Citation Nr: 18146949 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-36 744 DATE: November 5, 2018 ORDER Entitlement to service connection for a headache disability is granted. Entitlement to service connection for a separate sleep disorder is denied. Entitlement to an initial disability rating in excess of 70 percent for the Veteran’s post-traumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s headache disability is proximately due to his service-connected PTSD. 2. The Veteran’s sleep complaints have been attributed to his diagnosed PTSD, and the probative evidence does not suggest the Veteran has a distinct sleep disorder which is related to service. 3. The Veteran’s PTSD has resulted occupational and social impairment with deficiencies in most areas, but has not resulted in total occupational and social impairment. 4. The Veteran’s service-connected disabilities combined prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The requirements to establish service connection for a distinct disability manifested by chronic sleep impairment have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. § § 3.102, 3.159, 3.303, 4.14. 3. The criteria for an initial disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Codes 9411. 4. The criteria for TDIU have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Headaches Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes the Veteran submitted at Disability Benefits Questionnaire (DBQ) from a private doctor in April 2017. The examiner noted the Veteran had experienced frequent, severe headaches several times a week for the past several years. The Veteran reported he also experienced incapacitating episodes that required him to lie down in a dark environment about 1 to 2 times a week. The Veteran stated his headaches were brought on and aggravated by stress, depression, and his sleep issues. The examiner noted that psychological impairments, such as PTSD, are well documented in the medical community as contributing to the development and aggravation of migraine headaches. The examiner also noted multiple medical journal articles discussed the positive correlation between headaches and psychological impairments. Consequently, the examiner concluded that the Veteran’s migraine headaches were more likely than not caused and permanently aggravated by his service-connected PTSD. The Board finds the preponderance of the evidence is for the Veteran’s claim. The April 2017 examiner’s opinion is afforded high probative weight. The examiner based his opinion on a review of the Veteran’s file and medical literature. As the evidence is for the Veteran’s claim the Board finds secondary service connection for a migraine disability is warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). 2. Sleeping Disability The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran has a long, documented history of reporting sleep problems. The Veteran experienced chronic sleep impairment with frequent nightmares and problems falling or staying asleep. The Board notes his sleeping issues were determined to be one of his PTSD symptoms. The medical evidence of record fails to show the Veteran has another separate sleep disability that is not due to his PTSD. Moreover, the Veteran has not advanced any lay evidence to support a finding that he has a separate sleep disability apart from his PTSD symptoms. Therefore, the Board concludes the Veteran does not have a current disability separate from PTSD symptoms manifested as a sleep disorder. The Veteran’s chronic sleep impairment has been noted by medical professionals in April 2014, February 2017, April 2017, his VA treatment records, and his private records. Each time the Veteran’s sleep issues were noted, the examiners considered the Veteran’s sleep impairment as part of his PTSD and never noted another separate disability. The Board cannot separately grant service connection for a sleep disability when the Veteran is already service connected for his sleep impairment as part of his PTSD symptoms. To separately compensate a veteran for the same symptoms of another service-connected disability would constitute impermissible pyramiding. 38 C.F.R. § 4.14 (2016). Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. For purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). The symptoms stated in this claim, issues falling and staying asleep and his nightmares, are the same symptoms the Veteran experiences due to his PTSD. To separately service connect the Veteran for a sleep disability would constitute impermissible pyramiding. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s current claim of service connection for a sleep disorder, as they are manifestations of his service-connected PTSD. Increased Rating 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; 38 C.F.R. §§ 4.1, 4.20. 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. 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. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in August 2012. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s PTSD is evaluated under Diagnostic Code 9411. 38 C.F.R. § 4.130. PTSD is evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, 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. 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. The Veteran received a VA examination in April 2014. The examiner noted the Veteran suffered with anger issues and had recently gotten into a fight at a bar with another patron. The Veteran reported he spent most of his time in a room by himself, or at a bar. He also reported suffering from a depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. He stated he had difficulty maintaining employment because he would get angry and violent with his coworkers. The Veteran suffered olfactory flashbacks where he smelled blood 2 to 3 times per month and auditory flashbacks where he heard explosions. He felt nervous around groups of people and had dissociative episodes where he would lose hours at a time. The examiner determined the Veteran had social and occupational impairment with reduced reliability. The Veteran’s VA treatment records from 2014-2015 documented many of the same symptoms reported at the April 2014 VA examination. He did not report any suicidal ideations, but continued to report panic attacks. He also stated that he had been using the techniques he discussed in therapy to help with his anger issues. The record also contains a DBQ from February 2017. The Veteran continued to experience many of the same symptoms. In addition to the previously reported symptoms, he experienced continuous panic attacks or depression that impacted his ability to function independently and appropriately, mild memory loss, inability to establish and maintain effective relationships, and suspiciousness. The examiner stated the Veteran’s PTSD symptoms caused occupational and social impairment with deficiencies in most areas such as work, family, relations, judgement, thinking, and mood. Furthermore, the examiner noted the Veteran had help with all the daily activities of life including food prep and household chores. His grandmother also had to remind him to attend to his personal hygiene. The Veteran also submitted an April 2017 private opinion. The examiner reviewed the entire record and opined the Veteran’s PTSD led to an emotional condition that caused serious impairment. He concluded the Veteran was totally and permanently precluded from working at a substantially gainful level. The examiner noted the Veteran’s anger outbursts, nervousness in large groups, physical aggression in the workplace, panic attacks, sleep impairment, and irritability. The Veteran also contains lay statements about the Veteran’s PTSD symptoms. In December 2016, the Veteran’s friend described the Veteran as angry, violent, depressed, and paranoid. The Veteran’s friend recounted an incident where the Veteran became extremely guarded during a game of horseshoes. In a January 2017 statement, the Veteran’s grandmother stated the Veteran suffered from mood swings and tantrums. She stated her concerns about the Veteran turning violent and stated he lost multiple jobs because of his anger problems. She also stated the Veteran did not have many friends and often just remained in the house. The Board acknowledges the more recent 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 both total social and total occupational impairment. The Board concedes the Veteran stated he prefers to remain isolated and has some issues with performing the activities of daily living, but the evidence fails to show total social impairment. The Board notes the February 2017 VA examiner noted that the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas and the April 2017 VA examiner concluded the Veteran had total occupational impairment. However, neither examiner concluded the Veteran suffered from total social and total occupational impairment. Therefore, 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. TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16(b). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). (Continued on the next page)   The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran has a singular disability rated at least 60 percent, as his PTSD is rated at 70 percent; thus, he meets the schedular requirements for TDIU. Furthermore, the Board finds the preponderance of evidence shows the Veteran is unemployable. The VA examinations and the Veteran’s lay statements provide that Veteran had to stop working due to his PTSD. Multiple statements in the record document the Veteran’s inability to work due to his anger issues and violent threats. The Veteran’s grandmother reported the Veteran lost multiple jobs due to his anger issues including one incident where he threatened his boss. The record shows the Veteran is prone to irritability and outburst of anger, including the Veteran’s report that he started a fight at a bar. Further, the all examinations of record indicated the Veteran’s PTSD significantly impacted his ability to work. Specifically, the most recent examiner opined the Veteran’s PTSD caused total occupational impairment. Accordingly, the Board finds the preponderance of the evidence is for the claim and TDIU is warranted. See 38 C.F.R. § 3.102. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel