Citation Nr: 1718734 Decision Date: 05/26/17 Archive Date: 06/05/17 DOCKET NO. 09-38 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disability, to include panic disorder with agoraphobia. 3. Entitlement to a compensable disability rating for incompetent cervix. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from September 1993 to January 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. This matter was previously before the Board in June 2011 April 2013, and February 2016 when it was remanded for additional development, to include obtaining additional VA examinations and opinions. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's headaches are shown to have had their onset in service and to have continued since service separation. 2. The Veteran's generalized anxiety disorder with agoraphobia is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as frequent panic attacks, reduced motivation, and decreased energy. 3. The Veteran's incompetent cervix was manifested by the need for continuous treatment which did not effectively control the disability during the periods when she was pregnant, December 2007 through August 2008, December 2013 to January 2014, March 2014 to May 2014, and December 2014 to February 2015. 4. The Veteran's incompetent cervix has significantly changed her reproductive system, imposing restrictions on her ability to conceive and carry a child to term. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). 2. The criteria for a disability rating in excess of 50 percent for generalized anxiety disorder with agoraphobia have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 3.101, 3.159, 4.1-4.14, 4.130, Diagnostic Code 9400 (2016). 3. The criteria for a 30 percent disability rating for incompetent cervix were met for the following time periods: December through August 30 2008, December 2013 to January 2014, March 2014 to April 2014, and December 2014 to February 2015. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.116, Diagnostic Code 7612 (2016). 4. The criteria for an award of special monthly compensation (SMC) for loss of use of a creative organ because of incompetent cervix have been met. 38 U.S.C.A. § 1114(k) (West 2014); 38 C.F.R. § 3.350 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA is to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In October 2007 and January 2008, the RO sent the Veteran notice letters, prior to adjudication of the above issues. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting her in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded VA examinations in February 2008, May 2008, and May 2013. A VHA medical expert opinion was also obtained in November 2013 with respect to the Veteran's claim of service connection for headaches. There is no argument or indication that the examinations or opinions are inadequate. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.38 C.F.R. § 3.159(a). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Principles of Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Headaches The Veteran is seeking service connection for headaches. The Veteran's service treatment records show that in July 2002 she listed frequent headaches treated with over-the-counter medications as a health problem experienced in service for which she had not sought medical treatment. (See STR Medical Photocopy, received 02/24/2016, p. 43.) The Veteran has provided a statement from a friend and fellow service member that attests to the Veteran's complaints of headaches in service, which she treated with over-the-counter medications and bed rest. (See Buddy/Lay Statement, received 10/17/2016, p. 3-4.) The Veteran's friend stated that she was aware that the Veteran continued to experience headaches after service separation and that she had even sought treatment for them at the emergency room. The Veteran has submitted statements noting that the headaches she continues to experience are the same in nature as those she had in service. (See Notice of Disagreement, received 10/15/2008, p. 2.) She has also submitted a description of several different types of headaches she has experienced, noting that some of those had been consistent since her military service. (See Correspondence, received 01/23/2014, p. 1.) The record shows that the Veteran has been seen for complaints on multiple occasions since separation from service. Diagnoses provided included tension headaches and, eventually, pseudotumor cerebri, a condition manifested by constant headaches, visual disturbances, and fatigue. (See Medical Treatment Government Facility, received 12/26/2007, pp. 22, 35.) At the May 2008 VA examination, the Veteran reported first experiencing headaches on active duty, beginning in 1998, which increased to daily headaches in July 2007. (See VA Exam, received 05/16/2008, p. 6.) She was diagnosed at this time with pseudotumor cerebri and treated with medication for the elevated intracranial pressure, which decreased the symptoms but did not completely relieve them. The examiner stated that there was insufficient information to determine whether the Veteran's headaches in service were related to her subsequent diagnosis of pseudotumor cerebri because that diagnosis could only be made with a lumbar puncture, which was not performed until 2007. (p. 12.) The examiner did offer the opinion that the Veteran's headaches were not caused by her hypertension or her generalized anxiety disorder because the diagnosis of pseudotumor cerebri showed a clear cause for the headaches. (p. 12.) At the VA examination in May 2013, the examiner noted that the Veteran had a diagnosis of migraine variant known as pseudotumor cerebri, characterized by constant head pain on both sides, with nausea and sensitivity to light, lasting 1-2 days, and characteristic prostrating attacks more frequently than once per month (about 5 times per month). (See VA Exam, received 05/06/2013, p. 6.) The examiner offered the opinion that the Veteran's headaches were not caused by her hypertension or her generalized anxiety disorder. (p. 8.) In November 2013, the Board obtained an expert medical opinion with respect to the etiology of the Veteran's headaches. (See Notification Letter, received 11/14/2013, p. 4.) The expert opinion was that the Veteran's current headaches were not caused by or related to the headaches experienced in service. The expert felt that the Veteran's headaches in service were, by and large, acute and transient, based on the lack of formal medical treatment in service. In addition, the expert offered the opinion that the Veteran's headaches were not caused or aggravated by her hypertension or her generalized anxiety disorder with agoraphobia. (p. 5.) After considering all of the evidence of record, to include that set forth above, the Board concludes that the evidence is at least in equipoise that her current headaches were incurred in service and have persisted since then. The medical opinions are all clear in concluding that the Veteran's headaches are not caused or aggravated by her hypertension or her generalized anxiety disorder. However, the opinions are less clear with respect to the question of whether the Veteran's headaches in service are related to her current headaches. The examiners have based the opinions in part on the lack of formal medical treatment in service, although there is strong evidence that the Veteran did self-treat her symptoms with over-the-counter medications. The Veteran is competent to report symptoms and experiences observable by her senses but not to determine the cause of headaches, as this requires specialized knowledge and medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). The Board finds the Veteran's statements credible; she has been detailed and generally consistent. In addition, the Veteran's current headaches have been diagnosed as caused at least in part by pseudotumor cerebri. The Veteran's consistent statements of headaches in service, since service, and to the present time, are supported by the current diagnoses and treatment by medical personnel. The Board also notes that the Veteran has been diagnosed with migraine headaches. See, e.g., May 2013 VA examination report. For the purposes of establishing presumptive service connection for chronic disease under 38 C.F.R. §§ 3.307(a)(3) and 3.309(a), VBA created a list of disabilities it considers to be "organic diseases of the nervous system" in the M21-1. Per M21-1 III.iv.4.G.1.d, such conditions include, migraine headaches. In this regard, the Board notes that the Veteran has consistently report headaches, as backed up by lay statements, since her discharge from active duty in 2003. The Board acknowledges that migraines were not formally diagnosed until 2007, but finds that this does not mean that they were not occurring in the 4 years since her discharge. For all of these reasons, the Board finds that the evidence is at least in equipoise on the material issue of whether the Veteran's current headaches are related to those experienced in service. 38 U.S.C.A. § 5107(b).As such, all 3 elements of service connection have not been established by the evidence. 38 C.F.R. § 3.303. Therefore, service connection for headaches is warranted. Assigning Disability Ratings A disability rating is determined by the application of VA's 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. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, entitlement to staged ratings is clearly demonstrated with respect to the Veteran's incompetent cervix. However, with respect to her generalized anxiety disorder with agoraphobia, the need for staged ratings has not been established. Generalized Anxiety Disorder with Agoraphobia The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, is assigned a 50 percent rating. 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 worklike setting); inability to establish and maintain effective relationships, is assigned a 70 percent rating. 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, is assigned a 100 percent rating. 38 C.F.R. § 4.130. In December 2007 the Veteran was treated at VA for increased difficulty with panic attacks, as frequently as two or three per day. (See Medical Treatment, Government Facility, received 12/26/2007, p. 12.) Her anxiety was produced by driving, and when she had a panic attack she would then be unable to drive the same route again. She had been treated with medication which was not effective and had caused side effects. In a statement submitted in January 2008, the Veteran reported that her generalized anxiety disorder had worsened recently. (See Correspondence, received 01/18/2008, p. 1.) She stated that her disability affected all of her daily activities, including judgment, thinking, and mood. She was unable to complete routine activities, had panic attacks multiple times a day, and had difficulty caring for herself and her family. She was having problems at work, including missing work from trying to avoid triggers of her panic attacks; she relied on others to assist her in her tasks both at work and at home. At the VA examination in February 2008, the Veteran reported that she had panic attacks which could happen anywhere, any time, and claustrophobia which was getting worse. (See VA Exam, received 02/26/2008, p. 5.) She stated that her psychiatric issues were impacting her work in that she had decreased energy and motivation for most things and was behind at work. Her symptoms had increased in frequency to as many as five panic attacks a day and lasted as long as ten minutes. (p. 9.) These sometimes occurred in response to specific triggers and other times seemed to have no specific trigger. She made an effort to avoid known triggers including enclosed spaces and, other than driving to and from work, tended to stay at home where she felt safe. (p. 10.) She also was prone to feeling depressed due to a multitude of factors. She was able to maintain good relationships with family and friends and the examiner offered the opinion that her social functioning was moderately impaired. She was working and had maintained good performance prior to the worsening of her headaches. She firmly denied suicidal ideation ("I don't want to die") and homicidal ideation. Based on the available evidence, the examiner stated that the Veteran's social functioning appeared to be no more than moderately impaired. Regarding occupational functioning, the examination report reflects that the Veteran worked full-time for her current employer for the past five years and reportedly performed well on her job until about a year ago when the headaches started. The examiner gave the opinion that she exhibited reduced reliability and productivity in work functioning due to her generalized anxiety disorder. In her Notice of Disagreement in October 2008, the Veteran asserted that her generalized anxiety disorder had drastically changed her way of life. (See Notice of Disagreement, received 10/15/2008, p. 1.) She stated she needed to take medication to control her symptoms and had difficulty completing tasks and functioning at work and at home; she was receiving mental health care. At the May 2013 VA examination , the Veteran reported problems most significant problem including panic attacks which prevented her from going to restaurants and movies and going shopping; she was also unable to fly to visit her family because of her claustrophobia. She stated that she had to put on a face for work and was exhausted by the time she got home as a result. (See VA Exam, received 05/26/2013, p. 3.) The examiner noted symptoms of depressed mood, anxiety, panic attacks more than once a week, and disturbances of motivation and mood. (p. 4.) The examiner described the Veteran's disability as one of occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent disability rating. (p. 2.) After considering all of the evidence of record, including that set forth above, the Board finds that the criteria for a disability rating in excess of 50 percent for generalized anxiety disorder have not been met. The competent medical evidence of record reflects that the Veteran's disability is more nearly approximated by reduced reliability and productivity in her functioning both at work and at home. This finding is consistent with the currently assigned 50 percent disability rating. She has stated that she has had some trouble keeping up with her work responsibilities, but she still is able to maintain her job. In this regard, the 2013 VA examination report reflects that the Veteran worked full-time at VA for 10 years and was doing okay even with missing about 2 days per month for mental health issues. The Board finds that this evidence weighs against a finding of work/occupational deficiency. Additionally, she maintains a relationship with her children and husband (married since 1995). It was noted that she was "okay" in relationships. The Board acknowledges that the Veteran she has required some extra assistance in some of her domestic responsibilities. However, the Board finds that the weight of the evidence does not show an occupational deficiency more nearly approximating the next-higher 70 percent level. While the Veteran has stated that her work, family relationships, and mood are impacted by her generalized anxiety disorder, that does not necessarily result in impairment and deficiencies in these areas. As mentioned above, the Veteran is able to maintain a job and has a good relationship with her family members and friends. While she experiences panic attacks multiple times day, these incidents have not prevent her from maintaining her life and her job. The Board finds that these have been contemplated and compensated by the current 50 percent rating. In short, the totality of the medical and lay evidence reveal a disability picture consistent with occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130. As such, the Board finds a rating in excess of 50 percent is denied. Incompetent Cervix Ratings for diseases or injuries of the cervix are discussed under the General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs. Specifically, those affecting the cervix are set forth under 38 C.F.R. § 4.116, Diagnostic Criteria 7612, which provides that a 0 percent or noncompensable rating is appropriate where continuous treatment is not required to address the symptoms. A 10 percent disability rating is warranted where the symptoms are controlled by continuous treatment. A 30 percent disability rating is warranted where the symptoms are not controlled by continuous treatment. 38 C.F.R. § 4.116. The Veteran seeks a compensable disability rating for her service-connected disability of incompetent cervix. An incompetent cervix, also called a cervical insufficiency, is a condition that occurs when weak cervical tissue causes or contributes to premature birth or the loss of an otherwise healthy pregnancy. See mayoclinic.org/diseases-conditions/incompetent-cervix/basics.) An individual with this disability poses risks for a pregnancy, including miscarriage and premature labor. During pregnancy, the individual may be restricted in activities and may be put on bed rest. Management of the disability can also include weekly injections, serial ultrasounds, and cervical cerclage (suturing the uterus closed), necessitating close monitoring by the medical provider. Consultation with medical provider prior to pregnancy is also important. At the VA examination in December 2002 the examiner noted that the Veteran had given birth prematurely in service in August 2001 as a result of incompetent cervix. (See VA Exam, received 12/02/2002, p. 2.) In several statements, the Veteran has asserted that the effects of her incompetent cervix, while not requiring continuous treatment, had significantly changed her reproductive system and required that she evaluate the risks of premature birth and the need for specific procedures such as cervical cerclage and Caesarean section delivery before deciding to conceive. (See Notice of Disagreement, 09/02/2003, p. 1; Correspondence, 11/15/2004, p. 1.) In a statement submitted in January 2008 the Veteran stated that she had been found to be pregnant on December 26, 2007, and had been advised that she should refrain from any strenuous activity because of her incompetent cervix. (See Correspondence, received 01/18/2008, p.1.) She was informed by her provider that she would need to be seen every two weeks until at least her 14th week of pregnancy and would then need to have her cervix measured each time to determine if cervical cerclage was necessary to prevent pre-term labor. (p. 1-2.) She was being treated in the high risk pregnancy program. (p. 2.) At the time of the February 2008 VA examination, the Veteran was 12 weeks pregnant. (See VA Exam, received 02/26/2008, p. 2.) She was being closely followed by her doctor and would undergo cerclage if necessary. The examiner felt it would be best to avoid any additional opinion on the Veteran's condition until the delivery of her child. In her Notice of Disagreement submitted in October 2008, the Veteran asserted that she should receive a higher rating for the period of her recent pregnancy (December 26 2007 thru August 30 2008) her disability was not controlled by continuous treatment. (See Notice of Disagreement, received 10/15/2008, p. 1.) Instead, she had required a cerclage procedure on April 23 2008, with subsequent requirements for reduced mobility until the birth of her child on August 30, 2008. In addition, she asserted that she was entitled to compensation even when she was not pregnant, because the disability changed her reproductive system and imposed restrictions on her ability to grow her family. The Veteran's VA treatment records show that she was pregnant in January 2015 and miscarried after 10 weeks. (See CAPRI, received 02/25/2016, pp. 166, 209.) Her pregnancy of 7 weeks was confirmed January 25, 2015 and her miscarriage was confirmed on February 10, 2015. She had also experienced two other miscarriages in 2014; one pregnancy began in December 2013 and ended in January 2014, the second began in March 2014 and ended in April 2014 (p. 230.). After considering all of the evidence of record, including that set forth above, the Board concludes that staged ratings are appropriate for the Veteran's disability of incompetent cervix. Specifically, the evidence shows that during pregnancy, the Veteran's disability not only requires continuous treatment in the form of regular frequent visits to her healthcare provider, but also is not completely controlled by such treatment, as demonstrated by the requirements for modified activities and cervical cerclage. Therefore, the Board finds that Veteran's disability picture during a pregnancy more nearly approximates that of a 30 percent disability rating. 38 C.F.R. § 4.116. Applying that conclusion, the Board finds that a 30 percent disability rating is in order for the following time periods: December through August 30 2008, December 2013 to January 2014, March 2014 to April 2014, and December 2014 to February 2015. For time periods outside those dates, the relevant medical and lay evidence shows symptoms that do not require continuous treatment. Thus, the evidence weighs against a compensable disability rating under the criteria of 38 C.F.R. § 4.116, General Rating Formula for Disease, Injury, or Adhesions of Female Reproductive Organs. The Board finds no other diagnostic codes to apply to the facts of this case. In short, the evidence has not shown an oophorectomy, hysterectomy, uterine prolapse, fibroids, incontinence/leakage or fistulas. See, e.g., May 2013 VA examination report. In addition to the ratings discussed above, the Board notes that the Veteran's claim for increased disability rating includes the question of entitlement to special monthly compensation (SMC) under 38 U.S.C.A. § 1114; 38 C.F.R. § 3.350. See 38 C.F.R. § 3.155(d)(2) (stating that once VA receives a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication decision, to include SMC). SMC is payable for loss of use of one or more creative organs under 38 U.S.C.A. § 1114(k). Based on the evidence discussed above, the Veteran's incompetent cervix interferes with her ability to reproduce and requires additional measures be taken in order to bear additional children. As such, the Board finds that this constitutes the loss of use of a creative organ. The Board acknowledges that the Veteran's service-connected disability does not completely preclude her from bearing children. In this regard, the Board notes that entitlement to SMC at the (k) rate is payable to male veterans who experience erectile dysfunction as a result of a service-connected disability, even when the symptoms of this condition can be temporarily relieved through medication. Also, the language of 38 C.F.R. § 3.350 discusses specific amounts of atrophy and the consistency of testicular tissue in male veterans. The Board finds that the functional effects of the Veteran's disability have an equivalent impact on her life as those compensated more explicitly under the criteria of 38 C.F.R. § 3.350. The Board finds that the analogy is more than appropriate given the facts of this case. As such, the Board finds entitlement to SMC under 38 U.S.C.A. § 1114(k) is warranted. ORDER Service connection for headaches is granted. A disability rating in excess of 50 percent for generalized anxiety disorder with agoraphobia is denied. A 30 percent disability rating for incompetent cervix is granted for the following time periods only: December 2007 through August 2008; December 2013 to January 2014; March 2014 to May 2014; and December 2014 to February 2015. Special monthly compensation for loss of use of a creative organ based on incompetent cervix is granted. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs