Citation Nr: 18150608 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-10 244 DATE: November 15, 2018 ORDER Entitlement to service connection for a psychiatric disability, to include a sleep disorder, is denied. Entitlement to service connection for asthma is denied. Entitlement to an initial rating of 30 percent for vertigo is granted. Entitlement to an initial rating of 10 percent for migraines is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current psychiatric diagnosis. 2. The preponderance of the evidence is against finding that the Veteran’s asthma is related to a disease or injury in service, to include specific in-service event, injury, or disease. 3. Since the effective date of the grant of service connection, the evidence is evenly balanced as to whether the Veteran’s vertigo has been manifested by occasional staggering. 4. Since the effective date of the grant of service connection, the evidence is evenly balanced as to whether the Veteran's migraine headaches have more nearly approximated migraines with characteristic prostrating attacks averaging one in 2 months over last several months. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for asthma are not met. 38 U.S.C. §§ 1110 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for an initial rating of 30 percent, but no higher, for vertigo have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.87, Diagnostic Code 6204 (2018). 4. The criteria for an initial rating of 10 percent, but no higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1994 to March 1998. His military occupational specialty was an electrician. This matter comes to the Board of Veterans Appeals (Board) on appeal from May 2014, June 2015, and March 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Additional issues stemming from these rating decisions were on appeal, but such issues have either been granted or withdrawn by the Veteran. In October 2018, the Veteran filed a new claim for service connection for an eye disability and for increased ratings for service-connected scars and folliculitis. Those issues have not yet been adjudicated and are currently pending at the Agency of Original Jurisdiction (AOJ). Service Connection Claims 1. Psychiatric Disability The Veteran’s service treatment records do not show complaints or diagnoses of a psychiatric nature. Post-service records show that the Veteran was seen by self-referral at a VA mental health screening clinic in December 2014. It is noted that he had no prior psychiatric history or treatment. He reported that he had been stressed while in service due to a motor vehicle accident that his spouse and child had been involved in during his deployment, as well as his spouse’s infidelity. He also reported sleep impairment due to night sweats. The examiner remarked that the Veteran did not report any identifiable service triggers. He assessed the Veteran as having DSM-V relationship problems and said that he would benefit from therapy. The Veteran reported at a VA psychiatric examination in March 2015 that he had anger issues during service because he tried to raise his family like boot camp. He said he blamed the military because they taught him to be tough and they did not get to his “soft side” when he was discharged. The examiner noted that the Veteran did not complain about tinnitus bothering him during the 90-minute interview except for mentioning it once. He relayed the Veteran’s statement that he could not trust the military because they did not transfer him out of the noisy engine area where the noise caused his tinnitus. When asked if he could hear the questions alright during the exam when they were seated at two ends of a long table, he replied positively. He noted that the Veteran’s focus was mainly on the stressors that he felt were very distressing to him and that the most distressing things in the military were his wife and child being in a car accident and his wife’s adultery. He noted that the Veteran had two negative PTSD screens in the past and that he did not meet the criteria for PTSD, depressive disorder, anxiety disorder, bipolar disorder, a psychotic disorder, or obsessive-compulsive disorder. He said that the Veteran’s history meets DSM-V criteria to diagnose relationship distress at the present time. The Veteran underwent another VA psychiatric examination in March 2016. That examiner concluded that the Veteran did not meet the criteria for a psychiatric disorder according to DSM-V. He said that the Veteran did endorse a few symptoms such as irritability, sleep problems, and marital distress, but he did not meet the full criteria for a psychiatric disorder. He went on to report that the Veteran’s symptoms did not cause significant social or occupational impairment, which was a criterion for any psychiatric disorder. He said he based his opinion on a review of the Veteran’s electronic folder, a review of his VA treatment records, and on an in-person evaluation with the Veteran. As the evidence outlined above shows, the Veteran’s claim for service connection for a psychiatric disability is twofold. First, he relates it to stressful events that took place while he was deployed overseas and were coincident with his service. Those events include a motor vehicle accident involving his spouse and child and his spouse’s infidelity. He said he felt frustrated and helpless at the time of those events. Second, the Veteran asserts that his psychiatric disability is secondary to his service-connected tinnitus and bilateral hearing loss. He reported anger at having not been removed from noisy areas in service and irritability in dealing with his hearing loss and tinnitus. The essential question for the Board is whether the Veteran has a current psychiatric disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current psychiatric diagnosis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). As noted, the Veteran was assessed by VA physicians in December 2014 and March 2015 as having DSM-V relationship problems/distress. In that regard, VA recognizes diagnoses that conform to the American Psychiatric Association’s American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (2013) (DSM-V). However, in terms of relational problems, the DSM-V provides that those problems are not mental disorders. Rather, their inclusion in DSM-V is meant to draw attention to the scope of additional issues that may be encountered in routine clinical practice and to provide a systematic listing that may be useful to clinicians in documenting those issues. Id. There is also the VA examiner’s March 2016 conclusion that the Veteran did not meet the criteria for a psychiatric disorder according to DSM-V. He said that the Veteran did endorse a few symptoms such as irritability, sleep problems, and marital distress, but he did not meet the full criteria for a psychiatric disorder. While the Veteran believes he has a current psychiatric diagnosis, he not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence outlined above. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for psychiatric disability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Asthma The Veteran’s service treatment records do not show complaints or treatment for asthma nor does he contend as much. Rather, he asserts that his asthma developed after service and is due to his exposure to toxic irritants such as exhaust fumes and diesel fuel from generators in service as well as to the physical demands of service. The earliest indication of asthma dates to the early 2000s. In this regard, the Veteran reported in a May 2014 statement that his asthma developed approximately two years after service (he separated from service in 1998). Moreover, a VA outpatient record from January 2004 notes that the Veteran had recently been told that he had asthma. Additional diagnoses of asthma, well-controlled, are reflected in VA treatment records dated from 2005 to 2018. Regarding in-service incurrence or aggravation of a disease or injury, while the Veteran is competent to report his exposure to irritants in service, including to diesel fuel and exhaust fumes, he is not shown to have the medical expertise to relate such exposure to his post-service diagnosis of asthma. The Board finds the to be a medically complex issue requiring medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, the Veteran’s etiological opinion is not considered competent evidence. Moreover, there is no other evidence on file that relates the Veteran’s post-service diagnosis of asthma to service. The Board acknowledges that that Veteran has not been afforded a VA examination with respect to this claimed disability. However, an examination is not warranted in this case since the low threshold requirements for conducting an examination have not been satisfied. That is, there is no competent evidence that relates the Veteran’s asthma to his active service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for asthma is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Claims 1. Vertigo The Veteran is rated by analogy to 38 C.F.R. § 4.87, Diagnostic Code 6204, for peripheral vestibular disorder. See 30 C.F.R. 4.20. Under this Code, a 10 percent rating is warranted for occasional dizziness. A 30 percent rating is warranted on evidence of peripheral vestibular disorders manifest by dizziness and occasional staggering. Also, a note provides that where hearing impairment or suppuration are present, they shall be separately rated. 38 C.F.R. § 4.87, Code 6204. The Veteran asserts that his vertigo causes him to occasionally stagger and that as such, he is entitled to a higher rating of 30 percent. In his substantive appeal in March 2016, he reported a specific incident in June 2015 when he said that he received treatment for a fall/injury that occurred due to dizziness and losing his balance. A June 2015 private treatment record does show that he was treated for a hip injury after losing his balance while exercising, but there is no indication that the fall was due to dizziness. In addition, the Veteran reported at a VA examination in March 2016 that he experienced dizzy spells which occurred spontaneously, occurred three to four times per week, lasted two to five minutes at a time, and were associated with a feeling of off balance. The off-balance component was noted to occur three to four times per month. The examiner diagnosed the Veteran as having spontaneous episodic brief vertigo with occasional staggering/off balance. While he noted that the assessment of dizziness/imbalance was purely descriptive/subjective and was not corroborated objectively, he explained that the Veteran most likely experienced migrainous vertigo, which is a disorder with no specific purely objective criteria. He added that he did not think that the current level of severity had changed as the Veteran reported that the staggering component had been ongoing, but that it may not have been stipulated by previous VA examiners. Thus, by resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran is entitled to an initial rating of 30 percent for vertigo manifested by dizziness and occasional staggering since the effective date of the grant of service connection. 38 U.S.C. 5107(b). Consideration of a higher analogous rating under Code 6205 for Meniere’s syndrome is not warranted due to the absence of a finding that the Veteran has a cerebellar gait, and due to the fact that evaluations for hearing impairment, tinnitus, and vertigo are not to be combined with an evaluation under Code 6205. 38 C.F.R. 4.87. 2. Migraines Headaches are assigned disability ratings based on the frequency of prostrating attacks. 38 C.F.R. § 4.12, Diagnostic Code (Code) 8100. Under Code 8100, a 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum rating of 50 percent is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 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 Veteran asserts that he should have a higher rating for his migraines as they are worse than contemplated by the currently assigned noncompensable rating. A January 2015 VA outpatient record shows that the Veteran had not seen anyone for his headaches and took Aleve for his symptoms. He said that his headaches lasted anywhere from a few hours to a day with aura. He reported light sensitivity and feeling sick to his stomach. He was started on a course of Imitrex at that time. The Veteran reported at a VA examination in June 2015 that he worked as a policeman and that his last headache had been two days earlier. He said that he took sumatriptan, which helped. He described his headaches as pulsating pain on either side of his head with sensitivity to light and sound. The examiner reported that the Veteran had characteristic prostrating attacks of migraine/non-migraine pain with less frequent attacks over the last several months. He also reported that the Veteran did not have prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. He went on to opine that the Veteran’s headache disability did not impact his ability to work. Private treatment records in July 2015 show that the Veteran was seen for sinus and headache symptoms. He reported having a migraine for four days and said that medication only brought it down to a “6” out of 10 (10 being the worst). He was assessed as having a migraine headache. The Veteran reported at a VA examination in March 2016 that he experienced headaches four to five times a month and that stress tended to be a trigger. He reported pain on both sides of his head as well as nausea and sensitivity to light. The head pain was noted to last less than one day. The examiner reported that the Veteran did not have characteristic prostrating attacks of headache pain, and that his headaches had some, but minimal impact on his work as a fulltime policeman. He noted that the Veteran had to call in sick twice in the past 6 months due to his headaches, and he occasionally had to sit in his office with the lights out for an hour or two until his headaches improved. The Veteran indicated in his March 2016 Notice of Disagreement that the frequency and severity of his headaches were more severe than what the March 2016 VA examiner noted. He said that he explained to the examiner that whenever he got a headache while driving he had to pull over and place a jacket or shirt over his face to block out the light. He also said that the prostrating attacks occurred quite often, more than what VA noted. He explained that coping with the headaches was manageable with pain killers, but that it did not stop the headaches from coming. He described them as painful to a point where he must stop whatever he was doing and seek rest and take pain medication. He added that if the headaches occurred prior to his arrival at work, he called in sick to stay in bed. The evidence outlined above clearly shows that the Veteran experiences frequent headaches. In this regard, he reported at the March 2016 VA examination that they occur four to five times a month. Moreover, he reported at the June 2015 VA examination that his last migraine had been two days earlier, and an outpatient record the following month, in July 2015, shows that he was treated for a migraine of four days duration. Notwithstanding the frequency of the Veteran’s headaches, a compensable rating requires that they be of sufficient severity to be characteristic prostrating attacks averaging one in 2 months over the last several months. In this regard, the June 2015 VA examiner reported that the Veteran had characteristic prostrating attacks of pain with less frequent attacks over the last several months. On the other hand, the March 2016 VA examiner reported that he did not have characteristic prostrating attacks of migraine/non-migraine pain. However, the March 2016 examiner did report that the Veteran had to call in sick on two occasions over the last 6 months due to his headaches. Assuming that those were prostrating attacks, these attacks averaged one in 3 months over the last 6 months. Thus, the frequency of attacks is somewhere between the criteria for a 0 percent rating and a 10 percent rating. Thus, by resolving reasonable doubt in the Veteran’s favor, the Board finds that he is entitled to a higher compensable rating of 10 percent for his migraine headache disability since the effective date of the grant of service connection. 38 U.S.C. 5107(b). Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). REASONS FOR REMAND Back Disability The Veteran’s service treatment records show that he was treated for back pain in September 1997 and he reported having recurrent back pain on a December 1997 Report of Medical History. Post-service treatment records reflect complaints and diagnosis of back pain years after service, although the Veteran asserts that the pain has continued since service. The essential question for the Board is whether the Veteran has a current back disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. In this regard, a VA examiner in March 2016 diagnosed the Veteran as having “a back disability per 21-2507” which he dated back to 1997. That dates the onset of the diagnosis to the Veteran’s service. However, it is unclear what the diagnosis is. Moreover, the examiner also noted that the Veteran had an “invalid claim” with no nexus or chronicity, and he noted that there were no documented back complaints from 1997 to 2014. Accordingly, an addendum opinion should be requested from the March 2016 VA examiner clarifying what, if any, back disability the Veteran has and the likelihood that such disability is related to his active service, including his treatment for back pain in 1997. 38 U.S.C. 5103A(d). The matter is REMANDED for the following action: 1. Return the claims file to the March 2016 VA examiner, if available, for an addendum opinion regarding the nature and etiology of his claimed back disability. If the original examiner is not available, the file should be reviewed by another examiner of similar qualifications to obtain the opinion. If an additional examination is deemed necessary by the examiner to respond to the question presented, one should be authorized. After review of the entire record, the examiner is asked to specifically address the question: Whether the Veteran has a diagnosed back disability and, if so, is it at least as likely as not (50 percent or greater probability) that any such diagnosis is related to his active service from March 1994 to March 1998. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 2. Then readjudicate the remaining issue on appeal. If the benefit sought is not granted in full, issue a supplemental statement of the case to and allow the Veteran an opportunity to respond. Thereafter, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shawkey, Counsel