Citation Nr: 1511782 Decision Date: 03/19/15 Archive Date: 04/01/15 DOCKET NO. 06-33 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), depression, anxiety, dysthymia and claustrophobia. 2. Entitlement to service connection for neck/cervical spine disability. 3. Entitlement to service connection for a low back disability. 4. Entitlement to a compensable initial disability rating for posttraumatic headaches as a residual of service-connected traumatic brain injury (TBI). 5. Entitlement to an initial disability rating greater than 10 percent for tinnitus as a residual of service-connected TBI. 6. Entitlement to an initial disability rating greater than 10 percent on an extraschedular basis for tinnitus as a residual of service-connected TBI. 7. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from October 1965 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the December 2004 and July 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In April 2011 the Board remanded some of the claims for further development and additional examinations. In his VA Form 9 dated September 2006 and January 2008, the Veteran requested a hearing before the Board. The hearing was scheduled in December 2008 but the Veteran failed to appear. He has not made a further request for a hearing. The Board finds that all due process has been satisfied with respect to the Veteran's right to a hearing. The issues of entitlement to service connection for an acquired psychiatric disorder, neck/cervical spine disability, low back disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran experiences headaches with characteristic prostrating attacks occurring on an average once a month over the previous several months. 2. The Veteran's tinnitus results in ringing in the ears with reported annoyance and disturbance of sleep patterns. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 30 percent for posttraumatic headaches due to service-connected TBI have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.124a, Diagnostic Code 8100 (2014). 2. The criteria for an initial disability rating higher than 10 percent for tinnitus due to service-connected TBI have not been met. 38 U.S.C.A. §§1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.87, Diagnostic Code 6260 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2014). In Dingess v. Hartman, the Court held that the notice requirements of 38 U.S.C. § 5103(a) apply generally to all five elements of a service-connection claim. 19 Vet .App. 473, 486 (2006). However, the Court in Dingess also held that "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven." Id. at 491. When the appellant disagreed with the initial disability rating assigned, VA was obligated under sections 7105(d) and 5103A, to advise the appellant of what was necessary to obtain the maximum benefit allowed by the evidence and the law. Id. In the present case, in May 2007 the RO sent the Veteran a notice letter regarding disability ratings and effective dates. Thus, all notice obligations have been met. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran adequate examinations. The VA examinations provided were adequate in that they recorded the reported medical history, reported accurate findings, provided opinions with rationales and provided the effects on social functioning and work. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. In summary, no further notice or assistance to the Veteran is required for a fair adjudication of his claim. II. Merits of Claim Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2014). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2014); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2014). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2014). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Posttraumatic Headaches A May 2012 rating decision granted service connection for the Veteran's posttraumatic headaches as a residual of his service-connected TBI, assigning a noncompensable rating, effective May 1, 2003. The disability is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100 as analogous to migraine headaches. Under this Diagnostic Code a 50 percent rating is assigned for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. A 30 percent rating is assigned for headaches with characteristic prostrating attacks occurring on an average once a month over the previous several months. Id. A 10 percent rating is assigned for headaches with characteristic prostrating attacks averaging one in two months over the previous several months. Id. A noncompensable (0 percent rating) is assigned for headaches with less frequent attacks. Id. In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (In which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.) By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH 999 (11th ed. 2003), "prostration" is defined as "complete physical or mental exhaustion." Similarly, "prostration" is a medical term defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32d ed.2012). In the Veteran's November 2013 statement he contends that his headaches are the worst thing that he experiences. He states when his headaches happen along with his back and neck pain, he is confined to his bedroom and needs several different medications to get through an entire day. Such an attack usually lasts all day and sometimes several days. He described these types of headaches occurring several times a month ever since his accident. A VA examination was performed in June 2014 for the Veteran's headaches. The examiner stated the Veteran experiences headache pain with symptoms such as nausea, sensitivity to light and sound, changes in vision and dizziness, staggering, chills, and cold sweats and feet. His typical head pain lasts more than two days and he experiences prostrating attacks of migraine headache pain at least three times a month lasting for three days. An earlier VA examination was performed in July 2011. At that time, the examiner described the Veteran's headaches as cluster headaches which have been very painful, stabbing in nature and distressing as is characteristic of that kind of headache pattern. The Veteran described the headaches as starting after his accident and never really going away. However, it is unclear from this examination whether the Veteran's description of daily headaches were to the level of experiencing prostrating attacks and if so, of what duration. Taking the June 2014 VA examination in conjunction with the Veteran's consistent statements regarding the pain and continued medical treatment, and applying the benefit of the doubt rule, the Board finds that even though the frequency of prostrating attacks was not specified in the July 2011 VA examination, the evidence still supports a 30 percent disability rating for the entire period. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). However, a higher rating of 50 percent is not warranted because the evidence does not support a finding of complete prostrating episodes productive of severe economic inadaptability at any time during the period at issue. Based on the foregoing, a disability rating of 30 percent, but no higher, for the Veteran's service-connected migraine headaches is supported by the record. Tinnitus The May 2012 rating decision also granted service connection for the Veteran's tinnitus as a residual of his service-connected TBI and granted a 10 percent disability rating effective May 1, 2003. The Veteran contends a higher rating is warranted. Specifically, in his November 2013 statement, the Veteran describes his tinnitus as being a horrible thing in his life since his TBI. He stated it is constant and never goes away which is a large part of his inability to function in society and continue to work. The highest schedular rating for tinnitus is 10 percent. See 38 C.F.R. § 4.87, Diagnostic Code 6260. Here, the Veteran simply argues that constant tinnitus should provide for a higher rating. The Veteran's argument is a disagreement with the rating schedule. VA is however bound by statute and regulation so a higher schedular rating for tinnitus is not available. Based on the foregoing, a schedular rating in excess of the current 10 percent rating for the service-connected tinnitus is not supported. ORDER Entitlement to an initial disability rating of 30 percent for posttraumatic headaches due to the service-connected TBI is granted. Entitlement to an initial disability rating greater than 10 percent for tinnitus due to the service-connected TBI is denied. REMAND Unfortunately, a remand is necessary so that VA can meet its duty to assist the Veteran in obtaining evidence to substantiate his claim. This duty includes assisting him in obtaining relevant records. 38 U.S.C.A. § 5103A (c)(1)(C) (West 2014); 38 C.F.R. § 3.159(c)(2)(2014). It also includes providing relevant examinations where certain conditions are met. See 38 U.S.C.A. § 5103A(a), (d) (West 2014); 38 C.F.R. §§ 3.159(c)(4), 4.1 (2014). In the following paragraphs, the Board explains why each part of the requested development is necessary. As previously stated, the Board remanded these claims in April 2011. At that time, the Board determined that additional evidentiary development was necessary prior to the adjudication of the Veteran's claim and it was remanded to the Appeals Management Center (AMC). The AMC scheduled the Veteran for the requested examinations in June 2011 and July 2011; however, the opinions rendered by the examiners are inadequate, as discussed in detail below. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Relating to the Veteran's claim for service connection for an acquired psychiatric disorder, the June 2011 VA examiner opined that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD, but diagnosed anxiety disorder not otherwise specified and possible somatoform disorder. Regarding a causal connection between the present diagnosis and the Veteran's military service, the examiner stated "as for whether these symptoms were caused by his military service, I cannot resolve this without resorting to mere speculation." However, as directed by the April 2011 Board remand, the examiner did not clearly and specifically specify why he was unable to give an opinion without resorting to speculation. Therefore, this opinion is inadequate and clarification is necessary. See Jones v. Shinseki, 23 Vet.App. 382, 390 (2010) ("An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion . . . however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence."). The Veteran also claims he currently suffers from neck and low back pain that are related to the injuries he incurred during in-service vehicle accidents. A July 2011 examination was performed regarding the Veteran's musculoskeletal claims. However, it is unclear whether the examiner found the Veteran has a present diagnosis of either neck or pain disability. Instead, the examiner provided a general statement that the Veteran has no current diagnoses which was caused by or the result of military service, including alleged motor vehicle accidents or radiation exposure. Further, the examiner indicated there is no evidence that the latter occurred and the report of medical history at separation does not include any complaints referable to the diagnoses made in the examination. However, this examiner's opinion statement is not adequate as it does not clearly address whether the Veteran has either a present back or neck disability and if so, whether that disability is it is at least as likely as not causally related to the Veteran's active military service. The Veteran also claims that he is unable to work due to his mental and physical disabilities. However, there is no examination of record evaluating the impact of the Veteran's service connected disabilities on his ability to work. Of note, the Board finds there is sufficient evidence of record, including the Veteran's statements and buddy lay statements, that the described in-service vehicle accidents occurred, notwithstanding the lack of evidence in the service treatment records pertaining to the accidents. Therefore, the examiners should assume this fact in rendering their requested opinions. With regard to the Veteran's claim for an increased rating for tinnitus, he has asserted that his constant tinnitus should be rated higher than the maximum level provided in the rating schedule. The Board interprets this statements as a request for extraschedular consideration. The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has issued a decision, Johnson v. McDonald, in which they rejected VA's interpretation that 38 C.F.R. 3.321(b)(1) only contemplates that referral for extraschedular consideration be made on an individual basis for each service-connected disability to determine if the disability picture rendered the schedular evaluation inadequate, and not on a collective basis. Johnson v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014). In Johnson, the Federal Circuit determined that extraschedular consideration required consideration of the "collective impact" of the Veteran's service-connected disabilities in assessing the disability picture and whether it rendered the schedular criteria inadequate such that referral to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) is warranted. In the present case, the Veteran is service-connected for posttraumatic headaches and a TBI, in addition to his tinnitus. Accordingly, in light of Johnson, the Board has determined that a remand is appropriate so that the RO can determine if referral for an extraschedular evaluation is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records and private records pertaining to the Veteran's psychiatric, lumbar and cervical conditions/complaints. 2. The RO should make arrangements for the Veteran to be afforded another psychiatric examination, from an examiner that has not previously seen the Veteran. The claims file must be provided to the examiner for review in conjunction with the examination and the examiner must indicate whether the claims file was reviewed. The examiner is asked to accomplish the following: Provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's anxiety disorder or somatoform disorder had onset during active service or was directly caused by his active service. Provide a clear rationale. If the foregoing question cannot be answered on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. 3. The RO should make arrangements for the Veteran to be afforded another cervical and lumbar spine examination, from an examiner that has not previously seen the Veteran. The claims file must be provided to the examiner for review in conjunction with the examination and the examiner must indicate whether the claims file was reviewed. The examiner is asked to accomplish the following: Provide an opinion as to any current musculoskeletal diagnoses relating to the Veteran's neck and/or back. Then render an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed lumbar or cervical spine disability is causally related to the Veteran's active military service. The examiner is advised that the described in-service motor vehicle accidents have been determined to have occurred, notwithstanding the lack of evidence in the service treatment records pertaining to the accidents based on lay statements provided by the Veteran and fellow service members, so any opinion should acknowledge this as fact. 4. Provide the Veteran with an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist with respect to his TDIU claim. The claims file must be provided to the examiner for review in conjunction with the examination and the examiner must indicate whether the claims file was reviewed. The examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. In offering this impression, the examiner must acknowledge and take into account this Veteran's education, training, and work history. All finding and conclusions should be set forth in a legible report, accompanied by a rationale. 5. In accordance with the decision in Johnson v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014), the RO should determine if referral to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is necessary based on the collective impact of the Veteran's service-connected disabilities on his disability picture and whether it renders the schedular evaluations inadequate. If the RO determines that referral is necessary, such referral should be made. 6. Following the completion of the above, the AOJ must review the claims folder and ensure that all the foregoing development has been conducted and completed in full. If not, the report must be returned for corrective action. 4. Thereafter, the AOJ must adjudicate that part of the claim that concerns service connection for a psychiatric disability, neck and back disability and TDIU. If the benefits sought on appeal are not granted in full, the AOJ must provide a supplemental statement of the case to the Veteran and his representative. An appropriate period of time should be allowed for response. The claims file should then be returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs