Citation Nr: 18146343 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 10-13 906A DATE: October 31, 2018 ORDER Prior to November 29, 2013, entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. Entitlement to a PTSD rating in excess of 70 percent is denied. Entitlement to a disability rating in excess of 50 percent for a basilar migraine headache disability (headache disability) is denied. A separate rating for tinnitus associated with the service-connected headache disability is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s PTSD manifested as occupational and social impairment with deficiencies in most areas, such as work, judgment, thinking or mood. 2. The Veteran’s headache disability manifested as very frequent prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran has tinnitus that is caused by his headache disability. CONCLUSIONS OF LAW 1. Prior to November 27, 2013, the criteria for a 70 percent disability rating for the Veteran’s PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a disability rating in excess of 70 percent for the Veteran’s PTSD have not been met during the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a disability rating in excess of 50 percent for the Veteran’s headache disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.124a Diagnostic Code 8100 (2017). 4. The criteria for a separate rating for tinnitus as a manifestation of the Veteran’s headache disability are met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 4.20, 4.87, Diagnostic Code 6260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In May 2013, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to obtain outstanding VA records and receive VA examinations for his PTSD and headache disability. Additional VA records were added to the record, and the Veteran received new VA examinations in November 2013 and December 2013. The Board finds there was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case returned to the Board and was remanded in March 2016 for the AOJ to consider the new evidence submitted by the Veteran. The Board noted the Veteran had not waived AOJ consideration and thus a remand was necessary. The AOJ considered the evidence, issued a Supplemental Statement of the Case (SSOC) in October 2016, and the case returned to the Board. In June 2017, the Board remanded to the case for the Veteran to receive new VA examinations. The examiner was to determine the current severity of the Veteran’s PTSD. Further, the examiner needed to consider the Veteran’s headache disability and any other associated symptoms, including the Veteran’s report of pseudoseizures and vision loss. In accordance with the remand directives, the Veteran received VA examinations in September 2017 and October 2017. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Increased Rating for PTSD The Veteran’s PTSD is evaluated under Diagnostic Code 9411. 38 C.F.R. § 4.130 (2017). PTSD is evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. 38 C.F.R. § 4.130 (2017). Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. Prior to November 29, 2013 In November 2006, a private examiner noted the Veteran had high anxiety and a depressed mood. The examiner noted the Veteran regularly thought about suicide and had aggressive ideation towards others. He had problems sleeping, concentrating, and paying attention to detail. Similarly, in a January 2007 private opinion, the examiner noted the Veteran experienced brief lapses in attention. In March 2008, the Veteran received a VA examination. The VA examiner noted the Veteran attended church, had no issues with his daily chores, saw his family a couple times a month, and saw a friend twice a week. He coached soccer. He experienced some feelings of worthlessness, but those feelings had subsided. The examiner noted the Veteran had no history of suicidal ideation. In addition, the Veteran did not have obsessions, compulsions, or delusions. From January 2008 to July 2009, the Veteran received mental health treatment, where he consistently noted having nightmares, depressed mood, and impaired memory. At times, the Veteran expressed suicidal ideation. In February 2009, he reported feeling depressed and suicidal. Likewise, in June 2009, he stated he felt he would be better off dead, but had no true intent to end his life because of his family. The Veteran also received marital counseling. In an August 2009 record, the counselor reiterated that the Veteran suffered from nightmares, memory difficulties, and depression. The counselor also noted the Veteran had decreased energy and increased anger. She noted the Veteran’s PTSD interfered with his ability to fulfil his role as a husband and father. The Veteran discussed his PTSD symptoms at his DRO hearing in September 2009. The Veteran continued to have nightmares. He reported he had to quit coaching soccer because he threated to harm another parent after a disagreement. He had suicidal feelings daily. He felt detached from his family and stated he had no social life. The Veteran’s wife stated when he got angry he would lose common sense. The Veteran’s treatment records documented much of the same symptoms. They documented his depression, anxiety, sleep impairment, memory impairment, and low energy. He also continued to have passive suicidal ideation. The Board finds based on the evidence of record an increase to 70 percent rating is warranted. The Board notes there is documented evidence of the Veteran’s passive suicidal thoughts since November 2006. His suicidal ideation was continually documented in private records and his September 2009 hearing. The Board also considers the evidence documenting the Veteran’s self-isolating behavior to be highly probative. The evidence shows the Veteran has difficulty maintaining or fostering relationships with others as he reported having no social life and had to quit coaching soccer because he made threats. Therefore, the Board finds the Veteran’s disability is best approximated by the 70 percent rating. Nevertheless, the Board finds a rating higher than 70 percent is not warranted. The Veteran has been assigned a TDIU, showing that he has total occupational impairment. However, to meet the criteria for a 100 percent rating, both total occupational and total social impairment must be present. The Board acknowledges that self-harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, the record does not show that the Veteran’s passive suicidal thoughts are of the frequency, severity, or duration such that they cause or contribute to total social and total occupational impairment. He has had thoughts of harming others and made threats while coaching soccer. However, one incident over an appeal period lasting many years is not of the frequency, severity, or duration that would render him a persistent danger to himself or others. Additionally, total social impairment is not shown. The evidence shows the Veteran has been able to maintain some social functioning prior to November 29, 2013. Accordingly, the Board finds that a 70 percent rating best captures the Veteran’s disability. See 38 C.F.R. § 4.130 (2017). From November 29, 2013 The Veteran received a VA examination in November 2013. He reported weekly nightmares, flashbacks, daily intrusive thoughts and memories, and avoidance of stimuli associated with military or combat. He avoided people and crowds; he remained vigilant about possible heat exposure. He had some difficulty with interpersonal relationships and was not close to anyone except his wife. He was depressed daily with crying spells and weekly thoughts of suicide. He reported no plan or intent to commit suicide but had thoughts of overdosing. He experienced irritability, poor concentration, anhedonia, lethargy, and loss of interest in things. The examiner concluded he had deficiencies in most areas of occupational and social functioning, but was not totally unemployable. He was also able to perform all activities of daily living. His most recent VA examination was in October 2017. The VA examiner found that the Veteran’s psychiatric symptoms caused occupational and social impairment with deficiencies in most areas. The Veteran continued to experience most of the same symptoms as he reported at his last examination. The Veteran stated he went to prayer meetings, Tai Chi, and volunteered with feeding the homeless. He liked to stay busy but also had days where he struggled to get out of bed. The examiner also reported the Veteran sometimes neglected his personal hygiene and intermittently experienced an inability to perform activities of daily living. He stated that he relied on his wife for emotional support, and had no friends. He stated that after his brother made an insensitive comment about his son, they had become estranged. He had not spoken to his other brother in over 10 years. Upon examination, he was alert and oriented and cooperative with the examiner. His speech and language were characterized by low volume with little inflection. His mood was dysthymic and his affect was flat. He did not describe delusions or hallucinations, but did have dissociative reactions triggered by exercise or becoming over heated. He had a history of suicidal thoughts with non-specific plan, such that he has a safety plan with his therapist and had his therapist’s phone number. His insight was limited but his judgment was good. There was no cognitive impairment or memory issues. The Veteran also described obsessive rituals with computers and that certain things had to be “in their right place” or he became upset. Regarding whether the Veteran was a danger to himself, the examiner noted that he was at “moderate” risk and that he should be considered at “increased risk but NOT [sic] current imminent risk. He has a safety plan and the cell number of his therapist.” He was also provided with the VA crisis line phone number. The Board acknowledges the VA examination shows some worsening in the Veteran’s PTSD symptoms. Nevertheless, the Board finds an increase in his disability rating to 100 percent is not warranted. The evidence still does not show the Veteran has total social impairment. As noted by the October 2017 examiner, he attends prayer meetings, Tai Chi, and volunteers to help the homeless. All these activities involve interacting with other people. The Board acknowledges the Veteran stated he prefers to remain isolated and has some issues with performing the activities of daily living, but the evidence does not show total social impairment. The Board acknowledges that the October 2017 VA examiner found the Veteran to be at increased risk for harming himself. However, the Veteran had taken steps to help reduce the risk, as discussed above. His increased, but not imminent, risk of self-harm is not of the severity that it results in total social impairment. For these reasons, the Veteran’s overall disability picture from his PTSD does not more closely approximate a 100 percent disability rating. 38 C.F.R. § 4.7, 4.130 (2017). 2. Increased Rating for a Headache Disability The Veteran’s headache disability is rated under Diagnostic Code 8100. Under this Diagnostic Code a 50 percent rating is warranted when the migraines cause frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017). The rating criteria do not define “prostrating.” By way of reference, “prostration” is defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary, 1531 (32nd ed. 2012). The rating criteria do not define “severe economic inadaptability;” however, nothing in Diagnostic Code 8100 requires the claimant to be completely unable to work to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). The Secretary has conceded that the term “productive of economic inadaptability” could be read as either “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). The Veteran has been at the maximum rating for the entire appeal period. Nevertheless, the Veteran asserts he is entitled to a higher rating based on extraschedular consideration. An extraschedular evaluation may be provided for exceptional cases. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral under the next step is required. Then, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321 (b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). If such an exhibition is determined, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for a determination of whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. Id. The record contains the Veteran’s long treatment for his headaches. In February 2007, the Veteran reported having severe headaches, rating them 10 out of 10, every 2 weeks. He reported headaches rating 5 to 6 out of 10 about once a week, lasting 2 to 5 hours. He would get dark spots in his vision, lasting for a couple of hours, and his speech would occasionally change. The Veteran reported similar symptoms in May and April 2007. A private examiner described the Veteran’s headaches as severe, debilitating, chronic migraines which included multiple autonomic symptoms, including severe changes in vision, changes in temperature, tachycardia, nausea, vomiting, changes in speech, vertigo, loss of consciousness, and visual scotomas. Due to his condition, the Veteran could only work intermittently and when having a migraine would be unable to perform any kind of work. The Veteran’s treatment records similarly described his issues with migraines and associated symptoms. In January 2008, a private examiner noted the Veteran’s headaches caused blurred vision, with at times complete blindness, nausea, and vomiting. In March 2008, the Veteran received a VA examination where he reported the same symptoms. He stated he experienced migraines weekly during the past year, with 1 to 3 per week described as prostrating. The Veteran’s next VA examination was in November 2009. The Veteran reported headaches lasting 4 to 14 hours, 6 to 12 times per month. He stated his migraines caused prostration for 8 to 12 days out of the month. He similarly reported nausea, episodes of confusion, and stated he was told he had pseudoseizures. The examiner noted the Veteran’s visual loss, confusion, and speech issues are all conditions associated with headaches. The Veteran reported similar symptoms at his next VA examination in January 2010. Additionally, in December 2013, a VA examiner noted the Veteran did not have a distinct visual impairment, but that any vision issues were due to his migraines. Additionally, the record contains multiple private records and lay statements from the Veteran documenting similar complaints as the previous VA examinations. The Veteran reported debilitating headaches that occur multiple times a week causing changes in vision, issues with speaking, vertigo, vomiting, changes in body temperature, and difficulty concentrating. The Board also notes the Veteran described many of these symptoms at his DRO hearing in September 2009. Board notes many of the symptoms described by the Veteran are contemplated by the schedular criteria under prostrating and prolonged attacks. As discussed above, the definition of prostrating is “extreme” exhaustion and powerlessness. Accordingly, the Veteran’s symptoms of dizziness, instability, vomiting, nausea, sensitivity to light, blurred