Citation Nr: 1815294 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 12-30 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent disabling for major depressive disorder, characterized as posttraumatic stress disorder (PTSD) with depression and anxiety, prior to July 28, 2016, and in excess of 50 percent thereafter. 2. Entitlement to a disability rating for migraine headaches in excess of 30 percent disabling prior to November 28, 2014 and in excess of 50 percent thereafter. 3. Entitlement to an increased rating for a back disability currently evaluated as 10 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1995 to September 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran attended a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2017. At his hearing, the Veteran had an opportunity to provide testimony on all issues now on appeal. A transcript of that proceeding has been prepared and is associated with the file. The issue of entitlement to a TDIU has been raised by the record and has been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation). The issues of an increased evaluation for the Veteran's back disability and a TDIU are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's major depressive disorder, characterized as PTSD and anxiety, has been manifested by social and occupational impairment that most nearly approximates deficiencies in most areas. 2. For the entire period on appeal, the Veteran's migraine headaches have been productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for major depressive disorder have been met for the entire period on appeal. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 3.321, 4.130, Diagnostic Code (DC) 9434 (2017). 2. The criteria for a disability rating of 50 percent, the highest rating allowed, for migraine headaches have been met for the entire period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). See also, 38 U.S.C.A. § 5107(b) and Gilbert v. Derwinski, 1 Vet. App. 49. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability, which included the Veteran's Social Security Disability records. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review, except as noted below. Major depressive disorder, characterized as PTSD and anxiety, is rated under the General Rating Formula for Mental Disorders, DC 9434. Under that rating formula, a 30 percent disability rating contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal, due to such symptoms as depressed mood; anxiety; suspiciousness; weekly or less often panic attacks; chronic sleep impairment; and mild memory loss, such as forgetting names, directions, recent events. A 50 percent disability rating 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating disability rating is warranted when there is 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. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436. Accordingly, consideration is given to all symptoms associated with the Veteran's service-connected psychiatric disabilities that affect the level of occupational and social impairment. 38 C.F.R. § 4.125. Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). According to the pertinent sections of the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), a GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social or occupational functioning, but generally functions well with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social or occupational functioning. A GAF score of 41 to 50 indicates the examinee has serious symptoms or a serious impairment in social or occupational functioning. Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See Carpenter v. Principi, 8 Vet. App. at 242. Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is considered but is not determinative of the percentage VA disability rating assigned. The percentage rating is based on all of the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). Of note, the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), which was released during the pendency of the Veteran's appeal, does not make use of the GAF scale. Migraine headaches are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8100. The maximum schedular disability rating of 50 percent is warranted for migraine headaches with very frequent and completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A 10 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. A non-compensable disability rating is warranted for migraine headaches with less frequent attacks. The rating criteria do not define "prostrating," nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). By way of reference, the Board notes that according to Webster's New World Dictionary of American English, Third College Edition (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A similar definition is found in Dorland's Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness." Factual Background and Analysis As an initial matter, the Board notes that the Veteran testified that he believed his Social Security disability records would be instrumental in determining the appropriate VA disability rating. The Veteran's file contains all of his Social Security records, and while informative, the Board finds that the VA examinations are most probative, as they address the specific symptoms of the Veteran's service-connected migraines and depression and show that a higher rating is warranted. Major Depressive Disorder The Veteran contends that his mental health symptoms are more severe than the initial 30 percent disability rating and his current 50 percent disability rating. In August 2009 the Veteran was afforded a VA examination in conjunction with his claim for depression, secondary to his service-connected urinary incontinence. The examiner diagnosed Depressive Disorder, provided a positive nexus opinion, and noted a GAF score of 45. In April 2011, the Veteran attended a mental health VA examination. The examiner diagnosed the Veteran with major depressive disorder and described his symptoms as: depressed mood, chronic sleep impairment, mild memory loss, fatigue during the day, and concentration problems with "difficulty establishing and maintaining effective work/school and social relationships as he was separated from his wife and does not socialize much..." The examiner concluded that the Veteran required therapy and medication management, assigned a GAF score of 59 and noted that the Veteran's occupational and social impairment was best described as decreased in work efficiency and intermittent inability to perform occupational tasks. In November 2014 the Veteran was examined for PTSD and a diagnosis of PTSD with depression and anxiety was assigned. The symptoms noted above were listed, and in addition, the examiner noted that the Veteran had spatial disorientation and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, as well as some poor judgment and difficulty comprehending the examiner's questions. The examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In August 2016 the Veteran attended a VA mental health examination and was diagnosed with major depressive disorder, recurrent, moderate, with mild anxious distress. His symptoms were as described in the April 2011 examination, and in addition the examiner noted that the Veteran had anxious distress and concentration problems, with forgetting things. His behavior was noted as very talkative and that he had difficulty focusing during the examination. The examiner concluded that the Veteran's level of occupational and social impairment was best described as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In September 2017 the Veteran attended a VA mental health examination and was diagnosed with major depressive disorder, recurrent, mild, with mild anxious distress. His symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting and neglect of personal appearance and hygiene. The examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity. In determining the appropriate rating disability, the Board finds that the VA examiners' description of the Veteran's symptomology most closely reflects the 70 percent disability rating for mental disorders. In particular, the consistent finding of his inability to establish and maintain effective relationships, the repeated notations of his spatial disorientation and of his neglect of personal hygiene and appearance all support the finding that throughout the period on appeal, the Veteran's major depressive disorder warrants a 70 percent disability rating. However, as the medical evidence of record does not approximate the symptomology indicative of a 100 percent disability rating, the Board finds that a rating of 70 percent, but no higher, most accurately reflects the Veteran's disability due to his major depressive disorder. Additionally, the Board observes that the Veteran's current diagnosis is major depressive disorder, and that his medical records included a diagnosis of PTSD during the period on appeal. As the General Rating Formula for Mental Disorders rates major depressive disorder and PTSD using the same criteria, there is no disadvantage to the Veteran being rated for his diagnosed major depressive disorder instead of PTSD. Migraine Headaches The Veteran contends that the disability rating for his migraines prior to November 28, 2014 should be rated higher than the 30 percent assigned. The Board agrees. In a July 2009 VA examination, the examiner noted the Veteran's migraine symptoms as unilateral throbbing headaches associated with vomiting off and on for the last 10 years. The examiner noted that when the headaches occur, the Veteran "has to stay in bed and is unable to do anything," and that the headaches "occur as often as 3 times a month with each occurrence lasting for 24 hours." In November 2014 the Veteran attended a VA headaches examination. His medical history was described as bad headaches with nausea and vomiting, felt like his head would explode, and sensitivity to light and sound. The examiner noted that the Veteran had very frequent prostrating and prolonged attacks of migraine pain more than once a month, lasting more than two days. After a careful review of the record, and resolving all doubt in the Veteran's favor, the Board finds the Veteran's migraine headaches have more nearly approximated very frequent, completely prostrating and prolonged headaches, productive of severe economic inadaptability. The Board notes that the VA examinations consistently reported prolonged prostrating migraine headaches that occurred more than once a month and lasted for at least a day and that these headaches required the Veteran to stay in bed, unable to do anything. Further, the Board notes that the Veteran stated his headaches caused him to become irritable and angry and interfered with his ability to work. Thus, the Board finds that a 50 percent rating is warranted for the period prior to November 28, 2014, which is to say that the Veteran's headaches are rated as 50 percent for the entire period of this appeal. Under Diagnostic Code 8100, a 50 percent rating is the highest available rating for migraine headaches and is warranted when, as here, there are prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.214a, Diagnostic Code 8100. In light of the above, as the highest rating has been awarded under Diagnostic Code 8100, the Board concludes that the Veteran is not entitled to a higher schedular rating. As there are no other applicable diagnostic codes for rating migraine headaches, a schedular rating in excess of 50 percent for migraine headaches is not warranted. ORDER Entitlement to a 70 percent disability rating, but no higher, for the entire period on appeal for the Veteran's major depressive disorder, characterized as PTSD and anxiety, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a 50 percent disability rating for the entire period on appeal for the Veteran's migraine headaches is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Back The Veteran asserts that his back disability has worsened since his initial rating of 10 percent disabling was assigned on September 5, 2003. The Board observes that the most recent VA examination for the Veteran's back disability was performed seven years ago in July 2011. A new VA examination is necessary where there is evidence that a service-connected disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Based on the foregoing, the Board concludes a new VA examination is required to ascertain the current severity of the Veteran's service-connected low back disability. TDIU As noted in the Introduction, the issue of entitlement to a TDIU has been raised as part and parcel to the Veteran's claim for higher initial disability ratings. See Rice, 22 Vet. App. 447. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the Veteran's service-connected disabilities, including his service-connected low back disability. Thus, the issue must be remanded to the RO for appropriate development and adjudication. Accordingly, the case is REMANDED for the following action: 1. Assist the Veteran with respect to his entitlement to a TDIU, to include the proper notification letter and a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and the scheduling of any VA examinations deemed necessary. 2. Schedule the Veteran for an appropriate VA examination to assess the current nature and severity of his low back disability. All pertinent evidence of record should be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. The examiner must provide accurate and fully descriptive assessments of all symptoms and must comment upon the frequency and severity of the Veteran's symptoms in accordance with VA rating criteria. All symptoms should be recorded in detail. All clinical findings should be recorded in detail to include range of motion testing for active motion, passive motion, weight-bearing, and nonweight-bearing to the extent possible. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also indicate whether, and to what extent, the Veteran likely experiences functional loss of the spine due to pain and/or any of the other symptoms noted above during flare- ups and/or with repeated use; and, to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. All indicated studies, including x-rays should be performed. The examiner should also note whether the low back disability results in incapacitating episodes, and indicate the total duration of any episodes. The examiner should also comment on the degree of occupational impairment attributable to the Veteran's service connected low back disability. 3. Thereafter, readjudicate the claims based on the expanded record. If any remain denied, issue an appropriate SSOC, afford the Veteran and his representative the opportunity to respond, and return the case to the Board. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs