Citation Nr: 0017389	
Decision Date: 06/30/00    Archive Date: 07/05/00

DOCKET NO.  99-03 831	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, 
New York


THE ISSUE

What evaluation is warranted for status-post craniotomy for 
subarachnoid hemorrhage with recurrent headaches, from 
September 9, 1997? 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

M. E. Larkin, Counsel


INTRODUCTION

The veteran served on active duty from June 1981 to May 1986.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a September 1998 rating action of the Buffalo, 
New York Regional Office (RO) of the Department of Veterans 
Affairs (VA), which, inter alia, granted service connection 
and assigned a 10 percent rating for status-post craniotomy 
for subarachnoid hemorrhage with recurrent headaches, 
effective from September 9, 1997.

On appeal the veteran appears to raise a claim of entitlement 
to a total disability evaluation based on individual 
unemployability.  This issue, however, is not currently 
developed or certified for appellate review.  Accordingly, 
this matter is referred to the RO for appropriate 
consideration.  


FINDING OF FACT

The veteran's status-post craniotomy for subarachnoid 
hemorrhage with recurrent headaches has been manifested by 
migraine headaches at least once a month on average over the 
previous several months, since September 9, 1997.  There is 
no competent evidence of very frequent completely prostrating 
and prolonged attacks that have been productive of severe 
economic inadaptability since that time. 


CONCLUSION OF LAW

The schedular criteria for a 30 percent evaluation for 
status-post craniotomy for subarachnoid hemorrhage with 
recurrent headaches have been met for the period from 
September 9, 1997, to the present.  38 U.S.C.A. §§ 1155, 5107 
(West 1991); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Codes 8008, 
8100 (1999).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Background

Service medical records reveal that the veteran was seen in 
April 1983 with complaints of headaches without relief and 
syncopal episodes.  Subsequent testing revealed a 
subarachnoid hemorrhage and anterior communicating aneurysm 
and, in May 1983, the veteran underwent a right frontal 
craniotomy, with clipping of the aneurysm.  The veteran was 
noted to complain of recurrent headaches following surgery.  

In the rating action presently on appeal, the RO granted 
service connection for status-post craniotomy for 
subarachnoid hemorrhage with recurrent headaches, effective 
from September 9, 1997.  By that same rating action, the RO 
granted service connection and assigned a 10 percent rating 
for loss of smell as a result of the in-service brain 
surgery.  The veteran contends that the residuals of the 
craniotomy, particularly headaches, are more severe than the 
current rating indicates. 

The report of a March 1998 VA examination included the 
veteran's report of the circumstances surrounding his in-
service brain surgery.  He complained that since that 
surgery, he has been plagued with frequent headaches.  The 
examiner noted that the veteran was presently on one 
medication daily as a prophylactic and a second mediation for 
acute treatment of headaches.  The veteran reported that, 
without medication, he had two to three severe headaches per 
week; with medication, one severe headache per week.  He 
reported that the headache can become so severe that he must 
lie down; he is reportedly unable to drive during these 
headaches.  The examiner deferred making a diagnosis until 
the veteran's claims folder could be reviewed.  Another 
examiner in March 1998, noted that from the veteran's 
description he could be suffering from migraines. 

The veteran was examined by that same VA physician in August 
1998, at which time his pertinent history was related.  The 
veteran complained of recurrent headaches and a loss of the 
sense of smell following surgery.  Cranial nerve examination 
was normal; motor and sensory examination was normal as well.  
The examiner further noted that the veteran did not have 
psychiatric problems.  The diagnosis was that of subarachnoid 
hemorrhage; residual problems of recurrent headache and loss 
of smell.  

Post-service medical records associated with the claims 
folder include reports referable to treatment received during 
the veteran's incarceration in a state correctional facility.  
In February 1993, the veteran was noted to complain of 
chronic headaches.  The report of a September 1993 
neurological consultation noted the same complaint.  The 
veteran described the headaches as frontal lobe in location, 
with throbbing, without nausea or visual changes, lasting for 
"over a week."  The veteran further indicated that he was 
on medication, but that the only thing that helped his 
headaches was sleep.  The impression was that of post-
traumatic subarachnoid headaches.  In January 1994, it was 
noted that the medication prescribed for the veteran's 
headaches had "markedly" reduced the frequency of headaches 
to only one per week.  It was recommended that the veteran 
continue using the prophylactic medication and then use 
another medication for acute headaches.  September and 
December 1994 chart entries noted the veteran's continued 
complaints of headaches. 

VA treatment records obtained for the period subsequent to 
January 1997 include a March 1998 chart entry which noted 
that the veteran had not been seen by a physician for 
approximately five years.  His pertinent medical history was 
noted to include migraine headaches and he was noted to be on 
medication for the same.  There were no gross abnormalities 
noted on medical examination.  It was recommended that the 
veteran return in four months.  

A July 1998 chart entry noted that the veteran presented for 
follow-up care and to renew medications.  The assessment 
noted "no complaints" and the medications were renewed.  

The veteran appeared at a March 1999 personal hearing at the 
RO and reiterated his contentions.  He testified that he 
continued to suffer frequent headaches as a result of the in-
service craniotomy.  The veteran testified that when he has a 
headache, it is often of such severity that he must lie down.  
He reported that he took one medication nightly as a 
prophylactic and another medication for treatment of an acute 
headache.  With regard to the frequency of headaches, the 
veteran reported that he had lost 5 days of work in the past 
2 months as a result of headaches.  When questioned as to 
whether the amount of time lost during the past two months 
was indicative of time lost over the previous year, the 
veteran stated that he had missed two to three days of work 
per month over the previous year.  The veteran also testified 
that he had not sought treatment for the condition prior to 
1997.  

II.  Analysis

The Board finds that the veteran's claim for increased 
compensation benefits is "well grounded" within the meaning 
of 38 U.S.C.A. § 5107(a) (West 1991).  The United States 
Court of Appeals for Veterans Claims (hereinafter, the Court) 
has held that, when a veteran claims a service-connected 
disability has increased in severity, the claim is well 
grounded.  Proscelle v. Derwinski, 2 Vet. App. 629 (1992).  
When an appellant submits a well-grounded claim, VA must 
assist him in developing facts pertinent to the claim.  
38 U.S.C.A. § 5107(a).  The Board is satisfied that all 
relevant evidence has been obtained, and that no further 
assistance is required to comply with 38 U.S.C.A. § 5107(a).  

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 Court has 
made a distinction, however, between a veteran's 
dissatisfaction with the initial rating assigned following a 
grant of service connection, and a claim for an increased 
rating of a service-connected condition.  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" ratings.  Fenderson v. West, 12 Vet. App. 119 
(1999).

Disability ratings are determined by applying the criteria 
set forth in the VA Schedule for Rating Disabilities (Rating 
Schedule).  The Board attempts to determine the extent to 
which the veteran's disability adversely affects his ability 
to function under the ordinary conditions of daily life, and 
the assigned rating is based, as far as practicable, upon the 
average impairment of earning capacity in civil occupations.  
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999).

Regulations require that where there is a question as to 
which of two evaluations is to 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 RO assigned a 10 percent rating under 38 C.F.R. § 4.124a, 
Diagnostic Code 8008.  Under this Diagnostic Code, residuals 
of thrombosis of vessels of the brain are rated a minimum of 
10 percent disabling.  When ratings in excess of the minimum 
10 percent are assigned, the impairment of motor, sensory or 
mental function must be evaluated by analogy referring to the 
appropriate bodily system of the schedule.  38 C.F.R. 
§ 4.124a.  In the present case, the initial grant of service 
connection included related headaches and the Board finds 
that the veteran's disability is more appropriately rated 
under Diagnostic Code 8100 pertaining to migraine headaches.  

Migraine headaches are rated based on their severity and 
frequency.  A 10 percent rating is warranted for 
characteristic prostrating attacks averaging one in 2 months 
over the last several months.  A 30 percent rating is 
warranted for characteristic prostrating attacks occurring on 
an average one a month over the last several months.  A 50 
percent rating is for assignment in cases with very frequent 
completely prostrating and prolonged attacks productive of 
severe economic inadaptability.  38 C.F.R. § 4.124a, 
Diagnostic Code 8100.  

The correct rating in this case depends substantially on the 
credibility and probative value of the veteran's testimony as 
it relates to the frequency, severity and economic effect of 
the headaches.  

Based on a review of the evidence of record, the Board finds 
that the veteran's headache disability warrants a 30 percent 
rating.  While it is unclear whether the veteran's headaches 
are characteristically prostrating as contemplated by the 
rating criteria, the evidence does demonstrate that he 
experiences headaches more frequently than that contemplated 
by the current 10 percent rating.  In March 1999, the 
appellant testified that he had missed 5 days of work in the 
prior two months and approximately 2 to 3 days per month over 
the past year.  Thus, given the frequency, duration and 
severity of the veteran's headaches, the Board finds that the 
criteria for an increased (30 percent) rating are more nearly 
approximated.  38 C.F.R. § 4.7.  

As to whether the service-connected residuals of a craniotomy 
with recurrent headaches are of such severity to warrant the 
assignment of a 50 percent rating, the Board finds that they 
do not.  As noted, assignment of a 50 percent rating requires 
that the migraine headaches be very frequent, completely 
prostrating attacks that are prolonged and productive of 
severe economic inadaptability.  Although the veteran's 
headaches have some prostrating characteristics, in that he 
feels he can only get relief when lying down, there is no 
indication that they are completely prostrating over a 
prolonged period of time as contemplated by the 50 percent 
rating.  The Board notes that the records of medical 
treatment do not indicate that the veteran's suffers such 
prostrating attacks.  Although the veteran has testified that 
he is occasionally forced to miss work because of the 
headaches, treatment records are not consistent with severe 
economic inadaptability.  The most recent VA treatment 
reports note that the veteran continues to take medication 
and was without complaints.  Consequently, the Board finds 
that no more than a 30 percent rating is warranted. 

In evaluating the veteran's disability, the Board has 
reviewed the nature of the original disability and considered 
whether the veteran was entitled to a "staged" rating for 
his service-connected disability as prescribed by the Court.  
Fenderson.  Based upon a review of the evidence, the two VA 
examinations and veteran's testimony in particular, the Board 
finds that at no time since September 1997 has there ever 
been evidence of very frequent completely prostrating and 
prolonged attacks which were productive of the severe 
economic inadaptability necessary for the assignment of a 50 
percent evaluation.  Hence, a staged rating warranting for a 
portion of the term in question is not warranted.

In reaching this decision the Board considered the doctrine 
of reasonable doubt, however, except to the extent that a 30 
percent evaluation is in order, the preponderance of the 
evidence is against the appellant's claim, and the doctrine 
is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 
(1990).



ORDER

A 30 percent rating for status-post craniotomy for 
subarachnoid hemorrhage with recurrent headache, effective 
from September 9, 1997, is granted, subject to the applicable 
criteria governing payment of monetary benefits. 


		
	DEREK R. BROWN
	Member, Board of Veterans' Appeals

 


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