vision, are reasonably contemplated as contributing to extreme exhaustion or powerlessness and are adequately compensated under the rating for prostrating and prolonged attacks. At his September 2009 DRO hearing, he Veteran reported his headaches caused other neurological problems such as problems walking. Service connection has been granted for neuropathy in all four extremities and thus he has been compensated for his neurological symptoms. The headache disability is described as basilar migraine headaches with bowel and bladder leakage. The Veteran is competent to report these symptoms and his descriptions are credible. The Veteran reported bowel and bladder dysfunction during headaches at his January 2010 neurological disorders VA examination. The examiner did not find that bowel and bladder problems were related to his headache disability. The Veteran reported bowel and bladder leakage at his December 2013 VA examination, and the examiner found that were due to a functional etiology and there was no association with his headaches. Further, the September 2017 VA examiner explained that bowel and urinary urgency or incontinence are not associated with his headaches per the International Headache Society criteria. The examiner also explained that “…there is no documentation of ongoing fecal urgency,” and that the Veteran’s urinary urgency “…has been called detrusor hyperactivity” by a urologist. The record does not show that the Veteran in this case has the skills, expertise, or medical training to allow him to provide a probative opinion as to whether his bowel and bladder problems are a manifestation or symptom of his headache disability. The findings of the VA examiners are more probative than the lay statements. Thus, the Board will not address whether those symptoms require extraschedular consideration, as the most probative evidence of record shows that they are not manifestations of his headache disability. The Veteran reported that he had loss of consciousness due to his migraines and appeared to have a seizure. He described this symptom as a pseudoseizure. In September 2017, the Veteran received a VA examination and the examiner considered the Veteran’s report of having pseudoseizures. The examiner first noted the Veteran’s migraines caused the following symptoms: pulsating throbbing pain on both sides of his head, nausea, vomiting, sensitivity to light and sound, changes in vision, dysarthria, gait instability, dizziness, and tinnitus. The Veteran’s headaches lasted for 1 to 2 days, and he suffered prostrating attacks more than once a month that produced severe economic inadaptability. Nevertheless, the examiner concluded the evidence failed to show the Veteran suffered from epilepsy. The examiner noted the record lacked any documentation of an epileptic or seizure disorder. Though the examiner noted, there was documentation the Veteran may have pseudoseizures or non-epileptic seizures. The Board notes that the Veteran’s reports of pseudoseizures are not contemplated by the rating criteria. However, the evidence does not show the Veteran has a seizure disorder. As noted by the September 2017 VA examiner, there is no documentation in the record of an epileptic or seizure disorder. While the Board considers the Veteran’s lay statements, as a lay person, the Veteran is not competent to diagnosis himself with a seizure disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Conversely, as a neurosurgeon, the September 2017 examiner is competent to provide a diagnosis and his opinion is afforded high probative value. Therefore, the Board finds the evidence is against the Veteran’s assertion that he had seizure or seizure-like symptoms as part of his headaches. The September 2017 VA examiner found that the Veteran’s headaches caused tinnitus, which is not contemplated by the rating criteria set forth in Diagnostic Code 8100. However, tinnitus is expressly contemplated by Diagnostic Code 6260. Thus, the assignment of a separate rating for tinnitus under Diagnostic Code 6260 will compensate the Veteran for his tinnitus. A separate rating for tinnitus under Diagnostic Code 6260 is granted. 38 C.F.R. § 4.20, 4.87 (2017). Accordingly, the Board finds the Veteran is properly rated at the maximum rating of 50 percent. The Board finds the Veteran’s symptoms are contemplated under the criteria of prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria reasonably describe the Veteran’s disability level and symptomatology, and the Veteran’s disability picture is contemplated by the Rating Schedule. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); VAOPGCPREC 6-96 (August 16, 1996). Based on the foregoing, the Board finds that referral for consideration of an extraschedular evaluation for the Veteran’s service-connected headache disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996). Finally, a total disability rating based on individual unemployability (TDIU) is not at issue because the Veteran has been awarded TDIU for the entire appeal period. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel