Citation Nr: 1809038	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  11-21 072	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected residual scars, status post-surgery of the bilateral 5th toe corns. 

2. Entitlement to service connection for a disorder of the feet, to include hallux valgus, right foot arthritis and right calcaneal spurs. 

3. Entitlement to service connection for a bilateral toenail disorder, claimed as bilateral toe discoloration. 

4. Entitlement to service connection for hypertension, as secondary to service-connected PTSD. 

5. Entitlement to service connection for a right arm disorder. 

6. Entitlement to service connection for a right shoulder disorder. 

7. Entitlement to service connection for a right side of the cervical spine/neck disorder. 

8. Entitlement to an initial compensable rating for right ear hearing loss, prior to April 14, 2016, and to a compensable rating for bilateral hearing loss, thereafter.

9. Entitlement to an initial rating higher than 30 percent for migraine headaches, prior to November 22, 2013, and to a compensable rating, thereafter.

10. Entitlement to an initial rating higher than 30 percent for posttraumatic stress disorder (PTSD), with depression and weight gain, prior to December 3, 2015, and to a rating higher than 70 percent, thereafter.


REPRESENTATION

Veteran represented by:	Jeffrey Bunten, Attorney


ATTORNEY FOR THE BOARD

L. Edwards Andersen, Counsel


INTRODUCTION

The Veteran had active service from May 1978 to December 1986.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

In an April 2010 rating decision, the Veteran was granted entitlement to service connection for PTSD and for right ear hearing loss, and was denied service connection for left ear hearing loss and headaches. She submitted notices of disagreement in May 2010 and September 2010; a statement of the case was issued regarding the appeals for service connection for headaches, and higher ratings for PTSD and right ear hearing loss in July 2011; a VA Form 9 was received in July 2011.

In a March 2012 rating decision, the Veteran was denied entitlement to service connection for bilateral toe discoloration, hallux valgus, arthritis of the right foot, and a lumbar spine disorder. She submitted a notice of disagreement in April 2012, a statement of the case was issued in February 2013, and a VA Form 9 was received in March 2014.

In an October 2014 rating decision, the Veteran was denied entitlement to service connection for a right arm disorder, right shoulder disorder and right cervical spine/neck disorder. A notice of disagreement was received in December 2014, a statement of the case was issued in March 2016, and a VA Form 9 was received in April 2016.

The Veteran requested a hearing before the Board.  The requested hearing was conducted in March 2015 by the undersigned Veterans Law Judge. Testimony was provided solely on the issues of entitlement to service connection for headaches, and entitlement to increased ratings for PTSD and right ear hearing loss. A transcript is associated with the claims file. 

In a May 2015 rating decision, the Veteran was denied entitlement to service connection for hypertension. A notice of disagreement was received in July 2015, a statement of the case was issued in March 2016, and a VA Form 9 was received in April 2016.

In May 2015, the Board remanded the issues of entitlement to service connection for headaches, a disorder of the feet, to include hallux valgus and right foot arthritis, a disability manifested by bilateral toe discoloration, a low back disorder, and entitlement to increased ratings for PTSD and right ear hearing loss.

The issue of entitlement ot service connection for headaches was granted in a March 2016 rating decision. A notice of disagreement with the evaluation assigned was received in April 2016, a statemetn of the case was issued in September 2016, and a VA Form 9 was received in October 2016.

In a March 2016 rating decision, the RO granted an increased evaluation of 70 percent for PTSD, effective December 2015. Despite the grant of this inccreased evaluation, the Veteran has not been awarded the highest posible evaluation. As a result, she is presumed to be seeking the maximum possible evlauation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 70 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993).

Additionally, the Board notes that the Veteran was granted service connection for left ear hearing loss in a November 2016 rating decision, effective April 2016. Prior to that date, the Veteran was service connected solely for the right ear. As such, the issue has been reprhased as stated on the title page of this decision.

In March 2017, the Board remanded this claim to schedule a hearing.  As noted in the Remand, in several of her VA Form 9's, the Veteran indicated that she desired to have a videoconference hearing; however, in a January 2017 statement, it was clarified that she wished to have a DRO hearing for all issues on appeal. A hearing was held in June 2017. A transcript is associated with the claims file.

The issues of entitlement to service connection for: (1) a low back disorder, to include on a secondary basis; (2) a disorder of the feet, to include hallux valgus, right foot arthritis and right calcaneal spurs; (3) a disorder manifested by bilateral toenail discoloration; (4) hypertension, to include on a secondary basis; (5) a right arm disorder; (6) a right shoulder disorder; and (7) a right side of the neck/cervical spine disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. Prior to April 14, 2016, the Veteran's right ear hearing loss was manifested by pure tone threshold averages and speech recognition scores that corresponded to no more than a level "I" hearing on the right and an assigned level "I" hearing for his nonservice-connected left ear.

2. From April 14, 2016, the Veteran's bilateral hearing loss was manifested by pure tone threshold averages in the right ear corresponding to no more than a level "I" hearing on the right and no more than a level "I" hearing for the left ear.

3. Prior to November 22, 2013, the Veteran's migraines were not very frequent completely prostrating and manifested by prolonged attacks productive of severe economic inadaptability.

4. From November 22, 2013, the Veteran's migraines are not manifested by characteristic prostrating attacks.

5. Prior to December 3, 2015, the Veteran's PTSD, with depression and weight gain, was manifested by symptoms that more nearly approximate occupational and social impairment with reduced reliability and productivity.

6. From December 3, 2015, the Veteran's PTSD, with depression and weight gain, is manifested by symptoms that more nearly approximate total occupational and social impairment.



CONCLUSIONS OF LAW

1. Prior to April 14, 2016, the criteria for an initial compensable rating for right ear hearing loss are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (2017).

2. From April 14, 2016, the criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100 (2017).

3. Prior to November 22, 2013, the criteria for an initial rating higher than 30 percent for migraines are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017).

4. From November 22, 2013, the criteria for a compensable rating for migraines are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2017).

5. Prior to December 3, 2015, the criteria for an initial rating of 50 percent, but no higher, for PTSD with depression and weight gain, have been met. 38 U.S.C. §§1110, 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.22, 4.130, Diagnostic Code 9411 (2017).

6. From December 3, 2015, the criteria for a rating of 100 percent for PTSD with depression and weight gain have been met. 38 U.S.C. §§1110, 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.22, 4.130, Diagnostic Code 9411 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). 

The Board notes that where the underlying claim for service connection has been granted and there is disagreement regarding a downstream issue, such as entitlement to higher initial ratings, the claim as it arose in its initial context has been substantiated and there is no need to provide additional VCAA notice concerning the downstream issue. Goodwin v. Peake, 22 Vet. App. 128, 134 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C. § 7105 (d) require VA to issue a statement of the case (SOC) concerning the downstream issue if the disagreement is not resolved. The Veteran received SOC's for these issues in July 2011 and September 2016.

VA also has a duty to assist a claimant with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). This duty includes the obtaining of identified records to substantiate the claim. VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matters decided herein has been obtained. The AOJ has obtained the Veteran's VA treatment records, private medical records, and Social Security records have been associated with the claims file. Additionally, the Veteran was afforded adequate VA examinations for the claimed disabilities on appeal. 

In May 2015 and March 2017, the Board remanded these claims for additional development. The evidence indicates that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

The VA's duty to assist in the development of the claims is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

As previously noted, the Veteran was provided an opportunity to set forth his contentions before a Veterans Law Judge in March 2015. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, because the Veteran has not raised a potential Bryant problem in this appeal, no further discussion of Bryant is necessary. See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claims.

II. Increased Ratings

The Veteran seeks entitlement to initial increased ratings for her hearing loss, migraine headaches and PTSD.



Applicable Laws

Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

In general, when 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). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. 

In its evaluation, the Board shall consider all information and lay and medical evidence that is of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b).

A. Entitlement to an Initial Compensable Rating for Right Ear Hearing Loss, Prior to April 14, 2016, and to a Compensable Rating for Bilateral Hearing Loss, Thereafter

Service connection for right ear hearing loss was established by an April 2010 rating decision, at which time a noncompensable rating was assigned, effective from September 2, 2009. The Veteran submitted a notice of disagreement with the rating assigned.

In a November 2016 rating decision, the Veteran was granted entitlement to service connection for left ear hearing loss, resulting in service connection for bilateral hearing loss, and assigned a noncompensable rating, effective April 14, 2016. 

The basis for evaluating defective hearing is the impairment of auditory acuity as measured by pure tone threshold averages, within the range of 1000 to 4000 Hertz and speech discrimination using the Maryland CNC word recognition test. 38 C.F.R. § 4.85. 

Section 4.85(a) requires that an examination for hearing loss be conducted by a state-licensed audiologist, and must include both a controlled speech discrimination test (Maryland CNC test) and a pure tone audiometry test. Examinations must be conducted without the use of hearing aids. Section 4.85(c) indicates that Table VIA, "Numeric designation of Hearing Impairment Based Only on Puretone Threshold Average," will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of inconsistent speech discrimination scores.

Pure tone threshold averages are derived by dividing the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 by four. Id.  The pure tone threshold averages and the Maryland CNC test scores are given a numeric designation, which are then used to determine the current level of disability based upon a pre-designated schedule. Tables VI and VII in 38 C.F.R. § 4.85 (2017). Under these criteria, the assignment of a disability rating is a "mechanical" process of comparing the audiometric evaluation to the numeric designations in the rating schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation, from Table VII, the nonservice-connected ear (the Veteran's left ear) will be assigned a Roman numeral designation of I, subject to the provisions of 38 U.S.C. § 3.383; 38 C.F.R. § 4.85 (f).

Prior to April 14, 2016

As noted, prior to April 14, 2016, the Veteran was service connected solely for the right ear.

The Veteran was afforded a VA examination in February 2008; however, the examination was not completed due to impacted cerumen in the right ear.

The Veteran was afforded a VA examination in March 2010. On the authorized audiological evaluation in March 2010, pure tone thresholds, in decibels, were as follows:



      HERTZ



1000
2000
3000
4000
RIGHT
20
30
30
30

The Veteran's March 2010 VA audiology examination shows a right ear pure tone threshold average of 28 decibels with speech recognition of 94 percent. This corresponds to a numeric designation of "I." Table VI in 38 C.F.R. § 4.85. Her left ear was not service connected at this time, so it is assigned a numeric designation of "I." These combined numeric designations then result in a rating of 0 percent under Table VII. 38 C.F.R. § 4.85, Table VII. 

The Veteran was afforded a VA examination in March 2011. On the authorized audiological evaluation in March 2011, pure tone thresholds, in decibels, were as follows:



      HERTZ



1000
2000
3000
4000
RIGHT
20
25
25
20

The Veteran's March 2011 VA audiology examination shows a right ear pure tone threshold average of 23 decibels with speech recognition of 94 percent. This corresponds to a numeric designation of "I." Table VI in 38 C.F.R. § 4.85. Her left ear was not service connected at this time, so it is assigned a numeric designation of "I." These combined numeric designations then result in a rating of 0 percent under Table VII. 38 C.F.R. § 4.85, Table VII. 

The Veteran was afforded a VA examination in November 2013. On the authorized audiological evaluation in November 2013, pure tone thresholds, in decibels, were as follows:



      HERTZ



1000
2000
3000
4000
RIGHT
25
25
20
10

The Veteran's November 2013 VA audiology examination shows a right ear pure tone threshold average of 20 decibels with speech recognition of 94 percent. This corresponds to a numeric designation of "I." Table VI in 38 C.F.R. § 4.85. Her left ear was not service connected at this time, so it is assigned a numeric designation of "I." These combined numeric designations then result in a rating of 0 percent under Table VII. 38 C.F.R. § 4.85, Table VII.

The Veteran was afforded a VA examination in November 2015. On the authorized audiological evaluation in November 2015, pure tone thresholds, in decibels, were as follows:



      HERTZ



1000
2000
3000
4000
RIGHT
20
25
20
20

The Veteran's November 2015 VA audiology examination shows a right ear pure tone threshold average of 20 decibels with speech recognition of 96 percent. This corresponds to a numeric designation of "I." Table VI in 38 C.F.R. § 4.85. Her left ear was not service connected at this time, so it is assigned a numeric designation of "I." These combined numeric designations then result in a rating of 0 percent under Table VII. 38 C.F.R. § 4.85, Table VII.

Several VA and private treatment records note the results of audiograms and speech/word recognitions scores but they do not contain enough information to use for rating purposes.

The medical evidence of record also does not indicate the Veteran meets the requirements for a higher rating based on 38 C.F.R. § 4.86.

As noted above, disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned based on audiometric evaluations. The Board, however, has considered the Veteran's statements regarding the severity of her hearing loss and how it has affected her daily activities. Unfortunately, the Board finds that the more probative evidence concerning the level of severity of this disorder consists of the audiometric testing results of record. Therefore, a compensable rating is not warranted, prior to April 14, 2016. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100.

From April 14, 2016

As noted, effective April 14, 2016, the Veteran is service connected for her bilateral hearing loss.

The Veteran was afforded a VA examination in August 2017. On the authorized audiological evaluation in August 2017, pure tone thresholds, in decibels, were as follows:



      HERTZ



1000
2000
3000
4000
RIGHT
20
30
20
20
LEFT
20
25
20
45

The examiner indicated that word discrimination scores were not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc. that make combined use of puretone average and word recognition scores inappropriate. Therefore, Table VIa, based only on puretone threshold average will be used. The Veteran's August 2017 VA audiology examination shows a right ear pure tone threshold average of 23 decibels, which corresponds to a numeric designation of "I." The Veteran's left ear pure tone threshold average was 28, which corresponds to a numeric designation of "I." Table VIa in 38 C.F.R. § 4.85. These combined numeric designations then result in a rating of 0 percent under Table VII. 38 C.F.R. § 4.85, Table VII.

Several VA and private treatment records note the results of audiograms and speech/word recognitions scores but they do not contain enough information to use for rating purposes.

The medical evidence of record also does not indicate the Veteran meets the requirements for a higher rating based on 38 C.F.R. § 4.86.

As noted above, disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned based on audiometric evaluations. The Board, however, has considered the Veteran's statements regarding the severity of her hearing loss and how it has affected her daily activities. Unfortunately, the Board finds that the more probative evidence concerning the level of severity of this disorder consists of the audiometric testing results of record. Therefore, a compensable rating is not warranted, from April 14, 2016. See 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100.

As the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. See Gilbert, 1 Vet. App. 49, 54.

B. Entitlement to an Initial Rating Higher than 30 Percent for Migraine Headaches, Prior to November 22, 2013, and to a Compensable Rating, Thereafter

Service connection for migraine headaches was established by a March 2016 rating decision, at which time a 30 percent rating was assigned, effective September 2, 2009, and a noncompensable rating was assigned, effective November 22, 2013.

The Veteran's disability is rated under Diagnostic Code 8100, which contemplates migraine headaches. Under Diagnostic Code 8100, a noncompensable evaluation is warranted for less frequent attacks. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100.

Prior to November 22, 2013

Prior to November 22, 2013, the Veteran was assigned a disability rating of 30 percent.

VA treatment records indicate in September 2009 the Veteran complained of episodic headaches for 5-6 years that had increased since November of 2008. She described that they were located on the right side of her head with increased tinnitus symptoms that responding to meclizine.

The Veteran was afforded a VA examination in January 2010. The Veteran described that she experiences two kinds of headaches, one in the frontal central area and the other at her right ear, which is accompanied by dizziness and blurring of her vision, requiring her to go to bed. The Veteran indicated that the prostrating headaches occurred two to three times a month. She reported that she must sit down and the headaches interfere with activities of daily living. It was also noted that the headaches interfered with her work because she had to stop whatever she was doing in order to take care of the headache. The examiner noted the Veteran was unemployed. 

As noted, a 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In the January 2010 VA examination, the examiner noted the Veteran had headaches with dizziness and associated vision changes, which resulted in the Veteran needing to stop work. The Veteran's headaches were clearly prostrating; however, the Veteran reported that these headaches occurred only two or three times a month. Therefore, the Veteran does not meet the criteria for a 50 percent rating for headaches, prior to November 22, 2013, as there is no evidence that she has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 

In assessing the severity of the disability under consideration, the Board has considered the Veteran's assertions regarding her symptoms, which she is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criterion needed to support a higher rating requires medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings that, as indicated above, do not support a rating higher than 30 percent, pursuant to the applicable criteria, prior to November 22, 2013.


From November 22, 2013

From November 22, 2013, the Veteran is assigned a noncompensable rating for her migraines.

The Veteran was afforded a VA examination in November 2013. She again reported two types of headaches, one only occurring after nightmares, and another preceded by tinnitus. She reported imbalance, dizziness with nausea and vomiting associated with approximately 50 percent of the headaches. The Veteran stated that she has not missed any schoolwork due to the headaches and that taking Motrin usually helps her symptoms, and she was nearing completion of a master's degree in gerontology. The frequency of headaches was noted to be 3 to 4 times a week. The examiner indicated that the Veteran did not have prostrating attacks of headache pain.

The Veteran was afforded a VA examination in October 2015. It was noted that the Veteran experienced frontal headaches with nausea, sensitivity to light, sensitivity to sound and changes in vision, lasting less than a day. The examiner stated that the Veteran did not have characteristic prostrating attacks of migraine/non-migraine headache pain, although she has had to occasionally miss work due to her headaches. 

The Veteran testified in June 2017 that she experiences headaches, at least weekly, and sometimes daily, that require her to go to bed. She asserted that they have been this severity for approximately two years.

The Veteran was afforded a VA examination in August 2017. She reported headaches approximately once a week, and that she must take medication and go to sleep for the headaches to go away. The examiner stated that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner indicated that the Veteran's migraine headaches have been present for many years, and the Veteran completed 30 years of work despite the headaches.

After reviewing the evidence of record, the Board finds that the probative evidence does not indicate that the Veteran's headaches were prostrating, from November 22, 2013. The Board acknowledges that the Veteran experienced frequent migraine episodes throughout the course of this appeal. Unfortunately, the probative evidence does not show that these headaches produced symptoms that are considered prostrating, according to the VA medical examiners.

The Veteran contends that her service-connected migraines are more disabling than currently evaluated. The record evidence, however, does not support her assertions. It shows instead that, although she continues to complain of migraine headaches, they are manifested by, at worst, less frequent attacks of migraine pain (i.e., a zero percent rating under Diagnostic Code 8100), from November 22, 2013. The Board finds it highly significant that after examinations in November 2013, October 2015, and August 2017, the VA examiners indicated the Veteran did not suffer from prostrating attacks. The Board acknowledges that the Veteran has reported that she must take medication and go to sleep when she experiences headaches. There is no medical evidence, however, that the Veteran experiences migraines with characteristic prostrating attacks averaging one in 2 months over the past several months (i.e., at least a 10 percent rating under Diagnostic Code 8100) such that a compensable rating is warranted for this disability, from November 22, 2013. 

In assessing the severity of the disability under consideration, the Board has considered the Veteran's assertions regarding her symptoms, which she is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criterion needed to support a higher rating requires medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings that, as indicated above, do not support a compensable rating, pursuant to the applicable criteria, from November 22, 2013.

As the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply and the claim must be denied. See Gilbert, 1 Vet. App. 49, 54.

C. Entitlement to an Initial Rating Higher than 30 Percent for PTSD, with Depression and Weight Gain, Prior to December 3, 2015, and to a Rating Higher than 70 Percent, Thereafter

Service connection for PTSD with depression and weight gain was established by an April 2010 rating decision, at which time a 30 percent rating was assigned, effective from September 2, 2009. The Veteran submitted a notice of disagreement with the rating assigned.

In a March 2016 rating decision, the Veteran was granted an increased rating and assigned a disability rating of 70 percent, effective December 3, 2015. 

The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). 

Accordingly, the evidence considered in determining the level of impairment is not restricted to the symptoms provided in the diagnostic codes. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders. 

Prior to December 3, 2015, the Veteran is rated as 30 percent disabled under 38 C.F.R. § 4.130, Diagnostic Code 9411. A rating of 30 percent is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. 

A rating of 50 percent is warranted 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 (retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. Id.  

From December 3, 2015, the Veteran is rated at 70 percent. A 70 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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 the inability to establish and maintain effective relationships. Id.

A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly 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. Id.

A global assessment of functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996).

Prior to December 3, 2015

Having carefully considered the Veteran's lay contentions in light of the evidence of record and the applicable law, the Board finds that the overall evidence shows that the Veteran's disability more closely approximated a 50 percent disability rating, prior to December 3, 2015. 

The Board notes that during the February 2010 VA examination, the Veteran was clean, well-groomed and speech was of normal rate and rhythm, but her thoughts were marginally organized and she was a poor historian. Her affect was tearful and her attention was poor. The examiner also noted that her memory was poor and abstract reasoning was limited. The examiner stated that the Veteran was assigned a GAF score of 55 due to the frequency and severity of the Veteran's intrusive thoughts, anhedonia, and social isolation.

The Veteran also indicated during a March 2011 VA examination that she remained socially isolated, other than attending church and spending time with her daughters. The examiner noted that the Veteran continued to report sleep disturbance with nightmares nearly nightly, social isolation, detachment from others, foreshortened future and social discomfort. The examiner opined that the Veteran did not appear to display any different symptomatology or level of impairment than what she presented at her initial VA examination in February 2010.

During a November 2013 VA examination, the Veteran reported that she spent most of her days looking at television, laying around crying, hoping one of her daughters would call. The examiner stated that Veteran's current mental health symptoms were moderate in severity and resulted in moderate functional impairment and quality of life reduction. Continuing, the examiner explained that the Veteran's symptoms most significantly affect her social functioning and ability to form and maintain romantic relationships; however, her educational/occupational functioning appeared to be intact. A GAF score of 54 was assigned.

Based on this evidence, the Board finds that a rating of 50 percent is warranted, prior to December 3, 2015, as the Veteran's PTSD was productive of disturbances of motivation and mood, difficulty in establishing and maintaining effective social relationships, and occasional impairment of memory. However, a rating higher than 50 percent, prior to December 3, 2015, is not warranted, as the Veteran did not exhibit symptoms indicating occupational and social impairment with deficiencies in most areas. Instead, the evidence consistently showed that the Veteran's PTSD was not manifested by symptoms such as suicidal ideation, near continuous panic, spatial disorientation, or neglect of personal appearance. Indeed, the Veteran was consistently found to be oriented in all spheres, she was appropriately dressed and groomed and did not report near-continuous panic. Furthermore, as noted in the November 2013 VA examination, the Veteran was able to complete all the coursework required for her Master's Degree in Gerontology. Thus, the Board finds that based on the overall record evidence, including the Veteran's lay statements, the effects of the Veteran's PTSD symptoms are of a type, frequency, and severity that are in accord with the level of impairment contemplated by the criteria for a 50 percent schedular rating, prior to December 3, 2015.


From December 3, 2015

In a March 2016 rating decision, the Veteran's disability rating was increased to 70 percent for PTSD, effective December 3, 2015.

To warrant an increased rating of 100 percent, the Veteran's PTSD must be manifested by symptoms that more nearly approximate total occupational and social impairment.

After analysis of the evidence of record, the Board finds that the Veteran's PTSD more nearly approximates a 100 percent rating, from December 3, 2015.

During the December 2015 VA examination, the Veteran indicated she lived alone, she was not working, and that she only bathed once a month. She reported she did not brush her teeth regularly. She denied any hobbies and indicated she attended church approximately 10 times a year. The Veteran reported she only went outside of her house to get her mail one time a week or take out the trash. She reported she did nothing but sleeps and watches television. She reported some suicidal ideation, approximately twice in the prior month. The examiner indicated that the Veteran performed her activities of daily living poorly and had minimal hygiene and a poor diet. The examiner stated the Veteran's speech was slow and impoverished and concentration was poor. Her mood/affect was dysphoric/flat. 

Similarly, during the August 2017 VA examination, the Veteran again reported that she lived alone, was not married, and had made no attempts at obtaining employment. She reported a 30-pound weight gain in the past two years. The Veteran indicated she bathes once every 7 to 10 days, did laundry once a month, but had not cleaned in 2 months. The Veteran stated she did not know what day it was half the time, and that when she is not sleeping, she watches television. She indicated she attended church approximately 5 times a year, but denied time outside of the house, otherwise. The examiner stated that the Veteran's grooming and hygiene were marginal, at best, she had poor eye contact, and was "appallingly regressed." The examiner also indicated that the Veteran had suicidal ideation, assaultive urges without acting out, labile affect, chronic sleep impairment, depressed mood, flattened affect and anxiety.

The evidence indicates the Veteran has total social impairment, as she has no social relationships and is not working due to her lack of energy, motivation and drive, which the August 2017 VA examiner indicated were attributable to her psychiatric disability. Thus, the Board finds that based on the overall record evidence, including the Veteran's lay statements, the effects of the Veteran's PTSD symptoms are of a type, frequency, and severity that are in accord with the level of impairment contemplated by the criteria for a 100 percent schedular rating, from December 3, 2015, as the Veteran experiences total occupational and social impairment.

ORDER

Entitlement to an initial compensable rating for right ear hearing loss, prior to April 14, 2016, and to a compensable rating for bilateral hearing loss, thereafter, is denied.

Entitlement to an initial rating higher than 30 percent for migraine headaches, prior to November 22, 2013, and to a compensable rating, thereafter, is denied.

Prior to December 3, 2015, entitlement to an initial rating of 50 percent, but no higher, for PTSD, with depression and weight gain, is granted, subject to the laws and regulations governing the award of monetary benefits.

From December 3, 2015, entitlement to a rating higher of 100 percent for PTSD with depression and weight gain is granted, subject to the laws and regulations governing the award of monetary benefits.


REMAND

The Veteran seeks entitlement to service connection for a low back disorder, a disorder of the feet, to include hallux valgus, right foot arthritis and right calcaneal spurs, a bilateral toenail disorder, hypertension, a right arm disorder, a right shoulder disorder, and a right side of the cervical spine/neck disorder.

Low Back Disorder

The Veteran seeks entitlement to service connection for a low back disorder. She asserts that her low back disorder is due to an injury during service, or in the alternative, is secondary to her service-connected foot disorder. See June 2017 RO Hearing, page 50. To date, a medical opinion has not been obtained regarding whether the Veteran's lumbar spine disorder is secondary to her service-connected foot disability. On remand, this medical opinion must be obtained.

Additionally, the Board notes that a VA opinion was obtained in March 2012, at which time the VA examiner opined that the Veteran's low back disorder was less likely than not due to service because she had no significant back problems at service discharge. The Board notes, however, that during the October 1986 Report of Medical History for her separation examination, the medical examiner noted that the Veteran had recurrent low back pain and was currently being followed by physical therapy for sacroiliac joint dysfunction. The March 2012 VA examiner failed to note or discuss this evidence. On remand, an addendum opinion should be obtained. 

Disorder of the Feet, to Include Hallux Valgus, Right Foot Arthritis and Right Calcaneal Spurs

The Veteran seeks entitlement to service connection for a disorder of the feet, to include hallux valgus, right foot arthritis, and right calcaneal spurs. 

A VA medical opinion was obtained in February 2012, at which time the examiner opined that the Veteran's foot problems were at least as likely as not due to service because there was no history of foot problems prior to service.

The RO requested clarification of the opinion, and in March 2012, the VA examiner stated that considering the Veteran's history and timespan, the Veteran's "bilateral 5th corns with residual scars is service related. The other diagnoses are not." No further explanation was provided.

The Board finds the opinions of record to be inadequate as they do not provide any rationale. On remand, a thorough medical opinion with supporting rationale must be obtained.


Bilateral Toenail Disorder

The Board notes that this appeal was developed as a claim for bilateral toe discoloration. However, the Veteran clarified during her hearing in June 2017 that it is discoloration and peeling of her toenails that she wishes to claim, particularly the bilateral great toenails. See June 2017 Hearing Transcript, page 47. She described the disorder as brittle, discoloration and peeling of the toenails.

The Board finds the Veteran should be sent for a new VA examination that focuses on her toenails and diagnoses any possible disorder of the toenails. A medical opinion should also be obtained.

Hypertension

The Veteran seeks entitlement to service connection for hypertension, as secondary to her PTSD. 

A VA medical opinion was obtained in November 2015. The examiner opined that the Veteran's hypertension was less likely than not incurred in service because she did not have hypertension while on active duty. The examiner then reported, "It is not stated that hypertension is claimed on the basis of PTSD. If so, the most recent literature does not support it." The Board finds this opinion to be inadequate. On remand, a thorough medical opinion must be obtained regarding whether the Veteran's hypertension is proximately due to or aggravated by her PTSD. A complete rationale must be provided.

Right Arm, Right Shoulder, Right Side of Neck/Cervical Spine Disorders

The Veteran seeks entitlement to service connection for a right arm disorder, and a right side of the neck/cervical spine disorder. She asserts these disorders are due to injuries sustained during service. The Veteran testified that these injuries were the result of falling off a jeep during service onto her right side. Service treatment records document treatment for pain in the right side of the neck to the right shoulder area in March 1982. She was advised to apply moist heat and avoid strenuous use.  She also complained of right shoulder and right arm pain after an assault in May 1984. The Veteran was assessed with a right shoulder strain and muscle spasm. Currently, the Veteran is diagnosed with cervical degenerative joint disease and was scheduled for physical therapy for the neck and strengthening of shoulder muscles. See February 2015 VA treatment note.  In August 2015, the Veteran was assessed with neck pain with pain and numbness radiating to the right arm.

To date, the Veteran has not yet been afforded a VA examination for her claimed right arm, right shoulder, and right side of neck /cervical spine disorders. On remand, she should be afforded a VA examination and medical opinions must be obtained.


Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and ask that she identify the provider(s) of any and all evaluations and/or treatment she has received for disabilities remaining on appeal and to provide authorizations for VA to obtain records of any such private treatment.  Obtain for the record complete clinical records of all pertinent evaluations and/or treatment (records of which are not already associated with the record) from the provider identified.  If any records sought are unavailable, the reason for their unavailability must be noted in the record.  If a private provider does not respond to VA's request for identified records sought, the Veteran must be notified and reminded that ultimately it is her responsibility to ensure that private treatment records are reviewed.

2. After instruction (1) is completed, obtain an addendum opinion for the Veteran's low back disorder.  The examiner is requested to review all pertinent records associated with the claims file. The examiner should state that the claims file was reviewed.  The examiner should respond to the following:

a) Please identify (by diagnosis) each low back disorder found/shown by the record.

b) Please identify the likely cause for each low back disorder entity diagnosed.  Specifically, is it at least as likely as not (a 50 percent or greater probability):

i) That any such disorder had its onset during service or within one year from discharge, or is any way causally or etiologically related to her active service?  The examiner is asked to comment on (1) the October 1986 Report of Medical History for the Veteran's separation examination, noting that she had recurrent low back symptoms and treatment during service and was currently being followed by physical therapy for sacroiliac joint dysfunction, and (2) the Veteran's lay testimony regarding any pertinent symptoms; or, 

ii) That any such disorder is proximately due to or aggravated (beyond a natural progression) by her service-connected residual scars, status post-surgery of the bilateral 5th toe corns? 

If a low back disorder shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so.

A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate.  (Providing an opinion or conclusion without a thorough explanation will delay processing of the claim or may also result in a clarification opinion being requested).

3. After instruction (1) is completed, obtain an addendum opinion for the Veteran's foot disorders, to include hallux valgus, right foot arthritis and right calcaneal spurs.  The examiner is requested to review all pertinent records associated with the claims file. The examiner should state that the claims file was reviewed.  The examiner should respond to the following:

a) Please identify the likely cause of the Veteran's hallux valgus.  Specifically, is it at least as likely as not (a 50 percent or greater probability) that this disorder had an onset during service or is in any way causally or etiologically related to her active service?

If the Veteran's hallux valgus shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so.

b) Please identify the likely cause of the Veteran's right foot arthritis.  Specifically, is it at least as likely as not (a 50 percent or greater probability) that this disorder had an onset during service or within one year of discharge, or is in any way causally or etiologically related to her active service?

If the Veteran's right foot arthritis shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so.

c) Please identify the likely cause of the Veteran's right calcaneal spurs.  Specifically, is it at least as likely as not (a 50 percent or greater probability) that this disorder had an onset during service or is in any way causally or etiologically related to her active service?

If the Veteran's right calcaneal spurs shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so.

The examiner is asked to review the lay statements as they relate to the development of her foot disorders and provide comment/information as to how the statements comport with generally accepted medical norms. 

A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate.  (Providing an opinion or conclusion without a thorough explanation will delay processing of the claim or may also result in a clarification opinion being requested).  

4. After instruction (1) is completed, afford the Veteran a VA examination for her bilateral toenail disorder.  All testing deemed necessary by the examiner should be performed and the results reported in detail.  The Veteran clarified that she is seeking service connection for the condition that causes her toenails to be brittle, discolored and peel.

The claims folder must be made available to the examiner for review in conjunction with the examination.  The examiner should respond to the following:

Please identify (by diagnosis) each disorder of the toenails of each foot found/shown by the record.

Please identify the likely cause for each bilateral toenail disorder entity diagnosed.  Specifically, is it at least as likely as not (a 50 percent or greater probability) that any such disorder had an onset during service or is any way causally or etiologically related to service?  The examiner is asked to comment on the documented in-service toenail symptoms.

The examiner is asked to review the lay statements as they relate to the development of any bilateral toenail disorder and provide comment/information as to how the statements comport with generally accepted medical norms. 

If a toenail disorder of either foot is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so.

A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate.  (Providing an opinion or conclusion without a thorough explanation will delay processing of the claim or may also result in a clarification opinion being requested).

5. After instruction (1) is completed, obtain an addendum opinion for the Veteran's hypertension. The examiner is requested to review all pertinent records associated with the claims file. The examiner should state that the claims file was reviewed.  The examiner should respond to the following:

Please identify the likely cause of the Veteran's hypertension.  Specifically, is it at least as likely as not (a 50 percent or greater probability) that this disorder is caused or aggravated (beyond a natural progression) by her service-connected PTSD or the medication taken therefor?

The examiner is asked to review the lay statements as they relate to the development of her hypertension and provide comment/information as to how the statements comport with generally accepted medical norms. 

A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate.  (Providing an opinion or conclusion without a thorough explanation will delay processing of the claim or may also result in a clarification opinion being requested).

6. After instruction (1) is completed, afford the Veteran a VA examination for her right arm, right shoulder, and right side of the neck/cervical spine disorders.  All testing deemed necessary by the examiner should be performed and the results reported in detail.  The claims folder must be made available to the examiner for review in conjunction with the examination.  The examiner should respond to the following:

a) Please identify (by diagnosis) each right arm disorder found/shown by the record.

Please identify the likely cause for each right arm disorder entity diagnosed.  Specifically, is it at least as likely as not (a 50 percent or greater probability) that any such disorder is causally or etiologically due to service, or had an onset during service, to include the documented in-service right arm symptoms?

If a right arm disorder shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so.

b) Please identify (by diagnosis) each right shoulder disorder found/shown by the record.

Please identify the likely cause for each right shoulder disorder entity diagnosed.  Specifically, is it at least as likely as not (a 50 percent or greater probability) that any such disorder is causally or etiologically due to service, or had an onset during service, to include the documented in-service right shoulder symptoms?

If a right shoulder disorder shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so.

c) Please identify (by diagnosis) each disorder of the right side of neck/cervical spine found/shown by the record.

Please identify the likely cause for each disorder of the right side of the neck/cervical spine entity diagnosed.  Specifically, is it at least as likely as not (a 50 percent or greater probability) that any such disorder is causally or etiologically due to service, or had an onset during service, to include the documented in-service neck symptoms?

If a right side of the neck/cervical spine disorder shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why that is so.

The examiner is asked to review the lay statements as they relate to the development of her disorders and provide information as to how the statements comport with generally accepted medical norms. 

A detailed explanation (rationale) is requested for all opinions provided, citing to supporting clinical data and/or medical literature, as appropriate.  (Providing an opinion or conclusion without a thorough explanation will delay processing of the claim or may also result in a clarification opinion being requested).

7. Then, the AOJ should review the record, conduct any additional development deemed necessary, and readjudicate the claims.  If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.  The case should be returned to the Board for further appellate consideration, if otherwise in order. 

The Board intimates no opinion as to the outcome of this case.  The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2012).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs