Citation Nr: 1621077 Decision Date: 05/25/16 Archive Date: 06/02/16 DOCKET NO. 12-36 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 50 percent for migraine headaches. 2. Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder, to include as secondary to service-connected migraine headaches. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Carol J. Ponton, Attorney at Law ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to August 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2011, May 2012 and May 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Notably, the United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for depression can encompass claims for service connection for other psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). While the RO adjudicated only a claim for major depressive disorder in its May 2012 rating decision, in accordance with Clemons, the Board has recharacterized the issue on appeal as a claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder. The Veteran requested a hearing before a Veterans Law Judge at the RO. However, the Veteran cancelled this hearing, and has not requested that a new hearing be scheduled. As such, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(e); 20.704(e) (2015). The issue of entitlement to an earlier effective date for a 50 percent disability rating for service-connected migraine headaches has been raised by the record in a November 2012 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The 50 percent rating currently in effect is the maximum schedular rating for service-connected migraine headaches. 2. The evidence of record does not show that the Veteran's service-connected migraine headache disability is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. 3. The Veteran's acquired psychiatric disorder disability is related to his service-connected migraine headache disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for the Veteran's migraine headache disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2015). 2. The criteria for referral for an extraschedular rating for the Veteran's migraine headache disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 3.321(b) (2015). 3. An acquired psychiatric disorder to include major depressive disorder is related to the Veteran's service-connected migraine headaches disability. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable disposition to grant the claim for entitlement to service connection for an acquired psychiatric disorder as secondary to a service-connected migraine headache disability, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Regarding the Veteran's claim for an increased rating for migraine headaches, the RO provided notice to the Veteran in a March 2011 letter. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of private, service, and VA treatment records. The record also contains the report of a March 2011 VA examination. The March 2011 VA examination report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the March 2011 VA examination report is sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2015); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran. In a March 2016 statement, the Veteran via his representative waived initial consideration of additional evidence received after the last SOC by the RO. Accordingly, the Board finds that no additional RO action to further develop the record on the claim is warranted. I. Increased Rating Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2015). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2015). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his headache disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. Factual Background and Analysis The Veteran's service-connected migraine headaches disability is rated as 50 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100 (migraine headaches). This is the maximum schedular rating available for migraine headaches. A 50 percent rating is warranted under Diagnostic Code 8100 for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. Accordingly, the Veteran is in receipt of a 50 percent disability rating which is the maximum rating under Diagnostic Code 8100 for his service-connected migraine headache disability. Neither the Veteran nor his representative have identified any other rating criteria that would provide a higher rating or an additional rating. The potential applications of various provisions of Title 38 of the Code of Federal Regulations have been considered whether or not they were raised by the Veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds no other applicable rating criteria that would provide a higher rating or an additional rating. Accordingly, a 50 percent rating is clearly the maximum rating assignable for the Veteran's migraine headache disability. An increased schedular rating is therefore not available and the claim is denied. The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected migraine headache disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2015). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual that renders the schedular evaluation inadequate. There is no evidence of record of an exceptional or unusual clinical picture not already contemplated by the rating criteria under 38 C.F.R. § 4.124a, DC 8100. An August 2015 Headaches Disability Benefits Questionnaire (DBQ) indicated that the Veteran's migraines were productive of constant head pain, pain localized to one side of his head, nausea, vomiting, and sensitivity to light and sound. He experienced prostrating attacks that occurred more frequently than once per month, and they were noted to impact his ability to work. These findings are consistent with his assigned 50 percent rating, which contemplates migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board observes that in various statements to include the December 2012 Form 9, the Veteran's representative argues that the Veteran should be granted a TDIU based on his service-connected migraine headaches under 38 C.F.R. § 4.16(b), which will be addressed below. Accordingly, as the evidence does not demonstrate that the Veteran's headaches are productive of an exceptional disability picture that is not contemplated by the schedular rating criteria, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. II. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran contends that service connection is warranted for his acquired psychiatric disability as a result of his service-connected migraine headache disability. A July 1973 service treatment record noted that the Veteran had an MMPI test which showed depression which may be reactive and maybe also related to headaches. An August 1975 psychiatric evaluation noted that the Veteran's headaches were probably psychophysiological (combination of psychological and bodily processes). The Veteran underwent a VA examination in May 2012. The diagnosis was major depressive disorder not otherwise specified (NOS). The examiner indicated that it would be difficult to create a nexus between his depression and his migraines. The examiner opined that it would be resorting to mere speculation to opine as to whether the Veteran's depressive disorder NOS was incurred in or caused by depressive symptoms and chronic headaches that occurred in service. In an August 2012 correspondence, the Veteran's private psychiatrist indicated that the Veteran's chronic, treatment-resistant migraine headaches had contributed significantly to the intensity, severity and duration of his severe anxiety and depression and overall dysfunctionality. The psychiatrist's clinical assessment was that his chronic and ongoing migraine problems not only exacerbated his depressive symptomology, but interfered with its remission. In an August 2015 correspondence, a private psychiatrist noted that the Veteran had a longstanding history of headaches that were a causative factor of his depression and contributing factor to his depression. In another August 2015 correspondence, another private physician opined that the Veteran's chronic headaches had significantly contributed to his mood disorder. In a February 2016 letter, a private neurologist opined that it was more likely than not that the Veteran's diagnosed depression and anxiety was completely caused by and the direct result of the severe and debilitating nature of the chronic pain that he experienced, and had experienced, from his service-connected chronic migraine headaches alone, and without consideration of any chronic pain that may result from any of his other medical conditions that were separate from the migraine headaches. In a March 2016 correspondence, a private psychologist opined that it was at least as likely as not that the Veteran's major depressive disorder and generalized anxiety disorder were directly caused by, secondary to, and the direct result of his service-connected migraine headaches. The psychologist also believed that the Veteran's psychiatric conditions were a further progression and manifestation of the same psychiatric symptoms that the Veteran suffered from during his military service as documented in his 1973 and 1974 service treatment records. The psychologist agreed with the previous private physicians' opinions which noted that there were multiple medical publications supporting the notion that chronic depression and anxiety were not only associated with, but also frequently caused by chronic pain. The psychologist also noted that the cause and effect relationship between chronic pain, which could lead to and cause secondary depression and/or anxiety, was not only widely documented in the medical literature but also widely accepted. He believed that this cause and effect phenomenon was "exactly the case" for the Veteran as his service-connected headaches cause his mental health conditions. He also agreed that the Veteran's depression and anxiety disorders were not the result of any other medical conditions that the Veteran had other than his service-connected headaches. He noted that the 1973 service treatment note from the neurologist appeared to state that there may be a relationship between his depression and his headaches. The psychologist also noted that the VA examiner did not establish a rapport with the Veteran nor did she gather the kind of information needed for a valid psychological opinion. The psychologist concluded that it was not speculative to conclude that the Veteran's major depressive disorder and generalized anxiety disorder were in fact service-connected and that the VA examiner's opinion was an outlier. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for an acquired psychiatric disability as secondary to the Veteran's service-connected migraine headache disability is warranted. Initially, the Board notes that there is a current diagnosis of major depressive disorder with anxiety, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board notes that the record contains multiple positive opinions from private physicians who associate the Veteran's current acquired psychiatric disorder to both his service and his service-connected migraine headache disability. Most recently in a March 2016 correspondence, a private psychologist opined that it was at least as likely as not that the Veteran's major depressive disorder and generalized anxiety disorder were directly caused by, secondary to, and the direct result of his service-connected migraine headaches. The psychologist provided an extensive rationale for this opinion which noted an examination of the Veteran, a review of his service and post-service treatment records, and a thorough review of the medical literature. The psychologist also specifically addressed the findings of a May 2012 VA examination report when noting that it was an outlier compared to numerous other medical treatment records that provided a positive nexus between the Veteran's acquired psychiatric disability, his service and his service-connected migraine headache disability. The psychologist also specifically indicated that the Veteran's depression and anxiety disorders were not the result of any other medical conditions that the Veteran had other than his service-connected headaches. Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions. Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another. Wray v. Brown, 7 Vet. App. 488 (1995 The Board notes that the May 2012 VA examiner VA physician concluded that it would be difficult to create a nexus between his depression and his migraines and that it would be resorting to mere speculation to opine as to whether the Veteran's depressive disorder NOS was incurred in or caused by depressive symptoms and chronic headaches that occurred in service. However, the Board acknowledges that the Court has held that generally, where an examiner is unable to give an opinion without resorting to mere speculation, and does not provide a rationale to support the conclusion, there is no opinion offered. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Thus, because the May 2012 VA examiner did not provide a sufficient rationale for the opinion, the Board affords it little probative value. Additionally, there is no competent contrary medical evidence of record that indicates that the Veteran's acquired psychiatric disabilities were not incurred in service or are not secondary to his migraine headaches. Therefore, these positive nexus opinions provide the only competent medical opinion as to the relationship between the Veteran's current acquired psychiatric disability and his service. In sum, for the reasons and bases discussed above, the Board has resolved reasonable doubt in favor of the Veteran, and service connection for an acquired psychiatric disability to include major depressive disorder as secondary to migraine headaches is granted. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to a rating in excess of 50 percent for migraine headaches is denied. Service connection for an acquired psychiatric disability to include major depressive disorder as secondary to migraine headaches is granted. REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. A TDIU may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2015). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. However, even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b) (2015). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran is service connected for a migraine headache disability at a 50 percent disability rating which does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, as discussed above, the Board has granted the Veteran's claim for service connection for an acquired psychiatric disorder in this decision. The agency of original jurisdiction (AOJ) will assign a disability rating for this disability in the first instance. Clearly, the AOJ has not had the opportunity to consider the Veteran's TDIU claim in light of the Board's grant of service connection for an acquired psychiatric disorder. As a result of the grant of service connection, the Veteran's combined disability rating will be adjusted which would affect whether the Veteran's combined disability rating will now satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. Accordingly, a remand is needed for the AOJ to assign a disability rating for the Veteran's now service-connected acquired psychiatric disability and to then adjudicate the Veteran's claim of entitlement to TDIU. VA's duty to assist requires that VA obtain an examination that includes an opinion on the effect of the Veteran's service-connected disability or disabilities on his ability to work. Friscia v. Brown, 7 Vet. App. 294 (1994). Therefore, on remand, the originating agency will be requested to obtain a medical opinion that addresses the effect the Veteran's service-connected disabilities have on his ability to obtain and maintain employment. Accordingly, the case is REMANDED for the following action: 1. The RO should assign a disability rating for the Veteran's service-connected acquired psychiatric disorder disability in the first instance. 2. After obtaining any additional evidence identified by the Veteran, the Veteran should be afforded a VA examination by a medical provider with appropriate expertise to determine the impact the service-connected disabilities have on the Veteran's employability. The claims file must be made available for review by the examiner should note such review in the report. The examiner should provide the rationale for all opinions expressed. 3. The RO or the AMC also should undertake any other development it determines to be warranted before the Veteran's claim for a TDIU is decided, including referral of the claim to the Director, Compensation and Pension Services, for extra-schedular consideration. Then, the RO or the AMC should readjudicate the Veteran's claim of entitlement to TDIU. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative an SSOC and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter 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 2015). ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs