Citation Nr: 18143650 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-34 239 DATE: October 19, 2018 ORDER Service connection for bipolar disorder is granted. Service connection for tinnitus is denied. A rating of 30 percent for pericarditis is granted, subject to the regulations governing payment of monetary awards. A rating in excess of 30 percent for migraine headaches prior to May 23, 2014, is denied. A rating of 50 percent for migraine headaches as of May 23, 2014, is granted, subject to the regulations governing payment of monetary awards. REMANDED Entitlement to an increased rating for posttraumatic stress disorder (PTSD), formerly diagnosed as chronic adjustment disorder with depression, in excess of 50 percent prior to May 23, 2014, and in excess of 70 percent from May 23, 2014, to December 14, 2017, is remanded. Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae (PFB) is remanded. Entitlement to a total rating by reason of individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s bipolar disorder is related to service. 2. The preponderance of the evidence is against finding that the Veteran has tinnitus that is due to a disease or injury in service, to include specific in-service event, injury, or disease. 3. Throughout the appeal, the Veteran’s pericarditis has been primarily manifested by dyspnea and chest pain on exertion with MET level of activity estimated to be between 5 and 7 and ejection fraction noted as 60 and 65 percent. 4. Prior to May 23, 2014, the Veteran’s migraine headache disorder was shown to primarily manifested by characteristic prostrating attacks averaging once per month. 5. As of May 23, 2014, the Veteran’s migraine headache disorder is shown to be primarily manifested by prostrating and prolonged attacks of pain that are productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for service connection for bipolar disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 3. The criteria for a rating of 30 percent for pericarditis have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code (Code) 7002. 4. The criteria for a rating in excess of 30 percent for migraine headaches were not met prior to May 23, 2014. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Code 8100. 5. The criteria for a rating of 50 percent for migraine headaches have been met as of May 23, 2014. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from February 2001 to October 2006 and from April 2007 to March 2011, and had a period of active duty for training (ACDUTRA) from November 2011 to February 2012. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 1. Entitlement to service connection for bipolar disorder. The Veteran contends that he has a bipolar disorder that was incurred as a result of service. The Board concludes that the Veteran has a current diagnosis of bipolar disorder that is related to service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A January 2014 VA treatment record and an August 2018 VA examination report shows the Veteran has a current diagnosis of bipolar disorder, and the August 2018 VA examiner opined that the Veteran’s bipolar disorder was at least as likely as not related to an in-service injury, event, or disease, as credibly reported by the Veteran. The rationale was that the bipolar disorder as well as posttraumatic stress disorder for which service connection has already been established, started at the same time and the symptoms overlapped. The VA examiner stated that the conditions were related to the Veteran’s in-service stressor event and could not be differentiated from each other without resorting to mere speculation. The examiner further noted that the Veteran had a prior suicide attempt in 2007, reported recent suicidal thoughts, and was considered a high risk. Given the positive medical opinion in the record, the Board finds that the preponderance of the evidence supports the grant of service connection for bipolar disorder. 2. Entitlement to service connection for tinnitus. The Veteran contends that service connection is warranted for tinnitus, which he believes is the result of noise trauma to which he was exposed during service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of tinnitus, and evidence shows that he may have been exposed to noise trauma during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of tinnitus began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Treatment records, including the Veteran’s service treatment records (STRs), VA and private treatment reports show the Veteran was not diagnosed with tinnitus until January 2013, years after his separation from service. While the Veteran is competent to report having experienced symptoms of tinnitus intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the disorder. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Significantly, the Veteran has not been consistent in his reports as to the onset of his tinnitus. At the January 2013 VA examination, the Veteran reported that his tinnitus had an onset in early 2005 of occasional ringing in his ears that had remained stable since that time, occurring about once a month. However, less than a year later, at the October 2013 VA examination, the Veteran reported that he was unsure of the onset date and circumstances of his tinnitus, and could only say that it was an occasional ringing. The inconsistencies in the Veteran’s self-reported history belie the credibility of his original account that his tinnitus originated in service and continued thereafter. As for the medical evidence of record, taken together, the January 2013 and October 2013 VA medical opinions establish that the Veteran’s tinnitus is not at least as likely as not related to an in-service injury, event, or disease, including exposure to noise trauma during service. The January 2013 VA examiner opined that it could not be determined that the Veteran’s tinnitus was not at least as likely as not related to because medical records were not available for review. The examiner went on to state, however, that the Veteran reported having only occasional tinnitus and that with the normal hearing acuity demonstrated during that examination, along with the lack of complaints by the Veteran regarding his hearing, the tinnitus could be related to the Veteran’s diagnosed heart disease. The October 2013 VA examiner similarly opined that it could not be determined that the Veteran’s tinnitus was not at least as likely as not related to because the Veteran reported having only occasional tinnitus and testing of hearing acuity showed hearing to be normal. The first examiner’s opinion is probative because it provides a clear explanation for a possible etiology of the Veteran’s tinnitus and the second examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his tinnitus is related to an in-service injury, event, or disease, including exposure to acoustic trauma in service, he is not competent to provide a nexus opinion in this case. As noted, the issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Consequently, the Board gives more probative weight to the VA medical opinions in the record. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 3. Entitlement to a rating in excess of 10 percent for pericarditis Service connection for pericarditis was granted by the Regional Office (RO) in a November 2013 rating decision. The 10 percent initial disability rating was awarded under the provisions of Code 7002 from the day following the Veteran’s date of separation from service. For three months following cessation of therapy for active infection with cardiac involvement due to pericarditis, a 100 percent rating is warranted. Thereafter, with documented pericarditis resulting in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required, is rated 10 percent disabling. Pericarditis resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is rated 30 percent disabling. Pericarditis resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent, is rated 60 percent disabling. Pericarditis resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent, is rated 100 percent disabling. 38 C.F.R. § 4.104, Code 7002. For rating diseases of the heart, one MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millilitres per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shovelling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. Review of the record shows that the Veteran was treated in October 2012 for evaluation of recent chest pain that was similar to his prior pericarditis pain. His recent laboratory studies performed by VA looked good and his heart rate and blood pressure were well controlled. He denied shortness of breath or dizziness. It was noted that he had been treated in the emergency room earlier in the month; he was diagnosed with an infection/cellulitis in several areas of the body and prescribed antibiotics. His past medical history of pericarditis was also reported. The assessment was chest pain. Additional private treatment records show that a cardiac catheterization was performed in January 2013. At that time, a left ejection fraction was estimated to be 65 percent. The left main artery, left anterior descending artery, circumflex, and right coronary artery were all described as normal. The impression was normal cardiac catheterization. An examination was conducted by VA in November 2013. At that time, the diagnosis was an infectious heart condition, which included pericarditis. The Veteran reported that he had been training with the National Guard in April 2013 when he developed chest pain. He was taken to the emergency department and diagnosed with pericarditis. He stated that he had had similar pain intermittently before, but thought that he could just “push through it.” Since that time, he had had episodes of pericarditis that lasted between two and three months. The symptoms subsided after a few weeks, then recurred. He had been treated with several medications and was currently using colchicine at the time of exacerbations. Since his diagnosis, he stated that he had been treated in the emergency room approximately 20 times due to pain and dyspnea. Review of the record showed no evidence of myocardial infarction, congestive heart failure, arrhythmia, or valvular heart disease. It was noted that he had undergone treatment for active infection in the form of nonsteroidal anti-inflammatory drugs, prednisone, bisoprolol and colchicine. The examiner indicated that the treatment for active infection had not been completed as it was ongoing with exacerbations. There was no evidence of pericardial adhesions and no surgical procedures had been performed. Diagnostic testing showed no evidence of cardiac hypertrophy or dilatation. An EKG study performed in October 2013 showed an arrhythmia that was described as marked sinus bradycardia at a rate of 45. A chest X-ray study was normal and an echocardiogram showed a left ventricular ejection fraction of between 55 and 60 percent. Interview based MET testing found that the Veteran had dyspnea and chest pain. It was estimated that he was able to perform activities between 5 and 7 METs. The MET level was due solely to heart disease. Ejection fraction was deemed to better reflect the Veteran’s current cardiac functional status. The examiner commented that the heart disease did impact the Veteran’s ability to work in that he had intermittent episodes of pain and dyspnea that were severe and caused him to seek emergency care. He had increased pain with exertion. The chest pain occurred every two to three months and recurred a few weeks later. It was noted that his many appointments for evaluation and treatment would require a lot of time off work. The record shows that the Veteran had a history of pericarditis in October 2012, but that active disease was not noted at that time. Significantly, a cardiac catheterization procedure in January 2013 showed an ejection fraction of 65 percent, with otherwise normal findings. While the VA examiner in November 2013 indicated that the Veteran continued to undergo treatment for active pericarditis, the medical evidence of record does not support this conclusion. Thus, there is no indication that a 100 percent rating for pericarditis, which is to be in effect for the three months following the cessation of treatment for active pericarditis is applicable in this case. Nevertheless, the Board finds that a higher rating of 30 percent has been warranted throughout the appeal. In this regard, the VA examination conducted in November 2013 shows that the Veteran’s activity level is between 5 and 7 METs. This directly corresponds to a 30 percent rating as the activity results in dyspnea and chest pain. A rating in excess of 30 percent is not warranted, as the Veteran does not demonstrate symptoms warranting a 50 percent rating. The ejection fraction has been shown to be 60 and 65 percent, with the examiner stating that ejection fraction better reflected the impairment caused by the Veteran’s heart disease. Under these circumstances, the Veteran’s disability more nearly approximates the criteria for a 30 percent rating throughout the appeal, but no more. To this extent, the appeal is granted. 4. Entitlement to a rating in excess of 30 percent for migraine headaches. Service connection for migraine headaches was granted by the RO in a February 2013 rating decision. The 30 percent initial disability rating was awarded under the provisions of Code 8100 from the day following the date of separation from service. Migraine, with very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability will be rated as 50 percent disabling. Migraine headaches, with characteristic prostrating attacks occurring on an average of once a month of the last several months is rated as 30 percent disabling. With characteristic prostrating attacks averaging one in two months, over the last several months, a 10 percent rating is warranted. With less frequent attacks, a noncompensable evaluation is warranted. 38 C.F.R. § 4.124a, Code 8100. An examination was conducted by VA in January 2013. At that time, the diagnosis was migraine headaches. The Veteran stated that these occurred one to two times per week and lasted for five to six hours. He took over-the-counter analgesic medication for this. He experienced pain on one side of the head as well as nausea and sensitivity to light and sound. The pain lasted less than one day. He also complained of having characteristic prostrating attacks more frequently than once per month. He did not report non-migraine prostrating attacks. His headache condition impacted his ability to work in that he stated that when they occurred he needed to take sick leave or long breaks until they subsided. An examination was conducted by VA in May 23, 2014. The diagnosis was migraine, including migraine variants. The Veteran stated that his headaches had become more frequent since his last evaluation in January 2013. He stated that he had headaches at least four times per week for which he took Goody PM at night and went to sleep if his headache persisted. He also took medication, Sumatriptan, that had become less effective. He described the headaches as being pulsating or throbbing, located at the frontal area and radiating to the occipital. He had non-headache symptoms of nausea and sensitivity to light. He described characteristic prostrating attacks once every month over the last several months. The examiner stated that the Veteran had very prostrating and prolonged attacks of pain that were productive of severe economic inadaptability. The Veteran stated that he was a police officer and usually had to go home from work two days out of the week when his Sumatriptan did not stop his headache. Prior to May 23, 2014, the Veteran’s migraine headache disorder is shown to primarily manifested by characteristic prostrating attacks averaging once per month. This frequency of attacks directly corresponds to the schedular criteria for the initial 30 percent evaluation that was awarded. As such, a rating in excess of 30 percent prior to that date is not shown to have been warranted. On May 23, 2014, however, the Veteran indicated a worsening of his migraine headaches. At the time of that examination, he was found to have very prostrating and prolonged attacks of pain that were productive of severe economic inadaptability. This was illustrated by frequent absences from work, characterized as twice per week. As such, the Board finds that the disability associated with the migraine headaches more nearly approximates the criteria for a rating of 50 percent. As such, an increased, staged rating is warranted as of May 23, 2014. REASONS FOR REMAND 1. Entitlement to an increased rating for PTSD and bipolar disorder, formerly diagnosed as chronic adjustment disorder with depression, in excess of 50 percent prior to May 23, 2014, and in excess of 70 percent from May 23, 2014, to December 14, 2017, is remanded. The Veteran, thus far, has been evaluated on the basis of his PTSD and chronic adjustment disorder with depression. As the above decision awards service connection for bipolar disorder, symptoms related to that diagnosis must now also be taken into consideration. Therefore, the Board finds it is necessary for the RO to reconsider the evaluations made prior to the award of the 100 percent disability rating that became effective on December 14, 2017. As such, the matter is returned to the RO. 2. Entitlement to a rating in excess of 10 percent for PFB is remanded. Service connection for PFB was granted by the RO in a February 2013 rating decision. At that time, a 10 percent rating was awarded under the provisions of Code 7819. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case” and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In the instant case, PFB may also be evaluated under the provisions of Code 7806. It is noted that changes in the rating criteria for skin disorders, which may have an impact on the evaluation of the Veteran’s disorder, became effective in August 2018. The Veteran should be afforded an opportunity to be evaluated under the new criteria, if that is found to be more favorable to the claim. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In addition, it is noted the application of the current criteria requires an assessment of whether the topical steroid medication that he uses (as noted in a November 2013 VA examination report) is in actuality systemic in nature. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). As such, an additional evaluation is shown to be warranted. 3. TDIU is remanded. In light of the allowances made in the decision herein, including the grants related to the Veteran’s heart, migraine and psychiatric disabilities, the Board finds that the matter of TDIU must be held in abeyance and re-adjudicated by the RO prior to further appellate consideration. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected skin disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the skin disability, alone, and discuss the effects of the Veteran’s skin disorder on occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must specifically comment on whether the Veteran’s use of corticosteroid medication constitutes topical or systemic therapy. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues related to the Veteran’s PFB, psychiatric disorder and entitlement to TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio