Citation Nr: 1800332	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  16-41 903	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to an initial rating of 30 percent for headaches.

2.  Entitlement to an initial rating in excess of 30 percent for headaches.

3.  Entitlement to service connection for a low back disorder.

4.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression and anxiety.

5.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 


REPRESENTATION

Veteran represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

Tracie N. Wesner, Associate Counsel


INTRODUCTION

The Veteran served on Active Duty for Training (ACDUTRA) from August 1976 to January 1977.  He had additional periods of service in the Army National Guard from April 1977 to August 1982.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.   The Veteran withdrew his request for a hearing before the Board in November 2017.

The Veteran's claim of service connection for PTSD, depression and anxiety has been recharacterized to include all psychiatric disorders reasonably raised by the record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Additionally, the Veteran reported he cannot work because of 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) (2012).

The Board has bifurcated the headache issue on appeal as reflected on the title page, as to do so allows for an award of a 30 percent rating at this time.  The issues of entitlement to an initial rating in excess of 30 percent for headaches, service connection for a low back disorder, service connection for a psychiatric disorder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

Throughout the appeal period the Veteran's headache disorder has been productive of headaches with characteristic prostrating attacks occurring on an average once a month over the last several months.


CONCLUSION OF LAW

The criteria for an initial rating of at least 30 percent for tension headaches have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran seeks an initial rating in excess of 10 percent for his service-connected headaches.  The Board finds that an initial rating of at least 30 percent is warranted throughout the appeal period, based on the frequency of the Veteran's reported symptoms and their effects.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).

The Veteran's chronic tension headaches have been rated under Diagnostic Code (DC) 8100 concerning migraine headaches.  Under DC 8100, headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling; headaches with characteristic prostrating attacks occurring on an average once a month over the last several months are rated 30 percent disabling; headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated as 10 percent disabling; and headaches with less frequent attacks are assigned a 0 percent rating.  38 C.F.R. § 4.124a, DC 8100.  

The evidence of record shows that the Veteran is entitled to a rating of at least 30 percent for his service-connected cluster headaches.  At the May 2015 VA examination, he reported having recurring headaches with right sided excruciating burning, aching, throbbing pain over the right orbital region down the face in to the neck and shoulders.  He reported associated symptoms of sweating, rhinorrhea, lacrimation and lightheadedness.  He reported that his headache frequency varied but for the three months prior to the examination he had headaches almost every night lasting anywhere from thirty minutes to one hour.  The examiner found that he had very frequent prostrating and prolonged attacks of headache pain.  During the January 2017 VA examination he reported getting headaches every month.  He reported getting headaches every night for approximately two weeks, and that the headaches would last for two to three hours.  He described the pain as starting as a throbbing pain in the center of his eye, then going to the side of his head and above the eyebrow.  He reported that the average pain level is a ten.  He stated that he takes Motrin and Sumatriptan for his headaches.  

Resolving reasonable doubt in favor of the Veteran, and without considering the ameliorative effects of medication, the Board finds that a 30 percent rating is warranted throughout the appeal period.  Although the Veteran did not describe experiencing incapacitation, fatigue or functional loss due to his headaches, he did describe associated symptoms of sweating, rhinorrhea, lacrimation and lightheadedness.  He also reported that his headaches occur at least once a month or more often.  Thus, the Board finds that he has exhibited headaches with characteristic prostrating attacks occurring on an average once a month over the last several months, and as such, an initial rating of at least 30 percent is warranted throughout the appeal period.  


ORDER

An initial rating of at least 30 percent for headaches is granted.


REMAND

The remaining claims, including entitlement to an initial rating in excess of 30 percent for headaches, must be remanded for additional development.  
Outstanding VA Records and Social Security Records

As an initial matter, the Board notes that the Veteran has been treated at the VA for headaches, PTSD and a low back disorder during the appeal period.  Moreover, the VA records show that the Veteran sought treatment for a low back disorder in 2011 and records from this encounter are not of record.  All outstanding VA treatment records should be associated with the claims file.  Sullivan v. McDonald, 815 F.3d 786 (2016).

The record also shows that the Veteran is in receipt of Social Security benefits as a result of his back disability.  A request should be made to obtain any Social Security Disability records, if available.  Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009).

Verification of ACDUTRA/INACDUTRA

Remand is also necessary to verify the Veteran's periods of ACDUTRA and Inactive Duty for Training (INACDUTRA).  Service connection may be granted for a disability or injury incurred in or aggravated by "active military service."  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  The term "active military, naval, or air service" includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty.  This term also includes any period of INACDUTRA during which the individual was disabled from an injury incurred or aggravated in line of duty.  Thus, the Veteran may be service connected for a disorder if it is shown that this disorder had its onset during a period of ACDUTRA or is related to an injury incurred during a period of ACDUTRA or INACDUTRA.  In this case, the Veteran reports that his low back injury and his psychiatric disorder began during service.  Additionally, the Veteran provided statements concerning physical and mental abuse he reportedly suffered during service.  On remand, the RO should take steps to verify the Veteran's periods of ACDUTRA and INACDUTRA.


Notification for Claims Involving Personal Assault/Corroboration of Stressor

The Veteran seeks service connection for an acquired psychiatric disorder, including PTSD, that is reportedly due to physical assault and mental abuse he suffered during service.  He reports that he and two other National Guardsmen were abducted by fellow service members and subjected to physical assault and harassment.  He stated that as a result of this incident, he sought a transfer, but was only given a change in military occupational specialty.  He also stated that he failed to obtain a promotion because of a lack of focus that resulted from this attack.  

There are special rules regarding claims involving PTSD based upon personal assault.  See 38 C.F.R. § 3.304(f)(5).  First, when a veteran's claim is based, at least in part, on a reported in-service personal assault, VA has a heightened notification obligation whereby it must (1) notify him of alternative forms of evidence that may serve to corroborate his account, to include the opinion of a medical professional, (2) suggest other potential sources of evidence, and (3) assist the Veteran in submitting evidence from alternative sources by providing additional time for such submission after an adequate notice letter has been provided.  See 38 C.F.R. 
§ 3.304(f)(5); see also Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011); Gallegos v. Peake, 22 Vet. App. 329 (2008).  Here, the notification letters sent to the Veteran in connection with his PTSD claim did not specifically discuss evidence that may be submitted in support of claims of PTSD based upon personal assault.  Thus, on remand, the Veteran should be provided with additional notification and opportunity to provide information regarding the reported in-service assault.  Additionally, steps should be taken to assist him in corroborating his reported stressors in accordance with the VA Adjudication Manual. 

VA Examinations

A VA examination should be provided to determine the current nature and etiology of the Veteran's psychiatric disorder.  The Veteran's VA medical records show that has been treated for various psychiatric disorders during the appeal period, including anxiety, depression and PTSD.  His treating physicians confirm that he has been diagnosed with PTSD, and opine that his PTSD is caused at least in part by his reported physical assault and mental abuse during service.  However, the VA medical records also show that Veteran was exposed to non-service related stressors such as experiencing riots as a child and being subjected to gang violence, and that his current PTSD is related to those stressors.  As such, a VA examination should be obtained.   

The Veteran should also be provided a VA examination to address the etiology of his low back disorder.  He reported that he injured his back on the monkey bars during training and continued to have low back symptoms since that time.  As such, he should be provided with a VA examination addressing the etiology of his current low back disorder.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

As this matter is being remanded, the Veteran should be given an opportunity to identify any private medical records he would like considered in connection with his appeal.  38 C.F.R. § 3.159(c).

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.  Obtain any outstanding VA medical records and ask the Veteran to provide authorization for VA to obtain any private medical records he would like considered in connection with his appeal.  In this regard, the Board notes that the Veteran was treated at the Long Beach VA for complaints related to a low back disorder in 2011.  These records should be associated with the claims file.

2.  Send the Veteran a notification letter informing him of the information and evidence required to substantiate PTSD claims based on in-service personal assault or harassment in accordance with 38 U.S.C. § 5103(a), 38 C.F.R. § 3.159(b) and 38 C.F.R. § 3.304(f)(5).  Inclusion of VA Form 21-0781a, without any further explanation in the body of the notice letter as requested above, will not suffice.

3.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service psychiatric and low back symptomatology.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

4.  Verify the Veteran's periods of ACDUTRA and INACDUTRA.  Please note that reports of retirement points do not contain the necessary information in this regard.

5.  Attempt to verify the Veteran's reported stressors in accordance with the procedures set forth in the VA Adjudication Procedures Manual.

6.  Schedule the Veteran for a VA examination to address the nature and etiology of low back disorder and any psychiatric disorder diagnosed during the appeal period (December 2014 to the present).  

Low Back Disorder

After a review of the claims file, including the Veteran's lay statements regarding the onset of his low back symptoms, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's low back disorder had its onset during a period of ACDUTRA or is related to an injury that occurred during a period of ACDUTRA or INACDUTRA.  The examiner should specifically address the Veteran's report that he injured his back on the monkey bars during training and continued to have low back symptoms since that time, as well as the evidence showing that he sustained a back injury in a post-service motor vehicle accident.

Psychiatric Disorder(s)

After a review of the claims file, the examiner should address the following:

(1) whether the Veteran's symptomatology and presentation at any point during the appeal period (December 2014 to the present) meets the diagnostic criteria for PTSD; and, if so, the underlying stressor supporting that diagnosis; 

(2) whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disorder diagnosed at any point during the appeal period (December 2014 to the present) had its  onset during a period of ACDUTRA or is related to an event or injury incurred during a period of ACDUTRA or INACDUTRA, including the Veteran's reported personal assault. 

In reaching his or her conclusions, the VA examiner should specifically review and consider the Veteran's contention that his psychiatric symptoms began or worsened during service.  Please also address whether there is any evidence of behavior changes following the reported assault.
If any opinion requested above cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

7.  After completing the above development, including any additional development that may be warranted, readjudicate the appeal, including the Veteran's entitlement to a TDIU.

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).

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).



______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs