Citation Nr: 18148795 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-22 009 DATE: November 8, 2018 ORDER Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling, is denied. Entitlement to a higher initial rating for left ear tinnitus, currently rated as 10 percent disabling, is denied. Entitlement to a higher initial rating for migraine headaches, currently rated as noncompensable, is denied. Entitlement to a higher initial rating for burn scar in left shoulder, currently rated as noncompensable, is denied. REMANDED Entitlement to a higher initial rating for left rotator cuff syndrome, currently rated as 10 percent prior to February 13, 2015 and 20 percent disabling thereafter, is remanded. Entitlement to a higher initial rating for left elbow medial epicondylitis, currently rated as noncompensable prior to February 13, 2015 and 10 percent disabling thereafter, is remanded. Entitlement to a higher initial rating for lumbar strain and Schmorl’s nodes, currently rated as 10 percent prior to February 13, 2015 and 20 percent disabling thereafter, is remanded. Entitlement to a higher initial rating for left hip strain, currently rated as 10 percent disabling, is remanded. Entitlement to a higher initial rating for limitation of flexion of the left thigh, currently rated as noncompensable, is remanded. Entitlement to a higher initial rating for limitation of extension of the left thigh, currently rated as noncompensable prior to February 13, 2015 and 10 percent disabling thereafter, is remanded. Entitlement to a higher initial rating for left knee patellofemoral pain syndrome, currently rated as 10 percent disabling, is remanded. Entitlement to a higher initial rating for right knee patellofemoral pain syndrome, currently rated as noncompensable prior to February 13, 2015 and 10 percent disabling thereafter, is remanded. Entitlement to a higher initial rating for left ankle sprain, currently rated as noncompensable prior to February 13, 2015 and 10 percent disabling thereafter, is remanded. Entitlement to a higher initial rating for right ankle sprain, currently rated as noncompensable prior to February 13, 2015 and 10 percent disabling thereafter, is remanded. Entitlement to a higher initial rating for right hand middle finger sprain, currently rated as noncompensable, is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s PTSD has resulted in total social and occupational impairment. 2. The Veteran is in receipt of the maximum schedular rating for tinnitus. 3. The weight of the evidence shows that the Veteran occasionally experiences severe headaches, but there is no argument or indication that these are prostrating. 4. The evidence shows that the Veteran’s left shoulder scar is superficial and nonlinear, has an area smaller than 144 square inches, is not painful or unstable, and does not have additional disabling effects. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an initial rating higher than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.87, DC 6260. 3. The criteria for an initial compensable rating for migraines have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.124a, DC 81000. 4. The criteria for an initial compensable rating for burn scar in the left shoulder have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.118, DC 7801-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2001 to November 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision. The May 2013 rating decision granted service connection for multiple disabilities and denied service connection for hypertension. The Veteran appealed the rating assigned for all service-connected disabilities as well as the denial of service connection for hypertension via a February 2014 notice of disagreement. Thereafter, a March 2016 rating decision increased the ratings for several issues on appeal; nevertheless, the appeal for these issues continues. Finally, the Board notes that the Veteran is in receipt of a TDIU for the entire appeal period. See rating decisions from March 2015 and March 2017. Increased Ratings 1. Entitlement to a higher rating for PTSD, currently rated as 70 percent disabling. The May 2013 rating decision assigned an initial rating of 70 percent for PTSD under 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, for a higher and the maximum rating of 100 percent to be warranted, the evidence must show that the Veteran’s PTSD resulted in total occupational and social impairment, due to such symptoms as: 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 closes relatives, own occupation, or own name. Id. Having reviewed the relevant evidence, the Board finds that the weight of the evidence is against a finding that the Veteran’s PTSD has resulted in total occupational and social impairment. The Board acknowledges that the Veteran’s social circle is most of the time limited to his wife and that his PTSD limits his ability to work in certain work environments. The evidence, however, does not support a finding that such social and occupational impairment has been total, as required for a rating of 100 percent. In this regard, the Board notes that the Veteran appears to have a fair or good relationship with his wife, notwithstanding some reported marital issues. Additionally, while the most recent VA examination suggests that the Veteran’s PTSD symptomatology has caused some estrangement between him and his college-age stepdaughter, there is no indication that such estrangement is total. As reported by the Veteran, her stepdaughter visits three times a year, but chooses not to spend the night at the Veteran’s house. Prior VA examinations indicate that the Veteran had a good relationship with his stepdaughter. Furthermore, the Veteran has undergone three VA examinations during the period on appeal and none of them has endorsed findings of total social and occupational impairment, or an inability to establish and maintain effective relationships. See January 2013 VA examination; February 2015 VA examination, June 2018 VA examination. The Board further notes that there are no reports of grossly inappropriate behavior, an inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. The evidence clearly shows that the Veteran has significant social impairment, to include suicidal ideation, due to his PTSD, and the Board certainly is sympathetic to the difficulties experienced by the Veteran. See statements from the Veteran, his wife, and his brother, received March 27, 2015. Unfortunately, in the absence of evidence that the Veteran’s PTSD symptoms have resulted in or more nearly approximate total social and occupational impairment, the criteria for a rating of 100 percent are not met. 2. Entitlement to a higher rating for left ear tinnitus, currently rated as 10 percent disabling. The May 2013 rating decision assigned an initial rating of 10 percent for tinnitus under 38 C.F.R. § 4.87, DC 6260. DC 6260 provides that recurrent tinnitus will be assigned a 10 percent rating. 38 C.F.R. § 4.87. Only a single evaluation will be assigned for recurrent tinnitus, whether it is perceived in one ear, both ears, or the head. Id. at Note (2). As the Veteran is already in receipt of the maximum rating available under DC 6260, a higher schedular rating must be denied as a matter of law. The Veteran has described his tinnitus symptoms as ringing in the ear. This symptom is fully contemplated by DC 6260, as tinnitus is defined as a noise in the ears, such as ringing, buzzing, roaring, or clicking. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1930 (32nd ed. 2012). As tinnitus is specifically listed in VA’s Rating Schedule, the Board finds that analogous diagnostic codes need not be explored. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (“[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy.”). Similarly, staged ratings are not warranted, as the Veteran’s symptomatology has remained stable during the rating period, and he is already in receipt of the maximum schedular rating for his tinnitus. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). As the weight of the evidence is against a higher rating for tinnitus, the benefit of the doubt doctrine does not apply and the Veteran’s claim must be denied. 38 C.F.R. § 4.3. 3. Entitlement to a higher rating for migraine headaches, currently rated as noncompensable. The May 2013 rating decision granted service connection for migraine headaches and assigned a noncompensable rating under 38 C.F.R. § 4.124a, DC 8100. Migraines are rated under § 4.124a, Diagnostic Code (DC) 8100. Migraines will be assigned a 10 percent rating if there are characteristic prostrating attacks averaging one in two months over the last several months and a 30 percent rating where there are characteristic prostrating attacks occurring on an average once a month over the last several months. 38 C.F.R. § 4.124a, DC 8100. The maximum, 50 percent rating for migraines requires frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. In its recent decision in Johnson v. Wilkie, the U.S. Court of Appeals for Veterans Claims (Court) concluded that Diagnostic Code 8100 is successive, meaning that "each disability level builds on another in terms of duration and frequency, requiring [] a veteran rated at a higher level to satisfy all the requirements of the lower levels." 2018 WL 4492752, 2018 WL 4492752 at *7. The Court also held that the rating criteria for a 50% disability rating under Diagnostic Code 8100 are conjunctive, meaning that establishing entitlement to a 50% disability rating requires evidence that a claimant's migraine attacks are (1) very frequent, (2) completely prostrating and prolonged, and (3) "productive of severe economic inadaptability." Id. If one of these elements is missing, a claimant is not entitled to a 50% disability rating. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). Finally, the Court concluded that, because Diagnostic Code 8100 contains successive rating criteria, § 4.7 and § 4.21 are not applicable. Id. The Court determined, however, that § 4.3 is not "incompatible with the nature of successive rating criteria," id. The Board observes that the rating criteria do not define “prostrating.” Dorland’s Illustrated Medical Dictionary defines “prostration” as “extreme exhaustion or powerlessness.” See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd ed. 2012). The phrase "characteristic prostrating attacks" plainly describes migraine attacks that typically produce powerlessness or a lack of vitality. Johnson, 2018 WL 4492752, 2018 WL 4492752 at *17. Similarly, the rating criteria also do not define “severe economic inadaptability.” However, the Court has stated that this term is not synonymous with being completely unable to work and VA has conceded that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004) (stating that “nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating”). Turning to the relevant evidence, a January 2013 VA examination shows that the Veteran reported headaches lasting up to 15-20 minutes. The examiner indicated that the Veteran did not have characteristic prostrating attacks. The report also reflects that the Veteran did not have prostrating attacks of non-migraine headache pain. At a subsequent February 2015 VA examination, the Veteran stated that his headaches had increased in intensity. He reported migraine headaches lasting up to four hours, occurring three to five times per month, usually 8-9/10 in intensity. Notwithstanding, the examiner again indicated that the Veteran did not have characteristic prostrating attacks. In this regard, the examiner noted that the Veteran had not reported prostrating headaches during which he had to leave work or stop what he is doing to lay down. The Board finds that such evidence tends to weigh against a finding of powerlessness or lack of vitality. In a March 2015 statement, the Veteran characterized his headaches as severe. He referenced having to leave work due to sciatic nerve pain. There is no indication that he had to leave work due to his migraine headaches. As the weight of the probative and competent evidence is against a finding that the Veteran’s headaches have manifested as characteristic prostrating attacks, the Board concludes that a compensable rating under DC 8100 is not warranted. The Board acknowledges that the Veteran occasionally experiences severe, multi-hour headaches, but finds no support for the proposition that these headaches have been prostrating, as defined above. 4. Entitlement to a higher rating for burn scar in left shoulder, currently rated as noncompensable. The May 2013 rating decision established service connection for left shoulder burn scar, assigning a noncompensable rating under 38 C.F.R. § 4.118, DC 7802. A January 2013 VA examination shows that the Veteran has a burn scar in the left shoulder. The scar is described superficial and nonlinear with an area of 1.5cm x 1cm. The examination further reflects that the scar is neither painful nor unstable. The Veteran underwent additional VA examinations in February 2015, but these did not include a scar examination. In March 2016, VA contacted the Veteran and asked him if he wanted a VA examination for his scar, but the Veteran stated that he did not want a VA examination, as his scar had not worsened since the prior examination. Based on the evidence of record, the Board finds that a compensable rating for the Veteran’s left shoulder burn scar is not warranted. Significantly, the evidence fails to show that the Veteran’s superficial and nonlinear scar has an area of 144 square inches or greater, that it is painful or unstable, or that it has any additional disabling effect, such as limiting motion. 38 C.F.R. § 4.118, DC 7802, 7804-05. REASONS FOR REMAND 1. Entitlement to higher ratings for left rotator cuff syndrome, currently rated as 20 percent disabling, is remanded. 2. Entitlement to higher ratings for left elbow medial epicondylitis, currently rated as 10 percent disabling, is remanded. 3. Entitlement to higher ratings for lumbar strain and Schmorl’s nodes, currently rated as 20 percent disabling, is remanded. 4. Entitlement to a higher rating for left hip strain, currently rated as 10 percent disabling, is remanded. 5. Entitlement to higher ratings for limitation of flexion of the left thigh, currently rated as noncompensable, is remanded. 6. Entitlement to a higher rating for limitation of extension of the left thigh, currently rated as 10 percent disabling, is remanded. 7. Entitlement to a higher rating for left knee patellofemoral pain syndrome, currently rated as 10 percent disabling, is remanded. 8. Entitlement to higher ratings for right knee patellofemoral pain syndrome, currently rated as 10 percent disabling, is remanded. 9. Entitlement to higher ratings for left ankle sprain, currently rated as 10 percent disabling, is remanded. 10. Entitlement to higher ratings for right ankle sprain, currently rated as 10 percent disabling, is remanded. 11. Entitlement to a higher rating for right hand middle finger sprain, currently rated as noncompensable, is remanded. In February 2015, the Veteran underwent VA examinations to determine the current severity of his multiple service-connected musculoskeletal disabilities. After reviewing the relevant examination reports, the Board concludes that the February 2015 VA examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Significantly, the February 2015 VA examination reports reflect that the Veteran reported flare-ups for each of the service-connected musculoskeletal disabilities. There is, however, no indication that the VA examiner attempted to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. Further, while the VA examiner stated that an opinion could not be provided without resort to speculation, the VA examiner did not indicate that the speculation was due to lack of knowledge within the medical community. In view of this defect, the Board finds that new VA examinations are necessary. 12. Entitlement to service connection for hypertension is remanded. The Veteran seeks service connection for hypertension. He asserts that he was diagnosed with hypertension in service. Service treatment records show a diagnosis of essential hypertension in November 2009, followed by a diagnosis of prehypertension in August 2012, shortly before separation from service. The Veteran underwent a VA examination in January 2013. The VA examiner concluded that the Veteran had never been diagnosed with hypertension or insolated systolic hypertension. The examiner referenced the in-service diagnosis of prehypertension, but did not reference the earlier diagnosis of essential hypertension. (The Board further notes that a November 2017 VA treatment note indicates that the Veteran was previously on medication treatment for hypertension. See CAPRI records, received January 11, 2018, at 28.) As the January 2013 VA examination does not show adequate consideration of the relevant evidence, the Board finds that a new VA examination is necessary. The matters are REMANDED for the following actions: 1. Schedule the Veteran for examinations by appropriate examiners to determine the current severity of his service-connected left shoulder, left elbow, lumbar spine, left hip/thigh, bilateral knee, bilateral ankle, and right hand. For each of these disabilities, 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 service-connected disability alone and discuss the effect of the Veteran’s service-connected disability on any 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). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension. The examiner must indicate whether the Veteran has (or has had) a current diagnosis of hypertension. The examiner must be aware that a service treatment note shows a diagnosis of essential hypertension. See service treatment records, received August 28, 2014, at 70. Additionally, a November 2017 VA treatment note indicates that the Veteran was previously on medication treatment for hypertension. See CAPRI records, received January 11, 2018, at 28. If hypertension is diagnosed, the examiner is to provide an opinion whether it was at least as likely as not incurred/began during the Veteran’s active service. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel