Citation Nr: 1626906 Decision Date: 07/06/16 Archive Date: 07/14/16 DOCKET NO. 92-06 364A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic headache disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to a rating in excess of 10 percent prior to June 22, 2001, and in excess of 20 percent thereafter, for residuals of trauma to the dorsolumbar region with myositis (hereinafter "residuals of a lumbar spine injury"). 4. Entitlement to a rating in excess of 20 percent for residuals of a cervical spine injury. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1981 to May 1982 and with the United States Army Reserves, to include, on active duty for training (ACDUTRA) on multiple occasions from 1988 to 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 1991, February 1993, June 1994, and December 2002 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In August 1995 and June 2001, the Veteran testified at hearings before a Decision Review Officer (DRO). The Board remanded the issues of entitlement to higher ratings for residuals of a lumbar spine injury, residuals of a cervical spine injury, and posttraumatic headache disorder, as well as service connection for an acquired psychiatric disorder in a March 2005 decision and denied these issues in a January 2011 decision. The Veteran appealed the January 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). An Order of the Court dated in October 2011 granted the motion and remanded the case to the Board. Again, the Board remanded these issues in January 2012 and denied them in a March 2013 decision. The Veteran appealed the March 2013 Board decision to the Court, and the parties filed a JMR. An Order of the Court dated in February 2014 granted the motion and remanded the case to the Board. In June 2014 the Board remanded these issues and the case has been returned to the Board for appellate review. In the January 2011 Board decision, the issue of entitlement to a TDIU was remanded for issuance of a statement of the case (SOC). A June 2012 SOC was issued and the Veteran submitted a timely July 2012 substantive appeal. In March 2013 and June 2014, the Board remanded this issue and it has been returned to the Board for appellate review. In an April 1987 Board decision, the issue of service connection for posttraumatic headache disorder was denied. On May 18, 1992, the Veteran's request to reopen this claim was received by VA. During the course of the appeal, the issue was granted on the merits in a March 2000 VA rating decision and a 10 percent disability rating was assigned effective May 18, 1992. A disability rating of 30 percent was assigned in a May 2002 SSOC and a disability rating of 50 percent was assigned for the entire initial rating period on appeal since May 18, 1992, in the January 2011 Board decision. Since the 50 percent disability rating is the maximum rating available and has been assigned for the entire initial rating period on appeal, the issue has been listed on the title page and will be addressed on an extra-schedular basis below. See AB v. Brown, 6 Vet. App. 35 (1993). In a November 1984 VA rating decision, the issue of service connection for residuals of a lumbar spine injury was granted and assigned a non-compensable rating. During the course of an initial appeal, in a November 1987 VA rating decision, the RO increased the disability rating to 10 percent effective from December 18, 1984, and the issue for an initial rating in excess of 10 percent was denied in an October 1989 Board decision. On March 22, 1990, the Veteran's request of a rating higher than 10 percent was received by VA. During the course of the claim on appeal, a disability rating of 20 percent was assigned effective June 22, 2001. See May 2002 supplemental statement of the case (SSOC). Since the 10 and 20 percent disability ratings are not the maximum ratings available prior to June 22, 2001, or thereafter, the issue has been listed on the title page accordingly. Id. In the October 1989 Board decision, the issue of service connection for residuals of a cervical spine injury was granted. In the February 1991 VA rating decision, the RO effectuated this grant and assigned a 10 percent disability rating effective from December 18, 1984. On December 2, 1991, the Veteran's request for a rating higher than 10 percent was received by VA. During the course of this claim on appeal, a disability rating of 20 percent, effective December 2, 1991, was assigned by the RO in a February 1993 VA rating decision. Since the 20 percent disability rating is not the maximum rating available and has been assigned for the entire increased rating period on appeal, the issue has been listed on the title page accordingly. Id. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA electronic claims file, to include VA treatment records dated from September 2008 to June 2015. Accordingly, any future consideration of the case should take into account the existence of these electronic records. The issues of entitlement to a rating in excess of 10 percent prior to June 22, 2001 and in excess of 20 percent thereafter for residuals of a lumbar spine injury, a rating in excess of 20 percent for residuals of a cervical spine injury, and a 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's service-connected posttraumatic headache disorder is assigned at the maximum schedular rating for the entire initial rating period on appeal since May 18, 1992 (date of claim on appeal) and symptoms therefor are contemplated by the rating schedule. 2. During service with the United States Army Reserves, not during a period of ACDUTRA in June 1989, the Veteran was provided a speculative diagnosis of organic mental disorder not otherwise specified (NOS) and presented symptoms of posttraumatic stress disorder (PTSD). 3. The Veteran has not been shown to have an acquired psychiatric disability during active duty or ACDUTRA service or an acquired psychiatric disability (other than organic personality syndrome secondary to head concussion) at any time since she filed her claim or within close proximity thereto. 4. The Veteran's post-service diagnosis of organic personality syndrome secondary to head concussion is not a disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 50 percent for posttraumatic headache disorder on schedular or extra-schedular basis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21 (2015); 38 C.F.R § 4.124a, Diagnostic Code 8100 (2015). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As service connection, an initial rating, and an effective date have been assigned for posttraumatic headache disorder, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met for the issue of entitlement to service connection for an acquired psychiatric disorder. There is no issue as to providing an appropriate application form or completeness of the application. Throughout the course of the appeal, VA has notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim to include where warranted by law, and affording the claimant VA examinations and medical opinions. 38 U.S.C.A. §§ 5103, 5103A. There is no evidence that additional records have yet to be requested. Additionally, since the February 2014 JMR, there was substantial compliance with the June 2014 remand directives. In sum, there is no evidence of any VA error in notifying or assisting her that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Increased Rating for Posttraumatic Headache Disorder For the entire initial rating period on appeal since May 18, 1992 (the date of claim), the Veteran's service-connected posttraumatic headache disorder is assigned at 50 percent, the maximum available under Diagnostic Code 8100. 38 C.F.R. § 4.124a. The rating schedule for migraines does not provide a basis for a higher schedular rating. Id. The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1); however, in this case, the Board finds that the record does not show that the Veteran's service-connected disability on appeal was so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis at any time during the appeal period. See 38 C.F.R. § 3.321(b)(1). A comparison between such level of severity and symptomatology of the Veteran's assigned evaluation for the appeal period with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology for posttraumatic headache disorder for which service connection is in effect. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. Indeed, the Board rendered a similar finding in its March 2013 decision. Subsequently, on appeal to the Court and with regard to the issue of extraschedular consideration, the parties agreed that the Board did not adequately address the Veteran's statements that she suffers side-effects from the medications taken for her service-connected disabilities. However, the issue of entitlement to service connection for GERD as secondary to the medications taken for service-connected disability of post-traumatic headaches and residuals of lumbar spine and cervical spine injuries was granted in the June 2015 VA rating decision. As of this date, no notice of disagreement to this rating decision has been received and this issue is not currently before the Board on appeal. The JMR did not note any other evidence that the Board failed to consider with regard to the issue of extraschedular consideration and, again, the Board finds that, on review of the record, a comparison between such level of severity and symptomatology of the Veteran's assigned evaluation for the appeal period with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology for posttraumatic headache disorder. Because the rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is, therefore adequate, and no referral is required. Thun v. Peake, 22 Vet. App.111, 115-16 (2008); VAOPGCPREC 6-96 (August 16, 1996). The evidence does not show anything unique or unusual about the Veteran's posttraumatic headache disorder that would render the schedular criteria inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996). Specifically, the first element of Thun has not been met, and thus, the required elements for extraschedular referral have not been satisfied. See Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (clarifying that although the Court in Thun identified three "steps," they are, in fact, necessary "elements" of an extraschedular rating). The Board has considered