Citation Nr: 1756662 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-05 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 30 percent for migraine headaches. 2. Entitlement to a rating in excess of 10 percent for an acquired psychiatric disorder to include a pain disorder associated with migraine headaches and depression. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for additional disability, to specifically include lacerations of the bowel, claimed to have resulted from VA surgical treatment in February 2012. REPRESENTATION Veteran represented by: J. Michael Woods, Esq. ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1954 to March 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO) and an August 2013 rating decision by the Lincoln, Nebraska RO. The Veteran's claims file is now in the jurisdiction of the Waco, Texas RO. This matter was most recently before the Board in November 2015 when the claims were remanded for additional development that has since been completed. The Veteran has presented evidence indicating that he is unable to work due to his service-connected disabilities. Because the issue of entitlement to a TDIU is part and parcel of a claim for a higher rating, the Board has jurisdiction of this issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2002). FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the evidence demonstrates that for the entire appeal period the Veteran's migraine headaches have been equivalent in nature and severity to frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2 Throughout the appeal period the Veteran's acquired psychiatric disorder to include his pain disorder and depression has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as depressed mood, chronic sleep impairment, hypervigilance, increasingly isolative behavior and inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances. 3. The evidence of record demonstrates that throughout the appeal period the Veteran has been unable to secure or follow substantially gainful employment as a result of his service connected disabilities. 4. VA medical care, to include February 2012 surgery were the proximate cause of the Veteran's additional disability, to specifically include lacerations of the bowel through an event not reasonably foreseeable CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent for migraine headaches for the entire period on appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100. 2 The criteria for a disability rating of 70 percent, but no higher, for an acquired psychiatric disorder including a pain disorder and depression associated with migraine headaches have been met throughout the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R §§ 4.1-4.7, 4.130, Diagnostic Code 9411. 3 The criteria for an award of TDIU have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 4. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for additional disability, to specifically include lacerations of the bowel, resulting from VA surgical treatment in February 2012 have been met. 38 U.S.C. §§ 1151, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. ENTITLEMENT TO AN INCREASED RATING FOR MIGRAINE HEADACHES. The Board finds that the Veteran's headache disability should be rated at 50 percent throughout the entire period on appeal based on the Veteran's reported symptoms and their effects. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran's headaches have been rated under Diagnostic Code (DC) 8100 concerning migraine headaches. Under this code, the highest schedular rating available, 50 percent, is warranted if the Veteran has migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The rating criteria do not define "prostrating" and the courts have not undertaken to define this term for purposes of DC 8100. See Fenderson v. West, 12 Vet. App. 119 (1999). According to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." Similarly, in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st Ed. 2007), "prostration" is defined as "extreme exhaustion or powerlessness." In addressing whether a 50 percent rating is warranted for migraine headaches under DC 8100, the Board must explain its conclusion as to the applicability of 38 C.F.R. §§ 4.3, 4.7, and 4.21 in terms of each of the factors specified, i.e. "very frequent", "completely prostrating", "prolonged attacks", and "productive of severe economic inadaptability," and the meaning ascribed to these terms. Pierce v. Principi, 18 Vet. App. 440, 445 (2004); 38 C.F.R. § 4.21. Moreover, the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Resolving reasonable doubt in favor of the Veteran, the Board finds that a 50 percent rating is warranted for her migraine headaches throughout the appeal period. Although the Veteran has not exhibited all of the factors specified under DC 8100 for a 50 percent rating (i.e. "very frequent", "completely prostrating", "prolonged attacks", and "productive of economic inadaptability,"), his headaches have been productive of very frequent prostrating and prolonged attacks that cause him to lose productivity at work. The Veteran has consistently reported having very frequent headaches during the appeal period that are both prostrating and prolonged. During a January 2010 VA medical examination, the Veteran reported 1-2 significantly prostrating migraines a week, often lasting several days. The examiner noted that the Veteran's migraines result in functional loss and allow for only minimal activities. The exam further contains an indication that the headaches result in moderate to severe economic inadaptability. A later review of the Veteran's c-file and medical records by resulted in an opinion from May 2014 indicating that the veteran has prostrating headaches 3-4 days a week, lasting between 1-2 days. On the other hand, a VA medical examination conducted in June 2016 indicates that the Veteran has prostrating headaches once a month. This seems like an outlier from the Veteran's own reports and the previous medical examinations. Overall, the Board will assign greater probative value to the other medical opinions as well as the Veteran's own reports as he is competent to report the frequency and general severity of his headaches. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Considering all the evidence, the Veteran appears to suffer headaches several times a week that last between 1-2 days and result in the veteran having decreased functionality and economic adaptability due to symptoms such as pulsating and throbbing pain, nausea, vomiting, and sensitivity to light. Consequently, the Board finds that this evidence supports a finding that the Veteran has suffered from very frequent prostrating and prolonged attacks of headache pain throughout the appeal period and grants entitlement to the 50 percent rating. (CONTINUED ON NEXT PAGE) II. ENTITLEMENT TO AN INCREASED RATING FOR ACQUIRED PSYCHIATRIC DISORDER The Board assigns a 70 percent rating for the Veteran's acquired psychiatric disorder, formerly characterized as a pain disorder, and now expanded to include the Veteran's diagnosis of a depressive disorder. The Board does so because the most probative evidence of record indicates that the Veteran's headache disorder has resulted in pain disorder and depressive disorder with related symptoms that result in deficiencies in most areas of the Veteran's life. See Mittleider v. West, 11 Vet. App. 181 (1998) Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "stage" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. For reasons discussed in more detail below, the Board finds that the competent evidence demonstrates that the severity of the Veteran's service-connected disability is sufficient to warrant a 70 percent disability rating for the entire period on appeal. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disability at issue. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Throughout the appeal period the Veteran's mental health disability has been productive of occupational and social impairment with deficiencies in most areas due to symptoms due to such symptoms as depressed mood, chronic sleep impairment, hypervigilance, increasingly isolative behavior and inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances. These symptoms are best encompassed by the 70 percent rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 70 percent rating is prescribed when there is evidence of 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 activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The medical evidence, combined with the Veteran's subjective reports of his symptoms, indicates that the severity level of his mental health disability warrants a 70 percent rating, but no greater. In this regard a June 2014 Assessment from a private provider concludes with the opinion that the Veteran's disability Veteran's causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as depressed mood, chronic sleep impairment, hypervigilance, suicidal ideation, increasingly isolative behavior and inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. Regarding occupational impairment, the June 2014 report indicates that the Veteran would have great difficulty functioning in an employment setting due to his isolative behavior which stems from his near constant fear of being around others stemming from his irritability and fear of offending others through the unpredictability of his migraine symptoms such as diarrhea or his outbursts. The Veteran also experiences significant sleeping problems associated with his mental health disability, further compounding his difficulties functioning in an occupational setting. With respect to social impairment, the Veteran has a history of domestic violence and has indicated that he gets very irritable if things are not done according to his specific satisfaction at home. The examiner noted obsessional rituals which interfere with routine activities upon the Veteran's evaluation. As previously discussed, the Veteran remain significantly isolated due to his fears regarding his reactions to headaches and associated symptomatology. Thus, the medical evidence, combined with the Veteran's subjective reports of his symptoms, indicated that his mental health disability occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board finds the Veteran's symptoms of his disability warrant a 70 percent disability evaluation, but no greater for the entire period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9411. In this regard, the Board notes that the Veteran has a depressed mood, chronic sleep impairment, hypervigilance, anger control issues, increasingly isolative behavior, and difficulty in adapting to stressful circumstances. The next higher, 100 percent rating, is, however, not demonstrated by the evidence of record, as the Veteran's disorder is not manifested by total occupational and social impairment, due to such symptoms as: gross impairment of 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; and, memory loss for names of close relatives, own occupation, or own name. Id. In the Board's judgment, considering all the lay and medical evidence as outlined above, and including a review of the Veteran's medical records, the Veteran's retains functioning beyond what can be considered complete impairment in both social and occupational functioning nor does it more nearly approximate this level of disability. See 38 C.F.R. §§ 4.3, 4.7. The evidence above indicates that during this period of time the Veteran had significant impairment, but the evidence shows that he retained ability to complete social and occupational tasks beyond that contemplated by a 100 percent schedular rating. The Board also considers the Veteran's Global Assessment of Function (GAF) scores assigned during the course of the appeal. The GAF is a scale indicating the psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), p. 32). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Here, the Veteran's GAF has been determined to have been around 50 for the entire period on appeal based on a retrospective analysis conducted by the June 2014 examiner. The Board acknowledges that VA examinations have shown what could be considered a lower level of disability. Specifically a June 2016 Neuro-Psychological examination and a mental Health Examination conducted in February 2017. However the Board finds them to be of less probative weight than the private opinion and the Veteran's own report. First, the February 2017 examination does not address the private examination as the provider was unable to locate it, indicating that the examiner might have been unable to access the Veteran's entire file. With respect to the other VA examinations, the Board finds the private examination to be more highly probative as it contains clearer conclusions with supporting data and citations, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the Board finds that the evidence is at least in equipoise as to the assignment of an70 percent rating for the entire period on appeal, but weighs against the assignment of a disability rating higher than 70 percent during that time period. As such, the Veteran's claim has been granted in part and denied in part, with the benefit of the doubt rule being applied accordingly. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. ENTITLEMENT TO A TOTAL DISABILITY RATING BASED ON INDIVIDUAL UNEMPLOYABILITY DUE TO SERVICE-CONNECTED DISABILITIES (TDIU). The Board finds that the Veteran's service connected disabilities have rendered him unable to secure and follow a substantially gainful occupation throughout the appeal period. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. See 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this decision, the Board grants a 70 percent disability rating for mental health throughout the appeal period. Therefore, the schedular criteria for an award of TDIU have been met throughout the appeal period. With the schedular criteria for an award of TDIU having been met, the Board finds that the Veteran has been unable to obtain or maintain substantially gainful employment for the entire period on appeal. A review of the record shows that the Veteran did not graduate high school and worked for years as a barber and most recently as a heavy equipment operator. See June 2014 Private Medical Opinion. The preceding portion of this opinion outlines the significant difficulties that the Veteran faces in securing substantially gainful employment as a result of his service-connected disabilities. Essentially, the Veteran would need a position where he can function only 2-3 days a week in relative isolation and accommodation for irritability and the anxiety that results from his headaches. As the Board is not aware of such a position given the Veteran's educational and work background, the Board finds that the preponderance of the evidence is in favor of granting the TDIU claim as the Veteran has been unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities for the entire period on appeal. IV. ENTITLEMENT TO COMPENSATION UNDER 38 U.S.C.A. § 1151 The Board grants entitlement to compensation for additional disability resulting from VA surgery as the medical evidence in this matter agrees that the complications in the Veteran's treatment were proximately caused by an event not reasonably foreseeable. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See 38 U.S.C.A. § 1151. For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran's willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C.A. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361. To establish causation, the evidence must show that the hospital care, medical or surgical treatment or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment or examination and that the veteran has an additional disability or died does not establish cause. See 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuation or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). In making all determinations, the Board must fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Further, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). There is no dispute in this case that the complication suffered by the Veteran in the course of the February 2012 VA surgery stem from an event not reasonably foreseeable. The August 2013 VA opinion as well as subsequent the subsequent May 2016 VA opinion stress how a reasonably prudent surgeon could not have foreseen the difficulties encountered in the course of the February 2012 surgery stemming from the tissue impacted by the Veteran's previous surgeries. There does appear to be some question regarding the extent to which the Veteran has sustained an "additional disability" stemming from the February 2012 surgery, including the perforation. However, the Board takes notice of the Veteran's competent reports regarding his pain and difficulty with regular bowel movements without extreme pain reported by way of his December 2013 Notice Of Disagreemen. Consequently, the Board grants entitlement to VA compensation under 38 U.S.C. § 1151 for residuals of surgical treatment at a VA Medical Center in February 2012. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating of 50 percent, but no higher, for migraine headaches for the entire period on appeal is granted. Entitlement to rating of 70 percent, but no higher, for an acquired psychiatric disorder including a pain disorder and depression associated with migraine headaches is granted. Entitlement to TDIU for the entire period on appeal is granted. Entitlement to VA compensation under 38 U.S.C. § 1151 for residuals of surgical treatment at a VA Medical Center is granted. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs