination in October 1998, the examiner noted the veteran's history of inservice head trauma and subsequent headaches. It was reported that the headaches were associated with nausea and falls, and that they occurred frequently, about four times a week. The veteran had reportedly been hospitalized for headaches twice since 1993, with the most recent being one week earlier. The examiner noted that he had reviewed hospital records from the veteran's most recent hospitalization. The VA physician reported that the veteran had flare-ups that could come any time. Aggravating factors reportedly included television or movies, and alleviating factors were noted to include Percocet, which the veteran took for pain. The headaches were noted to be present almost all the time, with periods of freedom from them for one to two days at a time. Very severe headaches, rated as an 8 on a scale increasing to 10, were reportedly accompanied by nausea and weakness. The severe headaches were noted to last 15 to 90 minutes, with ongoing headache persistent all day. Upon clinical evaluation, it was noted that the veteran's cranial nerves showed nystagmus bilaterally at the inner canthus and that they were otherwise "intact except for a rachety catch and give of cranial nerve XI." The diagnosis included status post head trauma with loss of consciousness/concussion, post-traumatic headaches, and right subdural hygroma. In a November 1998 decision, the RO increased the disability rating for the veteran's post-traumatic headaches to 50 percent, effective from February 1997.II. AnalysisThe Board finds the veteran's claim for increased compensation benefits is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (known previously as the United States Court of Veterans Appeals, prior to March 1, 1999), has held that, when a veteran claims that a service-connected disability has increased in severity, the claim is well grounded. See Arms v. West, 12 Vet.App. 188, 200 (1999), citing Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Hence, VA has a duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 3.159 (1998). In this case, the veteran has reported dissatisfaction with the initial rating assigned for his service-connected headache disorder and, similarly, the claim is well grounded.In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. In determining the current level of impairment, the disability must be viewed in relation to its history. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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.The Court of Appeals for Veterans Claims has also stated that, 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). In evaluating the veteran's claim, all regulations which are potentially applicable through assertions and issues raised in the record must be considered. See Schafrath v. Derwinski, 1 Vet.App. 589 (1991).In Fenderson v. West, 12 Vet.App 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection, and a veteran's later claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based upon the facts found - "staged" ratings. The Board has considered whether the veteran was entitled to a "staged" rating for either of his service-connected disorders, as authorized by the Court in Fenderson. Upon review of the evidence of record, we find that, at no time since the effective date of service connection in February 1997, has the veteran's disorder been significantly more disabling than it is at present. We note, of course, that the RO's initial assignment of a 10 percent rating was, in effect, vacated and replaced by its later assignment of a 50 percent rating, retroactive to the date of the original grant of service connection. Therefore, and as discussed below, staged ratings are not appropriate for evaluating the disability ratings regarding the veteran's post-traumatic headaches. The Board is satisfied that all relevant facts have been properly developed in this case. In-service and post-service medical records are associated with the claims file, and the veteran has been examined as recently as October 1998. In addition, the record reflects that the examiner had reviewed the veteran's most recent hospital records prior to the examination. Thus, the Board concludes that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. §§ 5103(a) and 5107(a).The veteran's post-traumatic headache disorder is currently rated as analogous to migraine headaches under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (1998). That code provides that very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability warrant assignment of a 50 percent evaluation. Where there are characteristic prostrating attacks occurring on an average of once a month over several months, a 30 percent evaluation is warranted. Where there are characteristic prostrating attacks averaging one in two months over several months, a 10 percent evaluation is warranted. Where attacks are less frequent, a zero percent evaluation is warranted. The Board notes that the RO has evaluated the veteran's post-traumatic headaches as 50 percent disabling largely on the basis of his most recent, October 1998, VA neurological examination. In particular, the medical evidence reveals that he experiences approximately four severe flare-ups of his headache symptoms per week, with nearly constant pain between flare-ups. Severe flare-ups reportedly result in nausea, weakness, and pain rated by the veteran as approximately 8 on a scale going to 10. With these findings, the Board agrees that the veteran's headache symptomatology more nearly approximates the rating criteria for a 50 percent rating under Diagnostic Code 8100. As this is the maximum available schedular evaluation for headaches, no higher rating is possible under this provision.Turning to other provisions for rating disorders associated with residuals of head trauma, the Board notes that, initially, the RO had assigned a 10 percent evaluation for post-traumatic headaches, in accordance with 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045 - "Brain disease due to trauma." Under this code, "Purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8207). 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, DC 8045 (1997).A review of the evidence on file reflects no diagnosis of a neurological disability due to the veteran's inservice head trauma. Likewise, there is no definitive diagnosis, either by way of a VA medical examination or from any other medical professional, of multi-infarct dementia associated with the head injury the veteran sustained during service. Accordingly, an evaluation in excess of the veteran's current 50 percent rating is not possible under DC 9304 - "Dementia due to head trauma."Thus, the Board concludes, as the preponderance of the evidence shows that the degree of disability associated with the veteran's post-traumatic headaches is not commensurate with the manifestations required for an increased disability evaluation, his claim for an increased rating must be denied. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, Codes 8100 and 8045-9304.In reaching a decision on this issue, the Board has considered the complete history of the disability in question and the nature of the original injury, as well as any current clinical manifestations, and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1998).While the veteran's service representative has asserted that the headaches cause the veteran unusual or exceptional hardship such as to warrant application of 38 C.F.R. § 3.321(b)(1) (1998), the Board cannot agree at this time. The record shows that the veteran has additional disorders which are not related to service, and the evidence of record does not clearly indicate that the service-connected headache disorder has, by itself, led to unemployment or frequent periods of hospitalization. The issue of an extra-schedular rating has not been developed for appeal and, as noted earlier, is referred to the RO for action deemed appropriate.The Board is mindful of the contention that the veteran's headache attacks occur often and are incapacitating. However, we must stress that the current 50 percent disability rating under Diagnostic Code 8100 already provides for severe economic inadaptability due to the severity and frequency of his headaches. In a case such as this, where definitive evidence of an exceptional or unusual situation, beyond the reach of the schedular rating criteria, has not yet been shown, application of the provisions of 38 C.F.R. § 3.321(b)(1) in lieu of the regular rating criteria is not shown to be warranted at this time.ORDEREntitlement to a disability rating in excess of 50 percent for the veteran's service-connected post-traumatic headaches is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals Source: http://www.va.gov/vetapp99/files3/9925693.txt

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