the possibility of staged ratings and finds that the schedular rating for the disability on appeal has been in effect for the appropriate period on appeal. Accordingly, staged ratings are inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Board notes that, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for any additional disability that can be attributed only to the combined effect of multiple conditions insofar as they impact the disability picture of the disability presently on appeal. See Yancy v. McDonald, 27 Vet.App. 484, 495 (2016) (clarifying that, "although Johnson requires the Board, in certain cases, to discuss the collective impact of a claimant's service-connected disabilities, it does not alter the Board's jurisdiction over individual schedular or extraschedular ratings."). Significantly, the Veteran and his representative have not identified any symptoms resulting from the combined effect of his service-connected disabilities that are not contemplated by his assigned disability rating. Consequently, on this record, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1) for this disability. Service Connection for an Acquired Psychiatric Disability Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that she has an acquired psychiatric disability that developed as a result of head trauma during her period of active duty in March 1982. Review of service treatment treatments during her period of active duty from October 1981 to May 1982 document that in March 1982, she sustained injuries, including a hematoma to the forehead, and reportedly was unconscious for a period of approximately 10 minutes. During service with the United States Army Reserves, the Veteran served on ACDUTRA for 15 days starting on July 31, 1988, for 12 days starting on September 30, 1988, for 12 days starting on November 14, 1988, for 13 days starting on June 18, 1989, for 14 days starting on July 28, 1990, for 12 days starting on January 28, 1991, and for 12 days starting on July 20, 1992. The Veteran reported on July 1985 and May 1989 reports of medical history as to having or ever having had a history of depression or excessive worry. On the May 1989 report of medical history, the physician noted the Veteran's history of depression since 1982. Following physical examination in May 1989, the Veteran's psychiatric review was normal. Approximately one month later in June 1989, not during a period of ACDUTRA, a VA neuropsychological report noted that the reliability and validity of standard neuropsychological battery test results were questionable, but concluded that a diagnosis of mild organic mental disorder NOS, secondary to concussion, was strongly suspected and the Veteran presented symptoms of PTSD. The Board finds the probative evidence of record indicates the Veteran has not been shown to have an acquired psychiatric disability during service. While the Veteran presented with symptoms of PTSD, she was provided a speculative diagnosis of organic mental disorder NOS. The June 1989 VA neuropsychological report is speculative as to a psychiatric diagnosis during service with the United Army Reserves. Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Since separation from active duty service, review of the record does not show the Veteran has an acquired psychiatric disability during active duty or ACDUTRA service or an acquired psychiatric disability (other than organic personality syndrome secondary to head concussion) at any time since she filed her claim or within close proximity thereto. In a June 1993 VA examination report for mental disorders, no Axis I diagnosis was rendered and Axis II listed a diagnosis of organic personality syndrome secondary to head concussion. In April 1994 and September 2008, the Veteran was afforded additional VA psychiatric examinations which document no current psychiatric disability, and that conclusion was affirmed in an August 2014 VA medical opinion. VA and private post-service treatment records also do not indicate the diagnosis of an acquired psychiatric disability. With regards to the Veteran's post-service diagnosis of organic personalty syndrome secondary to head concussion, there is no legal basis to grant service connection because a personality disorder is not a disease or injury within the meaning of applicable legislation. 38 C.F.R. § 3.303(c); see Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran has been advised on multiple occasions that she must identify a current disability that is associated with her military service, yet she has not provided evidence showing such a disability. See June 1994 VA rating decision, April 1995 statement of the case, and SSOCs dated March 2000, December 2002, December 2008, June 2012, and June 2015. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the Veteran currently has the disability for which benefit is being claimed during the appeal period or within close proximity thereto. The Board has considered the Veteran's reported history of symptomatology related to her psychiatric condition throughout the appeal period, to include at the DRO hearings and multiple statements of record. See Layno, 6 Vet. App. at 470. The Board finds, however, that the Veteran is a lay person and her statements to offer a current diagnosis attributable to a disorder for an acquired psychiatric disability are not competent, as that issue involves a medically complex matter that requires advanced medical knowledge. See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court."). Based on the foregoing, the evidence does not establish that the Veteran has a current diagnosis in this case. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disability. ORDER An initial rating in excess of 50 percent for posttraumatic headache disorder is denied. Service connection for an acquired psychiatric disorder is denied. REMAND Pursuant to the June 2014 Board remand directives, the AOJ was requested, in part, to arrange the Veteran to undergo an appropriate VA examination to assess the severity of her service-connected back disabilities and ascertain the nature and etiology of her asserted fibromyalgia, to include a discussion of the Veteran's documented medical history and assertions. In August 2014, the Veteran was afforded a VA DBQ examination for fibromyalgia. After clinical evaluation and review of the claims file, the examiner concluded the Veteran does not now have or has she ever been diagnosed with fibromyalgia and explained "there is no evidence . . . that she was diagnosed with fibromyalgia in the past." The Board finds this VA medical opinion is inadequate because the examiner did not address the evidence cited by the parties in the February 2014 JMR or by the Board in the June 2014 remand. Such cited evidence includes a June 2008 VA treatment record that notes the Veteran suffers from both "cervical fibromyositis posttraumatic" and "lumbo-dorsal fibromyositis posttraumatic" and a February 2011 treatment record indicating some linkage between the Veteran's service-connected back disabilities and fibromyalgia by the notation of "Fibromyalgia: myalgia and myositis." Compliance with the terms of this June 2014 Board remand directive is necessary prior to appellate review, and if not, "the Board itself errs in failing to ensure compliance." Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a remand is needed to obtain an additional VA medical opinion discussing the June 2008 and February 2011 treatment records with regard to the existence and any relationship between fibromyalgia and the service-connected residuals of lumbar and cervical spine injuries. Any remand development regarding fibromyalgia may impact the issues of entitlement to a rating in excess of 10 percent prior to June 22, 2001 and in excess of 20 percent thereafter for residuals of a lumbar spine injury, a rating in excess of 20 percent for residuals of a cervical spine injury, and a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As a result, these issues are inextricably intertwined and must be remanded. Accordingly, the case is REMANDED for the following actions: 1. The examiner who conducted the August 2014 VA DBQ examination and medical opinion for fibromyalgia (or a suitable substitute if that examiner is unavailable) must be requested to again review the file and provide an additional medical opinion. If the examiner concludes that another examination is required, one should be provided. The examiner should indicate all symptoms and manifestations attributable to fibromyalgia since March 1990 in accordance with the applicable rating criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5025. A complete rationale should be provided, to include discussion of the June 2008 and February 2011 treatment records noting the Veteran suffers from both "cervical fibromyositis posttraumatic" and "lumbo-dorsal fibromyositis posttraumatic" and "Fibromyalgia: myalgia and myositis." The examiner is also directed to address all of the following questions as definitely as possible: (a) Is it at least as likely as not that the Veteran's current fibromyalgia had its onset in service, had its onset in the year immediately following the Veteran's period of service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that the Veteran's current fibromyalgia was caused (in whole or in part) by either the Veteran s service-connected residuals of trauma to the dorsolumbar region with myositis or her service-connected residuals of a cervical spine injury? (c) Is it at least as likely as not that the Veteran's current fibromyalgia is aggravated (permanently worsened) by the Veteran's service-connected residuals of trauma to the dorsolumbar region with myositis or her service-connected residuals of a cervical spine injury? 2. After the development requested has been completed, the AOJ should review the medical opinion to ensure that it is in complete compliance with the directives of this REMAND. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. 3. When the development requested has been completed, the remaining issues on appeal should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran and her representative should be furnished An SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). These claims 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). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs