Citation Nr: 18149195 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-29 665 DATE: November 9, 2018 ORDER Entitlement to an evaluation of 50 percent, but no higher, for service-connected migraines is granted. Entitlement to an evaluation of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s service connected migraines have been manifested by very frequent completely prostrating and prolonged attacks that are productive of severe economic inadaptability. 2. Throughout the appeal period, the Veteran’s PTSD has been characterized by occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 50 percent, but no higher, for service-connected migraines have been met. 38 U.S.C. §§ 1155, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8100 (2018). 2. The criteria for entitlement to an evaluation of 70 percent, but no higher, for service-connected PTSD are met. 38 U.S.C. §§ 1155, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.126, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Navy from June 2001 until October 2011. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in San Diego, California. The Board notes that in a March 2016 statement the Veteran alleged an inability to work due to his service connected disabilities. The issue of TDIU was raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record). During the pendency of the appeal, however, a January 2018 rating decision granted TDIU. The issue is thus not before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the effective date assigned). Duties to Notify and Assist Neither the Veteran nor his attorney has 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). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 1. Migraines In September 2015 the Veteran request an increased evaluation for his service-connected migraines. The RO assigned an increased evaluation of 30 percent. Under Diagnostic Code (DC), 8100, a 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating.” Prostration is defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary at 1531 (32nd ed. 2012). “Productive of” can either have the meaning of producing or capable of producing. Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually produce severe economic inadaptability to warrant the 50 percent evaluation. Pierce, 18 Vet. App. at 445-46. Economic inadaptability also does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Pierce, 18 Vet. App. at 446; 38 C.F.R. § 4.16. In a September 2015 VA record, the Veteran reported worsening migraine headaches, which caused difficulty sleeping. He reported nausea and the need to lie down in a quiet room with the lights out. He also reported light sensitively, noise sensitivity, and vision changes. The Veteran received a VA examination in November 2015. The examiner noted headache symptoms of pulsating or throbbing head pain, pain on both sides, pain that worsens with physical activity, and pain in the back of his head. Typical duration of the Veteran’s head pain is one to two days. The examiner noted other symptoms associated with his headaches including nausea, vomiting, sensitivity to light, sensitivity to sound, and changes in vision. The examiner stated the headache condition impacts the Veteran’s ability to work. The Veteran reported he must sit in a dark quiet space twice a week. The examiner found there were not characteristic prostrating attacks. The Veteran received a VA examination in December 2015. The examiner noted headache symptoms of pain behind eyes and in the temple area with typical duration of less than one day. The examiner noted other symptoms associated with his headaches including nausea, vomiting, sensitivity to light, sensitivity to sound, changes in vision, and dizziness. Additionally, the examiner found prostrating and prolonged attacks occurring once every month over the last several months, but found they were not productive of severe economic hardship. The examiner opined that headaches occur twice a week and impact the Veteran’s ability to work. The examiner found the headaches were severe, where he cannot do anything, but that they do not cause economic hardship as he owns his own business. A March 2016 VA treatment record noted the Veteran had symptoms of pressure in head, headaches behind his eyes, spots in his eyes, and pain that last 24 hours. The Veteran reported pain relief with vomiting. A July 2016 VA treatment record showed reports of migraines twice a week lasting for up to 24 hours. The Veteran experienced symptoms of nausea, vomiting, photophobia, phonophobia, and stars in his vision. For relief, the Veteran reported lying in a dark room and taking medication. The Veteran reported taking a flex program in school because the frequency of his migraines would prevent him from going to school full-time. An August 2017 VA neurology exam noted that the Veteran’s migraines caused significant disability. A July 2017 VA treatment record showed the Veteran reported daily headaches that start in his neck. In October 2017 the Veteran report his dull headaches resolved with the use of a CPAP machine for sleep. A VA examination was conducted in January 2018. The Veteran reported two types of headaches - a chronic low-grade tension headache and a second migraine headache. He takes medication for his migraines, but not his low-grade headaches. He reports migraines twice weekly. The examiner noted headache symptoms of constant head pain, pulsating or throbbing head pain, pain on both sides, and pain that worsened with physical activity. The examiner noted other symptoms associated with his headaches including nausea, sensitivity to light, and sensitivity to sound. Additionally, the examiner found prostrating and prolonged attacks, occurring once every month, over the last several months typically lasting less than one day, but determined there was not very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner opined that the Veteran’s headache condition impacts his ability to work. The examiner determined that work performance is diminished overall due to chronic low-grade headaches and that his migraines yield significant reduction in efficiency and performance. The examiner found the headaches were moderate to severe. The Board finds that the evidence of record supports an increased evaluation for migraines as the evidence of record more nearly approximates severe economic inadaptability. The Veteran has consistently reported throughout the appeal period that he has severe migraines that last an entire day, occur twice a week, are associated with nausea, sound, and light sensitivity, and require him to lie down. The Board finds the Veteran’s statements regarding his migraines are credible as they have been consistent and are supported by VA treatment records. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Although the VA examination reports determined that the migraines did not cause severe economic inadaptability, the most recent VA examination reports indicated significant reductions in efficiency and performance. Additionally, VA treatment records note the Veteran had to change his school schedule because of the frequency of his migraines. The Board notes 50 percent is the highest evaluation provided by the Rating Schedule for migraines, no higher schedular rating may be assigned.   2. PTSD The Veteran submitted a claim for an increased evaluation in September 2015. The RO assigned an evaluation of 50 percent under 38 C.F.R. § 4.130, DC 9411. Under this code, a 50 percent evaluation contemplates 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the 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 worklike setting); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. However, the symptoms recited in the criteria in the rating schedule for evaluating 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, 442 (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 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 3 8 C.F.R. § 4.126. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. The Veteran received a VA examination in October 2015. The examiner determined the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner noted symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner opined that the Veteran’s anxiety disorder was severe enough to meet the criteria for PTSD. The examiner determined that the Veteran did not have anxiety and PTSD but only PTSD. The examiner explained that the original diagnosis was correct, but that the Veteran’s symptoms have worsened. In November 2015, VA treatment showed symptoms of extreme irritability, anxiety in social settings, feelings of impending doom, poor memory, and auditory hallucinations. The Veteran stated he can’t be alone and can’t be around people. In February 2016, VA treatment showed symptoms of fear of public spaces, fear of social situations, anxiety, depression, and suicidal ideation. The treatment noted the suicidal ideation was not active with a plan. In June 2016 the Veteran sent an email to VA mental health treatment. The Veteran expressed that he reached a dangerous new low and stated his letter was a shout for help. The Veteran stated he was in panic because he had not received mental health treatment in several months. In a VA treatment record that same month, the Veteran reported feeling depressed, hopeless, rarely happy, thoughts of hurting himself, and thoughts of hurting others. The Veteran reported he shook his wife and he feels horrible but that she was not seriously injured. The Veteran expressed wanting to blow his own head off. The Veteran supported a plan to secure his guns by giving them to a friend and seek immediate medical attention if he should experience suicidal or homicidal ideation again. The Veteran received regular and consistent mental health treatment from August 2016 thru September 2016. The Veteran regularly experienced symptoms of depressed mood and irritability. In January 2017 the Veteran reported he and his wife went away for the holidays but stated he got into an argument with his wife and considered separation. The Veteran stated he got a new job and that has improved his mental state. Additionally, the Veteran reported anxieties about his relationship and upcoming move. The Veteran explained his medication helps with focus but makes him anxious. The Veteran received regular and consistent mental health treatment from March 2017 to June 2017. The Veteran experienced an improved mood and thinking. Additionally, the Veteran reported going on a fishing trip with friends. In July 2017 VA treatment records showed the Veteran reported having a hard time adjusting to work. The Veteran experienced symptoms of depression, impaired cognitive function, sleep impairment, and low motivation. In August 2017 the Veteran reported being fired from his job for creating a hostile work environment. In October 2017 the Veteran attended treatment after reporting an increase in symptoms. The Veteran experienced symptoms of anxiety, hopelessness, suicidal and homicidal ideation, negative cognitive distortions, low self-esteem, irritability, communication issues, and social isolation. The treating physician opined the homicidal ideations were passive thoughts of anger. Additionally, the treating physician determined the suicidal ideation was passive with no articulable plan. The physician determined that mental health set backs were due to the Veteran losing his job and he is severely depressed and anxious. The physician noted the veteran has a good support system in his wife and is motivated to engage in treatment. The Veteran received a VA examination in October 2017. The examiner opined that the Veteran had total occupational and social impairment. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, grossly inappropriate behavior, persistent danger of hurting self or others. In October 2017 VA treatment records, the Veteran reported feelings of worthlessness due to increasing back pain. He also reported he was still considering marital separation but maintained that his wife was very supportive. He reported almost being arrested after a binge drinking episode, which he stated was a desperate attempt ot being social. He had scared people he was with, because he was talking about killing people. He reported his wife was anti-social and since they have been together, he has lost his friends and is not socializing because hee does not like it. The examiner found the Veteran well-groomed, calm, alert and oriented with normal motor function, normal speech, logical and goal-directed thought processes, and good insight and judgment. There were cognitive distortions but no perceptual disturbances. The Veteran’s mood was dysthymic and his affect was full. There were suicidal and homicidal ideations, but no intent or plan. In November 2017 VA treatment record, the Veteran reported improvement in his symptoms. He explained that he volunteered for the vet dog training program. The Veteran spoke fondly of his parents and stated he gets along well with his dad. He stated his wife remains his main support system but is frustrated with his lack of social life due to her “anti-social” behavior and still plans to separate, with him living on land in Pennsylvania and her remaining at her job with him frequently visiting her. The examiner found the Veteran we well-groomed, calm, alert and oriented, with normal motor function, good mood, speech within normal limits, logical and goal-directed thoughts, normal thought content, and good insight and judgment. There was no suicidal or homicidal ideation, intent, or plan. The Veteran received a recent VA examination in January 2018. The Veteran reported that he had lost all of his friends and that he was isolated. He stated that he and his wife were likely to separate in the spring. He noted that he was fired from his last job for creating a hostile work environment. He reported that he almost got arrested over a month and a half ago because he got drunk in a bar and was scaring people. His wife came and got him and they let him go because of that. The examiner determined the Veteran had occupational and social impairment deficiencies in most areas. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, grossly inappropriate behavior, persistent danger of hurting self or others. The examiner opined that the Veteran’s symptoms likely make it difficult to function in an occupational environment. The Board finds that the Veteran’s PTSD symptoms have more nearly approximated the 70 percent evaluation for the entire period on appeal. The record demonstrates that for the entire period on appeal, the Veteran has had occupational and social impairment with deficiencies in most areas, such as work, family relations, and mood. This impairment is due to reported symptoms of suicidal ideation, difficulty in adapting to stressful circumstances, and difficulty in establishing and maintaining effective relationships. Thus, the Board finds that the Veteran’s PSTD symptoms more nearly approximate the 70 percent rating criteria. A 100 percent evaluation, however, is not supported as the evidence does not show total occupational and social impairment. The Veteran was fired from his job for creating a hostile work environment, but the record does not demonstrate total social impairment. First, the Veteran has consistently maintained that his wife is supportive and his main support system. Although they have had plans to separate, they remained friends and a good support system. Second, at the 2018 VA examination, the Veteran spoke fondly of his parents and stated he gets along well with his dad. Lastly, the Veteran has some contact with friends as evidenced by having a friend secure his guns in June 2016 and a fishing trip in March 2017, although this was diminished or non-existent by 2018. In recent VA treatment records, the Veteran reported volunteering in a dog training program. Accordingly, total social impairment is not shown. The October 2017 and January 2017 VA examinations noted symptoms of gross impairment in thought processes or communication, grossly inappropriate behavior, and persistent danger of hurting self or others. VA treatment records showed evidence of passive suicidal and homicidal ideation. But the evidence of record also did not show persistent delusions or hallucinations, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene), disorientation to time or place, o0r memory loss for names of close relatives, own occupation or own name. Overall, the Veteran’s symptomatology is not severe to the degree contemplated by the 100 percent criteria. Most of the Veteran’s symptoms are expressly contemplated by rating criteria less than 100 percent. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel