Citation Nr: 20004149 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 18-52 948 DATE: January 16, 2020 ORDER An initial rating in excess of 50 percent for migraines is denied. A rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with bulimia is denied. An effective date prior to December 15, 2015, for the grant of service connection for migraines is denied. An effective date prior to December 15, 2015, for the grant of a 50 percent rating for PTSD with bulimia is denied. FINDINGS OF FACT 1. The Veteran had active service from February 1996 to June 2001, and from March 2002 to March 2014. 2. The Veteran is in receipt of the maximum schedular rating for migraine headaches. 3. PTSD has been manifested by subjective complaints of anxiety, panic attacks, poor motivation, hypervigilance, poor sleep and depression; objective findings have not revealed impairment with deficiencies in most areas. 4. The claim for service connection for migraines was received by VA on December 15, 2015; no prior unadjudicated claim for this disability is of record. 5. The Veteran filed a claim for an increased rating for PTSD which was received by VA on December 15, 2015; it is not factually ascertainable by the available medical evidence that her PTSD justified a 50 percent rating prior to this date. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code (DC) 8100 (2018). 2. The criteria for a rating in excess of 50 percent for PTSD with bulimia have not met. 38 U.S.C. §§ 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.15, 3.321(b)(1), 4.3, 4.7, 4.126, 4.130, DC 9411 (2018). 3. The criteria for an effective date prior to December 15, 2015, for the grant of service connection for migraines have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A,5107, 5110 (2012); 38 C.F.R. § 3.400 (2018). 4. The criteria for an effective date prior to December 15, 2015, for the grant of a 50 percent rating for PTSD have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A,5107, 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Migraines Under DC 8100, a 50 percent rating is warranted when migraine headaches are very frequently completely prostrating and prolonged with attacks productive of severe economic inadaptability. The Veteran has been in receipt of a 50 percent rating for headaches since service connection was granted in December 2015. The 50 percent rating is the highest schedular rating under DC 8100. There are no other diagnostic codes that are applicable for rating tension headaches. Therefore, a schedular rating in excess of 50 percent is not warranted. PTSD The Veteran contends that her PTSD is more severe than is rated by VA and increased rating is warranted. Historically, she was in receipt of a 30 percent rating when service connection was granted, effective March 4, 2014. On December 15, 2015, in accordance with a claim for increase, the rating was raised to 50 percent. PTSD is rated under DC 9411 and utilizes the General Rating Formula for Mental Disorders. Under this diagnostic code, a 50 percent rating is warranted where 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 understanding complex commands; impairment of short and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where 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); and inability to establish and maintain effective relationships. In evaluating psychiatric disorders, the Board is mindful that 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 only 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). At a March 2016 VA examination, the Veteran complained of anxiety, anhedonia, nightmares, and sleep disturbances. The examiner found that she exhibited signs of depression, suspiciousness, chronic sleep impairment, anxiety, flattened affect, and disturbances in motivation and mood with difficulty in establishing and maintaining effective work and social relationships. Additionally, the examiner noted that she demonstrated a wide range of affect congruent with their topic of conversation, was alert and oriented, had adequate grooming and hygiene, fluent speech, logical thought processes, and made eye contact. No obvious cognitive issues were noted. While the examiner found that her symptoms were 90 percent attributable to PTSD, that PTSD with bulimia resulted in occupational and social impairment with an occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks. However, that she was generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. With regard to bulimia, the examiner found that the Veteran had binge eating followed by self-induced vomiting or other measures to prevent weight gain, with a diagnosis of an eating disorder, but without incapacitating episodes. The examiner found that bulimia did not result in functional loss which prevented her from working. VA treatment notes from April 2016 revealed that the Veteran was receiving treatment for bulimia. Specifically, she reported eating less, but that she felt better and had great support in her sister-in-law. Treatment notes from December 2016 showed increased anxiety and panic attacks, poor motivation, hypervigilance and poor sleep with nightmares. Contrasting VA treatment from June 2017 showed that the Veteran had no anxiety, depression, nervousness, suicidal or homicidal ideation. Later in the month, she did report depression and anxiety after changing medications. She also noted an additional stressor of trouble with her husband. She added that she was also feeling stressed and paranoid with nightmares and depression. Once again, she had good grooming and hygiene, regular speech, rational thought process, and denied hallucinations and suicidal or homicidal ideations. Treatment notes from December 2018 continued to show complaints of anxiety and occasional panic attacks. There were fluctuations in her ability to continue on medication due to other illnesses. There was a report of panic, anxiety and depressive symptoms. While her mood and motivation continued to be poor, there was no evidence of homicidal or suicidal ideations, or hallucinations. While she did experience trouble in her marriage, she continued to live with her husband son and seemingly maintain relationships with both. On a November 2019 brief to the Board, the Veteran referenced many of the above-mentioned symptomatology as a reason for an increased rating. Specifically, she referenced her increased symptoms of anxiety, depression, poor mood and motivation, and the changes and discontinuation of some medication. However, she did not indicate that her symptoms had worsened since her prior VA examination, nor did she report any additional symptoms such as hallucinations, suicidal or homicidal ideations, conflict with her family or friends, disturbances at work. In fact, she had been employed for a significant stretch of time. Available VA and private treatment records were also reviewed. While the record does show an increase in psychiatric visits, the totality of the circumstances does not show worsening symptomatology. After considering the totality of the record, the medical evidence does not support a finding that the Veteran experiences occupational and social impairment in most areas and the criteria like or similar to a 70 percent rating were not met at any time during the relevant appeal period. The evidence does not demonstrate that she has experienced frequent suicidal or homicidal ideation, illogical speech, or neglect of personal hygiene. Instead, she was consistently noted to be well-groomed, fully oriented, and without frequent suicidal or homicidal thoughts or plans. The evidence does not include any suggestion of impaired impulse control, deteriorating personal or occupational relationships, or near-continuous panic or depression affecting the ability to function independently. She continued to be without legal difficulties related to her PTSD and bulimia and remained able to perform all activities of daily living. Similarly, the Veteran was found competent by all examiners to manage her financial benefits. Thus, she did not have a complete inability to establish or maintain social and work relationships. Also, the examiners found her to be without evidence of delusions, hallucinations, or other impairment in reality testing. She was able to cooperatively participate in VA examinations, indicating the ability to communicate in a normal, lucid manner. Her reasoning, insight, and judgment were rated by the examiners as within normal limits. For these reasons, and in light of the remainder of the record, the medical weighs against a higher rating for the relevant time period. The Board has also considered the Veteran’s lay statements that her disability is worse. While she is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s PTSD with bulimia has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Earlier Effective Date Claims Generally, the effective date of such an award “shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). Date of receipt means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). The assignment of effective dates is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. If a claim is received within one year of separation from service, the effective date will be the date of separation from active duty or the date that entitlement arose. Otherwise, the effective date for compensation based on an original claim, or a claim for increase, will be the date of receipt of the claim or the date that entitlement arose, whichever is later. Grant of Service Connection of Migraine Headaches The Veteran is seeking an effective date prior to December 15, 2015, for the grant of service connection for migraines. She has not stated what effective date she believes to be appropriate for the grant of service connection. Procedurally, she applied for service connection for a migraine disability, among other disorders, on a document signed and dated as December 15, 2015. Service connection was subsequently granted by a March 2016 rating decision. A 50 percent rating was awarded, effective December 15, 2015, the date that the claim was received by VA. Here, the assigned effective date of December 15, 2015, corresponds to the date of receipt of the initial claim for service connection, received via VA Form 21-4138. These claims were received more than one year following the Veteran’s discharge from service. She has not outlined a date which she believes would be appropriate for the grant of service connection for any disorder, and a review of the record reveals no indications of a claim prior to this date. In light of the above, an effective date prior to December 15, 2015, is not warranted for this disorder. This is the date that corresponds to the time in which the claim was received by VA and is the earliest possible assignable effective date for these awards. As such, the appeal is denied. Grant of a 50 Percent Rating for PTSD The effective date of an award based on a claim for increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application.” 38 U.S.C. § 5110 (a). The effective date for increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date for the increase is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). VA regulations provide that the effective date for increased ratings shall be the “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(o)(1). An effective date for an increased rating may be assigned later than the date of receipt of the claim, if the evidence shows that the increase in disability actually occurred after the claim was filed, but never earlier than the date of receipt of the claim for increase. In general, “date of receipt” means the date on which a claim, information or evidence was received in VA. 38 C.F.R. § 3.1(r). A claim is “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.” 38 C.F.R. § 3.1(p). The Veteran seeks an effective date prior to December 15, 2015, for the grant of a 50 percent rating for PTSD. Historically, she applied for benefits, to include service connection for PTSD, in April 2014. Service connection was granted in a January 2015 rating decision and a 30 percent rating was assigned from March 4, 2014, the day after her release from active service. She did not submit a notice of disagreement for that rating. Instead, on December 15, 2015, she submitted a claim for increase. This was later granted by an April 2016 rating decision, effective December 15, 2015, the date that the claim was received by VA. This is the date of the claim. It is not factually ascertainable that an increase in disability had occurred prior to the December 15, 2015, effective date. Specifically, the Veteran was afforded a VA examination in December 2014, wherein she complained of depression and anxiety. The examiner opined that PTSD with bulimia resulted in occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. Importantly, the examiner found she generally functioned satisfactorily with normal routine behavior, self-care and conversation. At that time, she was living with her husband and son and reported a good relationship with both. She was a full-time student and earning straight A’s. While she was anxious, she was also cooperative, fully oriented, and had normal speech. As such, there is no evidence of record which tends to suggest that PTSD more closely approximated a 50 percent rating prior to December 15, 2015. As the Veteran filed a claim for an increased rating on December 15, 2015, and it was not factually ascertainable that a higher rating was warranted prior to that time, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.