Citation Nr: 1754930 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-25 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 30 percent for an anxiety disorder. 2. Entitlement to a rating in excess of 30 percent for posttraumatic headaches. 3. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from February 2007 to June 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's anxiety disorder with posttraumatic stress disorder (PTSD) and depression manifests impairment in most areas without total social and occupational impairment. 2. The Veteran's posttraumatic headaches most nearly approximate characteristic prostrating attacks occurring one to two times per month over the last several months without very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but not higher, for anxiety disorder with PTSD and depression throughout the claims period are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411-9305 (2017). 2. The criteria for rating in excess of 30 percent for posttraumatic headaches are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Increased Rating Claims Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Anxiety Disorder Service connection for an adjustment disorder with mixed moods and insomnia was granted in an April 2012 rating decision with an initial 30 percent evaluation assigned effective June 14, 2011. The June 2016 rating decision on appeal recharacterized the service-connected disability as an anxiety disorder and continued the 30 percent evaluation. In the most recent VA examination conducted in January 2017, the Veteran was diagnosed with an anxiety disorder, PTSD, and depression as an extension of an anxiety disorder. The Board therefore finds that the Veteran's service-connected anxiety disorder includes the diagnoses of PTSD and depression and symptomatology associated with these diagnoses is included in the analysis below. The Veteran's service-connected psychiatric disorder is currently rated as 30 percent disabling under Diagnostic Code 9413 for an unspecified anxiety disorder and the General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130. Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating. Under the General Rating Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board finds that a rating of 70 percent, but not higher, is warranted for the Veteran's anxiety disorder with PTSD and depression throughout the claims period. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). Regarding the Veteran's specific symptoms, VA treatment records and examination reports document consistent findings of negative and intrusive thoughts and memories, irritability, nightmares, memory problems, hypervigilance, exaggerated startle response, and avoidance behaviors. In May 2015, the Veteran reported experiencing increasing psychiatric symptoms to his VA mental health provider. In September 2016, his VA provider characterized the Veteran's disability as causing significant impairment to social and vocational functioning as well as his overall health due to moderate to severe PTSD and depression. Treatment records from the Portland VA Medical Center (VAMC) show that the Veteran was highly avoidant and experienced acute over-arousal and intrusive experiences, sometimes failing to appear for appointments because of these symptoms. His thoughts were tangential, he had difficulty maintaining employment for any length of time, and his anxiety, irritability, and isolative behavior caused problems in his marriage. The Veteran also endorsed passive suicidal ideation in May 2015 and in a statement to VA in June 2017. The June 2017 statement also expressed the Veteran's depression, problems getting along with other people, including co-workers, and his general sense of unhappiness. Although the February 2016 and January 2017 VA examiners found that the Veteran's service-connected anxiety most nearly approximated the criteria associated with the current 30 percent evaluation, these findings are somewhat inconsistent with the Veteran's VA treatment records and the conclusions of his treating physicians who identify a more severe level of impairment. With consideration of all the evidence, the Board finds that the Veteran's disability most nearly approximates deficiencies in most of areas and symptoms of similar severity, frequency, and duration as those contemplated by a 70 percent evaluation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). An increased rating of 70 percent is therefore warranted throughout the claims period. The Board has considered whether a total schedular rating is warranted at any time during the claims period. The Veteran does not endorse any of the symptoms listed in the criteria for a 100 percent evaluation, and the symptoms he does experience are not of similar severity, frequency, and duration as those associated with a total rating. For example, the Veteran has reported having suicidal thoughts on several occasions, but there is no evidence he is in persistent danger of hurting himself and he has denied any active suicidal ideation. His VA providers consistently described his thoughts as tangential and easily distracted due to high anxiety, but there is no evidence he has ever experienced persistent delusions, hallucinations, or grossly inappropriate behavior. Similarly, the Veteran has manifested some impairment to activities of daily living and memory and concentration problems, but clearly does not experience these symptoms in the severity contemplated by a total schedular rating. With respect to occupational and social functioning, the Veteran has also not experienced total impairment due to PTSD. Until February 2016, the Veteran had stable full-time employment as a baker, but since that time, he has held approximately six different jobs and manifested problems getting along with co-workers, managers, and adjusting to any changes in routine or work duties due to his service-connected psychiatric symptoms. However, it is clear from the Veteran's work history that he does not manifest total occupational impairment and has worked steadily throughout the claims period, albeit for several different employers. Additionally, the Veteran has remained married throughout the claims period and he and his wife had their first child in April 2017. He is socially isolated and stated in June 2017 that he does not have any friends and feels disconnected from his family, but again, the Veteran's social impairment is not total. He consistently reports socializing with his wife, despite his dislike of crowded areas. Thus, the Veteran's psychiatric symptoms are not of similar severity, frequency, or duration as those contemplated by a total schedular rating and total occupational and social impairment is not demonstrated. The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the award of a rating higher than that assigned above. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Posttraumatic Headaches Service connection for posttraumatic headaches was awarded in an April 2012 rating decision with an initial 30 percent evaluation assigned effective June 14, 2011. The June 2016 rating decision on appeal continued the 30 percent evaluation. The Veteran contends that a higher rating is warranted as he experiences headaches once a week that result in a slowing down of activities. The Veteran's posttraumatic headaches are currently rated as 30 percent disabling under Diagnostic Code 8100. This diagnostic code provides for a 30 percent evaluation with characteristic prostrating attacks occurring on an average once a month over the last several months, and a maximum scheduler evaluation of 50 percent for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. After review of the evidence, the Board finds that the Veteran's headaches most nearly approximate the criteria associated with the current 30 percent evaluation. The medical and lay evidence establishes that he manifests characteristic prostrating attacks of headache pain one to two times a month which are controlled with over-the-counter or prescription medication. Treatment records show that the Veteran has only complained of headaches to his VA provider on two occasions during the claims period-in April 2015 and March 2016-and after the prescribing of a new medication in March 2016 has not returned with further complaints. VA examinations in February 2016 and January 2017 also document findings of characteristic prostrating attacks of headache pain occurring every one to two months. The Veteran also reported that he experienced one headache every month at the January 2017 VA examination. Though he complained of more frequent headaches at the VA in March 2016, the Veteran clarified at the January 2017 VA examination that headaches accompanied by prostrating attacks occurred far less frequently. These findings are contemplated by the currently assigned 30 percent evaluation. The Board also finds that the Veteran's headaches do not most nearly approximate very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability as required for a maximum 50 percent rating. The term "prostrating" is not defined in VA regulation, nor has the Court of Appeals for Veterans Claims (Court) defined it. Cf. Fenderson, 12 Vet. App. 119 (quoting Diagnostic Code 8100 verbatim, but not specifically addressing the matter of what is a prostrating attack). For reference purposes, the Board notes that "prostration" is defined as "extreme exhaustion or powerlessness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012). VA's Adjudication Procedures Manual (M21-1) defines prostrating under Diagnostic Code 8100 as "causing extreme exhaustion, powerlessness, debilitation or incapacitation with substantial inability to engage in ordinary activities." See M21-1, pt. III, Subpt. iv, Ch. 4, Sec. G(7)(b). VA regulations also do not define "economic inadaptability." However, the Court has noted that nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Veteran's service-connected headaches have clearly not resulted in the level of impairment contemplated by a 50 percent evaluation under Diagnostic Code 8100. In April 2015, he reported to his VA doctor that his headaches had improved and he rarely required his prescribed medication. In February 2016, at the VA examination, he stated that his headaches were worsening, but were still managed with medication. He reported missing four days of work at his current job at a bakery due to headaches since June 2015, but the evidence does not establish, and the Veteran does not contend, that he is unable to work due to headaches. In fact, in a June 2017 statement, the Veteran agreed with the January 2017 VA examiner's assessment that his headaches "slow [him] down," but did not report that he was unable to work as a result of his headaches. Furthermore, while the Veteran's headaches have certainly resulted in some impairment, the contents of his treatment records and VA examinations clearly do not establish headaches that most nearly approximate very frequent and causing extreme exhaustion, i.e. prostrating attacks. The February 2016 and January 2017 VA examiners both specifically found that the Veteran did not experience very frequent completely prostrating and prolonged attacks of headache pain productive of severe economic inadaptability. Accordingly, the Board finds that the Veteran's posttraumatic headaches do not most nearly approximate the criteria for a maximum 50 percent rating under Diagnostic Code 8100 at any time during the rating period. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. ORDER Entitlement to a rating of 70 percent, but not greater, for an anxiety disorder with PTSD and depression is granted. Entitlement to a rating in excess of 30 percent for posttraumatic headaches is denied. REMAND In June 2017, the Veteran submitted a statement in support of his claims for increased ratings specifically stating that he was not able to maintain gainful employment due to his service-connected psychiatric disorder. The Board therefore finds that the Veteran has reasonably raised a claim for entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability). While the claim for TDIU is part of the Veteran's claim for the increased ratings currently on appeal, it has not been initially adjudicated by the AOJ. The Veteran would therefore be prejudiced if the Board were to decide this claim without prior adjudication by the AOJ. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Accordingly, the claim for TDIU is remanded back to the AOJ for adjudication. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Request that the Veteran submit a properly completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Adjudicate the claim for entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). If the benefit sought on appeal is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative before returning the case to the Board, if otherwise in order. The appellant 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. §§ 5109B, 7112 (2012). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs